Standard Agreement

CAPETOWN

Master Software Licence and Services Agreement

This Agreement is dated as of the 2009-04-24 (the ìEffective Dateî)

1. CAPETOWN, through its CAPETOWN Enterprise Commerce Systems Division, is a software development company in the commerce systems market, offering a variety of standard and custom software-based solutions to its clients;

2. Client wants to use one or more of the CAPETOWN Software or Services for internal purposes within its organization;

NOW THEREFORE, in consideration of the mutual promises contained herein, CAPETOWN and the Client agree as follows:

1. Terms and Conditions

A. The ìAgreementî consists of the following documents, each of which is incorporated as part of this Agreement:

?       This page entitled CAPETOWN – Master Software Licence and Services Agreement;

?       Schedule A – Purchase Orders, including all numbered Purchase Orders as exhibits to Schedule A;

?       Schedule B – End User Licence Agreement;

?       Schedule C – Technical Support and Development Services Agreement;

?       Such other Purchase Orders, Statements of Work or schedules as are executed from time to time and make reference to this Agreement.

B. ìConfidential Informationî includes any information, document, material, idea or data, which is disclosed by one party to the other party including, but not limited to, information regarding the CAPETOWN Software.  Confidential Information shall not include any document, material, idea, data or other information which (i) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; (ii) is lawfully obtained by the receiving party from a third party who, in making such disclosure, breaches no obligation of confidence to the other party; (iii) is or becomes publicly known through no wrongful act of the receiving party; (iv) is independently developed by the receiving party without use of the disclosing partyís information; or (v) is required to be disclosed by government or court order or other legal process, provided that the receiving party has taken reasonable steps to permit the owner of the information to prevent or limit such compulsory disclosure.

C. ìCPUî refers to computer processors which have access to an executable version of the Software, either directly or through a network.  All CPUs must be licenced at the appropriate Tier.

D. ìDataî means any data collected by Client using the Software.

E. ìFeeî or ìFeesî means any amount due or owing by Client to CAPETOWN under this Agreement.

F. ìPurchase Orderî means the order executed by both parties and referencing this Agreement for Software or Services stating the Fees, type of Services and scope of licence granted to Client for use of the Software.

G. ìServicesî means the maintenance services, consulting services or custom software development services provided hereunder, as described in a Purchase Order or statement of work referencing this Agreement and executed by both parties.

H. ìSoftwareî or ìCAPETOWN Softwareî means software provided by CAPETOWN to Client hereunder, including any Software developed in the course of providing the Services.

I. ìUserî means an end user of the Software.

2. Term of the Agreement

A. The Agreement is made from the Effective Date, and shall bind the parties until terminated.

B. Any licences to CAPETOWN Software granted in a Purchase Order shall be valid for the period of time indicated in such Purchase Order, unless earlier terminated in accordance with the provisions of this Agreement.

C. Any Services to be provided by CAPETOWN pursuant to a Purchase Order shall be provided for the duration indicated in such Purchase Order or a statement of work.

3. CAPETOWN Obligations

A. CAPETOWN agrees to provide the Software licences and Services requested and paid for by Client on the terms set out in this Agreement.

B. CAPETOWN has all necessary right to grant the Software licences and provide the Services.

4. Client Obligations

A. Client agrees that it has read, understood and agrees to be bound by all terms and conditions in this Agreement, including terms and conditions in the Schedules.

B. Client agrees to pay all fees quoted in any Purchase Order when due, and abide by any and all licensing restrictions set out in the End User Licence Agreement.

5. Limitations

A. The Client agrees that the Software licences and Services being purchased are limited. 

B. All rights not expressly granted are reserved in their entirety.

C. THE CAPETOWN SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING.  CAPETOWN DOES NOT WARRANT THAT EITHER THE CAPETOWN SERVICES OR THE SOFTWARE WILL BE COMPLETE, ERROR-FREE, SECURE OR THAT THEY WILL MEET CLIENTíS REQUIREMENTS.

6. CAPETOWN Property

A. All Software provided or licenced hereunder, including Software created pursuant to custom development Services, is the property of CAPETOWN.

B. Any products, improvements or alterations made to the Software in the course of or in violation of this Agreement shall become the property of CAPETOWN.

C. The Software is protected by copyrights, trade marks, international treaties and/or other proprietary rights and laws of Canada and other countries.  Client agrees to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or other restrictions in the Agreement.  The Software licences provided hereunder grant no right, title, or interest, in any intellectual property owned or licenced by CAPETOWN, and create no relationship between Client and CAPETOWN, other than that of licencee to licensor. 

7. Confidentiality

A. Each party undertakes at all times to hold the Confidential Information in confidence for the other party, to use the Confidential Information only for the purposes of this Agreement and not to disclose such Confidential Information to any third party, except with the express written consent of the other party.

B. In the event of disclosure of Confidential Information to a third party in default of this section, the defaulting party shall use all reasonable endeavours to assist the other party in recovering and preventing such third party from using, disseminating, selling or otherwise deposing of such Confidential Information.

C. Nothing in this Agreement is intended to prevent the Client from making lawful use of the Data.

8. Payment of Fees

A. All Software licences offered by CAPETOWN are prepaid. Payment must be received in advance of using the Software.  All other Fees are due upon receipt of invoice.

B. Payment may be made by cheque dated on the signing date.  Post-dated cheque payments will not be accepted or processed, and will incur a $25.00 service charge. Client will incur a service charge of $50.00 for each cheque returned to CAPETOWN for insufficient funds, and CAPETOWN reserves the right to require that future cheques be certified.

C. Client is responsible for the payment of all value-added, sales taxes and other taxes or duties applicable in their jurisdiction.

D. Any Fees that are not paid when due shall be subject to interest at a rate of 1.5% per month calculated monthly from the due date until the date of payment in full.

E. A termination notice shall not relieve Client from the terms of this Agreement until all amounts owing have been paid in full.

9. Termination

A. If Client fails to make any payment or otherwise breaches any term of this Agreement and fails to cure such breach within thirty (30) days of receiving a notice of breach, CAPETOWN may terminate this Agreement at any time after the expiry of such notice period.

B. This agreement may be terminated with immediate effect by a party with written notice to the other if:

     (i)         the other party ceases or threatens to cease to carry on business or is or becomes insolvent within the meaning of the Bankruptcy and Insolvency Act R.S.C. 1985; or

    (ii)         any meeting of creditors of the other party is held (for the purposes of taking formal steps in relation to the liquidation, winding up or administration of the Company) or any arrangement or composition with or for the benefit of its creditors (including any proposal as defined in the Bankruptcy and Insolvency Act, R.S.C. 1985) is proposed or entered into by or in relation to the other party (other than for the purposes of bona fide reconstruction or amalgamation).

C. All outstanding Fees due are payable immediately on notice of termination.

D. Client may terminate this Agreement by paying all outstanding Fees and discontinuing use of all or any part of the Software provided hereunder and by destroying all of Clientís copies of the applicable Software, and certifying in a letter from a senior officer or director of Client that all such copies have been deleted or destroyed.

E. Immediately upon termination of this Agreement, all licences granted hereunder shall also terminate, and all Services to be performed hereunder shall be cancelled.

10. Warranties & Disclaimers

A. THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING.  CAPETOWN DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE COMPLETE, ERROR-FREE, SECURE OR THAT THEY WILL MEET CLIENTíS REQUIREMENTS.  CLIENT ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES OR SOFTWARE AND THE DATA.  CLIENT ACKNOWLEDGES THAT IT HAS OR WILL HAVE INDEPENDENTLY DETERMINED THAT ALL DATA ACQUIRED BY IT USING THE SOFTWARE OR SERVICES MEETS ALL OF CLIENTíS TECHNICAL SPECIFICATIONS AND BUSINESS REQUIREMENTS.  CLIENT ALSO ASSUMES SOLE RESPONSIBILITY WITH RESPECT TO ANY COLLECTION, USE, OR DISCLOSURE OF THE DATA.

B. CAPETOWN expressly denies any warranty that any Software created hereunder will interface with any third party software.

C. CAPETOWN shall not be responsible for loss or destruction of Data used in conjunction with the Software or Services.

D. The Client agrees that lack of use of the Software or Services, regardless of reason, shall not relieve the Client from the terms of this Agreement.

11. Limitation of Liability

A. In no event shall CAPETOWN be liable for any consequential, special, incidental or punitive damages whatsoever arising out of this Agreement.

B. CAPETOWN is not responsible for injury to persons or property arising out of Clientís use of the Software or Services; material published by the Client infringing on the rights of a third party; copyright or patent infringement claims; claims based on the publication of or collection of illegal materials, damages resulting from loss of data, non delivery or interruption of any CAPETOWN Software, even if CAPETOWN has been advised of the possibility of such damages and regardless of the legal basis for relief.

C. CAPETOWNís entire liability to Client shall not exceed, in the aggregate, the amounts paid to CAPETOWN by Client under this Agreement during the three months preceding the initiation of any claim by Client for damages arising out of, or related to, this Agreement.

D. The foregoing exclusions and limitations shall apply regardless of the nature of the loss or damages or the legal basis of any claim.  The foregoing exclusions and limitations shall survive the expiry or termination of this agreement.

E. Client acknowledges that any fees paid to CAPETOWN under this Agreement contemplate the foregoing allocation of risks.

F. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF SOME TYPES OF LIABILITY. ANY LIMITATIONS OF LIABILITY CONTAINED IN ANY WORD OR PHRASE OF SECTION 16 OR SECTION 17 THAT ARE INVALIDATED BY LOCAL LAW SHALL BE SEVERED AND SHALL NOT AFFECT ANY OTHER LIMITATIONS OF LIABILITY WHICH SHALL CONTINUE TO BE OF FULL FORCE AND EFFECT.

12. Indemnity

A. CAPETOWN shall defend, indemnify and hold Client harmless, its officers, directors, employees and agents from any losses, damages, costs and expenses incurred in connection with or resulting from (i) any claim brought by any third party against Client alleging that the Software or Services infringe the intellectual property rights of any third party in Canada, or (ii) the unauthorized use or breach by CAPETOWN of Confidential or Personal information provided by the Client under this Agreement. 

B. CAPETOWN shall not be liable for infringement claims based on (i) any information, materials, specifications or requirements provided to CAPETOWN by Client; (ii) the combination, operation or use of the Services or Software with hardware, data or software not supplied by CAPETOWN if the claim would have been avoided by use of other hardware, data or software; or (iii) modifications to Software if the modifications were not authorized by CAPETOWN.  

C. In the event that the Software of Services become the subject of an infringement claim or CAPETOWN or Client are temporarily or permanently enjoined from the use of any Software or Services, CAPETOWN may, at its sole discretion, (i) procure for Client the right to continue using such Software or Services; (ii) modify the Software or Services so they become non-infringing; or (iii) require Client to cease using and to return the affected Software and/or Services and refund to Client a pro rata portion of the fees paid for them, less depreciation based on a three-year period.

D. Subject to CAPETOWNíS indemnity obligations as set out in this Section 12, Client shall defend, indemnify and hold CAPETOWN, its officers, directors, employees and agents harmless from any and all claims, costs, expenses or damages (including, without limitation, reasonable legal fees) incurred in connection with or resulting from: (i) any breach by Client of the terms and conditions of this Agreement; (ii) of Clientís use of the Software or collection, use, or disclosure of the Data in violation of any applicable law or regulation; (iii) the wilful acts or negligence of Client; or (iv) the intentional failure of any User to comply with this Agreement, including without limitation the End User Licence Agreement. 

E. The indemnification obligations set forth above are contingent upon the indemnified party seeking indemnification: (i) providing prompt written notice of a claim; (ii) providing all information and evidence within its control which is necessary for the indemnifying party to conduct a defense; and (iii) providing the indemnifying party with sole control of the defense and all related settlement negotiations. The non-indemnifying party may participate in the defense or settlement of the claim at its own expense.

F. This Section 12 states the entire obligations of the parties with respect to indemnity or infringement of copyrights, patents, trade secrets or other intellectual property or proprietary rights. These obligations shall survive the termination of this Agreement.

13. General

A. Entire Agreement  This Agreement, including the schedules, constitutes the entire agreement and understanding between the parties concerning the subject matter, and supersedes all prior negotiations, agreements and commitments (whether oral or in writing) with respect to the subject matter.

B. Conflicts  Where there is a conflict between the terms and conditions of this Master Software Licence and Services Agreement and any Schedule, the terms of the Schedule shall govern only to the extent they apply to the particular Software or Services governed by such Schedule.

C. Amendments  Except as otherwise provided for herein, the terms of this Agreement can only be amended by a document in writing signed by both parties.  The conditions and pricing for any Software licence or Service provided herein are only valid for the corresponding term, and may be amended by CAPETOWN prior to renewal.

D. Assignment and Outsourcing  Client may not assign this agreement without the written consent of CAPETOWN.  Client may not disclose or provide any Software or other CAPETOWN materials to, or require CAPETOWN to work with, any third party, including any Client outsourcing partner, without: (i) obtaining CAPETOWNís express written consent, which consent may be withheld at CAPETOWNíS sole discretion; and (ii) having such third party agree to be bound by the terms and conditions of this Agreement.  If Client breaches this Agreement by allowing any such third party to deal with any CAPETOWN provided materials without the written consent of CAPETOWN or by insisting that CAPETOWN deal with the third party, CAPETOWN may terminate this Agreement in accordance with Section 9.A, in addition to any other remedies which may be available to CAPETOWN in law or equity.

E. Survival  If any term, clause or provision of this Agreement shall be judged invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement.

F. Jurisdiction  This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada.  Licencee hereby consents and attorns to the jurisdiction of the courts of such province.

G. Marketing and Public Relations  Client agrees that during the term of this Agreement, CAPETOWN may, in response to individual inquiries or in a press release, refer to Client, orally and in writing, as a client.

H. Language  Client and CAPETOWN both agree that this Agreement and any of its accessories, including notice, be written in the English language.  Client et CAPETOWN avons exigÈ que ce contrat et ses accessoires, y compris tout avis, soient rÈdigÈs en anglais.

CAPETOWN COMPUTING CORPORATION

By:                                                                  

Franco DíAlessandro, President

Date:                                                    

YOUR NEW ENTERPRISE INCORPORATED

By:                                                                  

Enterprising People, President

Date:                                                       

Schedule A – Purchase Orders

For contract management purposes only, this Schedule to the Master Software Licence and Services Agreement between CAPETOWN Computing Corporation (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORTATED. (ìClientî) dated 2009-04-24 and identified by CAPETOWN Contract Number CC# CapeTown.Empire (the ìMaster Agreementî) includes as exhibits such Purchase Orders as governed by the Master Agreement.  Such Purchase Orders executed by both parties and referencing the Master Agreement shall be considered part of the Agreement, notwithstanding that they are not attached as exhibits.

Purchase Order 1

Exhibit 1 to Schedule A of CAPETOWN Master Software Licence and Services Agreement number CC# CapeTown.Empire

This Purchase Order is governed by the Master Software Licence and Services Agreement between Client and CAPETOWN dated [2009-04-24], and identified by CAPETOWN Contract Number CC# CapeTown.Empire (the ìMaster Agreementî).

1. Description of Software

A. ìSoftwareî means the described software in column 3 of the following table.

B. CAPETOWN grants Client the licence to use the Software as per column 2 of the preceding table and as further set out in the attached End User Licence Agreement.

2. Term of Licence

A. The term of Clientís licence to use the Software shall be from the installation date of the Software until [2010-04-24].

3. Licence Fees

A. 18,000.00 CDN user licence fee per location (18,000.00 x 1), plus applicable taxes.

B. Service Licence provision 1,800.00 CDN, per server.

C. A + B multiplied by 20% for all expenses and sundry items ((A + B )*.20 = additional expenses), plus applicable taxes.

D. Resultant Site Licence fee equal to the amounts in A, B and C. D=(A+B+C = Resultant Source Code Fee) effectively .35 times (x)(*) A,B and C, for additional locations

E. 1,800.00 CDN user license fee per resource.

F. Components provided as part of the system and included in the system;

G. Development Tools, Database and Operating Environment and all third party applications are to be separately licenced by the Client at the Clientís expense.

4. Description of Services

A. ìServicesî means the further development of software

B. ìSupport Servicesî means those services described in Schedule C.

C. CAPETOWN shall perform the Services and/or Support Services according to the schedule set out in Statement of Work number [#1].

5. Duration of Services

A. CAPETOWN will begin the Services on the later of [2009-04-24] and the date on which Client pays all Fees

B. CAPETOWN will begin the Support Services on the later of [2009-04-24] and the date on which Client pays all Fees

6. Service and Support Fees

A. Fees as per Schedule C Section 7.

7. Maintenance Fees

A. None.

CAPETOWN COMPUTING CORPORATION

By:                                                                                    

         Franco DíAlessandro, President

Date:                                                                                

YOUR NEW ENTERPRISE INCORPORATED

By:                                                                  

Enterprising People, President

Date:                                                       

Schedule B – CAPETOWN End User Licence Agreement

This is a legal agreement between you, Client, and CAPETOWN COMPUTING CORPORATION (ìCAPETOWNî) stating the terms that govern your licence to use the Software to which this End User Licence Agreement is included as a click through agreement or to which this End User Licence Agreement is attached, and for which Client has paid the licence fees set out in a corresponding Purchase Order.

By executing an agreement or Purchase Order to which this End User Licence Agreement is attached, or by clicking ìI ACCEPTî during the installation process for the software in which these terms and conditions feature as an End User Licence Agreement, you, Client, agree to be bound by the terms and conditions or this End User Licence Agreement with respect to the applicable Software, and that you have authority to bind your corporation or employer on whose computers you intend to install or are installing the Software.

8. Defined Terms

In addition to terms defined elsewhere in the Agreement to which these terms of Service relate, the following terms are also defined.

ìAgreementî means this End User Licence Agreement, the Purchase Order pursuant to which the Software is provided, and any CAPETOWN Master Software Licence and Services Agreement referenced by the Purchase Order and executed by Client and CAPETOWN.

ìCPUî refers to computer processors which have access to an executable version of the Software, either directly or through a network.  All CPUs must be licenced at the appropriate Tier.

ìDataî means any data collected by Client using the Software.

ìFeeî or ìFeesî means any amount due or owing by Client to CAPETOWN under this Agreement.

ìPurchase Orderî means the agreement between Client and Customer stating the Fees and scope of licence granted to Client for use of the Software.

ìSoftwareî or ìCAPETOWN Softwareî means proprietary software created and owned or licenced by CAPETOWN.

ìUserî means an end user of the Software.

9. Licenced Rights and Restrictions

A. Clientís licenced rights are limited to the number or location of CPUs indicated in the Purchase Order.

B. Unless otherwise specified, the licence acquired by Client covers a single Client site, and the Software may not be accessed or used by a user accessing a CPU at a licenced site over the Internet or any other network.

C. Client may install and personally use the Software and any updates provided by CAPETOWN (in its sole discretion) in object code form on the CPUs owned or controlled by Client for internal purposes only and may use the Software for Clientís own non-commercial use or benefit.   It is Clientís responsibility to ensure that any uses made of the Software comply with all applicable laws including, but not limited to, intellectual property laws designed to govern the use of the Software in conjunction with other copyrighted or patented material.

D. Client may not: (i) decompile, reverse engineer, disassemble, modify, rent, lease, loan, distribute, or create derivative works or improvements from the Software or any portion thereof; (ii) attempt to, or assist any other person to reverse engineer, decompile, disassemble, or otherwise tamper with any of the security components, special rules or other protection applications for any reason whatsoever; (iii) incorporate, or cause another to incorporate, the Software into any computer chip or the firmware of a computing device; (iv) use the Software in any unlawful manner, for any unlawful purpose (including the unlawful use of Data), or in any manner inconsistent with the Agreement; (v) sell, lease, loan, distribute, transfer or sublicence the Software or access thereto or derive income from the use or provision of the Software, whether for direct commercial or monetary gain or otherwise, without CAPETOWNís prior, express, written permission; (vi) USE THE SOFTWARE TO OPERATE NUCLEAR FACILITIES, LIFE SUPPORT OR OTHER MEDICAL EQUIPMENT, MANUFACTURING OR CONSTRUCTION EQUIPMENT, WEAPONS SYSTEMS, AIRCRAFT OR NAUTICAL NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION WHERE HUMAN LIFE OR PROPERTY MAY BE AT RISK (CLIENT UNDERSTANDS THAT THE SOFTWARE IS NOT DESIGNED FOR SUCH PURPOSES AND THAT ITS FAILURE IN SUCH CASES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE AND AGREES THAT CAPETOWN IS NOT RESPONSIBLE FOR ANY SUCH DAMAGES); or (vii) assign, copy, transfer or transmit the Software to any third party or purport to transfer or assign Clientís rights under this End User Licence Agreement to another person or entity.

E. The Software and all applications, documentation, and local computer files installed or utilized by the installer application are owned by CAPETOWN, or CAPETOWNís licensors, and are licenced on a non-exclusive, non-assignable, non-transferable basis as further limited by the terms and conditions set forth herein. This End User Licence Agreement defines legal use of the Software, all updates, revisions, substitutions, and any copies of the Software made by or for Client. All rights not expressly granted to Client are reserved by CAPETOWN or by their respective owners, in their entirety, including the right of CAPETOWN to use standard anti-piracy techniques to report abuse of licence and to deactivate the Software in the case of non-payment or abuse of licence.

F. The Software may allow Client to collect and store Data relating to third parties, including financial or confidential information. Client is solely responsible for the collection, use and disclosure of all Data used by the Software, including the security, integrity, preservation and backing up of any such Data.

10. System Requirements and Upgrades

A. Use of the Software requires Client, at Clientís own expense, to obtain, separate from this Agreement, a compatible device, operating systems, other hardware and certain software. Currently, the minimum device specifications are contained within the Software documentation or statements of work pursuant to which the Software was developed.  From time to time, Client may be required to obtain updates or upgrades for its hardware or software to continue to use any updated or upgraded version of the Software. 

B. CAPETOWN may provide updates or upgrades to the Software at its sole discretion or pursuant to a Services Agreement.  Upon installation, any such updates or upgrades added to the Software shall become Software.

11. Payment of Fees

A. All Software licences offered by CAPETOWN are prepaid. Payment must be received in advance of using the Software.

B. Payment may be made by cheque dated on the signing date.  Post-dated cheque payments will not be accepted or processed, and will incur a $25.00 service charge. Client will incur a service charge of $50.00 for each cheque returned to CAPETOWN for insufficient funds, and CAPETOWN reserves the right to require that future cheques be certified.

C. Client is responsible for the payment of all value-added, sales taxes and other taxes or duties applicable in their jurisdiction.

D. Any Fees that are not paid when due shall be subject to interest at a rate of 1.5% per month calculated monthly from the due date until the date of payment in full.

E. A termination notice shall not relieve Client from the terms of this Agreement until all amounts owing have been paid in full.

12. Notice

A. All notice under this Agreement to CAPETOWN will be by email to capetown@capetown.ca or, in the case of payment, mail to

CAPETOWN at            CAPETOWN COMPUTING CORPORATION
                                    5289 Highway #7, Unit #7, P.O. Box 56587
                                    Vaughan, Ontario, Canada, L4L 8V3

B. All notice to Client regarding Client's account shall be to the address provided on the Purchase Order.

13. CAPETOWN Property

A. The Software is the property of CAPETOWN.

B. Any products, improvements or alterations made to the Software in violation of this Agreement shall become the property of CAPETOWN.

C. The Software is protected by copyrights, trade marks, international treaties and/or other proprietary rights and laws of the Canada and other countries.  Client agrees to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or other restrictions in the Agreement.  This Software licence grants no right, title, or interest in any intellectual property owned or licenced by CAPETOWN, and creates no relationship between Client and CAPETOWN, other than that of licencee to licensor. 

D. Client shall not allow the Software or this Agreement to be subject to any claims, liens, or encumbrances.

14. Client Property

The Client shall own all Data used with the Software licenced under this Agreement.

15. Suspension & Termination

A. In addition to any other remedy available to CAPETOWN, if Client fails to make any payment under this Agreement, CAPETOWN may suspend or revoke Clientís licence to the Software until all overdue Fees and interest are paid in full.

B. Accounts that have been suspended shall continue to incur Fees and interest while suspended.

C. If Client fails to make any payment or otherwise breaches any term of this Agreement and fails to cure such breach within thirty (30) days, CAPETOWN may terminate this Agreement, including any licences granted herein, at any time after the expiry of such notice period.

D. All outstanding Fees due are payable immediately on notice of termination.

E. Client may terminate this End User Licence Agreement by discontinuing use of all or any part of the Software and by destroying all of Clientís copies of the applicable Software, and certifying in a letter from a senior officer or director of Client that all such copies have been deleted or destroyed.

16. Representations Warranties & Disclaimers

A. CAPETOWN represents and warrants that it has the right to provide the CAPETOWN Software in Canada, including the right to licence CAPETOWN Software in accordance with this Agreement.

B. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING.  CAPETOWN DOES NOT WARRANT THAT THE SOFTWARE WILL BE COMPLETE, ERROR-FREE, SECURE OR THAT IT WILL MEET CLIENTíS REQUIREMENTS.  CLIENT ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OF THE SOFTWARE AND THE DATA.  CLIENT ACKNOWLEDGES THAT IT HAS OR WILL HAVE INDEPENDENTLY DETERMINED THAT ALL DATA ACQUIRED BY IT USING THE SOFTWARE MEETS ALL OF CLIENTíS TECHNICAL SPECIFICATIONS AND BUSINESS REQUIREMENTS.  CLIENT ALSO ASSUMES SOLE RESPONSIBILITY WITH RESPECT TO ANY COLLECTION, USE, OR DISCLOSURE OF THE DATA.

C. CAPETOWN expressly denies any warranty that the Software will interface with any third party software.

D. CAPETOWN shall not be responsible for loss of destruction of Data used in conjunction with the Software.

E. The Client agrees that lack of use of the Software, regardless of reason, shall not relieve the Client from the terms of this Agreement.

17. Limitation of Liability

A. In no event shall CAPETOWN be liable for any consequential, special, incidental or punitive damages whatsoever arising out of this Agreement.

B. CAPETOWN is not responsible FOR injury to persons or property arising out of CLIENTíS USE OF THe SOFTWARE; material published by the Client infringing on the rights of a third party; copyright or patent infringement claims; claims based on the publication of or collection of illegal materials, damages resulting from loss of data, non delivery or interruption of any CAPETOWN SOFTWARE, even if CAPETOWN has been advised of the possibility of such damages and regardless of the legal basis for relief.

C. CAPETOWNís entire liability to Client shall not exceed, in the aggregate, the amounts paid to CAPETOWN by Client under this Agreement during the three months preceding the initiation of any claim by Client for damages arising out of, or related to, this Agreement.

D. The foregoing exclusions and limitations shall apply regardless of the nature of the loss or damages or the legal basis of any claim.  The foregoing exclusions and limitations shall survive the expiry or termination of this agreement.

E. Client acknowledges that any fees paid to CAPETOWN under this Agreement contemplate the foregoing allocation of risks.

F. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF SOME TYPES OF LIABILITY. ANY LIMITATIONS OF LIABILITY CONTAINED IN ANY WORD OR PHRASE OF SECTION 16 OR SECTION 17 THAT ARE INVALIDATED BY LOCAL LAW SHALL BE SEVERED AND SHALL NOT AFFECT ANY OTHER LIMITATIONS OF LIABILITY WHICH SHALL CONTINUE TO BE OF FULL FORCE AND EFFECT.

18. Indemnity

A. Client shall indemnify and hold CAPETOWN, its officers, directors, employees and agents harmless from any and all claims, costs, expenses or damages (including, without limitation, reasonable legal fees) incurred in connection with any claim against CAPETOWN arising out of Clientís use of the Software or collection, use, or disclosure of the Data or any breach of the terms of this Agreement by Client whether in tort, contract, under the privacy legislation of any jurisdiction or otherwise, including without limitation any claims or damages caused by: (i) the willful acts or negligence of Client; (ii) the collection, use or disclosure of personal data of any person; or (iii) the use of the CAPETOWN Software outside Canada.

B. CAPETOWN shall give notice of all claims to which this indemnity applies to Client, and Client may participate in the defence thereof with counsel of choice with CAPETOWNís consent, not to be unreasonably withheld.

19. General

A. Amendments  The terms of this End User Licence Agreement may be amended in advance of any renewal term by CAPETOWN posting the current version of its End User Licence Agreement on its website at www.capetown.ca, such amended terms shall be deemed to be accepted upon renewal of the Software licence by Client.

B. Waver, Severability and Survival  The failure of CAPETOWN to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any term, clause or provision of this Agreement shall be judged invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to have been deleted from this Agreement.  Sections 17, 6, 18, and 19 of this End User Licence Agreement shall survive termination for a period of five (5) years following the later of termination and last use of the Software by Client or someone who obtains the Software from Client.

C. Jurisdiction of Disputes  This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada. 

D. Client shall not be entitled to assign this Agreement or any portion hereof, and any such purported assignment shall be declared null and void.

I. Force Majeure.  If either party is delayed or interrupted in or prevented from the performance of its obligations hereunder, except regarding the payment of money, by reason of an act of God, fire, flood, war, public disaster, governmental enactment, regulation or any other cause beyond its control, such party shall not be responsible or liable to the other party therefore, and the time for performance of obligations hereunder shall be extended for a period of time equal to the duration of the contingency that has occasioned the delay, interruption, or prevention of performance.

E. Client and CAPETOWN both agree that this End User Licence Agreement and any of its accessories, including notice, be written in the English language.  Client et CAPETOWN avons exigÈ que ce contrat et ses accessoires, y compris tout avis, soient rÈdigÈs en anglais.

Schedule C – Technical Support and Development Services

This Custom Development Services Agreement is Schedule C to the Master Software Licence and Services Agreement between CAPETOWN Computing Corporation (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORATED. (ìClientî) dated 2009-04-24 and identified by CAPETOWN Contract Number CC# CapeTown.Empire (the ìMaster Agreementî).  Statements of Work to this Schedule C should be added as consecutively numbered Exhibits.

1. Definitions

In this Schedule C, the following capitalized terms shall have the meanings indicated.

A.  ìCustom Codeî means software code provided by CAPETOWN pursuant to the Customization Services.

B. ìCustomization Feesî means the fees for Customization Services specified in a Statement of Work.

C. ìCustomization Servicesî means the services described in a Statement of Work.

D. ìFeesî means the Customization Fees and Support Fees, and includes reinstatement fees, and hourly rates and surcharges specified in Section 7.

E. ìSoftwareî means the CAPETOWN Software indicated in the Purchase Order to which this Schedule C relates, and includes any Updates or Custom Code.

F. ìSoftware Licence Agreementî means the End User Licence Agreement between Client and CAPETOWN identified in Schedule B, or, where no such agreement has been executed or indicated, is deemed to mean CAPETOWNís standard form end-user licence agreement available online, as amended from time to time.

G. ìStatement of Workî means a schedule referencing this Agreement and executed by the parties.

H. ìSupport Feesî means the fees specified in the applicable Purchase Order.

I. ìSupport Servicesî means the services described in Section 3.

J. ìUpdate(s)î means code provided by CAPETOWN pursuant to the Support Services and includes program revisions made generally available to all licencees, including minor user interface enhancements and bug corrections; but does not include customization or development code created in response to a specific request by a licencee and does not include Upgrades.

K. ìUpgrade(s)î means a new version of the Software including significant addition of functionality or other major improvement which is identified by a separate number (i.e. v5.0, v6.0, etc).

2. Services

A. CAPETOWN agrees to provide the Support Services set out in Section 3 which Client has ordered in a Purchase Order. If there is no Purchase Order for Support Services currently in force between the parties or if Client has not paid the Support Fees, CAPETOWN shall not be obliged to provide any Support Services.

B. CAPETOWN agrees to provide the Customization Services as set out in a Statement of Work.

3. Support Services

CAPETOWN agrees to provide the following Support Services to Client during the term of this Agreement:

A. Updates to CapeTown Software.  Updates in the form of a new executable program file will be provided by CAPETOWN to correct, or provide a reasonable work-around in writing for, any error in the Source Code that materially interferes with the operation of the Software.  Provision of Updates includes the cost of developing the Update and delivering it to Client by email or remote access, or making it available on the internet for download; and includes the installation of the Update through remote access where Clientís computer system allows remote installation, but does not include installation of the Update by any other method.

B. Regular Technical Support.  CAPETOWN will accept requests for technical support during regular business hours (9:00am to 5:00pm, Monday to Friday, excluding statutory holidays) as follows:

By phone and fax        +1.416-727-1467

By email                      support@capetown.ca (support)

                                    capetown@capetown.ca (general)

                                    sales@capetown.ca (sales)

Additional contact information is available on the www.capetown.ca website.

C. On Site Technical Support.  Technical support, on-site or through remote access, for customization, training, consultation, or other technical support will be provided upon request as follows.  Support requests expected to require less than 4 hours consulting time will be arranged within ten (10) business days by CAPETOWN providing the service at its standard rates.  For technical support requests which cannot be resolved within four (4) hours, the parties will prepare a Statement of Work, in the form attached.  CAPETOWNís standard consulting service hourly rate will apply unless otherwise agreed in writing.

D. Exclusions.  No one other than CAPETOWN is permitted to service the Software.  CAPETOWN shall not be required to provide Regular Technical Support or On Site Technical Support where service has been performed on the Software by anyone other than CAPETOWN.  In the event that Regular Technical Support or On Site Technical Support is required due to servicing by someone other than CAPETOWN in violation of this section, such Support Service shall be billed at CAPETOWNís standard hourly rate and be the subject of a Change.

4. Client Responsibilities

A. Client shall provide CAPETOWN access to the equipment on which the Software is installed;

B. Client shall pay CAPETOWNís reasonable expenses for On Site Technical Support, including the expense fees set out in Section 7;

C. Client shall provide a safe and adequate working space and facilities including telephone, light, heat, ventilation, electric current and outlets for use by CAPETOWN service personnel.  All such facilities shall be provided at no charge to CAPETOWN;

D. Client shall advise CAPETOWN in advance of any special safety requirements at its facility, including the requirement for hardhats, goggles, coveralls and boots, and shall provide such safety devices during each On Site Technical Support event.

5. Development Services and Project Management

A. Where the parties have so agreed in a Statement of Work, CAPETOWN shall perform the Customization Services and deliver the Custom Code in accordance with the applicable Statement of Work and the terms and conditions of this Agreement (the ìProjectî).

B. Each party shall appoint a qualified employee having sufficient authority and technical qualifications to analyze, review and interpret specifications, and approve and respond to change order proposals or change order responses, if applicable, and who shall be responsible, among other things, to act as a liaison between the parties in order to facilitate the relationship between the parties and the performance of their obligations hereunder (ìProject Manager(s)î).

C. Project Managers shall meet at regular intervals throughout the duration of the Project, to assess the ongoing progress of the Project. 

D. All Customization Services shall occur at CAPETOWNís premises.  CAPETOWN shall not be required to perform onsite development work or Customization Services.

E. Either Party may request additions, deletions or amendments to the Statement of Work (ìChangeî).  Changes shall be requested in writing signed by the Project Manager of the party requesting the Change (ìChange Requestî).  The Change Request shall include a reasonably detailed description of the scope and nature of the requested Change, and in the case of a Change Request by CAPETOWN, an estimate of costs or other changes to the Agreement necessitated by the Change.

F. The party receiving the Change Request shall respond within ten (10) business days of the receipt: in the case of CAPETOWN, by indicating its willingness and ability to comply with Clientís request using reasonable efforts and providing an estimate of any additional costs or other required changes to the Statement of Work (which shall be treated as a Change Request when received by Client); and in the case of Client, by accepting the Change Request or providing proposed changes (which shall be treated as a Change Request when received by CAPETOWN).  Upon Clientís written acceptance to proceed with the Change, the Statement of Work shall be amended accordingly.

G. All Changes are subject to the availability of CAPETOWNís resources.

6. Term

A. The term of the Support Services shall be for [one (1) year/until]  [(2010-04-24)] unless earlier terminated or renewed.

B. This Agreement shall automatically renew for additional periods of one year (each a ìRenewal Termî) at the end of the term or any Renewal Term, unless a party provides thirty (30) days written notice to the other party of its intent not to renew prior to the end of such term or Renewal Term.

C. Where Client decides not to renew the Support Services, a reinstatement Fee will apply to bring Clientís version of the Software into compliance with then current supportable versions.

7. Fees

A. CAPETOWN charges a supplemental fee for any service requests relating to Source Code, which must be handled through a Change Request at a 75% premium rate from the base rate.

B. All service requests outside normal business hours are subject to a 25% supplemental charge.

C. All service requests requiring more than 25 kilometers travel are subject to a 50% supplemental charge

D. CAPETOWNís rates during regular business hours are $395.00 per hour for senior staff, 295.00 per hour for intermediate staff, and $225.00 per hour for regular staff.

Exhibit [#1] to Schedule C – Statement of Work

This Statement of Work is Exhibit [#1] to Schedule C of the Master Software Licence and Services Agreement between CAPETOWN COMPUTING CORPORATION (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORATED. (ìClientî) dated 2009-04-24, identified by CAPETOWN Contract Number CC# CapeTown.Empire (the ìMaster Agreementî).  Statements of Work to this Schedule C should be added as consecutively numbered Exhibits.

1. Definitions

The following capitalized terms shall be defined throughout this Statement of Work:

A. ìAcceptanceî means either deemed acceptance of the Deliverable in accordance with Section 5 or actual acceptance in accordance with the Acceptance Test and ìAcceptedî shall have a corresponding meaning;

B. ìAcceptance Testsî means those tests as shall be suggested by Client and agreed between the parties in order to determine the material compliance of the Deliverables with the Specifications;

C. ìCustomization Feesî means the fees as set forth in Section 6.

D. ìDefectî means in the case of any Deliverable, that the Deliverable does not comply in all material respects with its Specifications;

E. ìDeliverable(s)î means the customized software identified in Section 2 of this Statement of Work, or any component thereof;

F. ìDocumentationî means all materials (other than source materials), whether in tangible or electronic form, that are reasonably necessary for the user of the Deliverables to understand the functions and features of the Deliverables and be able to properly use the Deliverables;

G. ìSpecificationsî means the functional, performance and other specifications applicable to the Deliverables, as set out in the Documentation and/or in Section 3 of this Statement of Work as applicable, each as may be amended from time to time in accordance with the provisions hereof;

H. ìTechnical Support and Development Services Agreementî means the Schedule C to the Master Agreement between Client and CAPETOWN to which this Statement of Work is attached or as noted above.

2. Deliverables

[DEVELOPMENT AND TEST ENVIRONMENT MACHINE, CAPETOWN APPLIANCE, with development tools, source code and database for web and desktop applications detailed in Purchase Order 1].

3. Specifications

The Deliverables shall function in accordance with the Documentation and such other performance standards provided.

[Documentation, Schedule E]

[Performance Levels, Schedule F]

4. Development Schedule

[No further development]

5. Delivery and Acceptance

A. CAPETOWN shall deliver the Custom Code to Client according to the development schedule. Delivery shall be deemed to take place either when the Deliverable is available for download at CAPETOWNís website, or a storage device bearing the Deliverable is received at Clientís premises.  All sums payable on delivery of the Deliverables as set out at in Section 6, if any, shall be due thirty (30) days from receipt an invoice.

B. Following delivery, Acceptance of a Deliverable shall be deemed to take place on the earliest of: (i) thirty (30) business days following delivery of the Deliverables, unless Client notifies CAPETOWN in writing that the Deliverables have not passed the Acceptance Tests; (ii) on the date CAPETOWN receives written notification from Client that the Deliverable has been Accepted; or (iii) on the date Client first uses the Deliverable, before concluding (or commencing) the Acceptance Tests, in a live environment for purposes otherwise than for testing purposes.

C. Client shall have up to thirty (30) business days from the receipt of the initial release of any Deliverable to determine if that release performs in accordance with the agreed upon Specifications.  Client shall provide CAPETOWN with a written acceptance report detailing any Defects including descriptions of the Defects, and the steps required to reproduce them.  This process will be repeated for subsequent releases as necessary until the Deliverable is Accepted.

D. If a Deliverable is not Accepted within ninety (90) days from delivery, either party may terminate customization Service, in which event Client will return all Deliverables to CAPETOWN and CAPETOWN will be entitled to 50% of the Customization Fees (or milestone payments) related to the Deliverable which was not Accepted by Client.  CAPETOWN shall not be required to refund any milestone payments for Deliverables which have been Accepted.  This will be CAPETOWNís sole liability and Clientís sole remedy with respect to rejected Deliverables.

6. Customization Fees and Payment Milestones

[Payment up front]

[Delivery of CAPETOWN APPLIANCE]

CAPETOWN COMPUTING CORPORATION

By:                                                                                    

         Franco DíAlessandro, President

Date:                                                                                

YOUR NEW ENTERPRISE INCORPORATED

By:                                                                  

Enterprising People, President

Date:                                                       

Schedule D – Documentation

This Documentation is Schedule D to the Master Software Licence and Services Agreement between CAPETOWN COMPUTING CORPORATION (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORATED. (ìClientî) dated 2009-04-24 identified by CAPETOWN Contract Number [CC#] CapeTown.Empire (the ìMaster Agreement) that describes the Software as per Purchase Orders attached to this Master Software and Licence and Services Agreement, (ìPurchase Order 1î). The document is entitled ìCAPETOWN - Web and Workflow Systemsî.

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Schedule E – Development Software Options

This Source Code Option is Schedule E to the Master Software Licence and Services Agreement between CAPETOWN COMPUTING CORPORATION (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORATED. (ìClientî) dated 2009-04-24 identified by CAPETOWN Contract Number [CC#] CapeTown.Empire (the ìMaster Agreement) that describes the Software Development Options Attached to the Master Software and Licence and Services Agreement, (ìPurchase Order 1î). The document is entitled ìCAPETOWN - Cross Licence Agreement.

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Schedule F – Performance Levels

This Documentation of Performance Levels is Schedule F to the Master Software Licence and Services Agreement between CAPETOWN COMPUTING CORPORATION (ìCAPETOWNî) and YOUR NEW ENTERPRISE INCORPORATED. (ìClientî) dated 2009-04-24 identified by CAPETOWN Contract Number [CC#] CapeTown.Empire (the ìMaster Agreement) that provides for a chronological presentation of the performance levels of the Software as per Purchase Orders attached to this Master Software and Licence and Services Agreement, (ìPurchase Order 1î) and documented in Schedule E, The document entitled ìCAPETOWN - Web and Workflow Systemsî. Performance statistics are provided.

 

Including the following sections;

TRANSACTION CALENDAR, for the years associated with the transaction performance statistics showing non-performance days.

TRANSACTIONS PROCESSED VIA THE CAPETOWN SYSTEM, showing transactions in calendar format.

CAPETOWN STATISTICS 2009-04-24 (Statistics.xls) SPREADSHEET DATA FILE

SPREADSHEET DATA FILE IN EXCEL FORMAT