Master Subscription Agreement

SECTION 1. DEFINITIONS

• "Agreement" and "This Agreement" means this Master Subscription Agreement, the Work Orders issued hereunder, all Attachments and Exhibits attached hereto, or any Amendments made in mutually executed hereto.
• "Business Day" means a single 8 hour period occurring on a Monday, Tuesday, Wednesday, Thursday or Friday, 9:00am PST to 5:00pm PST, excluding holidays per Section 15 (C) below. Unless specified in a Service Order, Digital EMS Solutions, Inc. personnel will only perform services during Business Days.
• "Business Week" means a 5 day period, beginning Monday at 9:00am PST and ending Friday at 5:00pm PST, excluding holidays per below.
• "Confidential Information" means the proprietary products and trade secrets, including, but not limited to, computer software, code, technical parameters, price lists, methods of pricing, customer lists, designs, software documentations, manuals, models and account tables, and any and all information maintained or developed. Information shall be considered Confidential Information if it is identified in writing as confidential or proprietary, or if disclosed verbally or visually in discussion, upon written notice specifying and describing the nature of the orally disclosed Confidential Information at that time, or within fifteen (15) days of such disclosure.
• "Commercial Off The Shelf" or "COTS" means pre-designed software products which are made available for sale by Digital EMS Solutions, Inc. to many customers. COTS is mutually exclusive to Custom Software or Custom IP.
• "MOTS" means Modified Off The Shelf, and is a derivative work of Digital EMS Solutions, Inc. COTS Software.
• "Custom IP" or "Custom Software" means software products, or other Intellectual Property, which is designed for a specific purpose, for a specific customer or CLIENT.
• "Deliverable" means an intangible or tangible product, material, or service produced as a result of a Work Order, and each Deliverable is specified in the corresponding Work Order from which it is produced.
• "Disclosing Party" means the party disclosing Confidential Information to the other party, see also Receiving Party.
• "Effective Date" means the date upon which the last party has signed and executed this Agreement.
• "Fixed Fee" means a fixed amount of compensation due in return for a fixed Deliverable.
• "Governmental Entity" shall have the same meaning as "State and local government entities" as defined in the General Services Administration Acquisition Manual (GSAM) at 538.7001, as updated.
• "Intellectual Property" means any intellectual property or proprietary rights in any jurisdiction, whether owned or held for use under license, whether registered or unregistered, including such rights in and to: (i) trademarks, trade dress, service marks, certification marks, logos, trade names, brand names, corporate names, assumed names and business names; (ii) patents and any and all divisions, continuations, continuations-in- part, reissues, continuing patent applications, reexaminations or extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like statutory rights; inventions, invention disclosures, discoveries and improvements, whether patentable or not; (iii) copyrights and works of authorship; (iv) trade secrets (including those trade secrets defined in the Uniform Trade Secrets Act and under corresponding federal, state or foreign statutory or common law), business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person; (v) mask works; (vi) moral rights, author's rights or rights of publicity; (vii) claims, causes of action and defenses relating to the enforcement of any of the foregoing; (viii) any applications for registration of any of the foregoing, and all renewals or extensions of any of the foregoing, whether now existing or hereafter arising; and (ix) the goodwill associated with each of the foregoing. For the avoidance of doubt, "Intellectual Property Rights" includes any and all of the foregoing related to computer software, data files, Source Code, Object Code, APIs, manuals, documentation, specifications, databases or other materials or information.
• "Licensed Information" means any information pertaining to the Software which is owned by Digital EMS Solutions, Inc. and is licensed to CLIENT. Licensed Information includes such information as input form, user manuals and user documentation, interface format and input/output format, and any other materials pertaining to the Software.
• "Local Travel" means travel to a destination within 30 miles of [Company's Primary Office Location].
• "Materials" and "Expenses" means but is not limited to third party software licenses, physical hardware, test devices, or other items, reasonable travel expenses (including but not limited to food, lodging, and transportation), printing, delivery of materials, or any other cost reasonably incurred arising out of this Agreement.
• "Master Subscription Agreement" means this document excluding Work Orders issued from this document.
• "Pre-Existing Materials" means code, documentation, frameworks, development accelerators, tool sets or any other materials owned by Digital EMS Solutions, Inc. and not developed as part of the services performed for Client. It may include, without limitation, Security Framework, Dashboard, Frameworks, Report Writer and any other tools or Intellectual Property made or used by Digital EMS Solutions, Inc. unrelated to this Agreement.
• "On-Site Hour" means time an hour worked by Digital EMS Solutions, Inc. personnel on Client premises, or other premises of Client's choosing that are not Digital EMS Solutions, Inc.'s corporate offices.
• "Statement of Work" means the technical document which outlines a mutually agreed upon specification for particular Custom Development projects and associated costs, payment terms and acceptance procedures. This document requires client acceptance and signature prior to beginning work.
• "Support" means technical support for the configuration and functioning of the products, including taking and monitoring defect reports, as defined further below in the Service Level Agreement between Digital EMS Solutions, Inc. and Client.
• "Software" means Digital EMS Solutions, Inc. software provided to Client by Digital EMS Solutions, Inc., specifically software developed and/or written by Digital EMS Solutions, Inc.. Software developed by a third-party which is purchased on behalf of Client is considered Third Party Material.
• "Receiving Party" means the party receiving Confidential Information from the Disclosing Party.
• "The Agreement" means collectively this Master Subscription Agreement, its Exhibits, all Work Orders issued from this Master Subscription Agreement, and all Exhibits to Work Orders.
• "Third Party Material(s)" means software or other materials owned by a party other than Client or Digital EMS Solutions, Inc.
• "Time and Materials Basis" means charges billable to the Client based upon each hour worked, multiplied by the hourly rate for the work, plus the cost of any Materials necessary (including but not limited to, the cost of third party software licenses, travel and accommodation expenses, or otherwise), or Materials beneficial (conditioned upon mutual assent of the parties), billed on a monthly basis in arrears.
• "Work Order" means the document which outlines a mutually agreed upon set of services, products, or Deliverables and associated costs, payment terms, and acceptance procedures.

SECTION 2. TERM OF AGREEMENT

The Term of this Agreement shall be 12 months from the Effective Date of this Agreement ("Initial Term"). Upon expiration of a Term, the Term shall automatically renew under the same terms and conditions for additional subsequent 12 month term ("Renewal Term"), unless terminated under the terms of this Agreement or by otherwise giving the other party no less than 30 days of written notice prior to the last day of the then-current Term.

SECTION 3. WORK ORDERS

• CREATION OF WORK ORDERS. The parties may, from time to time, work together to detail the specific engagement scope, pricing, acceptance criteria, and terms of services to be performed and Deliverables to be delivered by Digital EMS Solutions, Inc.. Digital EMS Solutions, Inc. will set forth these details as a Work Order. If the Work Order is for the purchase of COTS Software, the Work Order shall also outline the quantity and SKU of each product or service as applicable. Should a Work Order contain no term regarding a topic, the terms of this Master Subscription Agreement shall hold instead.
• MODIFICATION OF WORK ORDERS. Any modification to the scope or tasks identified within the Work Order that change the work budget by an estimated 10 hours of work or more shall require a new modified written Work Order or written Change Order. Digital EMS Solutions, Inc. shall not work on the new tasks in the modified Work Order until the Client has provided signed written acceptance of the new Work Order. The parties may waive this requirement on a case-by-case basis in writing. Modifications requiring less than an estimated 10 hours of work may be proposed and accepted verbally, with such modifications requiring less than 10 hours of work billed on a Time and Materials basis.
• FEE MODEL. The Work Order will contain fee and payment terms. The following fee models are contemplated:
  • Fixed Fee: Digital EMS Solutions, Inc. shall perform the work outlined in the Work Order for a fixed flat fee, plus Expenses. The Fixed Fee is exclusive of Expenses unless the Work Order outlines the Expenses. The Fixed Fee model may include milestone payments, with such milestone payments outlined in the Work Order.
  • Time and Materials: Digital EMS Solutions, Inc. shall perform the work outlined in the Work Order on a Time and Materials basis, at the rate(s) specified in the Work Order.
• LEGAL EFFECT. Work Orders issued under this Master Subscription Agreement are incorporated by reference into this Master Subscription Agreement which collectively is called "the Agreement." Work Orders do not override the terms of this Master Subscription Agreement unless specifically stated that they do so. Work Orders may contain their own Fee/Payment Schedules and Payment Terms; those terms are binding insofar as they concern the services or Deliverables contemplated by the Work Order. For Work Orders without their own fee and payment terms, the payment terms in the Price Sheet and Work Order Attachment below control.
• CUSTOMIZED SOFTWARE DEVELOPMENT. The parties may mutually agree to a Work Order also known as a Statement of Work for the development of new or custom software, also known as "Modified Off The Shelf" or MOTS. All normal requirements of the Work Order shall apply, but additionally the parties must work together to mutually define a Statement of Work which outlines the tasks, and their timelines, to be undertaken as part of the project. Any Customized Software or MOTS Software developed under this Agreement will be Intellectual Property owned by Digital EMS Solutions, Inc.. Should Client desire ownership of any Intellectual Property developed by Digital EMS Solutions, Inc., this must be embodied by a separate, mutually executed contract. For clarity, Client shall not and will not own any Digital EMS Solutions, Inc. Intellectual Property under any circumstance under this Agreement. Client may only receive a license thereto as outlined in each Work Order.

SECTION 4. PERFORMANCE OF SERVICES

• COMMENCEMENT. Digital EMS Solutions, Inc. shall begin services described in the Work Order subsequent mutual signed execution the Work Order. No services shall begin before mutual signed and written final acceptance of each Work Order.
• USE OF KNOW HOW. Digital EMS Solutions, Inc. shall use its know-how, Intellectual Property, talent, skills, and employees to perform the services. Client shall conditionally receive a license to any and all pre-existing Digital EMS Solutions, Inc. Intellectual Property and Know-How used in the creation of Deliverables and delivery of services as outlined below in §6 "Licensing and Intellectual Property" and Exhibit A - Software Licensing Agreement.
• MATERIALS. Materials (including, but not limited to, third party software licenses, physical hardware, test devices, or other items and any other Material) that will be used in the development of the Software will be identified by Digital EMS Solutions, Inc. to Client. Digital EMS Solutions, Inc. shall acquire such Materials as the parties mutually agree should be acquired, and it shall be the Client's responsibility to pay for those materials.
• ACCEPTANCE OF SERVICES AND DELIVERABLES. Digital EMS Solutions, Inc. shall deliver completed Deliverables and services to Client for acceptance. Each Work Order must detail the acceptance criteria for each Deliverable or service contained within that Work Order. If a Deliverable or services acceptance criteria is measurable objectively, it shall be complete upon satisfaction of that objective measurement without regard to either party's satisfaction with the Deliverable. If 1) a Deliverable's acceptance criteria is based on Client's satisfaction with the Deliverable, or 2) no acceptance criteria is detailed, then the following default clause shall apply: After delivery of the Deliverable or performance of the service, Client shall have no more than 15 days to: 1) accept the deliverable or service, or 2) reject the deliverable or service by providing a written rejection that reasonably sets forth the reason for the rejection and the changes required to gain Client's acceptance, or 3) provide a written request for a 15 additional day extension to review the Deliverable or service; Digital EMS Solutions, Inc. shall not unreasonably withhold approval of such 15 day extension. If Client does not provide an acceptance within the above time frame inclusive of extensions, the Deliverable or service will be deemed accepted. After delivery of the fourth revision of the service or Deliverable, the service or Deliverable shall be deemed accepted by Client.

SECTION 5. FEES, INVOICING, AND PAYMENT TERMS

• PROMPT PAYMENT ACTS. IF CLIENT IS A GOVERNMENTAL ENTITY, THE FOLLOWING PARAGRAPH APPLIES: To the degree any term in this Section 5, or any payment related term in any Work Order, conflicts with the governing prompt payment act or similar procurement act which unambiguously limits client's ability to agree or comply with any term in this section 5 or in any payment related term in any work order ("The PPA"), the term in the PPA will instead control. For clarity, unless there is an unambiguous conflict between the terms of this Section 5 or in any Work Order, the PPA shall not control and this Agreement shall still control.
• FEES. Client shall owe to Digital EMS Solutions, Inc. such fees as set forth in each mutually executed Work Order.
• SCHEDULING NON-LOCAL TRAVEL. For any on-site service requested by Client that requires a Digital EMS Solutions, Inc. employee to travel by air, Client shall request such service no less than 3 weeks in advance from the desired on-site date. Requests for such on-site service will be made by written request. Digital EMS Solutions, Inc. reserves the right to approve or deny travel requests on a per-request basis. Digital EMS Solutions, Inc. reserves the right to invoice costs to Client due to scheduling changes requested by the Client when requests are made within 3 weeks of the scheduled on-site date. Requests for on-site service that requires air travel made in writing within 3 weeks of the requested on- site date may be approved by Digital EMS Solutions, Inc.. Digital EMS Solutions, Inc. reserves the right to invoice costs to Client due to scheduling air travel when requests are made within 3 weeks of the requested on-site date.
• CANCELLATION, RESCHEDULE, OR DELAY. Client will provide to Digital EMS Solutions, Inc. (10) ten business days prior written notice of Client's intent to delay, reschedule, or cancel ("Staffing Change") any service in a Work Order which requires a Digital EMS Solutions, Inc. employee to perform work at a specific location or at a specific time (e.g. face-to-face meetings, on-site visits, after hours on-call status). If Client fails to provide such notice, Client shall reimburse Digital EMS Solutions, Inc. for loss caused by the Staffing Change. Digital EMS Solutions, Inc. shall use commercially reasonable efforts to mitigate any losses that would be incurred by a Staffing Change and due to Digital EMS Solutions, Inc. by Client.
• INVOICING. Unless otherwise specified in a Work Order, invoices must be paid on Net 30 terms. Any objection to an invoice must be made in writing. Client may request up to an additional 15 days to review Deliverables associated with an invoice, approval to which Digital EMS Solutions, Inc. shall not unreasonably withhold. If Client does not object to an invoice, or request an extension to review Deliverables, within 15 days after receipt of the invoice then the invoice is deemed accepted and any right to object to the invoice is waived. Payment shall be made by check or by ACH transfer to Digital EMS Solutions, Inc..
• REMEDIES FOR NON-PAYMENT. Should Client fail to pay per the terms of this Agreement and this Section 5, Digital EMS Solutions, Inc. may 1) suspend services under all Work Orders until such payment is made in full, and/or 2) charge a late fee at the lesser of 1.5% or the maximum allowed by law, and/or 3) invoice Client for the costs of collection including reasonable attorney's fees.
• TRAVEL COSTS. Should Client desire Digital EMS Solutions, Inc. to send personnel to a location of Client's choosing in the continental United States, Client may pay $1,000 per Digital EMS Solutions, Inc. trainer per trip and a further $1,000 per trainer per day spent at Client's chosen location. Travel outside of the continental US will be quoted by Digital EMS Solutions, Inc. upon request. Travel may only be scheduled for a maximum of one business week of Monday through Friday per trip; however Client may book consecutive trips. Non- local travel scheduling which runs from one business week into a subsequent business week(s) (e.g. start date on Friday at 8:00am, end date Wednesday at 5:00pm, "Overlapped Weekend") will result in Digital EMS Solutions, Inc. invoicing Client an additional trip for each Overlapped Weekend. Digital EMS Solutions, Inc. staff will work 8 hours each day, except on the first and last day of each trip Digital EMS Solutions, Inc. may reserve up to 2 hours of the Business Day for travel time.
• TIME AND MATERIALS RATE. Unless otherwise specified in a Work Order, Digital EMS Solutions, Inc.'s Time and Materials rate is $175.00 per hour.
• PRICE ESCALATION. Digital EMS Solutions, Inc. reserves the right to escalate the prices contained herein, and any recurring fee, by no more than 3% of the then current price for each anniversary of the Effective Date. Digital EMS Solutions, Inc. further reserves the right to escalate travel prices once per year upon written notice to Client. Such travel price increases will only affect future travel prices and will not change the price or amount due to Digital EMS Solutions, Inc. for previously rendered travel.

SECTION 6. DATA AND INTELLECTUAL PROPERTY

• DE-IDENTIFICATION. Digital EMS Solutions, Inc. may create a de-identified data set of Client's data ("the De-identified Data Set") and Digital EMS Solutions, Inc. may, in Digital EMS Solutions, Inc.'s discretion, transform, analyze, distribute and redistribute, create derivative works of, license, make available to 3rd party researchers, or otherwise use the De-identified Data Set except as limited by: 1) this Agreement, 2) applicable law and regulation, e.g. State and Local data privacy law and HIPAA/HITECH, 3) notwithstanding any of the prior, Digital EMS Solutions, Inc. shall create the De-identified Data Set in accordance with the then current HIPAA Safe Harbor Rule at 45 CFR § 164.514(2)(i) by removing the 18 listed data elements, and any additional data element designated as 'Personal Information' by State and Local data breach law (or equivalent laws). The § 164.514(2)(i) data elements are reproduced below at Attachment A. Digital EMS Solutions, Inc. shall ensure its methods for creating the De-identified Data Set comport with industry best practices and guidance such as NISTIR 8053 'De-Identification of Personal Information' (available at http://dx.doi.org/10.6028/NIST.IR.8053). Digital EMS Solutions, Inc. shall use reasonable administrative, technical, and physical safeguards to protect and prevent unauthorized disclosure of the De-identified Data Set. Digital EMS Solutions, Inc. shall not attempt to re-identify any de-identified records.
• GRANT OF LICENSE TO DIGITAL EMS SOLUTIONS, INC.'S PRE-EXISTING IP AND OWNERSHIP OF NEW IP. All Intellectual Property Rights connected to the Digital EMS Solutions, Inc. pre-existing materials such as architectural structure, modules, processes, and Know-How that may be used in Deliverables ("Pre-existing IP"), shall remain owned by Digital EMS Solutions, Inc.. Digital EMS Solutions, Inc. agrees to grant to Client a royalty- free, worldwide, transferable, non-exclusive, use license for these architectural structures, modules, and processes that may be used solely in conjunction with the Deliverables and services performed under Work Orders and in accordance with the license selected below, conditioned upon full payment of the Work Order from which the Deliverable containing Pre-Existing IP originates. This license may not be transferred, and Client may not sublicense, use, reproduce, distribute or prepare derivative works of Digital EMS Solutions, Inc.'s Pre-Existing IP except to the extent strictly necessary to fulfill the purpose of a Work Order. New Deliverables utilizing the same Pre-Existing IP may require another license for that new Deliverable, in Digital EMS Solutions, Inc.'s discretion. New Custom Intellectual Property authored by the parties in the course of performing a Work Order shall be owned by the party that authored the Intellectual Property and in the case of derivative works, it shall be owned by the party who owns the work from which the derivative is made, or as otherwise set forth in the Work Order. In the case of Digital EMS Solutions, Inc. Software products licensed per Software Licensing Terms Attachment below, or "Modified Off The Shelf Software" as defined above, Digital EMS Solutions, Inc. shall own all Intellectual Property related to or arising out of any Work Order. A Work Order may specify who owns the intellectual property embodied in a Deliverable; however, absent such terms in the Work Order, the terms of this Agreement shall control. Any right not hereby granted is reserved.

SECTION 7. CONFIDENTIALITY

• CONFIDENTIALITY ACKNOWLEDGEMENT. Each party hereby acknowledges and agrees that the other Party's Data, potential clients or customers, client or customer lists, business plans, pricing structures, software and database designs, and any other information a Party has marked as Confidential, constitute Confidential Information. Each party agrees to treat (and take precautions to ensure that its authorized personnel treat) Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below. Orally transmitted information shall not be Confidential Information unless specified as such in a writing transmitted from the Disclosing party to the Receiving party within 15 days of the oral transmission, with such writing providing a reasonable description and scope of the Confidential Information transmitted. This section does not apply to the disclosure of any documents that are required to be disclosed pursuant to applicable state or federal law or court order.
• CONFIDENTIALITY OBLIGATIONS. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that the provisions of this §7 shall not apply to information which: (i) is in the public domain; (ii) has been acquired by a Party by means other than the disclosure of the information by the Disclosing Party; (iii) is duly obtained by a Party directly or indirectly from a third party who has independently developed the information and is entitled to disclose the information to the Party, and such disclosure does not directly or indirectly violate the confidentiality obligation of such third party; or (iv) becomes known publicly, without fault on the part of a Party, subsequent to the receipt of the information by Party.
• SURVIVAL. This §7 shall survive the termination of this Agreement or of any license granted under this Agreement.

SECTION 8. WARRANTIES

• NO CONFLICTS OF INTEREST. Digital EMS Solutions, Inc. does not have any express or implied obligation to a third party which in any way conflicts with any of Digital EMS Solutions, Inc.'s obligations under this Agreement.
• SERVICES. All services and will be provided in a professional and workmanlike manner in accordance with applicable industry standards and will comply with all applicable laws. All Deliverables will substantially conform to the agreed-upon specifications set forth in the applicable Work Order or as otherwise set forth in this Agreement. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT ABOVE, THE SERVICES DIGITAL EMS SOLUTIONS, INC. PROVIDES TO CLIENT ARE PROVIDED WITHOUT ADDITIONAL WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS, OR STATEMENTS MADE PRIOR TO THIS AGREEMENT. DIGITAL EMS SOLUTIONS, INC. HEREBY EXPRESSLY DISCLAIM, AND CLIENT HEREBY WAIVES, ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE CLIENT'S SOLE AND EXCLUSIVE REMEDIES.

SECTION 9. LIMITATION OF LIABILITY

EACH PARTY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THAT PARTY IS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURING. EACH PARTY'S CUMULATIVE LIABILITY ARISING OUT OF OR IN ANY MANNER RELATED TO THIS SHALL BE LIMITED TO THE AMOUNT OF CLIENT'S INSURANCE COVERAGE REQUIREMENTS UNDER THIS AGREEMENT.

SECTION 10. DISPUTE RESOLUTION

• DUTY TO NEGOTIATE IN GOOD FAITH PRIOR TO FORMAL DISPUTES. IF CLIENT IS A GOVERNMENTAL ENTITY, THE FOLLOWING 2 PARAGRAPHS APPLY: The parties shall attempt in good faith to resolve any dispute arising out of or relating to this agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each party's position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place, or by teleconference. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non- discoverable as a result of its use in the negotiation.
• ARBITRATION. If Client is NOT a Governmental Entity the following paragraph applies: Any dispute between Digital EMS Solutions, Inc. and Client under this Agreement shall be resolved by arbitration by an arbitrator selected under the rules of the American Arbitration Association in the State of the defending party and the arbitration shall be conducted in that same location under the rules of said Association. If an arbitrator cannot be agreed upon by the parties, Digital EMS Solutions, Inc. and Client shall each choose an arbitrator, and those two chosen arbitrators shall choose a third arbitrator, that third arbitrator shall preside over any dispute. Digital EMS Solutions, Inc. and Client shall each be entitled to present evidence and argument to the arbitrator. The arbitrator shall have the right only to interpret and apply the provisions of this Agreement and may not change any of its provisions. The arbitrator shall permit reasonable pre-hearing discovery of facts, to the extent necessary to establish a claim or a defense to a claim, subject to supervision by the arbitrator. The arbitrator shall endeavor to keep costs as low as possible while still allowing for the just and fair disposition of the dispute. The determination of the arbitrator shall be conclusive, final and binding upon the parties and judgment upon the same may be entered in any court having jurisdiction thereof. The arbitrator shall give written notice to the parties stating his determination, and shall furnish to each party a signed copy of such determination. Digital EMS Solutions, Inc. and Client shall equally share the cost of the arbitrator(s) fees. The arbitrator may award reasonable costs and expenses, including reasonable attorney fees, to the prevailing party.

SECTION 11. NON-EXCLUSIVITY

This Agreement does not establish any exclusivity of service, contract, customer relationship, or otherwise between the parties.

SECTION 12. AMENDMENTS

This Agreement may only be modified by a mutually executed writing including but not limited to Work Orders, signed by a person having authority to sign.

SECTION 13. TERMINATION

Either Party may terminate this Agreement upon giving the other Party thirty days (30) days' prior written notice to the other Party in addition to any other remedy or right contained in this Agreement. This right of termination is additive to other rights of termination identified above in this Agreement and does not preclude the exercise of those other rights.

SECTION 14. INDEMNIFICATION

• DIGITAL EMS SOLUTIONS, INC. INDEMNITY. Digital EMS Solutions, Inc. shall defend and indemnify Client from and against third party claims, actions, suits, demands, damages, obligations, losses, settlements, judgments, costs, and expenses ("Claims"), which arise out of any negligent act or omission, or willful misconduct of Digital EMS Solutions, Inc. or patent infringement claims as well as third party intellectual property infringement claims. Client shall promptly notify Digital EMS Solutions, Inc. for any actual or prospective Claim for which indemnification is sought. In the event that any third-party Claim is made and Client invokes this clause, Digital EMS Solutions, Inc. shall have the right and option to undertake and control such defense of such action with counsel of Digital EMS Solutions, Inc.'s choice with control to settle any such Claim. Digital EMS Solutions, Inc. shall have no obligation to defend or indemnify Client from Claims arising out of Client's negligent or intentional wrongful acts or omissions. Because Digital EMS Solutions, Inc. must provide its own insurers with notice of a claim within 60 days of actual knowledge of a Claim, Client accordingly must provide Digital EMS Solutions, Inc. written notice no more than 60 days after Client has actual knowledge of a Claim else Digital EMS Solutions, Inc. shall have no obligation to indemnify Client.
• CLIENT INDEMNITY. IF CLIENT IS A GOVERNMENTAL ENTITY THE FOLLOWING PARAGRAPH DOES NOT APPLY. Client shall defend and indemnify Digital EMS Solutions, Inc. from and against third party claims, actions, suits, demands, damages, obligations, losses, settlements, judgments, costs, and expenses ("Claims"), which arise out of any negligent act or omission, or willful misconduct of Client. Digital EMS Solutions, Inc. shall promptly notify Client for any actual or prospective Claim for which indemnification is sought. In the event that any third-party Claim is made and Client invokes this clause, Client shall have the right and option to undertake and control such defense of such action with counsel of Client's choice with control to settle any such Claim. Client shall have no obligation to defend or indemnify Digital EMS Solutions, Inc. from Claims arising out of Client's negligent or intentional wrongful acts or omissions. Digital EMS Solutions, Inc. accordingly must provide Client written notice no more than 60 days after Digital EMS Solutions, Inc. has actual knowledge of a Claim else Client shall have no obligation to indemnify Client.