Brokrete

In connection with the use of the Brokrete Online Platform (as defined below) you and/or your organization or corporation (the "partner") and Tough Commerce Inc. ("Brokrete") hereby agree to the terms and conditions contained herein (collectively, the "partner Terms and Conditions").

BY ACCEPTING THE PARTNER TERMS AND CONDITIONS BY SIGNING THE APPLICABLE PARTNER ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE PARTNER TERMS AND CONDITIONS, SUPPLIER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY PARTNER ORDER FORM AND INCLUDING BROKRETE’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE PARTNER TERMS AND CONDITIONS ENTERED INTO BETWEEN BROKRETE AND PARTNER. IF, AFTER READING THE TERMS OF SERVICE, PARTNER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE BROKRETE ONLINE PLATFORM.

IF YOU ARE AN AGENT OR EMPLOYEE OF THE PARTNER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THE PARTNER TERMS AND CONDITIONS IS DULY AUTHORIZED TO ACCEPT THIS PARTNER TERMS AND CONDITIONS ON PARTNER’S BEHALF AND TO BIND THE PARTNER, AND (II) THE PARTNER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THE PARTNER TERMS AND CONDITIONS AND PERFORM ITS OBLIGATIONS HEREUNDER.

Interpretation

Definitions. As used herein, including in any Partner Order Form (unless otherwise defined in such Partner Order Form) the following terms have the following meanings, respectively:

"Agreement" means this Partner Agreement, as may be amended from time to time in accordance with the provisions hereof.
"Brokrete Service" means Brokrete’s proprietary online, cloud-based managed service for which Partner and/or Customer is granted rights of access and use in accordance with this Agreement and the Brokrete Terms and Conditions.
"Brokrete Terms and Conditions" means the terms and conditions that govern use of the Brokrete Service and are located at https://brokrete.com/terms.
"Brokrete Website" means https://brokrete.com/.
"Confidential Information" has the meaning given to such term in Section 1.1 hereof.
"Customer" means Partner’s customer that has accessed the Brokrete Service through use of the Storefront from Partner’s Platform.
"Customer Data" means data and information submitted by or for a Customer to the Brokrete Service.
"Data Protection Laws" means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation) applicable to the Processing of Personal Information under the Agreement.
"Development Services" means the services provided by Brokrete to Partner pursuant to Section 2.1 hereof and the applicable Statement of Work.
"License Fee" means the fixed fee, and any other fees associated with the license as mutually agreed upon between Brokrete and Partner and as described in Partner Order Form for use of the Brokrete Storefront platform.
"Intellectual Property Rights" means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing).
"Level 1 Support" means the provision of support for the Brokrete Service for Partner’s Customers, advising Customers on how to access and use the capabilities of the Brokrete Service, recording of feature requests and passing this information on to Level 2 Support personnel, providing existing workarounds for known problems, keeping Customers advised of the status of reported problems, collecting all information from Customers relating to problems in the Brokrete Service in order to ensure that the problem is reproducible, keeping the appropriate support personnel and development personnel informed of any problems discovered, collecting and recording of basic statistics on support offered to Customers, and requesting Level 2 Support from the appropriate support personnel.
"Level 2 Support" means providing advice on more difficult issues and problems that require the provision of a new workaround, including without limitation, direct interaction with the Customer to reproduce and determine the cause of the newly discovered bug, including reasonable efforts to attempt to create and provide software resolutions or corrections, updates and enhancements to the Brokrete Service.
"Partner Platform" means Partner’s proprietary or not technology for building websites.
"Partner order form" means Brokrete’s form of ordering document specifying partner’s subscription to the Brokrete Partner program that is entered into between Brokrete and Partner pursuant to mutually agreed upon terms and conditions.
"Party", "Parties" shall mean Brokrete and Partner, individually or collectively.
"Personal Information" means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
"Processing" means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
"Reporting Period" means every three (3) months.
"Revenue Share" means the amount of revenue allocated to Brokrete from the license of the Brokrete Storefront platform, as calculated in accordance with the Partner Order Form.
"Statement of Work" or "SOW" shall mean a statement of work to be entered into between Brokrete and Partner for the Development Services by Brokrete to Partner which sets out the development schedule and a description of the work to be performed by Brokrete for Partner. Each SOW will be subject to the terms of hereof and will include such other terms and conditions as may be mutually agreed upon by the Parties.
"Support Services" means the technical support services for the Brokrete Service and the provided by Brokrete as described in, and in accordance with, the Support Terms.
"Support Terms" means the terms on which Brokrete provides Support Services to Partner.
"User" means an employee or Customer of Partner.
"Storefront" means the Brokrete e-commerce platform developed by Brokrete which provides Customers with access to the Brokrete Service.

Interpretation. In this Agreement, unless a contrary intention appears: (i) the terms, "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular portion hereof and include any agreement supplemental hereto; (ii) words importing a singular number only shall include the plural and vice versa; (iii) the term "including" means "including without limitation"; (iv) other grammatical forms of defined words or expressions have corresponding meanings; (v) a reference to an article, section, document or agreement, including this Agreement, includes a reference to that section, document or agreement as amended from time to time, as permitted hereunder; and (vi) the division of this Agreement into sections and the insertion of headings are for convenient reference only, and shall affect neither the construction nor the interpretation of this Agreement.

APPOINTMENT AND GRANT OF RIGHTS AND LICENSES

Appointment and Rights. Subject to the terms and conditions of this Agreement, Brokrete hereby grants to Partner and its Customers, and Partner hereby accepts a non-exclusive, non-transferable, revocable, right and license to:

implement and use the Storefront on Partner site;
access and use the Brokrete Service; and
market the Brokrete Storefront and make available the Brokrete Service to prospective Customers;

Restrictions. Partner shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Brokrete Service, including but not limited to any component which comprises the Brokrete Service; (b) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Brokrete Service, except to the extent that enforcement is prohibited by applicable law; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the Brokrete Service in any form to any person without the written consent of Brokrete; (d) create any "links" to or "frame" or "mirror" of the Brokrete Service or any portion thereof; or (e) use the Brokrete Service in violation of applicable laws.
Non-Exclusive Relationship. Brokrete expressly reserves the right to establish or appoint any number of other channel partners for the Brokrete Service and other offerings similar to Brokrete Service to its customers.

PROPRIETARY RIGHTS

Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth in this Agreement. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement. Brokrete and its licensors shall retain all right, title, and interest (including all Intellectual Property Rights) in and to the Brokrete Service and Storefront. Partner acknowledges and agrees that, except for the limited rights and licenses granted herein, Partner does not own any Intellectual Property Rights in and to the Brokrete Service and Storefront. This Agreement does not involve or contemplate any transfer or assignment of any of Brokrete Intellectual Property Rights in and to the Brokrete Service or Storefront to Partner. Partner shall have only the limited rights specifically granted to it by Brokrete under this Agreement.
Trademark License.

Subject to the terms and conditions of this Agreement, Brokrete grants to Partner a non-exclusive, non-transferable right to use the "Powered by Brokrete" trademark and logo, as well as any other Brokrete trademarks, logos and trade names (the "Brokrete Marks") solely for use on the Partner Platform to promote the use and access of the Brokrete Service as permitted hereunder. Subject to this right, Partner shall grant Brokrete the right to display Partner’s trademarks, logos and trade names (the "Partner Marks") on the Brokrete Website for the marketing and promotion of Partner’s Platform in accordance with Section 5.1.
All use of the Brokrete Marks by Partner shall be in accordance with Brokrete’s policies regarding advertising and trademark usage as established from time to time, including but not limited to, form and placement of proprietary notices. Partner is granted the right to reproduce and distribute promotional and advertising materials provided by Brokrete for use in association with its obligations hereunder. Notwithstanding anything herein to the contrary, Partner shall not use the Brokrete Marks as its name (corporate or otherwise), and Partner shall clearly indicate to the public, including potential Customers, that it is not Brokrete. Partner shall not register any Internet domain names that incorporate any Brokrete Mark and shall, immediately upon Brokrete’s request, assign to Brokrete Partner’s rights to any such domain names. All use of the Brokrete Marks by Partner shall inure to the sole benefit of Brokrete.
Partner understands and agrees that the Brokrete Service may incorporate third party trademarks and/or copyrighted materials, which may include the trademarks and copyrighted materials. Partner agrees that it will comply with the trademark and copyright policies of such third parties, provided that Brokrete has made Partner aware of the trademark and copyright policies of such third parties and where such policies are available on the third parties’ web sites.

Usage Data. Notwithstanding anything to the contrary in this Agreement, Partner acknowledges that the Brokrete Service may provide Usage Data (as hereinafter defined) to Brokrete and Brokrete may monitor Partner’s and its Customers’ use of the Brokrete Service and collect and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and Partners’ and its Customers’ use, of the Brokrete Service ("Usage Data"). As between Brokrete and Partner, all right, title, and interest in Usage Data, including all Intellectual Property Rights therein, belong to and are retained solely by Brokrete. Brokrete may use Usage Data to support (including to improve) the Brokrete Service, develop new products and services, and for any other business purpose, without compensation to or the approval or consent of Partner, provided that the Usage Data does not contain any Personal Information.
Feedback. Partner may provide reasonable feedback to Brokrete including, but not limited to, suitability, problem reports, bug-fixed, suggestions and other information with respect to the Brokrete Service ("Feedback"). Partner hereby grants to Brokrete a fully paid-up, royalty-free, worldwide, assignable, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Brokrete Service and any other Brokrete products or services, or for any other purposes, any Feedback provided by Partner.

PARTNER OBLIGATIONS

Laws and Regulations. Partner shall comply with all applicable laws and regulations in connection with the performance of its obligations under this Agreement. Partner shall not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Brokrete or any of its customers, third party suppliers or licensors and their products.
Partner Representations and Warranties. Partner shall not make or purport to make any representations, warranties and/or conditions on behalf of Brokrete or contractually bind or commit Brokrete in any way other than the current information that has been published by Brokrete or developed jointly pursuant to the terms of this Agreement.

MARKETING RIGHTS

Brokrete Marketing Rights. Partner hereby agrees: (a) that Brokrete may use the Partner Mark(s) on the Brokrete Website in accordance with the trademark use policies of Partner in effect from time to time (and as communicated in writing to Brokrete) to indicate Partner is a Brokrete partner, and (b) that Brokrete may generally refer to Partner as a partner of Brokrete in verbal discussions with potential Brokrete customers; and (c) that Brokrete will consider and cooperate in good faith with other Partner co-marketing initiatives (e.g. content marketing, social media marketing, etc.).
Partner Marketing Rights. Brokrete hereby agrees: (a) that Partner may use the Brokrete Mark(s) on Partner’s website in accordance with the trademark use policies of Brokrete in effect from time to time (and as communicated in writing to Partner) to indicate Brokrete is a partner of Partner, and (b) that Partner may generally refer to Brokrete as a partner of Partner in verbal discussions with potential Partner customers; and (c) that Brokrete will consider and cooperate in good faith with other Partner co-marketing initiatives (e.g. content marketing, social media marketing, etc.).

SUPPORT SERVICES

Support Services. Support and maintenance for the Brokrete Service is included in the Fee. Brokrete will provide Support Services to Partner in accordance with the Support Terms.
Customer Support. Brokrete shall provide Level 1 Support and Level 2 Support to Customers who access the Brokrete Service through the Storefront in accordance with Brokrete’s support and maintenance terms, which shall be consistent with the Brokrete Support Terms.

PAYMENT, REVENUE SHARE, INVOICING, RECORDS AND BUSINESS REVIEW

Payment.

Partner shall pay to Brokrete the License Fee as described in Partner Order Form. Unless otherwise stated in Partner Order Form License Fee is immediately due and payable upon execution of this Agreement. Partner is responsible for maintaining accurate billing and contact information with the Company.
Brokrete shall pay to Partner the Revenue Share as described in Partner Order Form and in accordance with Section 7.2.

Revenue Share.

Brokrete shall pay to Partner the Revenue Share in accordance with the terms hereof.
During the term of this Agreement and for the last Reporting Period which shall be deemed to end thirty (30) days after the expiration or termination of the Agreement, Brokrete shall, within thirty (30) days of the end of each Reporting Period, submit to Partner a report (each a "Sales Report") for such Reporting Period which shall contain detailed information relating to the use of the Storefront and license fees Reporting Period, including (i) the Revenue Share payable by Brokrete to Partner, and (ii) such other information as Brokrete may request from time to time. Sales Reports and related sales information shall be considered Confidential Information.
Partner shall review and verify the Revenue Share payment calculation specified in a Sales Report and will invoice Brokrete for the Revenue Share payment within ten (10) days of receipt of the Sales Report. Revenue Share payments are due within thirty (30) days from the invoice date.

Taxes. Any amounts paid under this Agreement are exclusive of all federal and provincial sales, use and other applicable taxes, and all customs duties and fees, export taxes and fees and similar amounts, and Partner shall be responsible for the payment of all such taxes, duties and similar amounts, with the exception of the income taxes of Brokrete.
Currency. All monetary amounts referred to in this Agreement are in Canadian dollars unless otherwise indicated. Brokrete reserves the right to require payment in Canadian dollars irrespective of the currency that Partner uses to transact business with its Customers.
Business Review. Both Parties, with appropriate representation, will participate in a business review of mutually agreed upon performance metrics which could include: (a) number of Customers accessing the Brokrete Service through the Storefront; (b) Customer satisfaction; (c) revenue sharing structure; and (d) joint roadmap to address market. The Parties will also discuss any channel conflicts and will work together in good faith to avoid or address any channel conflicts.

CUSTOMER DATA AND PERSONAL INFORMATION

Technical and Organizational Safeguards. In connection with the provision of the Brokrete Service, Brokrete will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Brokrete personnel except (a) to provide the Brokrete Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Customer. Brokrete shall not access Customer Data except to provide the Brokrete Service and prevent or address service or technical problems, or in connection with Customer support matters.
Personal Information. To the extent that Customer Data includes Personal Information, Brokrete shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Brokrete shall only Process Personal Information on behalf of and in accordance with Partner’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Partner’s Users or Customers in their use of the Brokrete Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement. Brokrete shall, in connection with the provision of the Brokrete Service, comply with Data Protection Laws, as well as the Brokrete’s Privacy Policy.

CONFIDENTIALITY

Each party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing party. Each party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third person other than employees, agents and contractors of the party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms), the Brokrete Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

TERM AND TERMINATION

Term. This Agreement shall commence on the Effective Date and continues in effect for twelve (12) months (the "Initial Term"). Unless terminated earlier as permitted herein, this Agreement will be extended for additional one (1) year periods (each an "Extension Term", and collectively with the Initial Term, the "Term") upon mutual agreement of the parties, unless, no less than thirty (30) prior to the end of the then current Term, one Party gives written notice to the other Party that the Agreement is not to be extended at the expiration of the then current Term.
Termination. This Agreement may be terminated by either Party (a) if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party or (b) immediately upon written notice, if the other Party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other Party’s property, or the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other Party and is not dismissed within ninety (90) days, or the other Party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Effect of Termination. Upon the expiry or termination of this Agreement:

the rights and licenses granted to Partner hereunder automatically terminate and Partner’s rights under this Agreement shall automatically cease;
Partner shall immediately cease all promotion, marketing and sale of the Brokrete Service;
Partner shall notify Customers of the termination or expiration of this Agreement within thirty (30) days following the termination or expiration hereof, and advise all Customers that all future purchases and support have to be acquired directly from Brokrete or its authorized partners and if Partner fails to provide such notification, then Brokrete may communicate the termination or expiration directly to the Customers;
Partner shall within thirty (30) days of the effective termination date return to Brokrete all Confidential Information, promotional and marketing materials, written information and reports pertaining to the Brokrete Service that have been supplied by Brokrete, and all copies (paper, electronic, or otherwise) and abstracts of the same or Partner may destroy all such materials and certify to Brokrete of such destruction within the thirty (30) day period; and
Partner shall perform all payment and other obligations arising under this Agreement within thirty (30) days of expiry or termination.

No Termination Liability. Each party understands that the rights of termination hereunder are absolute and that it has no right to a continued relationship with the other after termination, except as expressly stated herein. Neither party shall incur any liability whatsoever for any damage, loss or expense of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement which complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expense.

WARRANTIES AND DISCLAIMER

Brokrete Warranties. Brokrete represents, warrants and covenants to and with Partner that:

the Brokrete Service will function and perform substantially during the term hereof; and
at the time of delivery, the Brokrete Service will be free from any virus, disabling mechanism or protection feature designed to prevent its use including any clock, timer, counter, computer virus, worm, software lock, drop dead device, trojan horse routine, trap door, time bomb or any other codes o instructions that are designed to access, modify, replicate, distort, delete, damage or disable any such computer systems or any other software or hardware.

Warranty Disclaimers. THE WARRANTIES IN SECTION 11.1 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, THE BROKRETE SERVICE IS PROVIDED AND LICENSED BY BROKRETE ON AN "AS IS" AND "AS AVAILABLE" BASIS. BROKRETE DOES NOT REPRESENT OR WARRANT THAT THE BROKRETE SERVICE WILL MEET ANY OR ALL OF PARTNER’S OR ITS CUSTOMERS’ PARTICULAR REQUIREMENTS, THAT THE BROKRETE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE BROKRETE SERVICE CAN BE FOUND IN ORDER TO BE CORRECTED.
Internet Connectivity Disclaimer. Brokrete makes the Brokrete Service available for access via the Internet. Partner hereby acknowledges that the Brokrete Service may be interrupted due to (a) website downtime for scheduled maintenance at Brokrete’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Brokrete’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Brokrete’s control or network intrusions. Partner hereby acknowledges and agrees that Brokrete shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Brokrete from any claims relating thereto.

PARTNER'S INDEMNITY

Partner shall defend or settle at its own expense any and all third party claims or allegations (each a "Claim") brought against Brokrete and its suppliers and licensors and each of their respective shareholders, directors, officers, employees, contractors, consultants, agents and representatives (each a "Brokrete Indemnified Party"), to the extent that such Claim is based on (1) representations or warranties not consistent with this Agreement, (2) any infringement or misappropriation of any patent, trademark, trade secret, copyright or any other Intellectual Property Right or proprietary right of any third party resulting from use of the Brokrete Service in breach of this Agreement, (3) any malfunction, defect or error in the Brokrete Service (except to the extent caused by the Brokrete Service), (4) the unauthorized combination of the Brokrete Service with any product or service provided by Partner, to the extent that such claim would not have arisen but for such unauthorized combination, (5) a breach of Partner’s obligations hereof, or (6) any fraudulent act, neglect or wilful misconduct of Partner’s agents or employees, in each case except and to the extent that Brokrete is liable as expressly provided in this Agreement and will indemnify Brokrete for (a) any costs or expenses (including legal fees) incurred in connection with a Claim, (b) damages and costs finally awarded against Brokrete in respect of a Claim, or (c) any amounts paid by Brokrete under a court-approved settlement of a Claim.

LIMITATION OF LIABILITY

Limitation on Certain Damages. SUBJECT TO SECTION 13.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE STOREFRONT AND THE BROKRETE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
Limitation on Direct Damages. SUBJECT TO SECTION 13.3, EACH PARTY’S LIABILITY FOR CLAIMS FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY PARTNER TO BROKRETE UNDER THIS AGREEMENT, PROVIDED THAT IN NO EVENT SHALL SUCH PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL SUCH CLAIMS EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAID BY PARTNER TO BROKRETE OVER THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM.
Exclusions. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, (III) ANY CLAIMS CAUSED BY THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SUCH PARTY OR ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS, OR (IV) ANY OBLIGATION TO PAY AMOUNTS OWING UNDER THIS AGREEMENT; OR (V) ANY CLAIM UNDER SECTION 11.3 (INDEMNIFICATION).

GENERAL PROVISIONS

Notices. All notices, requests and demands given to or made upon the Parties shall be in writing and shall be properly addressed, postage prepaid, sent via mail, email or personally delivered to either Party. The date of receipt for purposes of this Agreement shall be the date on which such notice was actually received; provided that in the case of delivery by e-mail, such email shall be deemed to have been received upon Receiving Party’s confirmation of receipt of such email. Each Party shall promptly give the other Party written notice of any address change.
Governing Law. This Agreement and any matters relating thereto is governed by, construed and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and the Parties hereby attorn to the exclusive jurisdiction of the courts of such Province. The Parties expressly disclaim all applicable choice of law or conflict of law rules and expressly exclude the United Nations Convention on Contracts for the International Sale of Goods.
Waiver. The failure to enforce any right will not be deemed a waiver of such or any other right, including the right to enforce a subsequent breach of the same obligations. No waiver shall be valid and binding unless in writing and signed by the waiving Party. No consent to a breach of any express or implied term of this Agreement shall constitute a consent to any subsequent breach. In the event that any provision of this Agreement is held to be unenforceable, the remainder of this Agreement shall remain in full force and effect.
Independent Contractors. The Parties agree that neither Party shall be considered the legal partner of the other Party in any respect. This Agreement will not be construed as a teaming agreement, legal partnership, joint venture or other similar relationship. The Parties are independent contractors as to each other in the performance of the obligations of this Agreement. Nothing in this Agreement or in its performance shall create or imply a joint venture or principal and agent relationship between the Parties. Neither Party shall have any right, power or authority to create any obligation, express or implied, on behalf of the other Party.
Assignment. Neither Party shall have the right to assign or transfer this Agreement, or any part thereof, without the prior written consent of the other Party. The Parties further agree that, notwithstanding the foregoing restriction on assignment, either Party may assign this Agreement without the other Party’s written consent in the event of and in connection with: (i) a change of Control; (ii) corporate reorganization; (iii) merger; (iv) the sale of all or substantially all of the outstanding shares of that Party; or, (v) divestiture of all of substantially all of that Party’s assets; unless such assignment is to a competitor of the non-assigning Party, in which case the consent of the non-assigning Party will be required, and failing which, the non-assigning Party may, upon written notice to the assigning party, terminate this Agreement upon any assignment by the assigning Party to a competitor of the non-assigning Party.
Binding Effect. This Agreement shall be binding upon and enure to the benefit of both Parties hereto and their respective successors and permitted assigns.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto with respect to the subject matter of this Agreement and supersedes all other agreements and communications, both verbal and written, between the Parties.
Amendments. No modifications, additions, or amendments to the terms of this Agreement shall be effective unless in writing and signed by the duly authorized representative of Partner and Brokrete.
Severability. The provisions of this Agreement shall be deemed severable. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
Survival. The provisions in Sections 3, 9, 10.2, 11.3, 13, and 14 shall remain in force and effect after termination or expiry of this Agreement.
Signature, Counterparts, and Delivery. This Agreement may be signed electronically, including through DocuSign and similar applications. This Agreement may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.

IN WITNESS WHEREOF both Partner and Brokrete have executed this Agreement as of the Effective Date.

STOREFRONT PARTNERAGREEMENT AND TERMS