Definitions

“System” means Vonigo’s web-based system that delivers business management functionality, which includes but is not limited to, online booking, customer relationship management, invoicing, scheduling, invoicing, work orders, web sites, applications, private and public services or code, including, without limitation, XML, HTML, DHTML, XSLT, .NET and other similar programs and code, and related documentation provided to Client by Vonigo.

“User(s)” includes, but is not limited to, employees, contractors, agents, affiliates, sub-licensees and franchisees of Client authorized to use the System per the terms of this Agreement and for whom Fees are paid to use the System, and who have been supplied user identifications and passwords by Vonigo and/or Client.

“Products & Services” means any products or services offered by Client in connection with their business and use of the System.

“Customer(s)” means Users and customers of the Client that are using, or intend to use, the System to procure Products and Services.

“Licensed Content” means all materials and information, including, but not limited to, all text, graphics, photographs, audio, manuals, operating procedures, video, customer contacts, pricing, promotions and contract information provided by Client to Vonigo.

“Third Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the System, and are identified as third-party applications by Vonigo.

“Intellectual Property” means any of Vonigo’s patents and applications therefore, patentable subject matter, copyrights, trademarks, service marks, trade names, common law trademarks, industrial designs domain name rights, and trade secret rights, and all other intellectual property rights whether or not registered.

“Client Data” means all electronic data or information submitted by Client or Users to the System.

NOW WITNESSETH that in consideration of the mutual covenants and agreements hereinafter contained the parties each agree with the other as follows:

Grant of License

2.1 License

Effective immediately upon the Effective Date, during the term of this Agreement, Vonigo grants to Client a non-exclusive, non-transferable, right to use the System for its business and if the Client is a franchisor sub-license the System to its franchisees and their respective employees, contractors, agents, and affiliates (the “Franchisees”), and for no other purpose whatsoever, in accordance with the terms of this Agreement (the “License”).

2.2 Term

The term of this agreement shall commence upon the Effective Date until terminated in accordance with Section 6 hereof, and Fees will be charged for such number of Users selected by the Client to use the System, but in any event the Client shall be charged Fees for at least one User.

2.3 Restrictions

Client shall not reverse engineer, decompile or otherwise tamper with the code embodying the System. Client shall not take any other action that may impair or otherwise interfere with any Intellectual Property or other rights of Vonigo relating to the System. Vonigo may limit the number of Client’s Users at any time by providing Client with a written notice if Vonigo believes, in its sole discretion, that Client or Users are using the system in a manner resulting in an unreasonable burden to Vonigo’s system.

Vonigo’s Rights and Obligations

3.1 Vonigo’s Operations

Vonigo shall operate and maintain the System in its discretion. Vonigo may, without limitation, at its sole discretion:

1. Make operational changes to the System from time to time;
2. Change or modify the TCP/IP host address and substitute, modify or rearrange the System in any manner that Vonigo deems necessary or desirable to (i) comply with applicable laws, (ii) respond to changes in market conditions or technology, (iii) maintain, upgrade or repair the System, and (iv) respond to other circumstances beyond the control of Vonigo;
3. Vonigo shall not be liable to Client for any interruption of service or any related losses caused thereby

3.2 Terms of Service

Vonigo shall have the right to establish and enforce terms of service with respect to Client and Users and, which terms of service may be amended from time to time at Vonigo’s discretion (the " Terms of Service"). Vonigo’s obligation to provide the System is conditioned on Client and Users compliance with the Terms of Service. Terms of Service shall be binding immediately upon publication on Vonigo’s website or within the System.

3.3 Links

Vonigo shall, at its sole discretion, have the right to link the System to other websites and/or integrate the System with third party software suppliers and other partners.

3.4 Return of Client Data

Upon request by Client made within 30 days after the effective date of termination of this Agreement, Vonigo will make available to Client for download a file of Client Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Vonigo shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, may delete all Client Data in the System or otherwise in Vonigo’s possession or under Vonigo’s control.

Client Obligations

4.1 Compliance with Laws, Regulations and System Policies and Procedures

Client shall abide by the Terms of Service and all applicable laws and regulations. Client shall not transfer, use or export System in violation of any laws or regulations of any government or governmental agency. Client shall only use the System for a lawful purpose.

In the event that you choose to use the email and/or the SMS features, you represent and warrant that you have a current relationship with each person to whom an email or text message is to be sent. You are solely responsible for ensuring that the email and/or SMS feature(s) are utilized in a manner that complies with local, state, and federal laws, rules and regulations. This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, the EU ePrivacy Regulation, and comparable state laws. Moreover, you represent and warrant that each person to whom an email and/or text message is to be sent has specifically granted you permission to do so by whatever technology you choose; and opt-outs are provided pursuant to applicable law, rule or regulation. You are responsible for the content and will be identified as the sender of each email and/or text message sent on your behalf. You acknowledge that you, and not Vonigo, are responsible for obtaining any and all permissions required to use the System’s email and SMS features.

You agree to abide by this Agreement and all applicable laws and regulations, including but not limited to Title III of the Americans with Disabilities Act (“ADA”) and New York’s state and city level Human Rights Act, and California’s Unruh Civil Rights Act and Consumer Privacy Act.

4.2 Product & Service Representations

In no event shall Vonigo be responsible or liable to Client for any claims, damages, losses or liabilities related to or arising out of (i) the accuracy or completeness of any product, service or promotional claims by Client or its Users, or (ii) the failure of Client’s Products or Services to comply with any applicable laws, regulations or rules, including without limitation those relating to labeling, transportation and shipping.

4.3 Trademarks

In no event shall Vonigo be responsible or liable to Client for any claims, damages, losses or liabilities related to or arising out of the ownership, validity and/or defense of the trademarks used by Client.

4.4 Ownership and Responsibility for Products and Services

Client shall be solely responsible and liable for all Products and Services offered and sold by Client through or with the assistance of the System. Client shall at all times bear the risk of loss with respect to its Products and Services, and at no point shall ownership of Client’s Products, or liabilities related to such Products, transfer, or be construed to transfer, to Vonigo.

4.5 User Accounts

Client agrees to designate a User administrator (the “User Administrator”) and notify Vonigo of the identity and contact information for said User Administrator. The User Administrator may add Users to the License by placing an order with Vonigo for new User accounts (the “User Accounts”) on each User’s system profile. Client is responsible for all activity occurring under User Accounts and will use commercially reasonable efforts to prevent unauthorized access to or use of the System, and shall notify Vonigo immediately of any unauthorized use of any password, account, copying or distribution of the System. User Accounts cannot be shared or used by more than one individual User but may be reassigned to new Users replacing former Users.

4.6 Records Retention

Client shall maintain accurate records necessary to verify the number of Users. Upon Vonigo’s written request, Client shall provide Vonigo with such records within ten (10) days. If Client has more Users than Client has paid for, Client shall pay Vonigo within ten (10) days the applicable additional User Fees in addition to any costs incurred by Vonigo associated with reviewing such records.

4.7 Third-Party Applications

In the event that Client chooses to use software developed by third parties to add functionality to the System, “Third-Party Applications,” Client shall defend, indemnify and hold harmless Vonigo from any and all damages arising from or related to the Third-Party Application. of Client shall inform Vonigo prior to using any Third-Party Applications with the System. Vonigo reserves the right, at its sole discretion, to disable any Third-Party Applications it deems to negatively impact the System in any way whatsoever. Vonigo may offer Third-Party Applications for sale to the Client. Any other acquisition by Client of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Client and any third-party provider, is solely between Client and the applicable third-party provider. Vonigo does not warrant or support third-party products or services, whether or not they are designated by Vonigo as “certified” or otherwise, except as specified in the most current Terms of Service. No purchase of third-party products or services is required to use the System.

4.8 Third-Party Applications and Client Data

If Client installs or enables Third-Party Applications for use with the System, Client acknowledges that Vonigo may allow providers of those Third-Party Applications to access Client Data as required for the interoperation of such Third-Party Applications with the System. Vonigo shall not be responsible for any disclosure, modification or deletion of Client Data resulting from any such access by Third-Party Application providers. It is Client’s responsibility to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the System.

4.9 Google Services

System features that interoperate with Google services depend on the continuing availability of the Google API and program for use with the System. If Google Inc. or a successor entity, ceases to make the Google API or program available on reasonable terms for the System, Vonigo may cease providing such System features without entitling Client to any refund, credit, or other compensation.

4.10 System Suggestions

Vonigo shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and/or incorporate into the System any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users and Customers, relating to the System regardless of when said suggestions are made to Vonigo.

4.11 Other Responsibilities

Client shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Client acquired Client Data, (iii) use the System only in accordance with the Terms of Service and applicable laws and government regulations. Client shall not (a) make the System available to anyone other than Users and Customers, (b) sell, resell, rent or lease the System except as permitted under this Agreement, (c) use the System to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the System to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the System or third-party data contained therein, (f) attempt to gain unauthorized access to the System or their related systems or networks, (g) access the System if Client is a direct competitor of Vonigo, except with Vonigo`s prior written consent, (h) provide access to the System to direct competitors of Vonigo, (i) access the System for benchmarking or any other competitive purposes.

Fees and Payment for Purchased Services

5.1 Fees

Vonigo grants Client and Users the right to use the System upon payment of the fees set forth in the applicable Order Form (the “Fees”). Payment obligations are non-cancelable and Fees paid are non-refundable. User subscription Fees are based on annual or monthly periods, as selected by Client, that begin on the subscription start date and each monthly or annual period thereof, as applicable. For annual billing, Fees for User subscriptions added in the middle of a billing period will be charged for that period remaining in the subscription term. For monthly billing, Fees for User subscriptions added in the middle of a month will be charged in full for that month. Client shall pay all taxes on Fees as required by law. All Fees shall be billed, in advance at the beginning of the term.

5.2 Storage Fees

The maximum storage space provided to Client at no additional charge is as specified in the applicable Order Form, and in the online user guide accessible via the System. If the amount of storage required exceeds these limits, Client will be charged the then-current storage fees for the excess disk storage required. Vonigo will use reasonable efforts to notify Client when the average storage used per license reaches approximately 90% of the maximum; however, any failure by Vonigo to so notify Client shall not affect Client’s responsibility for such additional storage charges. Vonigo reserves the right to establish or modify its general practices and limits relating to storage of files and Client Data.

5.3 Fees Payment Mechanism

Vonigo shall issue invoices calculated in accordance with the Fees set forth in the applicable Order Form. Where the Client has elected to be billed monthly, Fees are due on the 1st day of each month in advance of each month for which they are being charged and all invoices of Vonigo are due and payable upon receipt of such invoice. Where the Client has elected to be billed annually, Fees will be billed and are due in advance upon entering into this Agreement, and throughout the Term as Users are added. By entering into this Agreement, Client is expressly agreeing that Vonigo will automatically bill the Fees and any subsequent renewals of the Fees to Client’s credit card noted in the applicable Order Form on the 1st day of each month, the next business day or at the earliest convenience of Vonigo. Client agrees to provide Vonigo with complete and accurate billing and contact information. Vonigo may terminate this Agreement and/or Client’s access to the System if the billing or contact information is false, fraudulent or invalid. Client is liable for all User Fees and it is the sole responsibility of the Client to collect Fees from Users. 2.5% interest per month or maximum rate permitted by law, whichever is lesser, will be charged to Client on all overdue Fees. Client will be charged a $50 administration fee for declined credit card transactions (maximum one per month).

5.4 Client Goods & Services Taxes

Client shall collect all applicable taxes associated with Client's Products & Services sold through or with the assistance of the System (the ``Client Taxes``) and shall remit such Client Taxes to the appropriate taxing authorities. Client shall provide and verify the tax rates that should be applied in connection with all Products and Services. Client shall be solely responsible for and pay to the appropriate taxing authority prior to the time of their becoming delinquent, any and all sales, use, excise, value-added, income, personal property or other taxes levied, imposed or assessed with respect to the operation of Client's business on the System. Client shall indemnify Vonigo in the event any taxing authority seeks to collect any tax required to be paid by Client from Vonigo.

5.5 Other Taxes

Unless otherwise stated, Vonigo`s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). Client is responsible for paying all Taxes associated with Client`s purchases hereunder. If Vonigo has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Vonigo with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Vonigo is solely responsible for taxes assessable against it based on Vonigo`s income, property and employees.

Term and Termination

6.1 Effective Date; Term

The term (the “Term”) of this Agreement shall be as follows:

1. If the Client has selected an annual Term, or has not specified a Term, then the Term is one (1) year commencing on the Effective Date, unless earlier terminated in accordance with the terms hereof. Thereafter, the Agreement shall renew at the then-current Fees for successive Terms of one (1) year, unless either party gives written notice to the other of its intention not to renew at least sixty (60) days prior to the end of the current Term.
2. If the Client has selected a monthly Term, then the Term of this Agreement shall be on a month-to-month basis, unless earlier terminated in accordance with the terms hereof. Thereafter, the Agreement shall renew at the then-current Fees for successive terms of one (1) month, unless either party provides the other party written notification of termination at least thirty (30) days prior to the expiration of the current Term.

Client shall remain obligated for all fees through the date of termination. Either party may also terminate this Agreement prior to the end of a term if the other party materially breaches its obligations hereunder and, if curable, such breach remains uncured for thirty (30) days following written notice of the breach.

6.2 Event of Default Defined

Any one or more of the following events shall constitute an "Event of Default":

1. Client or any guarantor of Client's obligations hereunder ("Client's Guarantor") having been adjudicated bankrupt or insolvent and such adjudication is not vacated within thirty (30) days;
2. The admission in writing by Client or Client's Guarantor of its inability to pay its debts when due, the appointment of a receiver or trustee for the business or property of Client or Client's Guarantor, unless such appointment shall be vacated within thirty (30) days after its entry;
3. The making by Client or Client's Guarantor of an assignment for the benefit of its creditors, or, if in any manner, Client's interest in this Agreement shall pass to another by operation of law without Vonigo’s prior written consent;
4. If Vonigo suspects the Client is using the Service for an unlawful purpose, or if Vonigo suspects the Client is using the Service in a manner that may cause an investigation by law enforcement authorities;
5. The failure of Client to pay any Fees or other sums of money due to Vonigo within fifteen (15) days after written notice from Vonigo that the same is past due hereunder, provided that any invoice, bill or other statement of account rendered to Client in the ordinary course of Vonigo’s billing or otherwise shall be adequate written notice, without more, for purposes of this provision;
6. The failure by Client to cure within fifteen (15) days after notice from Vonigo any breach of, or default under the covenants, representations, warranties or other obligations on its part under this Agreement or Order Form.

6.3 Remedies

Following the occurrence of an Event of Default, Vonigo, may with written notice (i) terminate this Agreement and/or Client’s and User’s access to the System, thereby relieving Vonigo of any obligations pursuant to this Agreement, and (ii) exercise any other legal or equitable right or remedy it may have.

6.4 Refund or Payment upon Termination

Upon any termination for cause by Client, Vonigo shall refund Client any prepaid fees covering the remainder of the term of all User subscriptions after the effective date of termination. Upon any termination for cause by Vonigo, Client shall pay any unpaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve Client of the obligation to pay any fees payable to Vonigo for the period prior to the effective date of termination.

Licensed Content

7.1 License

Solely for the purpose of presenting the Licensed Content to Customers via the System, Client grants to Vonigo a nonexclusive, worldwide license to use, reproduce, distribute, display, and transmit the Licensed Content to Customers. Vonigo is also granted the limited right to modify the format, structure, and organization of the Licensed Content for the purpose of integrating the Licensed Content into the System pursuant to Vonigo’s technical requirements and Customers’ business needs. The right to distribute shall include the right of Vonigo to offer to Customers the option of printing, downloading or other means of transmission of all or any portion of the Licensed Content solely for Customers’ internal business purposes.

7.2 Removal of Licensed Content

Without limiting the foregoing, if all or part of the Licensed Content becomes the subject of an actual or threatened lawsuit brought by a third party, or Vonigo believes the Licensed Content may violate the rights of a third party, then Vonigo will be immediately entitled to remove such Licensed Content from the System without incurring any liability to Client.

7.3 Ownership

Client owns and shall retain all intellectual rights in and to the Licensed Content. Nothing in this Agreement shall be construed to transfer any proprietary right in and to the Licensed Content from Client to Vonigo or any third party.

Warranty, Indemnity; Limitations

8.1 Representations and Warranties

Each party represents and warrants that: (i) it has the full power and authority to enter into this Agreement and to grant to the other party the rights granted herein; (ii) Client is the sole owner or a permitted user of the Licensed Content; (iii) Client is the sole owner or a permitted user of its trademark(s) and Vonigo is the sole owner or permitted user of Vonigo’s trademark(s); (iv) each party has secured all necessary licenses, consents, and authorizations with respect to use of its intellectual property; (v) no part of the intellectual property provided by one party to the other furnished or incorporated by either party violates or infringes upon the patent rights, copyrights, trade secrets, trademarks, or other rights of a person or entity; (vi) each party complies and shall continue to comply with all applicable legislation, rules, and regulations.

8.2 Indemnity

Each party agrees to indemnify the other and defend and hold it harmless against any and all liability, loss, damage, cost and expense (including cost of defense and reasonable attorneys’ fees) which the other party may hereafter suffer by reason of any third-party claim or action directly arising out of the infringement of the intellectual property right of a third party.

8.3 No Warranties Regarding Error-Free Operation

Vonigo does not warrant that the System is free from error or that the System will function without interruption. Vonigo makes no representation or warranty that the System will attract a minimum number of Customers or that a minimum number of transactions will be performed.

8.4 Warranty Limitation

OTHER THAN THE WARRANTIES AND REPRESENTATIONS SET FORTH ABOVE, VONIGO DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

Limitation of Liability

IN NO EVENT SHALL VONIGO, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, LICENSORS, OR AGENTS BE LIABLE TO CLIENT OR USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT, INCLUDING ANY LOST PROFITS OR REVENUES, LOST SAVINGS, OR OTHER SIMILAR DAMAGES ARISING OUT OF CLIENT'S AND USERS’ USE OR INABILITY TO USE THE SYSTEM, OR FROM ERRORS OR OMISSIONS IN THE HARDWARE OR SOFTWARE, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE, WHETHER VONIGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER SUCH DAMAGES ARE DEEMED TO RESULT FROM THE FAILURE OR INADEQUACY OF THE SYSTEM. VONIGO’S TOTAL LIABILITY FOR DAMAGES ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID TO VONIGO PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT TRIGGERING THE DAMAGE OR LOSS.

Intellectual Property Rights

10.1 System Ownership

Client hereby acknowledges that Vonigo or its licensors are the owners of, and have all right, title and interest to the System and all information, code, software, text, images, graphics, sounds, files, video, designs, animation, layout, color schemes, adaptations, logos, designs, ideas, concepts, methods, techniques, processes, patents, inventions, patentable subject matter, copyrights, trade secrets, tradenames, trademarks, service marks and all other intellectual property relating to the design, development, content and/or identification of the System and any related business processes. Except as expressly provided herein, no license of any kind are granted hereunder, whether by implication, estoppel, or otherwise.

10.2 Software Ownership

All software, with the exception of third-party software licensed by Vonigo, is and shall remain the sole and exclusive property of Vonigo, and Vonigo and its licensors shall retain all copyright and other intellectual property rights in such software.

10.3 Ownership of Customer Data

All information with respect to Customers, their representatives or any individuals that purchase Products or Services through or with the assistance of the System that is collected either by Vonigo or Client and/or stored in the System software or hardware, is the Confidential Information of the Client.

10.4 Sensitive Data

Client shall not, at any time, store sensitive Customer or User data within System, which includes but is not limited to, credit card numbers, US Social Security Numbers, and Canadian Social Insurance Numbers (the “Sensitive Data”). Storage of Sensitive Data within the System by Client will constitute a breach of this Agreement (the “Sensitive Data Breach”). Following the occurrence of a Sensitive Data Breach, Vonigo may (i) terminate this Agreement and/or Client’s and User’s access to the System, thereby relieving Vonigo of any obligations pursuant to this Agreement, (ii) exercise any other legal or equitable right or remedy it may have, and (iii) delete the Sensitive Data. Client hereby expressly agrees to indemnify, defend, and hold harmless Vonigo, its officers, directors, employees, agents, volunteers and assigns against any and all liability, loss, damage, cost, claim, and expense (including cost of defense and reasonable attorneys' fees) arising out of or incident to the Sensitive Data.

10.5 Client Upload License

Client hereby grants Vonigo a non-exclusive, worldwide, royalty-free, non-transferable license to use, copy, display on, and upload to the System all Licensed Content provided by Client and designated for uploading in the agreed format.

10.6 Vonigo Trademark License

Vonigo hereby grants Client a non-exclusive, royalty-free, non-transferable, worldwide license to use, during the Term of this Agreement, the tradenames, trademarks and service marks of Vonigo (the "Vonigo Marks") solely in connection with Client's advertising of the System and its franchise and provided any use of the Vonigo Marks by Client is strictly consistent with Vonigo’s trademark guidelines in effect from time to time.

10.7 Client Marks

Client grants to Vonigo a nonexclusive worldwide license to use, reproduce, and distribute Client’s trademarks, trade names, and service marks (“Client Marks”) solely in connection with and for the presentation, marketing, and promotion of the System and Vonigo. Vonigo may refer to Client as a user of the System should Vonigo so desire, including without limitation on the Vonigo website, in press releases, social media channels and in other marketing materials. Vonigo may use Client's Marks and depictions or reproductions of the System or any other advertising materials created hereunder in perpetuity and without territorial restrictions for Vonigo’s internal purposes, public relations purposes, advertising award competitions, advertising trade publications and retrospective editorial material while this Agreement is in effect.

Force Majeure

11.1 Force Majeure

“Force majeure” means any event or circumstance beyond the reasonable control of the party which affects such party's performance of its obligations hereunder, including, but not limited to, events affecting all or a portion of the Internet beyond the boundaries of the System, power outages, illegality, interruptions to telecommunications systems, any war, whether declared or not, hostilities, belligerence, blockade, revolution, insurrection, riot, public disorder, expropriation, requisition, confiscation or nationalization, whether imposed by law, decree or regulation by any government authority, or fire, unusual flood, earthquake, volcanic activity, storm, typhoons, lightening, or any event, matter or thing, wherever occurring, that is clearly outside of either party's reasonable control. In the case of Vonigo such events affecting one of Vonigo’s service providers/outside vendors for the System shall be deemed to have affected Vonigo.

11.2 Performance Excused

Except with respect to Client's payment obligations and each party’s indemnification obligations as set forth above, neither party shall be responsible nor liable for, nor deemed in breach or default hereof, nor shall any claim by any party against any other party arise because of their respective failure or omission to perform or delay in the performance of their respective obligations hereunder due to force majeure.

Confidentiality

12.1 Confidential Information

Each party may furnish to the other party in connection with this Agreement and the operation of the System certain confidential information (the “Confidential Information”). Confidential Information shall include, without limitation, all non-public business and technological information of the parties, including Vonigo’s and/or Client’s business strategy, and customer data. Confidential Information of Vonigo shall include the System software specifications, information or other know-how relating to the design, development, operation and architecture of the System. The party disclosing such Confidential Information is referred to as the "Discloser," and the party receiving such Confidential Information is referred to as the "Recipient."

12.2 Duty to Keep Confidential

Each party agrees that it shall keep in confidence and prevent the acquisition, disclosure, use (other than by Recipient as contemplated hereunder) or misappropriation by any person or persons of Confidential Information which is received from the other under this Agreement, provided, however, that neither party shall be liable for disclosure of any such information if the same is disclosed with the prior written approval of the other party. Each party agrees that if it breaches the provisions of this section, the Discloser of the Confidential Information may suffer irreparable injury and shall be entitled immediately to an injunction, in addition to the other remedies for breach of this Agreement. Recipient shall use the same care and discretion to avoid disclosure, publication, or dissemination of Confidential Information as it uses with its own similar Confidential Information that it does not wish to disclose, publish or disseminate.

12.3 Exceptions

The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, to the extent (a) it was in the public domain at the time of Discloser's communication to Recipient; (b) it entered the public domain through no fault of Recipient subsequent to the time of Discloser's communication thereof to Recipient; (c) it was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient; (d) it was independently developed by Recipient as evidenced by written records; or (e) its disclosure is required pursuant to applicable law, including securities law disclosure requirements, or pursuant to a court or government order and Discloser has been given reasonable notice of such order and reasonable opportunity to seek a protective order.

12.4 Ownership; Survival

All such Confidential Information shall remain the exclusive property of Discloser. The confidentiality obligation shall survive the termination of this Agreement and shall continue for so long as the Confidential Information is the property of Discloser or for as long as otherwise permitted by law.

12.5 Authorized Disclosures

The parties may disclose Confidential Information to its officers or directors, any person who is acting as a professional advisor (including accountants and attorneys) or consultant to either party in connection with the proposed transactions, and to its employees who are involved with the subject matter of this Agreement for such party.

12.6 Use of Client's Name

While this Agreement is in effect, Vonigo shall have the right to use Client's name in any public announcements and press releases regarding the System. Each party shall obtain the written consent of the other party before making any other release or disclosure.

Miscellaneous

13.1 Governing Law

This Agreement shall be interpreted under the laws of the province of British Columbia and the Courts in British Columbia shall have jurisdiction to hear any disputes in relation to this Agreement whether such disputes deal with monies outstanding to Vonigo or matters relating to the interpretation of any of the terms of this Agreement; provided that Vonigo may take action in such other jurisdiction as it may deem desirable to obtain injunctive, declaratory or other relief.

13.2 Relationship of Parties

The relationship of Vonigo and Client established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.

13.3 Waiver of Breach

The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.

13.4 Severability

If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to renegotiate any term held invalid and to be bound by the mutually agreed substitute provision.

13.5 Assignment

Neither party shall assign or delegate this Agreement or any of its rights or duties under this Agreement, without the prior written consent of the other party, except to a person or entity which has succeeded to all or substantially all of its business and assets to which this Agreement pertains, and which successor has assumed its obligations under this Agreement.

13.6 Further Assurances

Each party shall, from time to time, at the request of the other party, and without further cost or expense to such other party, execute and deliver such other instruments and take such other actions as may reasonably be requested in order to more effectively consummate the transactions contemplated hereby.

13.7 Headings

The headings set forth in this Agreement and in the exhibits and addenda are for convenience only and will not control or affect the meaning or construction of the provisions of this Agreement.

13.8 Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement.

13.9 Survival

The rights and obligations of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

13.10 Inurement

This Agreement shall inure to the benefit of and be binding upon the heirs, personal representatives, executors, executrices and administrators, committees, receivers, trustees in bankruptcy, successors and permitted assignees of each of the parties hereto.

13.11 Notices

All notices under this Agreement will be in writing and will be deemed given when: (i) delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested; or (iii) one (1) day after deposit with a nationally-recognized commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party giving written notice to the other party. If the communication is from Client to Vonigo, it shall be addressed to "Attn: Vonigo CEO.”

13.12 Entire Agreement

This Agreement, including any attachments hereto and any related Order Form, constitutes the entire agreement between the parties, and supersedes all previous and contemporaneous registrations, agreements, commitments and writings, with respect to the subject matter. Any item or service furnished by Vonigo in furtherance of this Agreement, shall be covered by this Agreement unless specifically covered by some other agreement executed by Client and Vonigo.