PROXXI OEM AND MASTER SERVICES AGREEMENT

WHEREAS:

  1.  Proxxi is the provider of  wearable monitoring devices for people working near medium and high voltages, proprietary mobile application, and Cloud platform; 

  2. Customer now wishes to purchase Devices for use by Customer and Customer’s End Users for Customer’s internal business purposes.

NOW THEREFORE for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS. For the purposes of this Agreement, the following terms shall have the following meanings:

“Affiliate” of a Party means any corporation or other legal entity that such Party directly or indirectly controls, is controlled by, or is under common control with.  In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns fifty percent (50%) or more of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;

“Cloud” means the web-based platform developed by Proxxi, which enables Customer to input information about the Devices, and receive certain data about its End Users use of Devices, and which can be used to monitor Devices and End Users’ safety;

“Confidential Information” has the meaning set forth in Section 6(a) (Confidential Information);

“Data” means any information, data, and material that is uploaded or transmitted to the Cloud, including information provided by End Users via Proxxi’s mobile Apps, and information and materials provided by Customer and its Affiliates or any other person;

“Devices” shall mean the wearable voltage sensors sold by Proxxi from time to time, as may be more generally described on the Website;

“End User” means any employee, contractor or agent of the Customer or one of Customer’s Affiliates who acquires Device, which, for greater certainty, includes the combination of products or services offered by the Customer with the Proxxi Solution;

“Proxxi App” means the iOS and Android compatible mobile application developed by Proxxi and is used in connection with the Devices and the Cloud, and used to monitor Devices;

“Proxxi Solution” means the Devices together with the Proxxi App and the Cloud;

“Proxxi Marks” means the trademarks or other proprietary marks that Proxxi uses in connection with the Proxxi Solution and/or the Proxxi App;

“Intellectual Property” means all intellectual property rights in any country including, without limitation, all of the following: (i) all patents and utility models and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including without limitation, invention disclosures; (ii) all trade secrets and other rights in technology, data, know-how and confidential or proprietary information; (iii) mask works, mask work and integrated circuit topographies and registrations and applications therefor, and all other rights corresponding thereto throughout the world; (iv) all copyrights, copyrights registrations and applications therefor and all other rights corresponding thereto throughout the world, including, where applicable, moral rights and droit d’auteur; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) all rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor; and (viii) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world;

“Order” means any purchase document issued by Customer to Proxxi for the purpose of ordering the Proxxi Solution or any component thereof pursuant to this Agreement; and

“Support” means the services described in Section 5(a) (Support) and Schedule B (Support Responsibilities).

2. ORDERS, LICENSES, RE-SALE RIGHTS

(a) Orders.  Proxxi agrees to sell the Proxxi Solution to the Customer in accordance with the terms and conditions of this Agreement.  Specific quantities of the Proxxi Solution may be ordered by Customer by requesting a quote from Proxxi, and if such quote is accepted then submitting Orders to Proxxi which reflect such quote(s).  Orders shall be submitted by email to accounts@proxxiband.com. An Order will be deemed to have been placed as of the date of receipt of the Order by Proxxi, and shall be deemed to have been accepted upon confirmation of acceptance of such Order by Proxxi.  Each Order shall include: (i) unit quantity; (ii) shipping destination; (iii) delivery date; and (iv) any other instructions or requirements pertinent to the Order.  To the extent of any inconsistency between the terms of an Order and the terms of this Agreement, the terms specified in this Agreement shall control and take precedence.  

(b) Devices. Use of each Device shall be subject to the limited warranty and disclaimer of liability set out in Schedule C, together with all such other disclaimers and limitations as may be set out in this Agreement. In the event of conflict between Schedule C and this Agreement, the terms of this Agreement shall prevail. 

(c) Proxxi App License. End Users using the Proxxi App will be required to agree to the end user license terms as made available by Proxxi from time to time, the current form of which is attached hereto as Schedule B. Proxxi reserves the right to update, amend and modify the Proxxi End User License Agreement at any time in its sole discretion.  In the event of any material change to the End User License Agreement, Proxxi shall provide notice to the Customer of the change.  Proxxi shall have no obligation to make the Proxxi App available to End Users who have not agreed to the terms of the Proxxi End User License Agreement.

(d) Access to Cloud Dashboard.  Subject to Customer subscribing to the Cloud pursuant to an Order and the timely payment of the license fees, set forth in the applicable Order, Proxxi hereby grants to Customer a non-transferrable, non-exclusive right to access and use the Cloud platform in order to input information about Devices, and to monitor Devices being used by End Users.  On subscription by Customer, Proxxi will use commercially reasonable efforts to make the Cloud available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Proxxi’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Proxxi employees),  Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Proxxi’s possession or reasonable control, and denial of service attacks.  Customer is responsible for its employees’, contractors’, customers’ and agents’ compliance with this Agreement, including such employees, contractors, and agents activities on the Cloud.  Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data and information transmitted to the Cloud; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Cloud, and notify Proxxi promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Cloud.

(e) Data Ownership; Data License. As between the parties, to the extent that the Data can be owned, Customer will own all Data uploaded or transmitted to the Cloud or Proxxi App by Customer or its End Users, but shall only have the right to access such Data where it has a current subscription to the Cloud.  Customer hereby grants to Proxxi a non-exclusive, non-transferrable, worldwide, royalty-free, fully paid up, perpetual, irrevocable license to access and use the data transmitted to the Cloud by Customer and its Affiliates for the purpose of providing the Services, and to create anonymized, aggregate statistics in respect of use of the Solution and other End User parameters, for internal analytics purposes, product improvement and marketing purposes. The license granted by Customer in this Section 2(d) shall survive termination or expiration of this Agreement for any reason.

(f) Restrictions.  Customer shall not, and shall not permit any person to (i) copy, modify, adapt, alter, amend, reverse engineer, decompile, disassemble or decode all or any part of any of the Proxxi Solution (including the Proxxi App, the Cloud, and the Proxxi Device); (ii) use the Data, Proxxi’s Confidential Information or Proxxi’s Intellectual Property forming part of the Proxxi Solution to create a product that is similar to and/or competitive with any of the Proxxi Solution (including the Proxxi App and the Proxxi Device); or (iii) remove, delete or in any manner alter Proxxi trademarks or other proprietary notices or intellectual property notices from the Proxxi Solution, including the Proxxi App. 

(g) Reservation of Rights. Except for the rights and licenses granted in this Agreement, Customer acknowledges and agrees that Proxxi and/or its licensors owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Proxxi Solution, including any materials provided or made available by Proxxi.  Proxxi grants Customer no further licenses of any kind hereunder, whether by implication, estoppel or otherwise.  Customer acknowledges that only Proxxi shall have the right to maintain, enhance or otherwise modify the Proxxi App.

(h) No Other Rights Granted.  The rights and licenses granted under this Agreement are only as expressly set forth herein.  No other license or right is or shall 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. Proxxi and its licensors shall retain all right, title, and interest (including all Intellectual Property rights) in, to, and under the Proxxi Solution.

(i) Improvements. All improvements to the Proxxi Solution and /or the Proxxi App (whether or not suggested by Customer) shall be the sole property of Proxxi.  Customer shall communicate to Proxxi information on all such improvements which Customer possesses, and shall execute such patent applications, assignments or other documents reasonably requested by Proxxi to vest in Proxxi all rights, title and interest in the improvements, and to protect such improvements to the fullest extent as permitted by law.  If a patent application is to be made in respect of any improvement to  the Proxxi Solution and /or the Proxxi App, Customer agrees to cooperate fully in connection with Proxxi’s prosecution of such patent, the cost of which will be borne by Proxxi. 

3. DELIVERY

(a) Order Acceptance; Invoicing; Product Delivery. An Order shall be deemed to have been placed as of the date of written acceptance of the Order by Proxxi.  If Proxxi does not accept an Order within 10 days of its date of issue then such Order shall be deemed to have been rejected. Proxxi shall promptly issue and invoice in respect of an accepted Order electronically within five (5) days of such acceptance.  Delivery terms shall be as set out in the accepted Order or, if different, applicable invoice. 

(b) Proxxi App Delivery; Cloud Access.  In addition to the deliveries anticipated in Section 3(a) Proxxi shall make available for download an iOS and Android compatible version of the Proxxi App.  Proxxi shall also provide Customer with login information to enable Customer to access the Cloud where Customer has subscribed for such access through an accepted Order, and subject to payment of all outstanding fees. 

(c) Shipping Costs; Risk and Title. Within North America, Proxxi shall be responsible for all shipping costs, handling costs, service costs, insurance costs, delivery charges for all deliveries of the Proxxi Solution to Customer.  The risk of loss of or damage to the units of the Proxxi Solution ordered by Customer shall transfer to Customer upon delivery of such units to the carrier. Title to the units of the Proxxi Solution ordered by Customer shall pass to Customer upon final receipt of payment in respect of those units by Proxxi.

4. PRICE AND PAYMENT

(a) Fees and Payment.  Fees for the Proxxi Solution shall be as set out in each accepted Order in accordance with the terms of that Order and the applicable Invoice. Payment terms are 50% of total price at time of Purchase Order with the remainder and any additional fees due 30 days from date of invoice unless otherwise agreed. 

(b) Taxes. All fees exclude taxes (including any applicable federal, state, provincial, use, value-added, goods and services, and local taxes) and customs duties. Customer shall pay to Proxxi the amount of all such taxes (excluding taxes based on Proxxi’s net income) and customs duties and Proxxi shall itemize all taxes and duties as separate line items on each invoice.  

(c)  No Refunds.  The fees for any purchased units of the Proxxi Device are non-refundable, except to the extent that a return is covered by the Proxxi Warranty policies described in Section 7, below.

5. MAINTENANCE AND SUPPORT

(a) Support.  The Support responsibilities of the Parties for the Proxxi Solution sold or sublicensed by Customer, its Affiliates and resellers to End Users shall be as set forth in Schedule B.  Proxxi shall continue to provide warranty support for the hardware component Proxxi Solution for the entire warranty period for such hardware.

6. CONFIDENTIALITY

  1. Confidential Information.  During the performance of this Agreement, each Party may provide the other with Confidential Information.  For the purposes of this Agreement, “Confidential Information” is any information disclosed in written, graphic, verbal, or machine-recognizable form, that is marked, designated, labeled or identified at the time of disclosure as being confidential or its equivalent; or if in verbal form, that a reasonable business person would consider to be confidential in the circumstances, including without limitation, trade secrets customer lists, marketing plans, product plans and roadmaps, Data, technical information, financial information, pricing, and all other information and materials of a non-public nature Notwithstanding any other provisions of this Agreement, Confidential Information shall not include any information that: (i) is or becomes publicly known through no wrongful act of the receiving Party; (ii) is already known to the receiving Party without restriction when it is disclosed; (iii) is, or subsequently becomes, rightfully and without breach of this Agreement, in the receiving Party’s possession without any obligation restricting disclosure; (iv) is independently developed by the receiving Party without breach of this Agreement; or (v) is explicitly approved for release by written authorization of the disclosing Party.  The obligations of confidence set forth in this Agreement shall extend to any Affiliates that have received Confidential Information of the other Party and shall also cover Confidential Information disclosed by any Affiliate.

  2. Obligations.  Each Party shall maintain in confidence all Confidential Information of the other Party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement, and shall not disclose any such Confidential Information to any third party except as expressly permitted hereunder or make any unauthorized use thereof.  Each Party shall treat such Confidential Information with the same degree of care against disclosure or unauthorized use that it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater.  Each Party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials.  Each Party shall be entitled to provide Confidential Information to contractors of that Party that have agreed to confidentiality obligations at least as protective as those contained herein.  Confidential Information is and shall at all times remain the property of the disclosing Party, and no grant of any proprietary rights in the Confidential Information is hereby given or intended, including any express or implied license, other than the limited right of the recipient to use the Confidential Information in the manner and to the extent permitted by this Agreement. 

  3. Compelled Disclosure.  If the receiving Party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of the disclosing Party, the receiving Party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, or (ii) provide prior written notice to the disclosing Party to allow the disclosing Party to seek protective or other court orders.

7. WARRANTIES

  1. No elimination of risk. It is impossible to eliminate all risks associated with the use of the Devices. Risks of serious injury or death, including risks associated with electrocution, arcing and thermal burns, are inherent in work in and around energized electrical systems. Such risks arise from the wide variety of electrical systems and equipment to which Devices may be applied, the manner of use or application, weather and environmental conditions or other unknown factors, all of which are beyond the control of Proxxi. Proxxi does not agree to be an insurer of these risks. WHEN CUSTOMER BUYS OR USES DEVICES, IT AGREES TO ACCEPT THESE RISKS.

  2. General Warranty.  Proxxi warrants to the original purchaser that the Products (excluding any third party products purchased through Proxxi, for which no warranties are made) will be free from defects in material and workmanship, under normal use and regular service, and preventative maintenance for a period of twelve (12) months from the date of shipment. Claims for Devices not complying with this warranty shall be submitted by Customer, and all defective or non-compliant sensors to be replaced must be returned to Proxxi, no later than thirty (30) days from the date when the defect or non-compliance is discovered.  If any Devices are defective, Proxxi shall replace, at its expense, defective or non-complying Devices.  If any Devices stop working or are otherwise defective within the warranty period, Proxxi will reimburse Customer for an amount equal to the value of the total number defective Devices under warranty; 
    This Warranty does not apply to: (a) cosmetic damage, including, but not limited to minor scratches, peeling labels, minor dents that do not affect the functionality of the Devices ;  (b) damage caused by accident, abuse, misuse, neglect or failure to properly maintain (to include but not limited to water damage and/or condensation or improper temperatures during storage) or not following the instructions in the Proxxi App or documentation provided by Proxxi as required by the Specifications and/or Documentation; (c) to damage caused by  civil disturbance, earthquakes, natural disasters, war, flood, fire, rodents or insects; and (d) to damage caused during shipment (due to Customer’s or End User’s improper packaging) from Customer or End User to Proxxi.

  3. NO OTHER WARRANTIES.  PROXXI DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST HIDDEN OR LATENT DEFECTS. PROXXI’S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR OR REPLACEMENT. 

PROXXI DOES NOT WARRANT THAT THE OPERATION OF THE PROXXI SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE. PROXXI IS NOT RESPONSIBLE FOR DAMAGE ARISING FROM FAILURE TO FOLLOW INSTRUCTIONS RELATING TO THE PROXXI’S SOLUTIONS’ USE. THIS WARRANTY IS VOIDED IMMEDIATELY IF REPAIR, MODIFICATION (TO INCLUDE UPGRADES, EXPANSIONS OR USAGE OR ADDITION OF NON-MANUFACTURER PARTS OR ACCESSORIES), ALTERATION OR OTHER SERVICE IS ATTEMPTED OTHER THAN BY PROXXI. IN THIS REGARD, THE INTEGRITY OF THE APPLIANCE CASING (AKA THE BOX) SHOULD NOT BE VIOLATED FOR ANY REASON, UNLESS EXPRESSLY AUTHORIZED BY PROXXI IN WRITING. 

THE PROXXI APP IS PROVIDED TO YOU "AS IS". PROXXI MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR TITLE, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. PROXXI DOES NOT WARRANT THAT THE OPERATION OF THE PROXXI APP WILL BE UNINTERRUPTED OR ERROR FREE. Customer IS SOLELY RESPONSIBLE FOR PROVIDING ACCURATE AND UP TO DATE CALIBRATION DATA.

PROXXI EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM  ANY INACCURACIES, ERRORS, OMISSIONS OR OTHER COMPROMISE OF ANY CALIBRATION DATA SUPPLIED TO CLOUD BY CUSTOMER, FOR ANY DEFECT OR MALFUNCTION OR OTHER ISSUE ARISING IN CONNECTION WITH THE CUSTOMER PRODUCTS, FOR ANY INJURY, LOSS, DAMAGE OR OTHER CLAIM ARISING AS A RESULT OF AN END USER’S USE OF THE PROXXI SOLUTION OTHER THAN AS CONTEMPLATED BY THE SPECIFICATIONS AND/OR THE DOCUMENTATION, AS WELL AS ANY INJURY, HARM, LOSS, DAMAGE, OR ANY OTHER CLAIM ARISING AS A RESULT OF CUSTOMER’S FAILURE TO KEEP CALIBRATION DATA UP-TO-DATE. 

CUSTOMER UNDERSTANDS THAT THE PROXXI SOLUTION IS A CLOUD BASED SOLUTION, AND THAT PROXXI’S STORAGE OF CUSTOMER AND END USER INFORMATION WILL INVOLVE TRANSMISSION OF SUCH DATA OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT WHILE PROXXI USES COMMERCIALLY REASONABLE SECURITY MEASURES TO PROTECT CUSTOMER INFORMATION, SUCH INFORMATION MAY BE ACCESSED BY UNAUTHORIZED PERSONS WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK COMMUNICATIONS FACILITIES, TELEPHONE OR OTHER ELECTRONIC MEANS. PROXXI IS NOT RESPONSIBLE FOR ANY CUSTOMER OR END USER INFORMATION WHICH IS DELAYED, LOST, ALTERED, INTERCEPTED OR STORED DURING THE TRANSMISSION OF ANY DATA WHATSOEVER ACROSS PUBLIC NETWORKS NOT OWNED OR OPERATED BY PROXXI.  CUSTOMER AGREES THAT PROXXI IS NOT IN ANY WAY RESPONSIBLE FOR ANY INTERFERENCE WITH CUSTOMER’S USE OF OR ACCESS TO THE CLOUD OR SECURITY BREACHES ARISING FROM OR ATTRIBUTABLE TO THE INTERNET AND OEM PARTER WAIVES ANY AND ALL CLAIMS AGAINST PROXXI IN CONNECTION THEREWITH.

8. LIMITATION OF LIABILITY

PROXXI SHALL HAVE NO ANY LIABILITY WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR THE RIGHTS PROVIDED HEREUNDER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES, PROFITS, OR SAVINGS, LOSS OF BUSINESS, USE, OR LOST DATA, LOST OPPORTUNITY COSTS, LOST TIME OR GOODWILL), OR ANY DEFECT, MALFUNCTION OR PRODUCT LIABILITY ISSUES ARISING IN CONNECTION WIT CUSTOMER PRODUCTS, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING AND EXCEPT FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 6 (CONFIDENTIALITY) AND SECTION 8 (INDEMNIFICATION) (WHICH SHALL BE SUBJECT TO THE LIABILITY CAP IN THE PARAGRAPH IMMEDIATELY FOLLOWING THIS PARAGRAPH), IN THE EVENT THAT PROXXI IS HELD LIABLE FOR ANY CLAIM, ACTION DAMAGE OR OTHER HARM OR INJURY, PROXXI’S AGGREGATE LIABILITY SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE ANY AMOUNTS RECEIVED FROM CUSTOMER IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

9. TERM AND TERMINATION

(a) Term.  This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of three (3) years (such initial term referred to in this Agreement as the “Initial Term”).  Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof.  Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.

(b) Termination. A Party may terminate this Agreement by giving a written notice to the other Party: (i) if the other Party commits a material breach of this Agreement and fails to remedy same within thirty (30) days after delivery of written notice by the non-breaching Party of the occurrence or existence of such breach or such longer period as may be agreed to in writing by the non-breaching Party; (ii) if the other Party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such a receiver, trustee, or liquidator is appointed; or such Party has filed against it an involuntary petition of bankruptcy that has not been dismissed within thirty (30) days thereof, or files a voluntary petition of bankruptcy, or a petition or answer seeking reorganization, or an arrangement with creditors, or seeks to take advantage of any other law relating to relief of debtors.

(c) Confidential Information.  Upon termination or expiration of this Agreement, each Party at its own expense shall, upon request by the other Party, promptly destroy or return to such other Party all tangible material embodying any Confidential Information of such other Party that has been provided hereunder, together with all copies or other tangible embodiments made thereof by or for such Party. Customer shall not be obliged to return any Confidential Information that is required for the ongoing support of End Users the Proxxi Solution.

10. MISCELLANEOUS

(a) Nature of Obligations Between Parties.  The obligations of each Party under this Agreement shall be in every case several and shall not be, or be construed to be, either joint or joint and several.  Nothing contained in this Agreement shall be deemed to constitute either Party or any of its representatives the partner, agent, franchisee, or legal representative of the other Party or to create any fiduciary relationship for any purpose whatsoever.  Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either Party or any of its representatives any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other Party.

All such notices or other communications shall be deemed to have been given and received (i) upon receipt if personally delivered, (ii) when delivery is confirmed if sent by international air courier service, or (iii) the following business day if by fax.

(c) Choice of Law.  This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of the Province of British Columbia without reference to its provisions on conflict of laws.   No choice of laws rules of any jurisdiction shall apply to this Agreement.

(d) Currency.  All dollar amounts in this Agreement are United States Dollars. 

(e) Force Majeure.  Neither Party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, provided that such Party gives the other Party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.

(f) Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law.  If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and shall be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.

(g) Amendments; Waivers.  This Agreement may be amended, and the taking of any action required hereunder may be waived, by the written consent of each Party at the time such amendment or waiver is sought.  No such waiver shall operate as a waiver of, or estoppel with respect to, any other action.  No failure to exercise, and no delay in exercising, any right, remedy, or power hereunder shall operate as a waiver thereof, nor shall single or partial exercise of any right, remedy, or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided herein or by law or at equity.  The waiver of the time for performance of any act or condition hereunder does not constitute a waiver of the act or condition itself.

(h) Successors; Assignment. Each Party agrees that it shall not (and neither Party has any right to) assign, sell, transfer, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law, or otherwise, this Agreement or any right or obligation under this Agreement without the prior written consent of the other Party.  Any purported assignment, sale, transfer, or other disposition in violation of this Section 12(i) (Successors; Assignment) shall be null and void.  Notwithstanding the foregoing,  Proxxi may, without the consent of Customer, assign this Agreement together with all of its rights and obligations under this Agreement (i) to an Affiliate of Customer, or (ii) as part of a sale, merger, or other transfer of all or substantially all the assets or stock of the business to which this Agreement relates.  Subject to the foregoing limits on assignment, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

(i) Interpretation.   In this Agreement, the words “including”, “include” and “includes” shall each be deemed to be followed by the term “without limitation”.  The word “will” shall be interpreted to express a mandatory obligation on a Party.  The word “may” shall be interpreted to express a discretionary obligation on a Party.   Any agreement or schedule referred to herein means such agreement or schedule as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement.  References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation.  Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules and exhibits shall be references to recitals, articles, sections, paragraphs, schedules and exhibits of this Agreement. The Parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either Party and that ambiguities shall not be interpreted against the Party that drafted the relevant language.  

(j) Export Laws.  Customer  agrees to comply fully with all relevant current and future export laws and regulations of Canada and the United States and/or any other country ("Export Laws") including, without limitation, to ensure that neither the Proxxi Solution, whether alone or as part of the Customer’s Products, nor any direct product thereof are (i) exported, directly or indirectly, in violation of Export Laws; or (ii) intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.  Customer is solely responsible for fulfilling any applicable governmental requirements in connection with its use, disclosure and/or transport of the Proxxi Solution either alone or in combination with Customer’s Products.  

(k) Entire Agreement.  This Agreement, together with the schedules hereto, which are hereby incorporated herein by reference, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all previous communications, agreements, and understandings between the Parties relating to the subject matter hereof.  Neither Party has entered into this Agreement in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in this Agreement.