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End User License Agreement

This End User License Agreement (as defined below) is entered into and agreed upon by you, either an individual or an entity (“You” or “Company”) and Tritek Business Solutions Inc. and (“Tritek”) for the Software (as defined below). This Agreement is made and entered into as of the date that You first accept this Agreement either by executing a Sales Order that references this Agreement or by downloading, installing and/or utilizing the Software or Services (the “Effective Date”).

NOW, THEREFORE, BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT, OR BY DOWNLOADING, INSTALLING, UTILIZING, OR RECEIVING THE SOFTWARE OR SERVICES (AS DEFINED BELOW), YOU AGREE TO ALL THE TERMS OF THIS AGREEMENT

This Agreement is a legally binding contract between You and Tritek. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this Agreement.

Tritek does not accept any changes, additions or deletions to this Agreement; any such changes You make will not be accepted and will not be a part of this Agreement. If you do not accept the terms of this Agreement as-is, you must not access, download, install, use, or receive the Software or Services.

You agree to enter into this Agreement on the following terms and conditions:

DEFINITIONS
1. Agreement means the End User License Agreement, the Data Processing Addendum, the Software Support and Maintenance Terms and Conditions, the Sales Order, Tritek’s invoices for charges due from You in accordance with the Sales Order or any other documents incorporated by reference in this Agreement.
2. Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device, or end point upon which or through which the Software is used and/or on which the Software is installed.
3. Term means Initial Service Term and the Renewal Term(s), collectively.
4. Software means the object code versions of the product and any other downloadable software provided by Tritek under this Agreement, together with the updates, new releases or versions, and modifications or enhancements, owned and licensed by Tritek to You pursuant to this Agreement. Notwithstanding anything to the contrary in this Agreement, “Software” also includes any software delivered to you by Tritek as part of any other Services provided by Tritek.
5. Sales Order means the Tritek order form, product information dashboard, or other Tritek ordering document that specifies Your purchase of the Software or Services, if any, pricing, and other related information. In case of a conflict between any Sales Order and any other language in the Agreement, the Sales Order will control.
6. End User means an individual or entity as defined by the Sales Order authorized to use the Software, Services, and Documentation.
Fixed Term & Renewals: With respect to the Service (as defined herein), the term of the Service will be a fixed one (1) year term, commencing on the “Service Effective Date” of the applicable Services set out in the Sales Order. At the end of the one (1) year term for each Service, the term will automatically renew for a further (1) year term for the applicable Service, and this automatic yearly renewal will continue indefinitely, unless the Agreement is terminated in accordance with the provisions of this Agreement.
Scope of Services: as set out in the Sales Order provided to the End User.
Fees & Fee Adjustments: All orders placed will be considered final upon acceptance by Tritek. Fees shall be at Tritek’s current standard rates at the time of invoice unless otherwise set forth in the Sales Order and all fees will be due and payable as set forth in the Sales Order.

If You fail to pay as required, Tritek shall be entitled, at its sole discretion, to: (i) suspend the license to the Software and Services; (ii) charge You an interest rate designated by Tritek at the time of invoice; and/or (iii) terminate this Agreement.

If You exceed the license capacity designated in Your Sales Order, in addition to Tritek’s other remedies, charges for product usage above your monthly commitment will be calculated at your negotiated commitment charge price or the current list price of the Software or Service, as applicable. Unless otherwise provided in the Sales Order, all payments made under this Agreement shall be in Canadian dollars. Fees are non-refundable.

If You believe all or any part of an invoice is in error, you must notify Tritek within thirty (30) days of your receipt of the invoice. If You fail to do so, Tritek will not be required to make any adjustment to the invoice, and You shall be deemed to have waived any right to contest the invoice.

You may add additional subscription licenses or add additional Software or Services at any time. Once additional licenses, Software, or Services are added, the price change is effective immediately and prorated for the first month according to your billing cycle.
Invoicing: The End User agrees to the following, with respect to invoices issued by Tritek:
1. Invoices will be sent to the address for the End User specified in this Agreement, setting out the Fees, and are payable in full within 30 days after the date of the invoice or date of receipt, whichever is later (NET 30).
2. Invoices containing hardware or software purchases are payable and due upon receipt and will be subject to late payment charges at the rate specified in the invoice, if not paid within ten (10) days of the invoice date.
3. Invoices are subject to a late payment fee of $15 and/or an interest charge at the rate specified in the invoice. The rate may vary from time to time, not to exceed two percent (2%) per month (compounded monthly) (26.82% per annum) calculated from the invoice date, if not paid within thirty (30) days of the invoice date.
4. In the case that the bank returns the End User’s cheque for any reason, an additional charge of $50 will be invoiced to the End User which is due immediately as well as any outstanding invoices. If a second cheque is returned for insufficient funds within a period of six months, Tritek will require that future payments by cheque be certified.
5. The End User will attend to prompt payment of invoices, without any deductions or set-offs of any amount.
6. The End User will dispute any charges that should not have been billed or that were over-billed within thirty (30) days of the date of the invoice, failing which, the End User will be deemed to have accepted the invoice. If the End User disputes a charge within the deadline provided, any improper charges will be credited to the End User in the following invoice.
Confidentiality: Each party agrees to maintain confidentiality concerning the other’s Confidential Information, and agrees not to use, disclose, distribute or allow access to such Confidential Information by any other person or organization, other than those who have a need to know of the information in order to perform their obligations under this Agreement, which obligations will indefinitely survive the termination of this Agreement, regardless of the manner of termination. “Confidential Information” means information in whatever form furnished by or on behalf of either party and designated as confidential by the furnishing party, including but not limited to business, strategic planning, financial, technical, trade secrets or other proprietary information, written or oral, acquired, shared, developed or provided under this Agreement, but does not include: (a) information which is not designated confidential by the furnishing party or which the party receiving such information can demonstrate is generally available to or known other than as a result of disclosure by such party; or (b) was obtained by the party receiving such information from a source other than the party furnishing such information, provided that such source is not bound by a duty of confidentiality.

Nothing contained herein will prevent either party from disclosing any Confidential Information of the other party to: (a) regulatory agencies, provided, however, that all reasonable steps are taken to maintain the confidentiality of such Confidential Information; (b) accountants, banks, or another financing sources (or their advisors) or in connection with a merger, acquisition or securities offering; or (c) third parties as required by law or regulation to be disclosed; provided, however, that the party subject to such disclosure requirement will provide written notice to the other party promptly upon receiving notice of such requirement in order to enable the other party to seek a protective order or otherwise prevent disclosure of the other party’s Confidential Information.
Legal Compliance: The End User represents and warrants that there are no legal impediments which would prevent the End User from entering into this Agreement and complying with the obligations in the Agreement. The End User warrants and represents that it is authorized by applicable law to provide to Tritek the information or other documents that may be provided to Tritek pursuant to this Agreement, and in particular, the End User will not provide any information to Tritek, unless such information is accurate, reliable, and has been obtained by the End User in compliance with applicable legislation (including any obligations to obtain consent for disclosure), as they relate to the privacy, confidentiality or security of “personal information” pursuant to Personal Information Protection Act (British Columbia) and any other privacy legislation.
Representations & Warranties: Except as expressly stated in this Agreement, there are no warranties, expressed or implied, by operation of law, legislation, or otherwise. No verbal advice, written information or any other communication provided by Tritek’s staff or representatives will create any warranty or representation unless it is expressly set out in this Agreement. In particular, Tritek makes no warranties or representations of merchantability or fitness for a particular purpose, nor any warranties that the Service(s) will not be interrupted or error free; however, Tritek will make good faith efforts to provide the Services in a professional and workmanlike manner.
Tritek Remedies: Without limiting the rights and remedies of Tritek under this Agreement or at law (and in addition to the termination rights set out in this Agreement), the parties agree to the following:
1. Equipment Removal for Non-Payment: If the End User fails to promptly pay Fees in accordance with the invoices issued to the End User, Tritek will be entitled to remove equipment delivered by Tritek to the End User’s premises and dispose of such equipment in any manner deemed reasonable by Tritek, and apply the funds from the disposal of such equipment to pay down the amounts owed by the End User, all without any liability on the part of Tritek. For greater clarity, such removal and disposal will not affect the obligation of the End User to pay the full amount due with respect to such equipment.
2. Support Hold. If the End User fails to comply with its obligations under this Agreement (including the failure to promptly pay Fees in accordance with the invoices issued to the End User), Tritek is entitled to place the End User’s account under “Support Hold”, wherein all Services otherwise provided to the End User under this Agreement will be suspended indefinitely (including the End User’s access to its account information) until the End User remedies its breach under this Agreement (including attending to full payment of all overdue invoices), without prior notice to the End User.
3. Entitlement to Damages. If the End User is in breach of its obligations under this Agreement, (i) any and all payments due are required to be made to Tritek by the End User and will, in each case, be due and payable immediately; and (ii) the End User will be liable for all loss, costs and expenses incurred by Tritek as a result of the End User’s breach of its obligations under this Agreement, including loss of profit, and legal fees incurred by Tritek in the enforcement of this Agreement (on a full indemnity basis) such, liability will survive termination of this Agreement regardless of the manner of termination.
Termination Rights: Without limiting the rights and remedies of Tritek under this Agreement or at law, the parties agree to the following termination rights, such rights will survive termination of this Agreement regardless of the manner of termination:
1. Termination with Notice: Either party may terminate this Agreement in respect of any applicable Services effective at the end of the then current Term, by notifying the other party in writing of such intention not less than thirty (30) days prior to the end of the then current Term.
2. Termination on Payment of Liquidated Damages: The End User may terminate all or a portion of the Services (“Terminated Services”) at any time prior to the end of the then current Term by: (i) giving notice to Tritek at least thirty (30 days) prior to the proposed early termination date for the Terminated Services, and (ii) paying to Tritek liquidated damages, an amount equal to the termination charges set out in the Schedule applicable to the Terminated Services.
3. Termination on Breach: Tritek may terminate this Agreement (in respect of all of the Services, or any part of the Services) at any time, if Tritek has delivered to the End User notice of a breach under this Agreement, and such breach has not been remedied within five (5) business days after the delivery of such notice, and if the Agreement is so terminated, the End User will pay to Tritek as liquidated damages, an amount equal to the termination charges set out in the Schedule applicable to the Services terminated by Tritek.
4. Termination on Insolvency: Either party may terminate this Agreement immediately, by notice to the other party, in the event of the other party’s insolvency, receivership, voluntary bankruptcy, and if the Agreement is terminated by Tritek under this provision, the End User will pay to Tritek as liquidated damages, an amount equal to the termination charges set out for each of the Services.
5. Termination on Cessation of Services: Tritek may terminate this Agreement at any time, on notice to the End User, that Tritek has ceased offering the applicable Services to the general public, and if the Agreement is so terminated, all obligations and liabilities under this Agreement will cease, unless expressly stated otherwise.
Migration to Comparable Service: At the sole discretion of Tritek, if the End User terminates this Agreement for the purposes of migrating to a Comparable Service, Tritek may (but is not obligated to) waive the requirement for the End User to pay the Liquidated Damages. A “Comparable Service” is a service offered by Tritek and contracted by the End User, for a term that is at least as long as term of this Agreement for the Terminated Services, and to which the applicable monthly fees are no lower than those set out under the applicable Schedule(s).
Limitation of Liability & Indemnity Obligations: To the maximum extent permitted by law:
1. Tritek does not warrant, endorse, guarantee, or assume responsibility for the Services, including any losses or damages that may result from the provision of the Services. does not guarantee that use of the Services will yield any specific results. The Services are provided to the End User on an “as is” and “as available” basis, and the End User’s use of the Services is at the End User’s own risk, and the End User will be solely responsible for any damage to their property, Devices, or loss of data that may result from the provision of the Service.
2. Unless caused by Tritek’s willful misconduct and/or gross negligence, Tritek (including each of their suppliers, contractors, or licensors) will not be liable for and irrevocably releases Tritek from any direct, indirect, punitive, incidental, special, consequential or exemplary damages suffered by the End User in connection with or arising from the use of, or inability to use the Services, or any other matters related to this Agreement (including without limitation loss of profits, goodwill, use, data or other intangible losses, failure to realize expected savings or any other commercial or economic loss), whether arising in negligence, tort, statute, equity, contract, common law, or any other cause of action, even if Tritek has been advised of the possibility of such loss or damage. The foregoing limitation of liability will apply to the fullest extent permitted by law in the applicable jurisdiction and will apply even in the event of a breach of condition, a breach of an essential or fundamental term, or a fundamental breach of this Agreement.
3. Tritek assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content in the provision of the Services; (ii) personal injury or property damage, of any nature whatsoever, resulting from our Services; (iii) the acts or omissions of Tritek’s employees, contractors, or representatives performing Services; (iv) any unauthorized access to or use of Tritek’s secure servers and/or any and all personal information stored therein; (v) any delay in the Services; (vi) the failure to provide the Services; (vii) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our online or mobile service by any third party; and/or (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Services.
4. Regardless of any other provision of this Agreement, in no event will Tritek, be liable to the End User for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the collective total of Fees that the End User paid to Tritek for three (3) months for the applicable Service that allegedly gave rise to the liability (net of all discounts and credits).
5. The End User will indemnify and hold harmless Tritek (and its suppliers, contractors, or licensors), from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses arising from: (i) the End User’s use of and access to the Services; (ii) any alleged or actual loss or damage to property, resulting from the performance of the Services, (iii) the End User’s breach of any term of this Agreement; and (iv) the End User’s violation of any applicable law, rule or regulation, which indemnity will survive termination of this Agreement regardless of the manner of termination.
6. The End User agrees, acknowledges and confirms that the limitations of liability and indemnity obligations set out in this section are fair and reasonable in the commercial circumstances of this Agreement and that Tritek would not have entered into this Agreement but for the End User’s Agreement to limit Tritek’s liability in the manner, and to the extent, provided for in this Agreement. The End User agrees that the sole and exclusive remedies that it has against Tritek in respect of the Services and this Agreement is exhaustively stated in this Agreement.
Independent Consultant: The parties agree that this Agreement is a contract for services and the parties agree that it is their intention for each party to organize their business affairs in accordance with the understanding that the Consultant is in a business of its own and not an employee or engaged in any joint venture with the End User. In the fulfillment of Tritek’s obligations under this Agreement, the representatives and employees, contractors, agents, or permitted assignees, as the case may be, will provide the Services and the parties agree that they will do so on behalf of Tritek, and in their personal capacity.
Non-Exclusitivity: The parties agree that Tritek is entitled to provide services that are the same or substantially the same as the Services to any other Client or customer at the sole discretion of Tritek, both during and after the Term of this Agreement. The parties agree that nothing in this Agreement will restrict or limit in any way whatsoever Tritek’s right to provide any services to any other person or entity.
Unavoidable Delay: If Tritek fails to meet or is delayed or hindered in meeting its obligations within the time prescribed, and such failure is caused or materially contributed to by any cause beyond the reasonable control of Tritek (e.g. strikes, lockouts, labour troubles, drastic loss of operation funds, inability to procure labour and/or materials, failure of power, restrictive governmental laws or regulations, outbreak of communicable disease, illness or virus, pandemic or epidemic, civil unrest, riots, insurrection, war, or other reason of a like nature (collectively, an “Unavoidable Delay”), the time for fulfilment of such obligation will be extended until the end of the Unavoidable Delay.
No Agency Relationship: The parties will not contract any liability or obligation on behalf of the other or enter into any agreement for or on behalf of the other, and any such obligation or agreement made without the prior written consent of the other will be void and unenforceable.
Valid Execution: The execution and delivery of this Agreement and the performance of its obligations have been duly and validly authorized by all necessary corporate or other action and do not violate any provision of its certificate or articles of incorporation, bylaws or other governing documents or any agreement by which it is bound.
Dispute Resolution: This Agreement and the rights and obligations of the parties will be governed, construed and enforced in accordance with the laws of British Columbia. All disputes arising out of or in connection with this Agreement will be referred to and finally resolved by a single, independent arbitrator to be mutually selected by the parties, or by application to the Supreme Court of British Columbia by either party, administered by the British Columbia International Commercial Arbitration Centre (BCICAC) pursuant to its applicable domestic arbitration rules. The arbitration will take place in Surrey, British Columbia, and the costs of the arbitration will be shared equally between the parties, unless otherwise ordered by the arbitrator.
Severability: If, for any reason, any provision contained in this Agreement should be held invalid by a court of competent jurisdiction, then the remainder of this Agreement will be enforced to the fullest extent permitted by applicable law.
Force Majeure. Tritek will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including: acts of God; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; war; or any other cause beyond its reasonable control (whether similar or dissimilar to the foregoing).
Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
Additional Disclaimer. IN ADDITION TO THE OTHER TERMS AND CONDITIONS HEREIN, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR DATA MAY NOT BE AVAILABLE OR RESTORABLE IF (1) YOU UTILIZE THE SERVICES IN EXCESS OF THE AMOUNT YOU ORDERED; (2) COPIES OF YOUR DATA WERE NOT COMPLETED FOR ANY REASON; (3) YOU ATTEMPT TO BACK UP DEVICES, FILES, FOLDERS, OR DRIVES NOT SUPPORTED BY THE SERVICES AS SET FORTH IN THE DOCUMENTATION; (4) YOU DESELECT OR DELETE A DEVICE, FILE, FOLDER, OR DRIVE FROM YOUR TRITEK ACCOUNT, FROM YOUR DEVICE, OR FROM BEING BACKED UP BY THE SERVICES; (5) YOU MODIFY YOUR OPERATING SYSTEM IN A MANNER THAT BREAKS COMPATIBILITY OR INHIBITS THE FUNCTIONALITY OF THE SERVICES OR SOFTWARE; (6) YOUR COMPUTER IS UNABLE TO ACCESS THE INTERNET OR TRITEK INFRASTRUCTURE; (7) YOU FAIL TO COMPLY WITH THE AGREEMENT OR DOCUMENTATION; OR (8) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE SERVICES.
Enurement: This Agreement will be binding upon and inure to the benefit of each of the parties and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder to any other person or entity without the prior written consent of the other party (which consent may be arbitrarily withheld).
Entire Agreement: This Agreement and its Schedules constitute the entire agreement of the parties regarding the subject matter hereof, and supersede all prior agreements and understandings, both written and oral, among the parties, with respect to the subject matter hereof. If there is a conflict between terms of the main body of the Agreement and any terms in the Schedules, the terms of the Schedules will govern unless otherwise provided in writing.
Legal Advice: The End User acknowledges that it has received or has had a reasonable opportunity to receive independent legal advice and has read this Agreement and understands each of the party’s rights and obligations under this Agreement.
Execution: This Agreement may be executed in counterpart, each of which will be deemed to be an original and all of which, taken together, will be deemed to constitute one and the same instrument. Delivery of an executed copy of this Agreement by any means of electronic communication capable of producing a printed copy will be deemed to be execution and delivery as of the date on which it is executed.