Terms of Service

Section 1 – Definitions and interpretation

1.01 In this Agreement, unless the context otherwise requires:

(a) “Acceptance” means the acceptance of the Deliverables in accordance with Section 10 (Inspection of the Deliverables) of this Agreement;

(b) “CUSTOMER Group” means CUSTOMER and its Affiliates and Associates, as such terms are defined in the Business Corporations Act ([_]);

(c) “Confidential Information” means all confidential, scientific, technical, financial, business and other information, all manufacturing, marketing, sales and distribution data, all scientific and test data, documents, methods, techniques, formulations, operations, know-how, experience, skills, trade secrets, computer programs and systems, processes, practices, ideas, inventions, designs, samples, plans and drawings;

(d) “Contract Price” means the amounts referred to or expressed in this Agreement, and specifically in the payment schedule attached as Schedule “A” to this Agreement, to be payable by CUSTOMER to the Vendor for the Deliverables;

(e) “INNOTOCK.AI System” means the computer software, converted data, system interfaces, databases and documentation that are to be installed and implemented by CUSTOMER, including the Deliverables to be provided by the Vendor to CUSTOMER all as contemplated hereunder, as the same may be upgraded, enhanced or otherwise modified or adapted from time to time, all as described in Schedule “B”;

(f) “Deliverables” means the whole of the services (including, without limitation, training, warranty and maintenance services), materials, equipment, computer software programs and matters and things required to be done, furnished or performed by the Vendor in accordance with the terms of the Agreement;

(g) “Documentation” means the technical and user documentation to be provided by the Vendor in the English language, including, without limitation, the documents identified in Schedule “C” to this Agreement;

(h) “Functional Specifications” means the description of the required functions and applications of the INNOTOCK.AI System as set out in Schedule “D” hereto;

(i) “Implementation Schedule” means the schedule for installation, development, implementation and testing of the INNOTOCK.AI System, including, without limitation, the delivery and installation of the Licensed Computer Programs, as set out in Schedule “E” to this Agreement;

(j) “Improvements” means any improvements, updates, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes to the Licensed Computer Programs and Documentation, including, without limitation:

(i) improvements and upgrades to improve software efficiency and maintainability;

(ii) improvements and upgrades to improve operational integrity and efficiency;

(iii) timely updates to tax and other tables, and calculation and report programs to ensure compliance with all applicable federal, provincial and local laws or other regulatory or lawful requirements;

(iv) functional improvements or changes which support legislated, regulatory or other lawful requirements;

(v) changes or modifications to correct errors; and

(vi) additional licensed computer programs to otherwise update the Licensed Computer Programs;

(k) “Licensed Computer Programs” means those computer software programs identified in Schedule “F” to this Agreement;

(l) “Live Production” means use of the INNOTOCK.AI System in the regular business operation of CUSTOMER;

(m) “Maintenance Access Period”, unless otherwise specified in the Agreement, means an uninterrupted time period of a minimum of eight (8) consecutive hours each day, between 8:30 a.m. and 4:30 p.m. USA Central Standard Time CST, during which the Vendor shall have personnel available to receive requests for maintenance services and provide the maintenance services in accordance with the Agreement;

(n) “Response Time” means the period of time beginning with a bona fide attempt to reach the Vendor by telephone, or other oral or written means has been made by CUSTOMER during a Maintenance Access Period, and ending with the response of the Vendor;

o) “Time to Repair” means that portion of the time that the INNOTOCK.AI System cannot be used because of error, defect, deficiency, failure, problem or nonconformance to Functional Specifications, starting from the response of the Vendor and ending with the turnover of the Deliverables to CUSTOMER in proper working order;

(p) “Unapproved Modifications” means modifications to the Licensed Computer Programs not approved by the Vendor but made by CUSTOMER or on its behalf by someone other than the Vendor.

1.02 All dollar amounts referred to in this Agreement are in U.S.A. Dollars.

1.03 The following are the Schedules annexed to and incorporated in this Agreement by reference and deemed to be a part hereof:

Schedule “A” – Payment Schedule

Schedule “B” – INNOTOCK.AI System

Schedule “C” – Documentation

Schedule “D” – Functional Specifications

Schedule “E” – Installation and Implementation Costs and Schedule

Schedule “F” – Licensed Computer Programs

Schedule “G” – Training

Section 2 – Representations

2.01 The Vendor represents and warrants, and it is a condition of this Agreement, that:

(a) the Vendor is a corporation duly organized and existing in good standing under the laws of Texas and registered to carry on business as may be contemplated hereunder;

(b) the Vendor has the ability and authority to enter into this Agreement, and the execution and performance of this Agreement or any part of this Agreement by the Vendor has been duly authorized by all requisite corporate action;

(c) the execution and performance of this Agreement or any part of this Agreement by the Vendor does not and will not violate any contract or other obligation of the Vendor, and the Vendor knows of no circumstances which would prevent the Vendor’s performance of this Agreement or any part thereof;

(d) the Vendor is competent to perform its obligations hereunder, and has sufficient manpower, resources, skills, experience, tools and all such other materials as may be required to meet its obligations in accordance with the Implementation Schedule or otherwise on or before the required date(s);

(e) the Vendor has the necessary qualifications (including knowledge, experience and skill) to provide the Deliverables, and will provide the Deliverables (including warranty and maintenance service) in a diligent, professional and timely manner; and

(f) the representations and warranties made by the Vendor herein, including the recitals and all schedules hereto (in particular, in the Vendor’s Proposal), are reasonable and correct, and may be relied upon by CUSTOMER and shall continue to be reasonable and correct, and may be relied upon by CUSTOMER throughout the performance of this Agreement.

2.02 The Vendor represents and warrants that any subcontractors engaged by it to carry out any part of the Vendor’s obligations contemplated hereunder shall:

(a) be competent to perform their obligations;

(b) be accepted by CUSTOMER in writing prior to performing any services hereunder;

(c) have sufficient manpower, resources, skills, experience, tools or all such other materials as may be required in order to meet their obligations in accordance with the Implementation Schedule or otherwise on or before the required dates; and

(d) have the necessary qualifications, including knowledge, experience and skill, to perform the work expected of them, with the ability to use such knowledge, experience and skill effectively in carrying out their obligations.

Section 3 – Conduct

3.01 The Vendor shall supply the executable software through an application installer of his choice. Without limiting the generality of the foregoing, the Vendor will specifically be responsible to provide, at its expense:

(a) access to an appropriate computer platform for the purposes of providing the Deliverables, if required; and

(b) all resources, components or things otherwise required or desirable for the Vendor to complete the Deliverables.

3.02 If required, the Vendor may have certain limited access to the CUSTOMER computer system but only if the Vendor obtains the prior written permission of CUSTOMER and complies with any restrictions or prohibitions or any other terms and conditions which are set out by CUSTOMER.

3.03 The Vendor shall:

(a) perform all of its obligations hereunder in a diligent, professional and efficient manner;

(b) apply, as a minimum, such quality assurance tests, inspections and controls as are normally applied by reputable contractors in providing similar Deliverables; and

(i) are of proper quality, material and workmanship;

(ii) are in full conformity with and meet or exceed the Functional Specifications;

(iii) meet or exceed manufacturers’ performance or other specifications for components or computer programs incorporated in the Deliverables;

(iv) meet or exceed all other requirements of the Agreement; and

(v) are provided in accordance with the Implementation Schedule and meet any other application deadlines.

Section 4 – Void

Section 5 – Deliverables

5.01 The Vendor shall be fully responsible to supply the Deliverable through an online download requested by the customer after subscribing to the product.

5.02 The Customer shall be fully responsible for the installation, integration, and implementation of the Deliverables.

Section 6 – Preparation

6.01 The Vendor shall assist CUSTOMER in preparing for the installation of the Licensed Computer Programs. Such assistance shall include, without limitation, providing CUSTOMER with implementation checklists and ongoing support and assistance as and when required during the first 5 working days after installation.

Section 7 – Installation and Documentation

7.01 The Vendor shall provide all installation software for the Licensed Computer Programs in accordance with the Installation and Implementation Schedule, and shall deliver to CUSTOMER digital copies of all documentation, including operating manuals, training aids, user guides and system administration documentation as well as technical reference materials describing the operation of all such components in sufficient detail to enable CUSTOMER’s employees to operate, use, maintain, repair, modify, enhance, support and test the same without assistance from the Vendor. Such documentation shall include, without limitation, the Documentation described in Schedule “C”.

7.02 CUSTOMER shall have the right to reproduce all documentation supplied by the Vendor under this Agreement, including but not restricted to the Licensed Computer Programs and the Documentation referred to in Schedule “C”, [whether for training,] provided that such reproductions shall be solely for use by CUSTOMER or any other member of the CUSTOMER Corporate Group, that such reproductions shall be subject to the same restrictions on use and disclosure as are contained in the Agreement with respect to the original documentation, and that any copyright notices or markings contained on such documentation shall not be removed from any reproduced copies.

Section 8 – Void

Section 9 – Training

9.01 The Vendor shall provide the customer with the option to purchase “Training Courses” to adequately train CUSTOMER’s personnel to operate, use, and test the Licensed Computer Programs and each of their components subject to, the terms and conditions specified in Schedule “G” attached hereto.

Section 10 – Inspection of the Deliverables

10.01 Upon the Deliverables being installed by the Vendor, CUSTOMER shall subject the Deliverables to diagnostic testing to verify that they meet the Functional Specifications.

10.02 If the Deliverables do not meet the Functional Specifications CUSTOMER shall have the option of:

(a) notifying the Vendor of the failure and requiring the Vendor to correct the problem, in which case the provisions of this Section shall apply once again, and so on from time to time; or

(b) terminating this Agreement and requiring the Vendor to promptly refund all amounts paid on account of the Contract Price.

10.03. Void

10.04 The Vendor’s services in correcting problems, if any, specific to the installation test criteria shall be provided without charges to CUSTOMER.

Section 11 – Risk and Insurance

11.01. Void

11.02 The Vendor, at its sole expense, shall maintain insurance coverage adequate to cover the provision of the Deliverables, including the following:

(a) Employers’ Liability Insurance covering each worker to the extent of $1,000,000 where such worker is not covered by Workers’ Compensation or where
Workers’ Compensation is not the exclusive remedy;

(b) Automobile Public Liability Insurance covering all vehicles used to provide the Deliverables, whether owned, operated and/or leased by the Vendor or its Representatives, with a combined single limit of $1,000,000 for each occurrence involving bodily injury, death or property damage;

(c) Commercial General Liability Insurance coverage, written on an “occurrence” basis, including products and completed operations liability, contractual liability and personal liability, with a combined single limit of $3,000,000 for each occurrence of bodily injury, death or property damage;

(d) Errors and Omissions Insurance covering all Deliverables, with a combined single limit of $[__] for each loss or claim.

Section 12 – Grant of Licence

12.01 The Vendor hereby grants to the CUSTOMER Group, subject to the terms, conditions and limitations hereof, a worldwide, non-exclusive, irrevocable, perpetual right and licence, which shall be non-transferable except as permitted pursuant to Section 15, to use the Licensed Computer Programs and all related documentation provided to the CUSTOMER Group hereunder.

Section 13 – Scope of Licence

13.01 The licence granted under this Agreement authorizes the CUSTOMER Group to use, display, the Licensed Computer Programs without the consent of or notice to the Vendor, provided that only the licensed number of copies of the Licensed Computer Programs be used at any one time. (1 license required per user)

13.02 The CUSTOMER Group shall be entitled, notwithstanding anything else contained herein, to make as many copies of the Licensed Computer Programs in printed, machine-readable or electronic form as may be reasonably necessary ONLY for CUSTOMER’s archival, backup and security purposes. The respective product’s copyright notice must be affixed to any and all media containing complete or partial contents of the Licensed Computer Programs.

Section 14 – Trade-Marks and Proprietary Notices

14.01 The Vendor expressly reserves all rights to its own trade-names, logos, trade-marks, other identifying symbols and all of its proprietary rights in its product packaging or labelling of any Licensed Computer Programs. The CUSTOMER Group shall not acquire any right, title or interest in or to any such trade-name, logo, trade-mark, or other identifying symbols of the Vendor.

14.02 The CUSTOMER Group shall ensure that all proprietary and copyright notices of Vendor on the Licensed Computer Programs are in place and left intact at all times, and are placed in such location or locations as the Vendor may reasonably advise in relation to the Licensed Computer Programs.

Section 15 – Temporary Transfer of Software

15.01 All computer programs whose use is limited under the Agreement may be temporarily installed on other computer hardware or equipment for reasonable periods of time when any of the CUSTOMER Group’s computer systems or locations are non-operational for any reason whatsoever, subject to all other terms and conditions of the Agreement.

15.02 Subject to Section 15.01 and except as otherwise provided hereunder, at no time will any computer program whose use is limited under the Agreement be running concurrently for more than the number of designated users specified in the Agreement.

15.03 Should any transfer contemplated in this Section require a different version of any computer program in order for it to be compatible with a different computer system, hardware or operating system, the Vendor shall provide a limited term licence of an appropriate version, if existing and available from the Vendor, without payment of additional licence fees by the CUSTOMER Group.

Section 16 – Payment

16.01 CUSTOMER shall pay the Vendor in accordance with the Payment Schedule described in Schedule “A” to this Agreement upon completion, to the satisfaction of CUSTOMER, of the applicable milestones contemplated in the Implementation Schedule and subject to all other terms and conditions set out in this Agreement.

16.02 Notwithstanding any other provisions of the Agreement, no payment shall be made to the Vendor unless and until:

(a) all invoices and other documents required by the Agreement have been submitted in accordance with the terms of the Agreement and the instructions of CUSTOMER;

(b) with respect to all parts of the Deliverables in respect of which payment is claimed, the Vendor, where required to do so, establishes to the satisfaction of CUSTOMER that such parts of the Deliverables will be free from all claims, liens, attachments, charges or encumbrances; and

(c) in the case of payment in respect of finished Deliverables, the finished Deliverables have been inspected by CUSTOMER and accepted as being in
accordance with the Agreement, including the Functional Specifications.

16.03 CUSTOMER shall notify the Vendor, within fifteen (5) days of receipt of an invoice, of any inadequacy of the invoice or of the supporting documentation, and where any such notice is given within that period, the date for payment of the amount invoiced shall be postponed until the Vendor remedies the inadequacy to the satisfaction of CUSTOMER, at no additional cost to CUSTOMER.

16.04 The Contract Price specified in the Agreement shall include all provincial taxes, federal taxes and similar levies or charges (including Goods and Services Taxes) in respect of any of the Deliverables provided by the Vendor to CUSTOMER. CUSTOMER shall have no liability for taxes on the income of the Vendor.

16.05 Notwithstanding anything else herein contained:

(a) CUSTOMER shall be entitled to hold back from any payment to the Vendor contemplated hereunder such amount as may be required by law or to pay or settle any third party claims in respect of any part of the Deliverables; and

(b) CUSTOMER shall be entitled to withhold and remit to the appropriate taxing authorities or otherwise withhold any amounts required by law to be withheld from payments made to the Vendor. If the Vendor provides CUSTOMER with an exemption certificate from Canada Revenue Agency, then CUSTOMER shall not withhold any federal withholding tax in respect of the payment made to the Vendor in reliance on such certificate of exemption, and the Vendor indemnifies and holds harmless CUSTOMER, its directors, officers and employees in respect of any and all liability, damages, claims, costs (including reasonable legal fees to defend any such claims) arising in relation to the failure of CUSTOMER to withhold the amounts payable under the Agreement. To the extent that requirements of law require CUSTOMER to withhold a certain portion of any payment or payments to the Vendor as contemplated in this Section, then CUSTOMER will reasonably assist the Vendor in providing such documentation or assurances as may be contemplated in this Agreement and may be considered desirable by the Vendor in seeking to recover such withheld amounts from the appropriate taxing authorities.

Section 17 – Interest on Overdue Accounts

17.01 All amounts due and owing to the Vendor hereunder but not paid by the CUSTOMER on the due date thereof shall bear interest at the rate of one and a half per cent (1.5%) per month. Such interest shall accrue from time to time on the balance of unpaid amounts outstanding from the date on which portions of such amounts become due and owing until payment thereof in full.

Section 18 – Warranty

18.01 Notwithstanding inspection and acceptance of the Deliverables by or on behalf of CUSTOMER, and without restricting any other provision of the Agreement or any condition, warranty or provision implied or imposed by law, the Vendor warrants that, from the date of this Agreement and for the length of the subscription, the Deliverables shall perform in accordance with the Vendor’s user documentation of the Licensed Computer Programs and shall
meet or exceed the Functional Specifications. CUSTOMER shall give written notice to the Vendor of any performance failure within a reasonable period of time following discovery of such failure.

18.02 The warranty period set out in Section 18.01 shall be extended by the duration of any period or periods during the life of the warranty, including any such extension in which the System project is temporarily suspended or the Deliverables are unavailable for use or cannot be used because of an error, defect, deficiency, failure, problem or non-conformance referred to in this Section, plus a re-warranty period on the repair or replacement of a minimum of ninety (90) days or such other re-warranty period as may be specified in the Agreement. Any such re-warranty period shall not include the duration of any delay by CUSTOMER in informing the Vendor of the error, defect, deficiency, failure, problem or non-conformance.

18.03 In the event of an error, defect, deficiency, failure, problem or non-conformance in the Deliverables during the warranty period defined in Sections 20.01 and 20.02, the Vendor, at the request of CUSTOMER, shall as soon as possible repair, replace or otherwise make good at its own option and expense the error, defect, deficiency, failure, problem or non-conformance. Where necessary the Vendor shall carry out, at its expense, any necessary repair or rectification at CUSTOMER’s location.

18.04 The warranty provided by the Vendor under this Section shall apply to all of the Deliverables (including Improvements thereto) in all parts of the INNOTOCK.AI System. If any warranty service provided was directly attributable to Unapproved Modifications, then CUSTOMER shall be responsible for paying the Vendor for the specific warranty service so provided. The rate of payment by CUSTOMER shall be at the regularly published cost or rate for
such warranty services that the Vendor provides to comparable sites in the industry. Reasonable travel and living expenses shall be reimbursed, if pre-approved by CUSTOMER.

Section 19 – Improvements

19.01 From time to time, whenever available, the Vendor shall provide Improvements to CUSTOMER, which Improvements shall be included in and form part of the Licensed Computer Programs and Documentation and be subject to the same terms, conditions and restrictions as the original Licensed Computer Programs and Documentation provided to CUSTOMER by the Vendor.

19.02 The Vendor shall notify CUSTOMER of any Improvements developed or acquired by the Vendor, its agents, licensees, or contractors.
19.03 Where the Vendor produces or acquires Improvements for any part of the Deliverables, CUSTOMER shall have the right to obtain such Improvements together with supporting documentation and appropriate updates to existing documentation (including, where applicable, supplements, revisions or updates to the documentation identified in Schedule “C”), at no additional cost during the warranty period as provided for in Section 18 and for so long thereafter as CUSTOMER continues to pay the annual maintenance support charge. In any event, Improvements will be provided by CUSTOMER at no charge where such Improvements are required because of an actual or threatened infringement or violation of copyright or such
similar cause.

19.04 The Vendor shall distribute significant Improvements on a continual basis, and shall provide information concerning new releases or upgraded versions on a timely basis. In all cases, documentation revisions and additions shall be delivered on a timely basis to reflect the current version(s) of the computer software programs in question.

19.05 CUSTOMER reserves the right to install or not install any of the Improvements provided or made available by the Vendor, without in any way affecting the warranty or maintenance obligations of the Vendor hereunder.

19.06 Where Improvements constitute new versions or releases of the computer software programs provided to CUSTOMER by the Vendor hereunder, CUSTOMER shall be entitled to refrain from installing such new version or release, on a temporary or permanent basis, without in any way affecting the warranty or maintenance and support services hereunder. Where any new versions or releases are installed by CUSTOMER, CUSTOMER shall be entitled where necessary or appropriate to run the current and new versions or releases concurrently until the new version or release has been installed and tested to CUSTOMER’s satisfaction, but in any event for not more than ninety (30) days.

19.07 The Vendor shall provide CUSTOMER with supporting documentation (including updates or supplements to existing product documentation, including that described in Schedule “C”) in respect to all Improvements, and the Vendor shall also provide one (1) copy of the source code version of such Improvements to the Escrow Agent referred to in Section 8 in human-readable and electronic form together with source code documentation and other supporting documentation and materials sufficient to enable CUSTOMER’s employees to operate, modify, adapt, enhance, maintain, support, service, repair, test or otherwise use the Improvements without assistance.

19.08 In the event of an error, defect, deficiency, failure, problem or non-conformance in the Deliverables, the Vendor, at the request of CUSTOMER, shall as soon as possible repair, replace or otherwise make good at its own option and expense the error, defect, deficiency, failure, problem or non-conformance. If CUSTOMER reports an error, defect, deficiency, failure, problem or non-conformance to the Vendor, CUSTOMER shall give the Vendor reasonable access to the INNOTOCK.AI System and hardware on which the INNOTOCK.AI System resides, and shall provide such information as the Vendor may reasonably request, including sample output and other diagnostic information, in order to permit the Vendor to expeditiously correct the error, defect, deficiency, failure, problem or non-conformance. All corrections shall become part of the Deliverables and shall be subject to the terms and conditions set out in the Agreement with respect to the Deliverables provided by the Vendor. For the purposes of the Agreement, an error, defect, deficiency, failure, problem or non-conformance is corrected only when the Deliverables are brought into conformity with the Functional Specifications (which Functional Specifications shall include, as appropriate, the most current product documentation available at the applicable time).

19.09 Notwithstanding anything else herein contained, in the event an error, defect, deficiency, failure, problem or non-conformance in the Deliverables (not caused directly by an Unapproved Modification) results in the Deliverables being functionally inoperable within a period of one (1) year following installation, and the Vendor is unable to remedy such error, defect, deficiency, failure, problem or non-conformance to CUSTOMER’s satisfaction within thirty (30) days of being notified of the same, CUSTOMER shall be entitled, at its option, to reject the Deliverables for a refund of all amounts paid to the Vendor on account of the Contract Price since the error was detected, and not for any use of the system prior to the error.

Section 20 – Indemnity Against Third Party Claims and Direct Costs

20.01 Notwithstanding any other provision of this Agreement, the Vendor shall:

(a) indemnify and save harmless the CUSTOMER and its directors, officers, servants and agents from and against any and all liabilities, claims, suits, actions or other proceedings;

(b) be liable to CUSTOMER and its directors, officers, servants and agents for any and all costs, damages and expenses (and, without limiting the generality of the foregoing, any direct losses, costs, damages and expenses of CUSTOMER or such other persons including costs as between a solicitor and his own client); which may be brought or made against CUSTOMER or such other persons, or which CUSTOMER or such other persons may pay or incur as a result of or in connection with:

(c) any injury to persons (including injuries resulting in death) or loss of or damage to property of others which may be or is alleged to be caused by or suffered as a result of providing the Deliverables or any part thereof;

(d) any liens, attachments, charges or other encumbrances or claims upon or in respect of any materials, parts, work-in-progress or finished work furnished to, or in respect of which any payment has been made by, CUSTOMER; and

(e) any damages, injury or loss suffered by CUSTOMER arising from or related to any breach or default by the Vendor of any of the obligations of the Vendor under the Agreement;

and including specifically, without limiting the generality of the foregoing, any direct, indirect and consequential damages suffered by CUSTOMER in this regard.

20.02 CUSTOMER shall give notice to the Vendor of any claim, action, suit or proceeding referred to in Section 20.01, and the Vendor shall, to the extent requested by CUSTOMER, participate in or conduct at its own expense the defence of any such claim, action, suit or proceeding and any negotiations for settlement of the same. The Vendor shall give notice to CUSTOMER of all stages involved in any such claim, action, suit or proceeding, and shall consult
with CUSTOMER where any step therein may have an adverse effect on CUSTOMER or its reputation in its market area. The Vendor shall not agree to any settlement which may result in CUSTOMER incurring any financial or other liability without the prior written consent of CUSTOMER.

Section 21 – Indemnity Against Infringement Claims

21.01 The Vendor shall indemnify and save harmless CUSTOMER from any suit or proceeding or threatened suit or proceeding brought against CUSTOMER based on a claim or claims that the Deliverables (or any part thereof) or any other materials or products provided by the Vendor or
any conduct or act CUSTOMER is licensed to carry out hereunder infringes or constitutes wrongful use of any copyright, patent, registered industrial design, trade-mark or trade secret right of any third party (a “Proprietary Right” herein). CUSTOMER shall notify the Vendor in writing of any such suit or proceeding or threatened suit or proceeding promptly after USTOMER first learns of such suit or proceeding or threatened suit or proceeding. In the event
of any claim of infringement or wrongful use of a Proprietary Right as aforesaid, the Vendor may either defend or settle such claim. The Vendor agrees to pay such damages and costs awarded against CUSTOMER or payable by CUSTOMER pursuant to a settlement agreement in connection with such suit or proceeding together with legal fees of CUSTOMER on a solicitor and his own client basis. The Vendor shall have complete control over any such suit or proceeding, including, without limitation, the right to settle on behalf of CUSTOMER or the Vendor on any terms the Vendor deems desirable (in the sole exercise of its discretion) and at no cost on CUSTOMER and which terms cause the least disruption or damage to CUSTOMER; however, the Vendor shall give notice to CUSTOMER of all stages involved in any such suit or proceeding and shall consult with CUSTOMER where any step therein may have an adverse effect on CUSTOMER or its reputation in its market area. The Vendor shall not agree to any settlement which may result in CUSTOMER incurring any financial or other liability without the prior written consent of CUSTOMER. CUSTOMER shall provide, at the Vendor’s cost, such assistance and cooperation as the Vendor may reasonably request from time to time in connection with the defence of any such suit or proceeding or threatened suit or proceeding. CUSTOMER shall have the right to be independently represented by counsel of its own choice.

21.02 If the use of any of the computer software programs provided by the Vendor hereunder is enjoined as a result of such action, the Vendor shall, at its option and expense:

(a) obtain for CUSTOMER the right to continue using the computer software program in question;

(b) modify the computer software program in question so that it no longer infringes, provided that it continues to operate, function and perform in substantially the same manner; or

(c) request the return of the infringing computer software program in question and refund all amounts paid by CUSTOMER to the Vendor in respect of such program, whereupon CUSTOMER shall have the option, in its sole discretion, to return all computer software programs provided by the Vendor hereunder for a full refund of all amounts paid by CUSTOMER to the Vendor under this Agreement, less an adjustment for the time during which CUSTOMER was able to successfully operate the Deliverables based on straight-line depreciation over five (5) years.

21.03 The Vendor shall have no liability hereunder for infringement claims based solely upon modifications by CUSTOMER to any computer software programs provided by the Vendor, which modifications cause the computer software program to become infringing.

Section 22 – Confidentiality

22.01 The Vendor shall be bound by an obligation of strict confidence to CUSTOMER in respect of any Confidential Information disclosed by or on behalf of CUSTOMER to the Vendor or developed by the Vendor for CUSTOMER. The Vendor shall not:

(a) disclose, either directly or indirectly, any such Confidential Information, or any part thereof, to any person except as is specifically contemplated in this
Agreement; and

(b) use any such Confidential Information, or any part thereof, for any purpose, except as is specifically contemplated within this Agreement, without the prior written consent of CUSTOMER and on terms and conditions satisfactory to CUSTOMER in its sole discretion.

22.02 The obligations of confidentiality and non-use set out in Section 22.01 shall not apply to any Confidential Information which:

(a) is in the public domain, without such disclosure being as a result, directly or indirectly, of a breach of the obligations of confidentiality by the Vendor or its officers, agents, employees or subcontractors;

(b) was known to the Vendor prior to its disclosure to the Vendor by CUSTOMER, the reasonable proof of which lies upon Vendor;

(d) is released or disclosed to the public as a result of the ordinary operation of the business to be carried out as contemplated under this Agreement.

22.03 CUSTOMER acknowledges that the Licensed Computer Programs provided by the Vendor under this Agreement contain Confidential Information belonging to the Vendor. CUSTOMER shall not sublicense, distribute, transmit, reverse engineer, decompile, disassemble or otherwise divulge, directly or indirectly, by any means or any form, the Licensed Computer Programs, or any portion thereof, without the prior written consent of the Vendor. CUSTOMER shall take all reasonable steps necessary to ensure that the Licensed Computer Programs, or any portion thereof, are not made available or disclosed by CUSTOMER or by any of its employees to any other person. If CUSTOMER breaches this Section 22.03, and if CUSTOMER has not remedied the breach within thirty (30) days after written notice from the Vendor, the Vendor shall be entitled to terminate this Agreement by notice in writing given to CUSTOMER. Upon such termination, CUSTOMER shall deliver to the Vendor all material furnished by the Vendor pertaining to the Licensed Computer Programs, and shall warrant in writing that all copies thereof have been returned to the Vendor or destroyed. CUSTOMER agrees that in addition to all other remedies upon a breach of this Section 22.03, the Vendor shall be entitled to seek an injunction or other equitable relief against the continuance of such breach whether or not the Vendor has given notice to CUSTOMER of the breach and whether or not the thirty (30) days have expired after notice is given.

Section 23 – Default

23.01 A breach or default by the Vendor of any of the terms, conditions, warranties or representations provided in this Agreement or in carrying out any of its obligations under the Agreement shall give rise to an event of a material default by the Vendor (herein called the “Default”). CUSTOMER may, at its option, terminate the rights and obligations under this Agreement upon giving the Vendor notice in writing of the specific details of the alleged Default and where the Vendor has not remedied such Default within thirty (30) days of receipt of such notice. For the purposes of this Section, termination for default will be effective thirty (30) days after receipt of the Default notice by the Vendor unless the Default has been remedied or the Vendor is diligently pursuing the completion of the remedy to the Default to the satisfaction of CUSTOMER and setting a date for completion of that remedy.

23.02 Where:

(a) the Vendor makes an assignment for the benefit of its creditors generally;

(b) the Vendor or other third party files a petition or makes a proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (Canada) or similar equivalent legislation of another applicable jurisdiction;

(c) a receiving order is made or a petition is filed under the Bankruptcy and Insolvency Act (Canada) or other applicable legislation against the Vendor, and
the Vendor does not contest such receiving order or such petition in good faith;

(d) the Vendor makes an application under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (Canada) or similar or equivalent legislation of another applicable jurisdiction;

(e) a resolution is passed for, or a judgment or order is issued by any court of competent jurisdiction ordering, the winding up or other liquidation or
dissolution of the Vendor; or INNOTOCK.AI Software License Agreement

(f) any receiver, manager, receiver-manager, liquidator or trustee of the property, assets or undertaking of the Vendor is appointed pursuant to the terms of a security agreement or similar instrument, and such appointment is not revoked or withdrawn within thirty (30) days of the appointment, provided that such period of thirty (30) days shall be extended to one hundred and twenty (120) days after such appointment if the Vendor demonstrates to the satisfaction of CUSTOMER, acting reasonably, that it is contesting such appointment in good faith, then a triggering event shall be deemed to have occurred (herein called a “Triggering Event”). Upon the occurrence of a Triggering Event, CUSTOMER may elect, at its option and in its sole discretion, to immediately terminate the rights and obligations under this Agreement for default by giving the Vendor at least ten (10) days’ written notice of such termination.

23.03 Upon the giving of a notice referred to in Section 23.01 or 23.02, the Vendor shall have no claim for further payment, but shall be liable to CUSTOMER for any amounts, including milestone payments, paid by CUSTOMER for Deliverables not yet delivered to and accepted by CUSTOMER and for all losses and damages which may be suffered by CUSTOMER by reason of the default or occurrence upon which the notice was based, including any increase in the cost incurred by CUSTOMER in procuring the Deliverables from another source. CUSTOMER shall further have the option to reject the Deliverables provided to CUSTOMER by the Vendor in exchange for the return of all amounts paid by CUSTOMER to the Vendor hereunder, less an adjustment for the length of time CUSTOMER enjoyed the benefit of the Deliverables based on straight-line depreciation over ten (10) years.

23.04 Upon termination of the Agreement under this Section, CUSTOMER may require the Vendor to deliver to CUSTOMER any completed parts of the Deliverables which have not been delivered and accepted prior to the termination and any materials, parts, plant, equipment or work-in-progress which the Vendor has acquired or produced specifically in the fulfillment of the Agreement.

23.05 Subject to the deduction of any claim that CUSTOMER may have against the Vendor arising under the Agreement or out of the termination, CUSTOMER shall pay or credit to the Vendor the value, determined on the basis of the Contract Price, of all completed parts of the Deliverables delivered to and accepted by CUSTOMER, and shall pay or credit to the Vendor the cost to the Vendor that CUSTOMER considers reasonable in respect of all materials, parts, plant, equipment or work-in-progress delivered to CUSTOMER pursuant to a direction under Section 23.04 and accepted by CUSTOMER, but in no event shall the aggregate of the amounts paid by CUSTOMER under the Agreement to the date of termination and any amounts payable pursuant to this Section exceed either the Contract Price or the payment the Vendor would have been entitled to receive if the Vendor had completed all Deliverables the Vendor was working on at the time of termination, and the Deliverables had been completed to the satisfaction of CUSTOMER.

Section 24 – Termination For Convenience

24.01 Notwithstanding anything contained in the Agreement, CUSTOMER may, at any time after the completion of the installation test procedure set out in Section 10, by giving written notice to the Vendor (hereinafter sometimes referred to as a “termination notice” in this Section), terminate the Agreement as regards all or any part of the Deliverables not completed. Upon a termination notice being given, the Vendor shall cease work (including the development and procuring of materials) in accordance with and to the extent specified in the notice, but shall proceed to complete such part or parts of the Deliverables as are not affected by the termination notice. CUSTOMER may, at any time or from time to time, give one or more additional termination notices with respect to any or all parts of Deliverables not terminated by any previous termination notice.

24.02 In the event of a termination notice being given pursuant to Section 24.01, the Vendor shall be entitled to be paid, to the extent that costs have been reasonably and properly incurred for purposes of performing the Agreement and to the extent that the Vendor has not already been so paid or reimbursed by CUSTOMER:

(a) on the basis of the Contract Price, for all completed portions of the Deliverables that are inspected and accepted in accordance with the Agreement, whether completed before, or after and in compliance with the instructions contained in the termination notice;

(b) the cost to the Vendor plus a fair and reasonable profit thereon for all work terminated by the instructions contained in the termination notice before
complete, subject to any modifications thereof that CUSTOMER may in its absolute discretion consider to be appropriate in the circumstances;

(c) the amount of any capital expenditures actually incurred only if they were specifically approved in writing by CUSTOMER for the purpose of the
Agreement, less any depreciation in respect thereof already taken into account in determining cost, to the extent that the capital expenditures are properly
apportionable to the performance of the Agreement;

(d) all costs of and incidental to the termination of the Deliverables or part thereof, including the cost of cancellation of obligations incurred by the Vendor with respect to the terminated Deliverables or part thereof, the cost of and incidental to the taking of an inventory of materials, components, work-in-
progress and finished work on hand related to the Agreement at the date of the termination, and the cost of preparation of necessary accounts and statements with respect to work performed to the effective date of the termination and commitments made by the Vendor with respect to the terminated portions of the Deliverables, but not the cost of severance payments or damages to employees whose services are no longer required by reason of the termination except wages that the Vendor is obligated by statute to pay to employees whose hiring was expressly approved in writing by CUSTOMER for the purpose of the Agreement.

24.03 No payment shall be made in respect of any of the Deliverables that have been or may be rejected after inspection as not complying with the requirements of the Agreement.

24.04 Notwithstanding anything in Section 24.02, the total of the amounts to which the Vendor is entitled under Section 24.02(a) to (d) inclusive shall not exceed the proportion of the price quoted by the Vendor for all of the Deliverables that is reasonably attributable to the proportion of the Deliverables performed to the effective date of the termination.

24.05 Title to all materials, parts, plant, equipment, work-in-progress and finished work, in respect of which payment is made to the Vendor, and all rights related thereto shall, upon such payment being made, pass to and vest in CUSTOMER, where applicable, unless already so vested under any other provision of the Agreement, and such materials, parts, plant, equipment, work-in-progress and finished work shall be delivered to the order of CUSTOMER, but CUSTOMER will not accept and will not pay for materials, parts, plant, equipment or work-in-progress that would not have been required to provide the Deliverables or that exceed what would have been required to provide the Deliverables.

24.06 The Vendor shall have no claim for damages, compensation, loss of profit, allowance or otherwise by reason of or directly or indirectly arising out of any action taken or termination notice given by CUSTOMER under this Section, except to the extent that this Section expressly provides.

Section 25 – Consequences of Termination

25.01 Upon any termination of this Agreement for any reason or cause, the parties hereto shall take such reasonable steps to effect an orderly transition of the relationship between them and seek to minimize the disruption for the parties hereto arising from such termination.

Section 26 – Remedies

26.01 Nothing in this Agreement shall restrict the ability of either party to seek injunctive or similar relief to restrain any substantial breach of the terms of this Agreement which may be reasonably addressed by injunctive relief, or otherwise restrict any remedies which may be available at law or in equity.

Section 27 – Dispute Resolution Mechanism

27.01 Nothing in this Section 27 interferes with the right of either party to seek or to pursue any remedy available at law or in equity in a court of competent jurisdiction.

27.02 From time to time, as disputes may arise between the parties, the parties expect that such disputes will be resolved through open, frank and honest discussion by the representatives of the parties. In the event that a dispute arises in respect of the interpretation or performance of any of the obligations under this Agreement or any of the schedules attached hereto and cannot be resolved by mutual agreement, both parties may, at their option, agree to submit such dispute to arbitration in accordance with and subject to the provisions of this Section and the rules of the American Arbitration Association. A submission of a dispute to arbitration in accordance with the provisions of this Section will not restrict the rights of either party to insist on its rights under this Agreement or to seek such remedies as may be available by law or in equity in any court of competent jurisdiction in respect thereof or in respect of any other dispute.

27.03 The arbitration tribunal shall be formed of three (3) arbitrators, one to be appointed by each party and the third to be appointed by the first two, or, in the event of failure to appoint within thirty (30) days, by a Justice of the [__________].

27.04 The arbitration shall take place in a location to be agreed upon by the parties, or, in the event of failure to so agree within thirty (30) days, in the [_________]. The arbitration award shall be final, shall be binding on the parties, shall not be subject to any appeal and shall deal with the question of costs of arbitration and all matters related thereto.

27.05 The arbitration award shall be written in English.

27.06 Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for judicial recognition of the award for an order of enforcement thereof, as the case may be.

Section 28 – Void

Section 29 – Notice

29.01 Unless otherwise specified herein or otherwise agreed to by the parties in writing, any notice required to be given hereunder must be given in writing and delivered by postage-paid mail, personally, by prepaid courier, by fax or by other electronic means, addressed to the appropriate party as follows:

if to CUSTOMER, addressed to:
[Address]
Fax Number: [__________]
Email: [__________________]
if to the Vendor, addressed to:
3731 Edgewood Ct
Gran Prairie, TX 75052
Email: pedro,caceres@innotock.com

29.02 Any notice provided herein shall be deemed to have been given as follows:

(a) if delivered by mail, seventy-two (72) hours after the mailing thereof, Saturdays, Sundays and statutory holidays excepted, provided that if there shall be, prior to the time of mailing or the actual receipt of a notice, a threatened or actual postal strike or other interruptions that might affect the delivery of the notice by mail, then such notice shall be delivered personally, by courier, by fax or by other electronic means;

(b) if delivered personally or by courier prior to 2:00 p.m. (time of receipt) on a Business Day, on the day of delivery;

(c) if delivered personally or by courier at or after 2:00 p.m. (time of the recipient) on a Business Day or on a day that is not a Business Day, on the next Business Day;

(d) if sent by fax or other electronic means on a Business Day, and the sending party obtains confirmation that all of the pages of the notice have been successfully transmitted before 2:00 p.m. (time of the recipient), on that Business Day;

(e) if sent by fax or other electronic means on a Business Day, and the sending party obtains confirmation that all of the pages of the notice have been successfully transmitted, but that some or all of the pages of the notice were transmitted after 2:00 p.m. (time of the recipient), on the next Business Day;

(f) if sent by fax or other electronic means on a day that is not a Business Day, and the sending party obtains confirmation that all of the pages of the notice have been successfully transmitted, on the next Business Day.

29.03 If a notice is sent by fax or email, but, before the time at which the notice would be deemed to have been given as hereinbefore provided, the receiving party informs the sending party that the notice has been received in a form that is unclear in a material respect, the giving of that notice is ineffective, and the sending party shall be responsible for sending another notice.

29.04 Either party hereto may, from time to time, give notice of a change in its address, contact person, fax number or other electronic address by notice as provided herein, and, in that event, such information shall be deemed to be changed accordingly.

29.05 Neither party shall prevent, hinder or delay, or attempt to prevent, hinder or delay, the service on that party of a notice relating to this Agreement.

Section 30 – Assignment

30.01 CUSTOMER shall have the right to assign, transfer or convey to any other person, firm, corporation or entity whatsoever all of its right, title and interest arising pursuant to this Agreement, without consent from or notice to the Vendor. The Vendor agrees and acknowledges that, upon any such assignment, transfer or conveyance by CUSTOMER, CUSTOMER will be released from all of its liabilities and obligations arising from this Agreement.
CUSTOMER may enter into all agreements, contracts and writings and do all acts and things necessary to give effect to the provisions of this Section. The Vendor may assign this Agreement only with the prior written consent of CUSTOMER, acting in its discretion, provided that no such consent shall release or relieve the Vendor from any obligations or liabilities under this Agreement.

Section 31 – General Provisions

31.01 Entire Agreement. The parties hereto confirm and agree that this Agreement (including the premises hereto) is the entire and complete agreement between them, and that this Agreement supersedes any previous oral or written communications, negotiations, representations, understandings or agreements between the parties with respect to the subject matter hereof.

31.02 Modifications to Agreement. This Agreement may not be modified except by agreement of both parties in writing.

31.03 Conflict. In the event of conflict between the body of this Agreement and the Schedules hereto, the body of this Agreement shall prevail.

31.04 Confidentiality. The contents of this Agreement are proprietary and confidential to CUSTOMER.

31.05 Governing Law. This Agreement and all amendments, modifications, alterations or supplements thereto shall, in all respects, be subject to and interpreted, construed and enforced in accordance with the laws of Texas, USA. Each party hereby attorns to and accepts the exclusive jurisdiction of the courts of Texas, USA for all purposes.

31.06 Headings. Headings of the articles or sections hereof are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

31.07 Extended Meanings. In this Agreement, words importing the singular number only include the plural and vice versa; words importing the masculine gender include the feminine and neuter genders; words importing persons include provincial or federal companies, corporations, partnerships, syndicates, trusts, associations, societies and any number or aggregate of persons; the terms “include” and “including” mean “including, without limitation”; and the term “includes” has a similar meaning, all as the context may require.

31.08 Relationship of the Parties; Neutral Construction. The relationship between the parties as constituted by this Agreement is intended and is and shall be construed as that of independent contracting parties only, and not that of partnership, joint venture, agency, employment or any other association whatsoever. The parties agree that this Agreement was negotiated fairly between them at arm’s length and that the final terms of this Agreement are
the product of the parties’ negotiations. The parties agree that this Agreement shall be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement, therefore, should not be construed against a party or parties on the grounds that the party or arties drafted, or was more responsible for drafting, the provisions.

31.09 Time of Day and Date. Unless otherwise specified, references to time of day or date mean the local time or date in Dallas, Texas, USA. Time is of the essence to the performance of the parties’ obligations under this Agreement.

31.10 Severability. Should any provision of this Agreement be deemed by a court of competent jurisdiction to be illegal, void or otherwise unenforceable, such provision shall be severed from the rest of this Agreement, and the rest of this Agreement shall remain in full force and effect and be binding on the parties as though the said provision had never been included.

31.11 Waiver. No delay or omission by either party hereto to exercise any right, remedy or power occurring upon any non-compliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived only in writing and only by the party that is entitled to the benefits of the terms or conditions being waived. A waiver by either of the parties hereto of any of the covenants, conditions or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein contained (whether or not the provision is
similar).

31.12 Remedies Cumulative. Unless stated otherwise herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise. No single or partial exercise by a party of any right or remedy precludes or otherwise affects the exercise of any other right or remedy to which that party may be entitled.

31.13 Further Assurances. Each of the parties shall, from time to time and at all times, promptly do all such further acts and execute and deliver all such further documents and assurances as shall be reasonably required in order to perform and carry out the terms of this Agreement.

31.14 Survival. Any term, condition or provision hereof that requires fulfillment or performance, or that is, by its nature, applicable, after the termination or expiry of this Agreement and the relationship created hereby, including sections [_], shall survive such termination or expiry and remain in full force and effect. The termination of any provision of this Agreement shall not excuse a prior breach of that provision.

31.15 Enurement. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.

31.16 Authority to Execute Agreement. The parties and their representatives signing this Agreement hereby acknowledge and represent that the representatives signing this Agreement are duly authorized agents of the parties hereto and are authorized and have full authority to enter into this Agreement on behalf of the parties for whom they are signing.

31.17 Facsimile; Counterparts. This Agreement may be executed originally or by facsimile, and may be executed in counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same instrument, which shall be sufficiently evidenced by any such original counterpart. In the event of discrepancy between the fully executed copy of the Agreement held by CUSTOMER and that held by the Vendor, that held by CUSTOMER shall prevail.

IN WITNESS WHEREOF the parties have executed this Agreement effective the date first above written.