Terms of service

This SERVICE AGREEMENT (the “Agreement”) constitutes a contract between you, hereinafter referred to as the “Subscriber”, and Optivon, Inc., hereinafter referred to as “Optivon”. Subscriber represents it is legally competent to enter into this Agreement. By means of activating/using Optivon services you accept the terms and conditions of this Agreement. Optivon and Subscriber hereby agree to the following:

Definitions:

a. “Account Information” shall mean information supplied by the Subscriber in the Subscription Application, including, but not limited to, telephone numbers, names, hours, or other items.

b. “Affiliate” shall mean an entity that now or in the future, directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement.

c. “Completion Notice” shall mean a written notice from Optivon that the Service ordered has been installed by Optivon pursuant to the Subscription Application, and has been tested and is functioning properly.

d. “Subscriber Premises” shall mean the location or locations occupied by Subscriber to which Service is delivered.

e. “Excused Outage” shall mean any outage, unavailability, delay or other degradation of Service related to, associated with or caused by scheduled maintenance (as described in Section 13 hereof), actions or inactions of Subscriber or its end users, Subscriber provided power or equipment or an event beyond the control of Optivon as defined in Section 18.

f. “Off-Net” shall mean Service that originates from or terminates to any location that is not on the Optivon network.

g. “On-Net” shall mean Service that originates from and terminates to a location that is on the Optivon network.

h. “Service” shall mean any Optivon service described in a Service Schedule and identified on a particular line item of a Subscription Application.

i. “Service Commencement Date” shall mean the first to occur of (i) the date set forth in any Completion Notice, unless Subscriber notifies Optivon that the Service is not functioning properly (or, if two or more Services are designated as “bundled” or as having a “sibling relationship” in any Subscriber Order, the date set forth in the Completion Notice for all such Services); and (ii) the date Subscriber begins using the Service.

j. “Service Levels” shall mean the specific remedies Optivon provides regarding installation and performance of Service as set forth in the Service Level Agreement as is more particularly described in the Service Level Agreement found at http://www.optivon.com/about/SLA.cfm.

k. “Service Schedule” shall mean a schedule included in the Service Offerings section of the web page at http://www.optivon.com/offerings/services.cfm, or a schedule signed between the parties from time to time and expressly incorporated into this Agreement, setting forth terms and conditions specific to a particular Service.

l. “Service Term” shall mean the duration of time (measured starting on the Service Commencement Date) for which Service is ordered, as specified in the Subscription Application. The Service Term shall continue on a month-to-month basis after expiration of the stated Service Term, until terminated by either party upon thirty (30) days’ written notice to the other.

m. “Subscriber Acceptance” shall mean the acceptance by the Subscriber that the products and services were delivered as specified in the Subscription Application and that Subscriber accepts the terms and conditions of this Agreement and of the Subscription Application. Activating or using Optivon services constitutes acceptance of the terms and conditions of this Agreement.

n. “Subscription Application” shall mean a request for Service submitted by Subscriber in the form designated by Optivon which was produced in accordance with information and instructions provided by the Subscriber by telephone, fax or electronic communication, as each such service is more particularly described in the current service description found at www.optivon.com (the “Service”)

Services: Upon Acceptance of this Agreement Optivon will grant Subscriber a personal, non-exclusive, non-transferable, revocable license to use the particular service(s) for which Subscriber elects to contract with Optivon as indicated in the Subscription Application. Optivon may rely on the Account Information to be utilized in conjunction with the Service. Subscriber represents that the Account Information will be accurate and complete and agrees that it is under a continuing obligation to maintain such accuracy and completeness. Subscriber agrees that if it provides information, including Account Information that is in any respect inaccurate, incomplete, false or misleading Optivon may, in its sole discretion, suspend or terminate Subscriber’s Account. Subscriber may not distribute, copy, reproduce, translate, modify, adapt, reverse engineer, de-compile or disassemble any aspect of the Service or its associated software. Optivon may modify or discontinue the Service during the term hereof without liability to Subscriber. Subscriber is responsible for creating back-up copies of its information stored on the Service.

Account Activation:

a. Subscriber’s Account will be activated on the Service Commencement Date. Optivon may withhold the account activation subject to verification of Subscriber’s Account Information and credit review. Subscriber will be provided with a local or toll free access number (“Access Number”) and a personal identification number (“PIN”) that may be used to access the Service.

b. Subscriber understands and agrees that it is not the owner of any telephone number assigned to it by Optivon, and that the messaging services provided by Optivon are not subject to Federal Communications Commission’s local number portability rules. Ownership of any such phone number is vested solely in Optivon (who will assign or re-assign such numbers to Subscriber for the use of Subscriber during the term of this Agreement). Subscriber understands and agrees that (a) Optivon may from time to time need to change the number assigned to you (due to an area code split or for any other reason outside of Optivon’s control) and (b) following the termination of Subscriber’s Account for any reason you will no longer have access to such number. In either case, such phone number may be re-assigned immediately to another customer. SUBSCRIBER AGREES THAT OPTIVON WILL NOT BE LIABLE FOR DAMAGES (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT AND HEREBY WAIVES ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACT, TORT OR OTHER GROUNDS, EVEN IF OPTIVON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

c. Optivon shall comply with the general rules of the telecommunications industry with respect to toll-free number portability, including but not limited to (i) the Federal Communications Commission’s (“FCC”) toll-free number portability policies and rules, and (ii) the Industry Guidelines for Toll-Free Number Administration sponsored by ATIS, as either of the foregoing may be amended from time to time. Optivon shall also comply with all applicable rules and guidelines concerning Local Number Portability (“LNP”). In the event that Subscriber should elect to obtain services from a different service provider for any reason, whether during or following termination of this Agreement, within commercially reasonable time of Subscriber’s request, Optivon shall take all necessary actions, consistent with the terms of the relevant tariffs with respect to local number porting, as well as rules, regulations, and availability of the porting service, as may be required to allow such porting to another service provider. Subscriber shall be current in all non-disputed outstanding balances owed to Optivon at the time of any porting request for services rendered.

Credit Approval and Deposits. Subscriber will provide Optivon with credit information as requested, and delivery of Service is subject to credit approval. Optivon may require Subscriber to make a deposit or deliver another form of security as a condition to (a) Optivon’s acceptance of any Subscriber Order and/or (b) Optivon’s continuation of any Service in the event that (i) Subscriber fails to make payment to Optivon of any undisputed amount when due, or (ii) Subscriber has a material, negative change in financial condition (as determined by Optivon in its reasonable discretion). Any deposit will be limited to two (2) month’s estimated charges for Service and will be due upon Optivon’s written request. Any deposit will be held by Optivon as security for payment of Optivon’s charges. When Service to Subscriber is terminated, the amount of the deposit will be credited to Subscriber’s account and any remaining credit balance will be refunded. Any deposit paid by Subscriber pursuant to this Section 4 will be held by Optivon in accordance with the applicable law governing such deposit.

Term: This Agreement shall become effective on the Effective Date and shall continue for a period of twelve (12) months thereafter, unless the term established in the customer service order is for a longer period or earlier terminated as provided herein. At the end of the initial term, the Agreement shall automatically renew on a month-to-month basis until terminated by either party upon thirty (30) days’ prior written notice to the other party. Except as otherwise set forth herein, Subscriber shall pay all charges for the Services through the end of the Service Term. To the extent that the Service Term for any Service extends beyond the term of this Agreement, then this Agreement shall remain in full force and effect for such Service until the expiration or termination of such Service Term. Optivon or the Subscriber may cancel this Agreement at any time upon thirty (30) days’ prior written notice. However, if Subscriber terminates the Service or if Optivon terminates this Agreement for cause prior to the expiration of the Service Term for any Service, Optivon may at its discretion bill the Subscriber for the unexpired portion of the Service Term; provided however that no charge for the remaining portion of the Service Term shall apply if such termination by Subscriber is prompted by changes in the Service introduced by Optivon and not accepted by Subscriber. Upon termination, flat monthly fees shall not be subject to proration for the unused portion of monthly service. The parties acknowledge that the cancellation or termination charges set forth in this Section 5 are a genuine estimate of the actual damages that Optivon will suffer and are not a penalty.

Use of Services:

a. Subscriber understands and agrees that it will be financially responsible for all outstanding fees and charges relative to the use of the Service, whether or not such usage was authorized or unauthorized usage. Without limiting the foregoing, Subscriber understands that anyone to whom subscriber provides its PIN will be able to use Subscriber’s Account, and Subscriber shall be fully liable to Optivon for all charges resulting from such usage.

b. Except as otherwise expressly provided herein, Subscriber shall be responsible for all costs, expenses, claims or actions arising from calls on Subscriber’s Account, including (i) any such calls the purpose of which is theft or unauthorized usage of communications services or misleading or fraudulent communications of any nature (including, without limitation, communications intended to effect theft through unauthorized use of calling cards) and (ii) all unauthorized or fraudulent communications on pay-per-call numbers, information service calls, directory assistance calls or the like for which Optivon is billed that are passed through to the Subscriber (collectively, “fraudulent calls”). Subscriber shall not be excused from paying Optivon for any Services provided to Subscriber or any portion thereof on the basis that fraudulent calls comprised a portion of the Services. In the event Optivon discovers fraudulent calls being made (or reasonably believes fraudulent calls are being made), Optivon shall immediately notify Subscriber. Notwithstanding the foregoing, nothing contained herein shall prohibit Optivon from taking immediate action (within one (1) hour of Optivon’s first attempt to notify Subscriber) that is reasonably necessary to prevent such fraudulent calls from taking place, including without limitation, denying any Services to particular ANIs or terminating any Services to or from specific affected locations. If fraudulent calls are determined to have originated on Optivon’s network and the Subscriber, its employees or agents were not involved in the fraudulent calls, the Subscriber will not be held responsible for such calls, if Optivon reasonably determines that such calls are in fact fraudulent in nature.

Account Charges: Subscriber will be charged a one-time initial “Setup Charge,” and other monthly subscription charges in effect from time to time for the Service elected by Subscriber in its current Service Application. Subscriber shall be required to pay all monthly Service charges as stated by Optivon, including applicable taxes, surcharges, assessments, government fees and charges for any special or enhanced services used by Subscriber. In determining minutes of usage, minutes are rounded in six-second increments, and unused minutes of usage do not rollover. Additional charges accrue for pay phone calls. Regulatory and Other Charges: Your invoice could reflect, and you are obliged to pay, as part of your monthly invoice, regulatory and governmental charges imposed on a federal, state and/or local level. Rates are subject to change without prior notification. Failure to pay regulatory and other charges may cause the suspension or termination of the Service.

Terms of Payment:

a. All monthly invoices shall be delivered to Subscriber electronically over the Internet and deposited into the message storage section of its Account. As part of Subscriber’s Subscription Application, Subscriber shall provide Optivon with account information for at least one major credit card held by Subscriber, and Subscriber hereby authorizes Optivon to charge all invoiced amounts directly to such credit card unless Optivon has received Subscriber’s payment of all undisputed invoiced amounts by check or wire transfer within 15 days of the invoice date. If Subscriber disputes any portion of the invoice, Subscriber shall bring the dispute to the attention of Optivon in writing within 10 days of the date of the invoice. The failure of the Subscriber to send a written notice of dispute within this time period shall be deemed a waiver by the Subscriber of the right to dispute any portion of the invoice. If the dispute relates to a portion of the invoice, the Subscriber shall be required to make payment of the undisputed balance within the time period set forth above.

b. If Subscriber fails to make payment of the invoice within the time period set forth above, Optivon shall have the right, at its sole discretion, to suspend or terminate the Service, upon twenty-four (24) hours’ notice to the Subscriber. Subscriber shall be responsible for payment of the balance outstanding related to the Service, up to the time of suspension or termination, prior to reactivating the Service. Past due amounts bear interest at a rate of 1.5% per month (or the highest rate allowed by law, whichever is less) beginning from the date first due until paid in full.

Illegal Use: Subscriber represents and warrants that it will use the Service for business or commercial purposes only and that it will not use the Service for any illegal purpose. If Optivon becomes aware that the Service is being used for any illegal purpose, Optivon shall have the right to suspend or terminate the Service immediately, without any prior written or oral notice to Subscriber. Subscriber shall be responsible for payment of all account charges incurred up to the time of suspension or termination.

Confidentiality:

a. Optivon shall treat all messages and Subscriber Account information as confidential. Optivon shall not intentionally disclose any messages to any unauthorized person or organization; provided however, Optivon shall not be responsible for any inadvertent disclosure. Optivon shall have the right to cooperate with all law enforcement agencies or organizations, and may disclose to them whatever information is requested by them in the performance of their official duties (which Optivon may assume without independent inquiry), without prior notice to the Subscriber of such requests.

b. Subscriber authorizes Optivon to monitor and record Subscriber’s calls to Optivon concerning the Account or the Service. Subscriber expressly consents and agrees that Optivon may contact Subscriber from time to time by means of (a) automatic dialing equipment, (b) e-mail or wireless text message, or (c) Optivon’s voicemail box. Service Level Credits. In the event Optivon does not achieve a particular Service Level in a particular month, Optivon will issue a credit to Customer as set forth in the applicable Service Schedule upon Customer’s request. Optivon’s maintenance log and trouble ticketing systems will be used for calculating any Service Level events. To request a credit, Subscriber must contact Optivon Customer Service or deliver a written request (with sufficient detail necessary to identify the affected Service) pursuant to Section 24 within thirty (30) days of the end of the month for which a credit is requested. Optivon Customer Service may be contacted by calling (866) 503-2626 or such other numbers as published on www.optivon.com. In no event shall the total amount of credits issued to Subscriber per month exceed 50% of total amount invoiced to Subscriber for the affected Service for that month.

Scheduled Maintenance. Scheduled maintenance of the Optivon network will not normally result in Service interruption or outage. However, in the event scheduled maintenance should require a Service interruption or outage, Optivon will exercise commercially reasonable efforts to (i) provide Customer with forty eight (48) hours’ prior written notice of such scheduled maintenance, (ii) work with Customer in good faith to attempt to minimize any disruption in Customer’s services that may be caused by such scheduled maintenance, and (iii) to perform such schedule maintenance during the non-peak hours of 12:00 a.m. (midnight) until 6:00 a.m. local time.

EMERGENCY SERVICES – 911 DIALING. Subscriber acknowledges and understands that the Service does NOT support 911 or E911 access to emergency services. Optivon is working to meet the November 28, 2005 dateline for the provision of the required E911 service.

As required by the FCC, we are hereby informing you that, under certain circumstances, when 911 is dialed from a phone connected to an Internet phone service, E911 service may not be available, or the E911 service may be in some way be limited by comparison to traditional E911 service. These circumstances include:

• When the location of your IP Phone device is at a physical address other than the one you listed when you activated your account.
• When you use a non-native telephone number in the IP Phone at your original physical address.
• When your broadband phone device fails or is not configured properly.
• When there is an electrical power outage, service outage or suspension/disconnection of Optivon service due to billing or other issues.
• When there is a delay in the provision of Optivon service (“dial tone”) at the physical address provided at the time of account activation.
• When a change of address has been reported, but not yet been updated on the Optivon account.
• When the local PSAP receiving Optivon E911 emergency service calls does not have a system configured for E911 services that enables the operator to capture and/or retain automatic number or location information.
• When due to technical factors in network design and/or in the event of network congestion on the Optivon network, an Optivon call may produce a busy signal or experience unexpected answering wait times and/or take longer to answer than 911 calls placed via traditional telephone networks.
• When there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere herein.

We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Optivon nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Optivon, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.

If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.

Acceptable Use Policy; Content:

a. Subscriber is solely responsible for the content of its Account and all communications thereunder. Subscriber understands and agrees that its usage of the Service is governed by Optivon’s Acceptable Use Policy, which may be found at http://www.optivon.com/about/acceptable_use. Subscriber understands and agrees that its continued observance of the Acceptable Use Policy, as the same may be amended from time to time, is a condition precedent to its continued use of the Service.

b. Subscriber acknowledges that there is content on the Internet or otherwise available through the Services which may be offensive, or which may not be in compliance with all local laws, regulations and other rules. For example, it is possible through the use of the Services to obtain access to content that is pornographic, obscene, or otherwise inappropriate or offensive, particularly for children. Optivon assumes no responsibility for and exercises no control over any content not created by Optivon, including without limitation the content contained on the Internet or otherwise available through the Services. In particular and without limiting the generality of the foregoing, Optivon neither censors nor monitors the legality of any such content. All content accessed or received by Subscriber through the Services is accessed and used by Subscriber at Subscriber’s own risk, and Optivon and its employees, agents, contractors and representatives shall have no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to the access to or the receipt of such content by Subscriber.

c. Optivon has no obligation to monitor the Services content. However, Subscriber acknowledges and agrees that Optivon has the right to monitor content electronically from time to time and to disclose any information as necessary to satisfy any law, regulation or other governmental request, to operate the Services properly or to protect itself or its subscribers. Optivon reserves the right to refuse to post or to remove any information or materials, in whole or in part, that in its sole discretion, are unacceptable, undesirable, or in violation of this Agreement.

d. Subscriber acknowledges and agrees that Optivon exercises no control over the content of messages sent or received by Subscriber, and Optivon’s sole obligation with respect to such messages is to transmit them to the person or persons designated by the sender, or where necessary, to the network of another carrier. Optivon is not responsible and shall not be liable for the content of any message sent or received by Subscriber. Subscriber will indemnify Optivon and hold Optivon harmless from any and all liabilities, losses, damages, injuries, claims, suits, judgments, settlements, awards, costs, charges and expenses of any kind, including but not limited to any fees, costs, charges and expenses, arising from the content of any such message, including without limitation claims for defamation, harassment, or violation of any person’s privacy rights.

Storage Space Limitations: The amount of e-mail, fax, and voice-mail storage space per Subscriber is limited. Some e-mail, fax-mail, or voice-mail messages may not be processed due to space constraints or outbound message limitations. However, if additional unallocated storage space is available on the Service, Optivon will use commercially reasonable efforts to temporarily allocate a portion of such additional storage space to Subscriber’s Account to satisfy Subscriber’s immediate storage space requirements. Subscriber will be charged for all additional storage space allocated to Subscriber’s Account in accordance with the rates in effect from time to time. You agree that Optivon is not responsible or liable for the deletion or failure to store messages or other information.

Copyright and Trademark Notice: The trademarks, service marks and logos (the “Trademarks”) used by Optivon and displayed on Optivon’s web site (the “Site”) or documentation are registered and common law trademarks of Optivon and others. Nothing contained in the Site or elsewhere should be construed as granting Subscriber any license or right to use any Trademark without the written permission of Optivon or such third party that may own the Trademarks. Subscriber’s use of the Trademarks or any other Site content is strictly prohibited.

DISCLAIMERS, LIMITATION OF LIABILITY: THE SERVICE IS PROVIDED “AS IS” AND OPTIVON MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS TO SUBSCRIBER REGARDING THE SERVICE, ITS USE, CONDITION OR OPERATION. OPTIVON MAKES NO WARRANTY WHATSOEVER THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. OPTIVON EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. OPTIVON SHALL NOT BE LIABLE FOR ANY ACTS, ERRORS, OR OMISSIONS BY IT OR ITS EMPLOYEES OR AGENTS, EXCEPT FOR CONDUCT CONSTITUTING GROSS NEGLIGENCE. IN ANY EVENT OPTIVON’S SOLE LIABILITY HEREUNDER TO THE SUBSCRIBER FOR ANY AND ALL DAMAGES OF ANY NATURE WHATSOEVER SHALL NOT EXCEED THE FEES AND COSTS PAYABLE BY THE SUBSCRIBER TO OPTIVON FOR THE PAYMENT PERIOD IN WHICH THE CONDUCT GIVING RISE TO THE CLAIM TOOK PLACE. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL OPTIVON OR ITS EMPLOYEES OR AGENTS BE LIABLE TO THE SUBSCRIBER FOR: (A) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, LOST PROFITS OR LOSS OF REVENUES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE PERFORMANCE, OR FAILURE TO PERFORM, ANY SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE; (B) ANY PUNITIVE OR EXEMPLARY DAMAGES; (C) ANY DAMAGES FOR, BASED UPON, OR ARISING OUT OF ANY CAUSE NOT WITHIN OPTIVON’S CONTROL, INCLUDING WITHOUT LIMITATION, NATURAL DISASTERS, WEATHER CONDITIONS, CIVIL DISTURBANCES, MATERIAL SHORTAGES, ELECTRONIC OR MECHANICAL FAILURES, OR PROBLEMS WITH OR THE INTERRUPTION OF, TELEPHONE SERVICE.

Indemnification: The Subscriber agrees to defend, indemnify and hold Optivon, its affiliates, employees, agents and other subscribers harmless against any and all liabilities, losses, damages, injuries, claims, suits, judgments, settlements, awards, costs, charges and expenses, including but not limited to any fees, costs, charges and expenses incurred by Optivon for investigation, defense and resolution for, based upon, or arising out of the performance or failure to perform any service under or pursuant to this Agreement.

Force Majeure: Notwithstanding anything to the contrary contained in this Agreement, Optivon shall not be liable for loss or damage or deemed to be in breach of this Agreement due to Optivon’s failure or delay of performance, wholly or in part, under this Agreement if such failure or delay of performance is due to causes beyond Optivon’s reasonable control (“Force Majeure Event”), including but not limited to: acts of God, fire, flood, explosion, storm or other catastrophic event; strikes or work stoppages; lockouts; acts of any government authority or of any civil or military authority including regulatory mandates; national emergencies, cable cut(s); sabotage; insurrections; riots; wars; and unforeseen acts of third parties that cannot be avoided by acts of due care. Any delay resulting from a Force Majeure Event shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable.

Ownership and Property Rights: All technologies, software, hardware, operating applications, procedures, scripts, telephone numbers, or other materials of any nature or type prepared, furnished, or utilized by Optivon, other than those items furnished by the Subscriber to Optivon, shall be considered the sole and exclusive property of Optivon and shall be retained by Optivon upon the termination of this Agreement. In the event that any items of Optivon property are in Subscriber’s possession, Subscriber will immediately return the same to Optivon upon termination of this Agreement or at Optivon’s request.

Usage and Other Information: Optivon will offer the Subscriber a password to the web accessed control panel at Optivon’s Site. Through this control panel the Subscriber will make all changes necessary on the itineraries, greetings and instructions that Optivon representatives are to follow. The control panel is accessible through the Internet, at Subscriber’s sole cost.

Assignment:< This Agreement is binding on the parties hereto and their respective successors and assigns. Subscriber shall not assign its rights, duties, or obligations under this Agreement without the written consent of Optivon. Optivon may, without obtaining any further consent from the Subscriber, assign any of its rights, privileges or delegate any of its obligations under this Agreement.

Changes; Notices: Optivon may make changes to this Agreement from time to time. Changes will be posted on Optivon’s Site and will be effective upon posting. You are encouraged to return to that Site periodically to review the posted changes. Notice to Subscriber of any changes shall be considered given, and such changes will become binding on Subscriber, upon posting to the Site.

Severability: No term or provision of this Agreement that is determined by a court of competent jurisdiction to be invalid or unenforceable shall affect the validity or enforceability of the remaining terms and provisions of this Agreement. Any term found to be invalid or unenforceable shall be deemed as severable from the remainder of the Agreement.

Third Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by each party hereto and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Independent Contractor: Nothing contained in this Agreement shall be construed or interpreted by the parties hereto, or by any third party, as creating a relationship of principal and agent, partnership, joint venture, or any other relationship between Optivon and the Subscriber, other than that of independent contractors contracting for the provision and acceptance of Services. Without limiting the generality of the foregoing, each party will be responsible for hiring, supervising and compensating its own employees and for providing benefits to and withholding taxes for such employees.

Dispute Resolution: All disputes under this Agreement shall follow the following resolution process: The parties, through executive officers with authority to resolve disputes, shall initially meet and seek to negotiate a resolution of the dispute within thirty (30) days of the date on which a party first gives written notice of a dispute to the other party. If such negotiations are unsuccessful in effecting a resolution within the thirty (30) day period, and such negotiation period is not extended by mutual agreement of the parties, then the dispute shall be resolved exclusively and finally by arbitration to be conducted in Tampa, Florida before a single arbitrator under the applicable rules of the American Arbitration Association. Any award by the arbitrator shall be subject to all dollar and other limitations set forth in this Agreement. Any award shall be in writing and shall set forth the findings of fact and conclusions of law relied upon in reaching the decision. The award rendered by the arbitrator shall be final, binding and non-appealable. Judgment on the award may be entered in any court having jurisdiction thereof.

Governing Law: This Agreement is entered into in the State of Florida and shall be interpreted, construed and enforced in accordance with and governed by the laws of the State of Florida without reference to conflict of law principles thereof. In any action to enforce this Agreement the prevailing party will be entitled to the payment of all costs and attorney fees paid or incurred in such action.

Entire Agreement: This Agreement, along with the Optivon policies referenced herein, represents the entire agreement of the parties to this Agreement and supersedes all negotiations, representations, prior discussions or preliminary agreements between the parties. No statements, warranties, or representations of any kind that are not contained in this Agreement shall in any way bind the parties.

Changes, Notices: Optivon may make changes to this Agreement from time to time. Changes will be posted on Optivon’s Site and will be effective upon posting. You are encouraged to return to that Site periodically to review the posted changes. Notice to Subscriber of any changes shall be considered given, and such changes will become binding on Subscriber, upon posting to the Site.