A new avenue to sell

Software as a Service AGREEMENT

This Software as a Service Agreement (the "Agreement") is made as of [2024-05-04 03:20:05] (the "Effective Date"), between Dead Inventory Store Inc., an Alberta corporation ("Service Provider") and [], [ ]] ("Supplier"). This Agreement governs Supplier's access to and use of the Platform and Services

This Agreement takes effect when you click the "I accept" button below or when you access or use the Platform or Services. By clicking on the "I accept" button below or by accessing or using the Platform or Services you: (a) acknowledge that you have read and understand this Agreement; (b) represent and warrant that you have the right, power, and authority to enter into this Agreement on behalf of Supplier and that you have the legal authority to bind Supplier; and (c) accept this Agreement on behalf of Supplier and agree that Supplier is legally bound by its terms.

If you do not agree to the terms of this Agreement, please select the "I decline" button below. If you do not accept the terms of this Agreement, you may not access or use the Platform or Services.

Article 1
DEFINITIONS

1.1                                       Definitions.  In this Agreement, unless a clear contrary intention appears:

(a)                "Agreement" means this agreement including any recitals to this agreement, as amended, supplemented or restated from time to time.

(b)                "Confidential Information" means any information of a Party (in each case, the "Disclosing Party") and includes, without limitation, any financial, business, marketing, technical and scientific information, trade secrets, processes, designs and design concepts, drawings, data, formulae, plans, prototypes, specifications, know-how, improvements, inventions (whether patentable or not), tools, technology, business opportunities and other information whether or not related to or arising from the activities contemplated in this Agreement and whether disclosed to the other Party (in each case, the "Receiving Party") verbally or otherwise.  Notwithstanding the forgoing, Confidential Information does not include any information that: (i) is in the public domain without such disclosure being a result, directly or indirectly, of a breach of this Agreement; (ii) was previously known to Receiving Party, reasonable proof of which lies upon Receiving Party; (iii) is developed by Receiving Party without reference to Disclosing Party's Confidential Information, reasonable proof of which lies upon Receiving Party; or (iv) was received by Receiving Party from a source (other than Disclosing Party) and such information was not subject to obligations of confidence.

(c)                "Customer" means a Person who purchases Listed Goods through the Platform.

(d)                "Customer Order" means an order for Listed Goods purchased by a Customer from Supplier through the Platform.

(e)                "Documentation" means Service Provider's standard manual and other documentation related to use of the Platform.

(f)                 "End User" means any company or individual, whether authorized or not, who uses the Platform on Supplier's behalf, through Supplier's account or passwords or using accounts or passwords issued through Supplier for its users.

(g)                "Intellectual Property Rights" means, collectively, all intellectual property and industrial property rights anywhere in the world comprising or relating to: (i) any invention, trademark, copyright, industrial design, trade secret or confidential information; (ii) any registration, application or right to apply for the registration of any patent (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), trademark, copyright, industrial design, trade secret or confidential information; and (iii) any other intellectual property or industrial property right, including any right in any cause of action relating to any of the foregoing.

(h)                "Listed Goods" means listings on the Platform of Supplier's (and other suppliers') excess, damaged or otherwise "dead" inventory goods that are provided for sale to Customers through the Platform, including all Specifications for such goods.

(i)                 "Parties" means Service Provider and Supplier, and "Party" means either one of them, as the context requires.

(j)                 "Person" means any natural person, sole proprietorship, partnership, firm, body corporate, trust, joint venture, governmental authority or any incorporated or unincorporated entity or association of any nature.

(k)                "Platform" means Service Provider’s software for providing listings of Listed Goods, and for the sale or resale of such Listed Goods to Customers through such software, and all related user interfaces, application programming interfaces and data models.

(l)                 "Representative" means, with respect to a Party, any director, officer or employee of such Party.

(m)              "Services" means the software services (including implementation and support, if applicable) to be provided by Service Provider to Supplier using the Platform.

(n)                "Specifications" means all information relating to Listed Goods, including technical and safety specifications, photographs showing the actual state of such Listed Goods and their packaging, and any additional information required to fully inform Customers of the nature and condition of such Listed Goods.

(o)                "Supplier Data" means data in electronic form input or collected through the Platform, or otherwise submitted to Service Provider, by or from Supplier, including by End Users.

(p)                "Term" has the meaning given to it in Section 11.1 .

1.2                                       Interpretation. In this Agreement, unless a clear contrary intention appears:

(a)                Any reference in this Agreement to gender includes all genders.  Words importing the singular number only include the plural and vice versa.

(b)                The division of this Agreement into articles and sections and the insertion of headings are for convenience of reference only and do not affect the interpretation of this Agreement.

(c)                All references in this Agreement or on the Platform to dollars, or to $ are expressed in [] currency, unless otherwise specifically indicated.

(d)                In this Agreement (i) the words "including", "includes" and "include" mean "including (or includes or include) without limitation", and (ii) the phrase "the aggregate of", "the total of", "the sum of", or a phrase of similar meaning means "the aggregate (or total or sum), without duplication, of".  Unless otherwise specified, the words "Article" and "Section" followed by a number mean and refer to the specified Article or Section of this Agreement.

(e)                The Schedules attached to this Agreement form an integral part of it.

(f)                 Except as otherwise provided in this Agreement, any reference in this Agreement to a statute refers to such statute and all rules and regulations made under it, as it or they may have been, or may from time to time be, amended or re-enacted.

Article 2
Services and The Platform

2.1                                       Services. During the Term, Service Provider will use commercially reasonable efforts to provide Supplier the Services, pursuant to the terms of this Agreement.

2.2                                       Use of the Platform. During the Term, Supplier may access and use the Platform pursuant to the terms of this Agreement, including to make Listed Goods available for sale to Customers through the Platform, and to fulfil such Customer Orders.

2.3                                       Communication with Customers. The Parties intend that Service Provider will appear to Customers as the provider of all Listed Goods.  All communication between Supplier and its Customers must occur through Service Provider.   If Supplier wishes to communicate with a Customer, it will contact Service Provider with the message it wishes to communicate.  Service Provider may, in its sole discretion, communicate Supplier's messages to Customers or Customers' messages to Supplier; provided that Service Provider will not unreasonably withhold, condition or delay such communications.

2.4                                       Documentation. Supplier may reproduce and use the Documentation solely as necessary to support End Users’ or Customers' use of the Platform.

Article 3
Fees, Invoicing and Payment

3.1                                       Listed Goods.  Supplier shall add listings for Listed Goods to the Platform, including the prices and all applicable Specifications for such Listed Goods.  All prices for Listed Goods on the Platform must include applicable sales taxes. Service Provider will process Customer payments (including applicable sales taxes); however each Party will be responsible for remitting its proportionate share of all taxes applicable to the sale of Listed Goods, according to its share of the proceeds of the sale of such Listed Goods.  Customer is responsible for arranging and paying for: shipping all purchased Listed Goods to the applicable Customers; and, insurance on such shipments.  Amounts for shipping of Listed Goods will not be included in the prices for Listed Goods on the Platform, but separate shipping options and prices will be made available to Customer on the Platform.

3.2                                       Service Provider Fees.

(a)                Service Provider will process payment for each Customer Order, using a third party payment processor (Stripe, as of the Effective Date), after such Customer Order has been submitted by a Customer through the Platform.  Supplier acknowledges that Service Provider will be entitled to deduct and keep, as its fee for each Customer Order (the "Fees") a percentage (as of the Effective Date) of the total amount paid by Customer for each Customer Order.  Supplier will be entitled, upon its shipment to Customer of the Listed Goods for a Customer Order, and Customer's acceptance of such Listed Goods, to be paid the remainder of such total amount paid by Customer for such Customer Order.

(b)                If Supplier’s (or its Customers') use of the Services requires the payment of additional fees (according to the terms of this Agreement), Supplier shall be billed for such usage and Supplier agrees to pay the additional fees in the manner provided in this Agreement. 

(c)                Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees from time to time during the Term, upon thirty (30) days prior notice to Supplier (which may be sent by email). If Supplier believes that Service Provider has billed Supplier incorrectly, Supplier must contact Service Provider no later than sixty (60) days after the date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Supplier may direct any such inquiries to Service Provider’s customer support department.

3.3                                       Supplier Payments.  Service Provider shall pay amounts owing to Supplier for Listed Goods that have been sold, shipped, delivered, and accepted by Customers on a monthly basis.

3.4                                       Statements. Service Provider may provide statements to Supplier, on a monthly basis, showing in reasonable detail, for such period: the amounts collected by Service Provider from Customer payments for Customer Orders; the amounts it deducted for its Fees and any other expenses; and the amounts it paid out to Supplier.

Article 4
Supplier Data

4.1                                       Use of Supplier Data. Supplier hereby grants to Service Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to access, process, reproduce, distribute, modify, and otherwise use and display Supplier Data and perform all acts with respect to Supplier Data as may be necessary for Service Provider to operate the Platform and provide the Services. Service Provider may grant any third party access to Supplier Data, as necessary to provide the Services through the Platform. Service Provider may disclose Supplier Data as required by applicable law or by proper legal or governmental authority. Service Provider will give Supplier Notice of any such legal or governmental demand and will reasonably cooperate with Supplier in any effort to seek a protective order or otherwise to contest such required disclosure, at Supplier’s expense.

4.2                                       Risk of Exposure. Supplier recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Supplier assumes such risks. Service Provider offers no representation, warranty, or guarantee that Supplier Data will not be exposed or disclosed through errors or the actions of third parties.

4.3                                       Data Accuracy. Service Provider shall have no responsibility or liability for the accuracy of data uploaded to the Platform by Supplier, including Supplier Data and any other data uploaded by End Users.

4.4                                       Data Deletion. Service Provider may permanently erase Supplier Data if Supplier’s account is delinquent, suspended, or terminated for ninety (90) days or more.

Article 5
Supplier's Responsibilities and Restrictions

5.1                                       Platform Uses.

(a)                Supplier may create listings for Listed Goods on the Platform.  Supplier must include, and keep current, all Specifications for each listing of Listed Goods it creates or maintains.

(b)                Supplier is responsible for shipping each completed order for Listed Goods to the respective Customer, including in each case: engaging an appropriate carrier, obtaining insurance covering the full value of the Listed Goods, and paying all costs associated with such shipping.

(c)                Supplier is responsible for all compensation to Customers (through Service Provider) for any deliveries of Listed Goods that do not conform to the Specifications for such Listed Goods when a Customer receives them, or for such deliveries that are not completed or are delivered late. 

(d)                Supplier may not contact Customers for any reason.  Service Provider will manage all communications with Customers.  If Supplier wishes to contact a Customer, or has a dispute with a Customer, Supplier must discuss an approach to such communication or dispute resolution with Service Provider. 

5.2                                       Prohibited Uses.  Supplier may not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the Platform; or (e) engage in web scraping or data scraping on or related to the Platform, including collection of information through any software that simulates human activity or any bot or web crawler. In addition to any other remedies as Service Provider may have, Service Provider may suspend Supplier's or any End User's access to the Platform without advanced notice, if Service Provider reasonably suspects any breach of the requirements of this Section 5.1 , including by End Users.

5.3                                       Access to the Platform.  Supplier shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including hardware, servers, software, operating systems, networking, web servers and the like.

5.4                                       Unauthorized Access. Supplier shall take reasonable steps to prevent unauthorized access to the Platform, including by protecting its passwords and other log-in information. Supplier shall notify Service Provider immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop any such breach.

5.5                                       Compliance with Laws. In its use of the Platform, Supplier shall comply with all applicable laws, including laws governing the export or re-export of software and other technology, the protection of personally identifiable information and other laws applicable to the protection of Supplier Data.

5.6                                       End Users; Platform Access. Supplier is responsible and liable for: (a) End Users' use of the Platform, including unauthorized End User conduct and any End User conduct that would violate the requirements of this Agreement if it were Supplier's conduct; and (b) any use of the Platform through Supplier's account, whether authorized or unauthorized.

Article 6
Intellectual Property

6.1                                       Ownership of the Platform. Service Provider owns and retains all right, title, and interest in and to the Platform, including all software used to provide the Platform, all graphics and user interfaces reproduced through the Platform, and all related Intellectual Property Rights. Except as explicitly granted, this Agreement does not grant Supplier any Intellectual Property Rights or license in or to the Platform or any of its components. Supplier recognizes that the Platform and its components are protected by copyright and other laws.

6.2                                       Platform Data. Service Provider shall own all data (other than Supplier Data) it collects, generates, stores or uses on the Platform, and all related proprietary attributes of such data. Service Provider shall have the right to collect and analyze data and other information relating to its provision of, Supplier's use of, and the performance of various aspects of, the Platform and related systems and technologies (including information concerning Supplier Data and data derived therefrom), and, as owner of such information and data, Service Provider will be free (during and after the Term) to: (a) use such information and data to improve and enhance the Services and the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Service Provider offerings; and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. For clarity, any such information and data derived from Supplier Data does not form a part of, and is excluded from, Supplier's Confidential Information.

6.3                                       Ancillary Attributes. Service Provider will own all environmental attributes relating to any reduction in CO2 emissions (or equivalent), including any emissions performance credits, emissions offset credits, clean fuel compliance credits, investment tax credits, or any similar allowances, credits, offsets or other benefits associated with the operation of the Platform, the performance of the Services or any sale of Listed Goods, whether under current or any future law.

6.4                                       Non-Circumvention. In addition to Supplier's obligations of confidence respecting the Confidential Information, Supplier covenants that it will not: copy, modify or create derivative works of, or improvements to, any aspect of the Platform; reverse engineer, disassemble, decompile, extract constituent parts, decode or otherwise attempt to derive or gain access to the specifications of any source code of any software or any other proprietary information or trade secrets contained in any aspect of, or relating to, the Platform; remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Confidential Information or output from the Platform, including any copy thereof; or, use any Confidential Information or the Platform for purposes of competitive analysis of Service Provider's business, services or products, or the development of a competing product or service or any other purpose that is to Service Provider's commercial disadvantage.

Article 7
Confidentiality

7.1                                       Obligations of Confidence

(a)                Each Receiving Party is bound by an obligation of confidence to Disclosing Party in regards to all Disclosing Party's Confidential Information.  Therefore, except as may be specifically permitted in this Agreement, each Receiving Party shall keep all Disclosing Party's Confidential Information in strict confidence and: (i) may not disclose, either directly or indirectly, any Disclosing Party's Confidential Information to any third party, and (ii) may not use any Disclosing Party's Confidential Information in any other manner whatsoever. 

(b)                Each Receiving Party must take sufficient precautions to prevent the unauthorized access, use or disclosure of any Disclosing Party's Confidential Information in its possession or control.

7.2                                       Legally Compelled Disclosure. If a Receiving Party is requested or becomes legally compelled (by oral questions, interrogatories, requests for confidential information, documents, subpoena, civil investigative demand or otherwise) to disclose any Disclosing Party's Confidential Information, such Receiving Party must provide Disclosing Party with prompt written notice of such request or demand so that Disclosing Party may, at Disclosing Party's option, seek a protective order, other appropriate remedy or obtain reliable assurances that the Confidential Information will be accorded confidential treatment.  Receiving Party agrees to provide all reasonable assistance with same.

7.3                                       Disclosure to Representatives. Each Receiving Party may only make Confidential Information available to those of its Representatives having a "need to know" and only as necessary for the performance of such Receiving Party's obligations under this Agreement; provided however, in all cases those Representatives must first be informed of the confidential nature of the Confidential Information and they must have agreed to keep the same in strict confidence and to not use or disclose the same except as required for such Receiving Party to perform its obligations under this Agreement.

7.4                                       Ownership. All right, title and interest, whether at law, in equity or otherwise, in each Disclosing Party's Confidential Information is and will be in each case owned by such Disclosing Party.

7.5                                       Return of Confidential Information.  On request from a Disclosing Party, Receiving Party will promptly: (a) return to Disclosing Party all documents and other material that contain any Confidential Information of Disclosing Party; (b) deliver to Disclosing Party or destroy, at Disclosing Party's direction, any notes, analyses, compilations, studies, materials or other documents which are prepared by Receiving Party and which are based on or contain any Confidential Information of Disclosing Party; (c) permanently erase all Confidential Information of Disclosing Party stored electronically; and (d) deliver a certificate confirming that Receiving Party has returned, destroyed and erased all Confidential Information of Disclosing Party as required in accordance with this Section 7.5 .  Notwithstanding the foregoing, each Receiving Party may retain any copies of Confidential Information that are maintained as archival copies on such Receiving Party's disaster recovery or information technology backup systems. Such copies shall remain subject to the obligations of confidentiality set out in this Agreement, may be used only for the purposes of disaster recovery or recovery from backup, and must be destroyed upon the normal expiration of such Receiving Party's backup files.

7.6                                       No Implied Obligation or Warranty.  Each Disclosing Party makes no representation or warranty of any kind in respect of its Confidential Information, including correctness, accuracy, completeness or suitability for any particular purpose, and all such Confidential Information is provided to Receiving Party strictly on an "as is" basis.

7.7                                       Continuing Obligations. The confidentiality obligations and restrictions set out in this Agreement will survive the termination of this Agreement.

Article 8
Representations and Warranties

8.1                                       Service Provider Representations and Warranties. Service Provider represents and warrants that it owns or has sufficient rights in the Platform to provide the Services, and that it has and will maintain the authority to grant the rights granted in this Agreement. Service Provider's representations and warranties in this Section 8.1 do not apply to use of the Services or the Platform in combination with hardware or software not provided by Service Provider. In the event of a breach of the warranty in this Section 8.1 , Service Provider, at its own expense, will promptly take the following actions: (a) secure for Supplier the right to continue using the Services or the Platform; (b) modify the Services or the Platform to make it non-infringing; or (c) terminate the infringing features of the Services or the Platform and refund to Supplier any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Supplier's right to terminate for breach where applicable, this Section 8.1 states Service Provider's sole obligation and liability, and Supplier's sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Services or the Platform.

8.2                                       Supplier Representations and Warranties.  Supplier represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it owns or has the right to use, and to grant Service Provider the right to use, all Supplier Data on the Platform and in connection with the Services; and, (c) Service Provider's or any End User's use of Supplier Data will not violate any terms referenced in or incorporated into this Agreement, any applicable law, or any third party's Intellectual Property Rights.

8.3                                       Warranty Disclaimers. Except to the extent set forth in Section 8.1 , Supplier accepts the Services and the Platform "as is" and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability or fitness for a particular purpose, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing: (a) Service Provider has no obligation to indemnify or defend Supplier or End Users against claims related to infringement of intellectual property; (b) Service Provider does not represent or warrant that the Services or the Platform will perform without interruption or error; and (c) Service Provider does not represent or warrant that the Services or the Platform are secure from hacking or other unauthorized intrusion or that Supplier Data will remain private or secure.

Article 9
Indemnification

9.1                                       Supplier Indemnity.  Supplier shall defend, indemnify, and hold harmless Service Provider and its officers, directors, shareholders, agents, successors, and assigns against any third party claim, suit, or proceeding arising out of or related to Supplier's alleged or actual use of, misuse of, or failure to use the Services or the Platform, including: (a) claims by End Users or Customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Supplier Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Supplier’s account, including by Supplier Data; and (d) claims that use of the Platform through Supplier’s account, including by End Users, harasses, defames, or defrauds a third party or violates any law or restriction on electronic advertising. Supplier’s obligations set forth in this Article 9 include retention and payment of legal counsel and payment of court costs, as well as settlement at Supplier’s expense and payment of judgments. Service Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.

Article 10
Limitation of Liability

10.1                                   Exclusion of Consequential Damages. In no event will Service Provider be liable to Supplier for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this Agreement.

10.2                                   Cap on Liability.  Service Provider’s liability arising out of or related to this Agreement, for any reason and in the aggregate, will not exceed the Fees paid by Supplier to Service Provider for the Services under this Agreement in the 6 months prior to the act that gave rise to the liability, in each case, whether or not Service Provider has been advised of the possibility of such damages.

10.3                                   Disclaimers. The liabilities limited by this Article 10 apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if Service Provider is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if Supplier's remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Article 10 , Service Provider's liability will be limited to the maximum extent permissible. For the avoidance of doubt, Service Provider's liability limits and other rights set forth in this Article 10 apply likewise to Service Provider's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

Article 11
Term and Termination

11.1                                   Term. The term of this Agreement (the "Term") shall commence on the Effective Date and, unless terminated earlier in accordance with its terms, shall continue until either Party provides Notice of Termination to the other Party at least 30 days prior to the effective date of such termination.

11.2                                   Termination for Cause. Either Party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other Party first cures such breach, or effective immediately if the breach is not capable of being cured. Without limiting Service Provider's other rights and remedies, Service Provider may suspend or terminate Supplier's or any End User's access to the Platform at any time, without advanced notice, if Service Provider reasonably concludes Supplier or such End User has conducted itself in a way that is inconsistent with the requirements of this Agreement or subjects Service Provider to potential or actual liability.

11.3                                   Effects of Termination. Upon termination of this Agreement, Supplier shall cease all use of the Services and the Platform and delete, destroy, or return all copies of the Documentation and Confidential Information in its possession or control.

Article 12
General

12.1                                   Notices

(a)                Any notice, direction or other communication given regarding the matters contemplated by this Agreement (each a "Notice") must be in writing, sent by personal delivery, courier or email (with confirmation of transmission) and addressed:

(b)                A Notice is deemed to be given and received: (i) if sent by personal delivery or courier, on the date of delivery if it is a Business Day and the delivery was made prior to 4:00 p.m. (local time in place of receipt) and otherwise on the next Business Day, or (ii) if sent by email, on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day. A Party may change its address for service from time to time by providing a Notice in accordance with the foregoing. Any subsequent Notice must be sent to the Party at its changed address.

12.2                                   Amendments.  Supplier acknowledges and agree that Service Provider has the right, in its sole discretion, to amend this Agreement from time to time, and that amended terms become effective on posting. Supplier will be notified of amendments through notifications or posts on the Platform or direct email communication from us. Supplier is responsible for reviewing and becoming familiar with any such amendments. Supplier's continued use of the Platform or Services after the effective date of the amendments will be deemed acceptance of the amended terms.

12.3                                   Further Assurances. Upon a Party's reasonable request, the other Party will, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

12.4                                   Waiver. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.

12.5                                   Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties.

12.6                                   Governing Law; Forum. The Laws of the State of Alberta (excluding its conflict of laws rules) exclusively apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any Claim arising directly or indirectly from or relating to this Agreement must be filed and maintained in a court of competent jurisdiction in the provincial or federal courts located in Calgary, Alberta. The Parties submit to that jurisdiction and venue for all purposes.

12.7                                   Successors and Assigns. This Agreement becomes effective only when executed by the Parties. After that time, it will be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns.  Service Provider may assign this Agreement without the other Party's prior written consent. Supplier may assign this Agreement only with the other Party's prior written consent.

12.8                                   Survival. Any provision of this Agreement that, expressly or by its nature, extends beyond the termination of this Agreement will survive any termination of this Agreement. Without limiting the foregoing, the following provisions will survive termination or expiration of this Agreement: (a) any obligation of Supplier to pay fees incurred before termination; (b) Article 6 (Intellectual Property), Article 7 (Confidentiality), Section 8.3 (Warranty Disclaimers), Article 9 (Indemnification), and Article 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.