Agreement


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Agreement

This Agreement (the "Agreement") is entered into as by and between KEA eSolutions a division of Kim Evans & Associates Limited., a company incorporated pursuant to the law of he Province of Ontario, Canada ("the Company") and the Client.

IN consideration of the mutual covenants and promises of Company and Customer herein, the parties agree as follows:

1. DESCRIPTION OF SERVICES. Company shall sell, and Client shall purchase from Company the services as described in Schedule A. There may be additional Services offered by Company in the future in which event the Schedules described in this Paragraph of this Agreement shall be amended to more accurately reflect such additional Services or the parties hereto will enter a separate agreement for such Services.

2. PRICING. The current prices and rates for the Company Services provided under the terms of this Agreement are set forth in Schedule A described in Paragraph 1 of this Agreement. Unless the parties agree otherwise in writing as to pricing and payment terms, for any Company Services not identified in the Schedules, now existing or as hereafter amended, the Company's list prices and rates and standard payment terms and conditions shall apply and govern.

3. PAYMENT TERMS.

3.1 Service Startup Fees. Upon acceptance of this Agreement, Client shall immediately pay to Company any service setup fees prior to Company being obligated to commence or provide any Company Services to Client. Any required setup fees will be referenced in the Schedules described in Paragraph 1 of this Agreement.

3.2 Monthly Fees.

Company will bill for the first initial payment a sum equal to Service Startup Fees and First month Service fees.

In the event that Client uses up all the services that were pre-paid for during that month, Company may hold back additional services until an additional prepayment is made for that month's services. If the Client over pays for that month's service, the overpayment shall be applied as a credit to be used for future new accounts or toward their monthly invoice.

3.3 Payment Due Date. All Invoices are NET 15 and shall be sent via electronic mail.

3.4 Late Payment Charges. Delinquent payments, or portions thereof, are subject to a late payment charge accruing from the Invoice Due Date at the rate of twenty-four (24%) per cent per annum.

3.5 Suspension or Termination for Non-Payment. In the event Client does not remit payment for Undisputed Charges by the due date Company may, in its sole discretion, suspend or terminate the services provided to Client and its Clients Company shall give forty-eight (48) hours notice (delivered via facsimile transmission or electronic email) prior to any suspension or termination.

3.6 Expenses of Enforcement. Client agrees to pay Company its reasonable expenses, including attorney and collection agency fees, incurred in enforcing Company's rights under this Agreement. In the event Company chooses not to exercise its option to terminate, Company shall resume providing Company Services as soon as is commercially reasonable and its past due debt has been settled. Company makes no guarantee that all services can be reinstated in full if a termination occurs.

3.7 Taxes. All charges to Client hereunder are exclusive of sales, use, excise, utility, gross receipts and value-added taxes and other taxes, levies fees or excises of any kind, including tax-related surcharges or applicable tariffs, which Client agrees to pay. In the event that Client provides Company with a duly authorized exemption certificate, Company agrees to exempt Client in accordance with the law, effective on the date an exemption certificate is received by Company.

3.8 Billing Disputes. Client must notify Company in writing by certified postal mail with return receipt of any disputed charges within 15 days of the date of the billing for such charges. Billing disputes shall be defined as disputes in good faith, with reference to specific provisions of this Agreement, and with supporting factual documentation. If Client does not notify Company within that time period, Client is deemed to have waived any right to dispute such amounts, either directly or as a set-off, recoupment or defense in any action or efforts to collect amounts due to Company.

4. CLIENT OBLIGATIONS.

4.1 Client's Duties. Client shall document and promptly report all errors or malfunctions of service.

4.2 Compliance with Agreement, Schedules and Use Policy. Client, its Clients or third-parties authorized by them to use Company Services are required to comply with all conditions of this Agreement, Schedules and ("Use Policy") located at keaesolutions.com, as it may be updated and amended from time to time. Any such change shall be effective upon posting. Company reserves the right to suspend or terminate any Company Services to Client's Clients or End-User for any violation of this Agreement, Schedules or Use Policy. If Client shall permit or tolerate such violation, Company reserves the right, in its sole discretion, to suspend or terminate this agreement in accordance with section 5.3.

Client agrees to require its Clients to comply with terms and conditions in substance identical to those in Paragraph 4. Client shall defend, indemnify, and hold harmless Company against any third-party claims arising out of or relating to any use of Company's Services, including claims resulting from use of the Company Services by Client and its Clients. This includes damages resulting from loss of data due to delays, non-deliveries, mis-deliveries, or service interruptions or a violation of a third party's intellectual property rights.

4.3 Limitation on Warranties, Representations and Indemnities; Disclaimer. Neither Client nor its agents, Clients, or End-Users shall offer warranties, representations or indemnities for the Company Services which would obligate or otherwise bind Company beyond any warranty, representation or indemnity expressly set forth in the Schedules of this Agreement, or make any other warranties, promises, indemnities or representations with respect to the Company Services, to any Client or prospective Client, to any End-User or prospective End-User, or any other person or entity. COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY DOES NOT WARRANT THAT THE COMPANY SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ITS SUPPLIER'S SERVERS AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH COMPANY SERVICES MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, COMPANY CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, Company DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

4.4 Cure. In the event of a breach of the foregoing warranty, Client shall promptly notify Company of the breach in writing. Upon receipt of notice, Company will use commercially reasonable efforts to remedy the breach. If, in Company's sole judgment, the breach cannot be remedied through commercially reasonable efforts, Company may give the Client an option to terminate this agreement in the next 30 days following the breach without any penalty. THE FOREGOING SETS FORTH CLIENT'S SOLE REMEDY AND COMPANY'S SOLE LIABILITY FOR BREACH OF WARRANTY.

4.5 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE AND STRICT LIABILITY) FOR ANY SPECIAL, INDIRECT, SPECULATIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS OR COSTS ATTRIBUTED TO DELAYS OR LOSS OF TIME, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE CLAIM OR OF THE POSSIBILITY OF SUCH DAMAGES, AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THE LIABILITY OF COMPANY AND ITS SUPPLIERS UNDER THIS AGREEMENT IS LIMITED TO COMPANY'S OBLIGATIONS UNDER THE LIMITED WARRANTY SET FORTH ABOVE. IN NO EVENT SHALL THE LIABILITY OF COMPANY OR ITS SUPPLIERS EXCEED THE AMOUNT OF THE FEE PAID TO COMPANY FOR THE SERVICE TO WHICH THE SPECIFIC CLAIM RELATES.

5. TERM; TERMINATION.

5.1 Term; Automatic Renewal. This Agreement shall be for an initial term of one (1)month from the Effective Date (provided below) (the "Initial Term") and shall be automatically renewed for successive one (1) month terms (the "Renewal Term") (each a "Term") unless either party provides written notice by certified postal mail with return receipt to the other party of termination at least fifteen (15) days prior to the end of the Term. Client's payment obligations shall survive termination or expiration of this Agreement.

5.2 Termination without Cause; Breach. If Client terminates this Agreement without cause prior to expiration of the Initial Term or the Renewal Term, or Company terminates this Agreement due to material breach by Client, Client shall pay an early termination fee to Company. Client agrees to allow Company to draft the Clients caching account or collect payment from the Client by credit card, money order or certified funds, as liquidated damages and not as a penalty, in an amount equal to the monthly minimum times the number of months left in the agreement.

The parties agree that the amount of the termination fee represents an effort by the parties to estimate reasonable compensation to Company and that the actual damages that Company would suffer are difficult to precisely determine.

5.3 For Cause Termination. Either party may terminate this Agreement for cause and without penalty in the event that the other party breaches any material term of this Agreement. With the exception of termination by Company due to violation of section 3.5, prior to such termination, the party intending to terminate shall first give the other party advance written notice by certified postal mail with return receipt of its intention to terminate this Agreement. The notice shall clearly describe the reason for the party's intention to terminate. The other party will have thirty (30) days from the date of receipt of such notice to correct the breach. The right to terminate this Agreement shall be Client's sole and exclusive remedy for any breach of this Agreement by Company or any loss or damage suffered in connection with the Company Services.

5.4 Right to Discontinue Service if Product becomes Unavailable. In the event that Company can no longer offer the services provided for herein due to unavailability from its source suppliers outside the control of Company, then Company reserves the right to terminate the portion of this Agreement dealing with that service without breaching the contract.

6. CONFIDENTIALITY.

6.1 Each party agrees that information disclosed by one party under this Agreement (the "Disclosing Party") to the other party (the "Receiving Party"), including pricing, marketing plans, plans, methodology, technology, and/or software, which information is considered proprietary by the Disclosing Party, shall be considered Confidential Information under this Agreement. Confidential Information will not include information that is publicly available or in the Receiving parties possession prior to this agreement.

6.2 A Receiving Party shall not disclose the Disclosing Party's Confidential Information to any third party without the Disclosing Party's prior written consent, except under order of court or government agency, and then only if the Receiving Party gives timely notice of such order to the Disclosing Party to afford such Disclosing Party the opportunity to attempt to obtain a protective order. Each party agrees to exercise the same level of care in protecting the Confidential Information of the other party from unauthorized use and disclosure as it uses in connection with its own Confidential Information, but in no event less than reasonable care.

7. Non-Circumvention. During the term of this Agreement, Client, and any parent corporation or a subsidiary of the Client, or any company having identical ownership as the Client, or any of Clients affiliate companies will not contact the Company's service suppliers or vendors for the purpose of circumventing or obtaining the Company's services directly from their sources for service. In the event of a breach of this Paragraph, the Client shall pay the Company its actual and consequential damages occurring from the breach of this paragraph. Damages include, but are not limited to, loss of revenue, legal fees, or any other costs associated with breach of this provision.

8. Relationship of Parties. No agency, partnership, joint venture or employment is created as a result of this Agreement. Neither party is authorized to bind the other in any respect whatsoever.

9. Force Majeure. Neither party shall be considered in default under any provision of this Agreement by reason of any delay or failure in its performance of its obligations hereunder if such delay or failure is caused by events beyond its reasonable control, including but not limited to acts of God or the public enemy; riots or insurrections; war; accidents; fire; strikes; and other labour difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain export permits or approvals, necessary labour, materials, energy, components, or machinery; and acts of civil or military authorities. The time for any performance required hereunder shall be extended by the delay incurred as a result of the events described above.

10. Governing Law; Dispute Resolution. This Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the Province of Ontario, excluding its laws relating to conflicts of laws.

11. Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, such provision shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

12. Delays or omissions. No delay or omission to exercise any right, power or remedy accruing to a party under this Agreement shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of either party of any breach or default under this Agreement, or any waiver on the part of either party of any provisions or conditions of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to a party, shall be cumulative and not alternative.

13. Binding Agreement. This Agreement shall be binding upon the parties hereto and their respective successors and assigns as permitted hereunder. No person or entity other than the parties hereto is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the parties hereto, and the covenants and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the parties hereto or their respective successors and assigns as permitted hereunder.

14. Entire Agreement. This Agreement and the attached Schedules and Use Policy accepted by Client and Company constitute the entire understanding and agreement between the parties and supersede any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof. This Agreement shall not be modified, amended or in any way altered except by an instrument in writing signed by the parties. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

15. Electronic signature. This Agreement may be executed simultaneously in two or more counterparts, each counterpart shall be deemed to be an original, and all counterparts individually or together shall constitute one and the same instrument. Each party represents and warrants that the person whose signature appears below is duly authorized to enter into this agreement on behalf of the party. In witness whereof, the parties have entered into this agreement as of the date last set forth below (the "Effective Date"): This Agreement may be executed pursuant to the Electronic Commerce Act (Ontario).