COJILIO

LICENSE, SERVICES
AND SUPPORT AGREEMENT

INTRODUCTION

1. Scope This agreement sets out the terms and conditions on which the Client obtains the licenses, support, and associated services from NCX in connection with NCX’s Cojilio App for mobile and desktop devices, as described on the Cojilio Portal.
2. Parties This Agreement is made between the Client accepting this Agreement, and NCX Inc., an Ontario corporation.
3. Formation of Contract This Agreement shall be deemed to be entered into by the parties upon confirmation by the Client of its acceptance of this Agreement by the Client’s utilization of the process and protocol for acceptance as set out in the Cojilio Portal, subject in all events to confirmation thereof by NCX as set out in such process and protocol.
4. Client’s Evaluation and Acceptance of App The Client confirms that it has had an opportunity to evaluate the Cojilio App and the associated Cojilio IP to its satisfaction, and therefore the Client’s acceptance of this agreement constitutes its acceptance of the Cojilio App for all purposes.
5. Restrictions On Use Of App The Client’s App and any associated Cojilio IP are to be used and accessed only by the Client and the Client’s customers and suppliers (“End Users”) for the authorized purposes of managing their business interactions.

IMPLEMENTATION OF APP

6. Customization of App. Customization of the Cojilio App using the Cojilio Portal will be the responsibility of the Client, and NCX shall have no liability or obligation in connection therewith. The App as customized by the Client is referred to as the “Client’s App”.
7. Apple App Store In anticipation of submission by Cojilio of the Client’s App to Apple App Store, the Client shall enroll in the Apple Developer Program with respect to the Client’s App. The Client is directed to https://developer.apple.com/programs/enroll/ for that purpose. The Client is responsible to take all steps and pay all such charges associated with obtaining and maintaining such status in good standing in order for the Client’s App to be available to the Client’s End Users. NCX recommends that, upon enrolling, the Client provide NCX with access to such account by inviting developer@cojilio.com as an admin; associated information can be found at https://developer.apple.com/support/roles/.
8. Google Play Store As of the date of this agreement NCX is able to submit the Client’s App to Google Play Store. If this capability changes in the future, NCX will notify the Client, and additional charges to the Client may apply.
9. Submission of App to Google and Apple Stores Subject to the foregoing, within seven days after the Client has given written notice to NCX of completion of customization of the Client’s App, NCX will submit the Client’s App to Google Play Store and Apple App Store.
10. Access to Cojilio Portal. At all times during the currency of this agreement, NCX shall provide the Cojilio Portal to manage the Cojilio App activities of the Client’s company, its employees, and End Users with respect to all services that are available to them using the Cojilio Apps.
11. Languages The Cojilio App is available for use only in the Available Languages identified from time to time on the Cojilio Portal.
12. Client Support Information The following client support information for the Cojilio App is available on the Cojilio Portal:

-User Guide

NCX SERVICE LEVEL COMMITMENT

13. Standard NCX will use reasonable efforts to make the services associated with use of the Cojilio App available with a Monthly Uptime Percentage of at least 99.975%.
14. Calculation "Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the included services, as applicable, were unavailable.
15. Definition “Unavailable” and “Unavailability” mean that the Cojilio Portal online service is inaccessible from authorized computers and mobile devices, and the root cause of this unavailability does not stem from infrastructure or service faults at the location(s) experiencing issues with the service.
16. Restrictions The following restrictions apply, and shall not be counted as unavailability:

• i. Circumstances or events not reasonably foreseeable or reasonably uncontrollable by NCX;
• ii. Scheduled downtimes (e.g. maintenance or update windows). Regular scheduled maintenance may occur weekly on Sunday evening between 11:00 pm – 1:00 am Eastern Standard Time.

Support Services

17. Definition "Support" means the support services that NCX will provide to the Client for the Cojilio App in accordance with the terms and conditions set out in this Agreement.
18. Customer and End User Support. In the event of any problem with the Client’s App or the Cojilio Portal, the Client and End Users may obtain support from NCX at support@cojilio.com or may contact NCX and request that NCX technical support staff provide technical or applications support via telephone to qualified the Client or End User service personnel.
19. NCX’s Responsibilities. NCX will provide Support during Business Hours to the Client as follows.
20. Problem Severity Level 1 Where there is a problem which is seriously interfering with or impeding the Client’s ability to carry on its business, NCX will work continuously to resolve the problem or implement a workaround to return the Client’s Apps to operating status and move the problem to the Problem Severity Level 3 category. NCX’s Director of Customer Services will be immediately notified of the situation. NCX’s goal is to return the Cojilio system to functional status within 24 Business Hours of NCX being notified of the failure. Once operation is restored, the final, permanent solution may require additional IP corrections and deliveries. If that is the case, it is NCX’s goal to provide the permanent solution within 72 Business Hours of NCX being notified of the failure.
21. Problem Severity Level 2 Where the problem impairs but does not interrupt the operation of the Client’s business but the Client NCX’s goal is to resolve the problem or reduce the impact to Problem Severity Level 3 within a period of 72 Business Hours of NCX being notified of the failure. If permanent solution of the problem requires IP correction or deliveries, it is NCX’s goal to provide the permanent solution within 90 days.
22. Problem Severity Level 3: Where the problem is immaterial to the operation of the Client’s business, NCX’s goal is to provide any necessary IP corrections in the next 90 days.
23. Problem Severity Level 4: Where the problem does not entail any operational issue but the need for a correction has been identified, NCX’s goal is to provide any necessary IP corrections in the next 180 days.
24. Exclusions. The following matters are outside the scope of Support provided by NCX under this Agreement:

1. Upgrades (new releases of Cojilio IP, which are marketed at an additional charge);
2. All Cojilio App, Cojilio Portal, Cojilio IP or other system problems caused by:

1. operator error or hardware failure; or
2. failure to follow the procedures outlined in the Cojilio Support Documentation;

3. Modifications made to the App, the Cojilio Portal, or the Cojilio IP by any person or entity other than NCX;
4. Modifications made to the hardware or operating system outside of the scope of the recommended configuration set out in Cojilio Support Documentation;
5. Failure of or defect in any internet connection or service whether occasioned by the ISP used by the Client or End User or otherwise;
6. Problems caused by failure to maintain the Client’s or End-User’s computer system site or associated technology in accordance with guidelines provided by NCX or the hardware supplier;
7. Problems caused by failure to implement Support corrections from NCX within five (5) days of delivery thereof; or
8. Any use of any Cojilio IP that is not the most recently published release, or the one immediately prior to that release.

25. Other Support Services Where NCX is not obligated to provide support services, NCX will make support services available to the Client on rates, terms and conditions identified on the Cojilio Portal.

FEES

26. Package The Client shall pay the Services Fees in the amounts and currencies and on the terms associated with the package being acquired by the Client through the Cojilio Portal.
27. Due Dates The initial Service Fee is due after the trial period or upon execution of this Agreement. Service Fees are thereafter payable monthly in advance on the same day of the month as the initial Service Fee.
28. Payment Method Fee payments shall be made by the payment method identified in the Cojilio Portal.

Personal Information

29. Definition “Personally Identifiable Information” means any information that identifies an individual, including an individual’s name, address, financial information, financial institution information, credit card information, or social security/social insurance number, regardless of the media on which such information is stored, in connection with the operation and use of the Client’s App by the Client and End Users.
30. Privacy Each party agrees to comply with all applicable privacy laws and regulations relating to the protection, collection, use and distribution of Personally Identifiable Information.
31. Responsibility of the Client The Client shall be solely responsible for ensuring that the proper legal notices and consents or waivers are provided to or obtained from all End Users at or before the time of the collection of any Personally Identifiable Information as required by applicable law or regulation or otherwise in accordance with best industry practices.
32. Permitted Use NCX may use any Personally Identifiable Information obtained, collected or stored in connection with the Cojilio App, Cojilio Portal, or the Client App in aggregate form, as well as any information about the Client (including but not limited to account information, order information, and transaction data), for the purpose of performing the services and developing statistical information relating to the performance of the services for internal use only. NCX will not disclose any Personally Identifiable Information or the Client information so obtained, collected or stored in connection herewith without the prior written consent of the Client.

CONTRACT TERM AND TERMINATION

33. Minimum Term The Minimum Term of this agreement shall be as is specified on the Cojilio Portal for the package selected by the Client.
34. Month to Month After the Minimum Term, this agreement shall continue on a month-to-month basis until terminated as provided below.
35. Termination at the Option of the Client After the Minimum Term, the Client may terminate this agreement on 30 days notice to NCX.
36. Suspension by NCX NCX reserves the right to suspend all rights and services of the Client under this agreement at any time if the Client fails to make any payments to NCX within 14 days of the due date, and the right to continue such suspension until all such payments in arrears are paid in full.
37. Termination by NCX NCX has the right to terminate all rights and services of the Client under this agreement if the Client fails to make any payment within 30 days of the due date or under other circumstances identified below.
38. Payments after Suspension or Termination Suspension or termination of this agreement by NCX shall be without prejudice to its rights thereafter to collect all amounts which remain owing by the Client.

Restrictions On NCX

39. During the term of this agreement:

1. NCX will not attempt to sell any product or service to the Client’s customers;
2. NCX will not include any advertisements in the Cojilio App;
3. NCX will keep the names and other information relating to the Client’s customers which are disclosed to NCX by operation of this agreement confidential, and will not use such information for NCX’s purposes or disclose such information to marketing agencies or other such persons.

GENERAL TERMS AND CONDITIONS

RIGHTS AND OWNERSHIP

40. Grant of Rights. NCX grants to the Client a non-exclusive, non-transferable, license to use the Cojilio IP in association with its use of the Cojilio App and the Client’s App, all in accordance with and subject to the terms and conditions hereof.
41. Definition “Cojilio IP” means all NCX software as well as all intellectual property rights associated with the Cojilio App and the Cojilio Portal, including any copyright, trademark, patent, or industrial property design rights associated with the Cojilio App and Cojilio Portal, and all trademarks and tradenames of NCX associated with “Cojilio” products or services.
42. Title. All right, title and interest in and to the Cojilio IP, including but not limited to translations, is the property of NCX or a third-party licensor to NCX. These rights are protected by United States, Canadian and English intellectual property right laws, international treaty provisions and other applicable national laws.

Conditions of Use

43. Use and Elements The Client will (a) use the Cojilio IP only in connection with the authorized use and exploitation by the Client of the Cojilio App; (b) maintain all elements of the Cojilio IP disclosed to the Client in confidence, utilizing at least the same degree of care used by the Client to protect its own confidential information and (c) make the Cojilio IP available only to persons as expressly authorized under this agreement.
44. No Modification The Client will not: (a) modify the Cojilio App or the Cojilio IP in any manner whatsoever; (b) attempt to reverse engineer or otherwise render any of the Cojilio App or the Cojilio IP into human readable form in order to understand the Cojilio App or Cojilio IP structure or details in any way, or to produce any work derived from the Cojilio App or the Cojilio IP ; or (c) attempt to defeat any mechanisms that allow NCX to ensure the Client's compliance with this Agreement.

Services - Terms and Conditions

45. Terms. The following terms and conditions will apply to all Support Services provided by NCX under this agreement.

46. Definition. “Work Product" means all results, including but not limited to reports, data bases, courses, know-how and show-how, developed and delivered by NCX in the course of performing the Services.

47. Scope of Services. NCX’s responsibilities are limited to performance of the Services expressly specified in herein.

48. Ownership of Work Products. NCX will own, at all times, all rights, title and interest in and to any Work Products at any stage of development.

49. Grant of Rights. NCX shall grant to the Client a license to use any Work Product on the same terms and conditions as set out elsewhere in this Agreement for Cojilio IP.

RELATIONSHIP TO END USERS

50. Agreements with End Users. The Client shall be solely responsible for all agreements entered into by it with End Users.
51. No Liability of NCX to End Users. NCX shall have no obligation or liability to End Users, and the Client shall make no covenant, representation or warranty to any End User which purports to bind NCX or which differs from or purports to vary any right or obligation of NCX set out in this Agreement.
52. No Rights of End Users to Enforce. The provisions of this agreement which operate to the benefit of End Users are not intended to confer contractual or other legal rights of enforcement upon any End User whether as a third-party beneficiary or otherwise.
53. Indemnity The Client shall indemnify and save NCX harmless from any claims of any nature or kind whatsoever asserted by any End User on any grounds against NCX, its personnel or representatives in connection with or arising out of the Cojilio App, the Cojilio Portal, the Cojilio IP , the Client’s App, or any obligations of NCX set out under this agreement.

NCX WARRANTIES

54. Cojilio Warranty NCX warrants that, for a period of sixty (60) days following the date hereof, (the “Warranty Period”): (a) the Cojilio App, the Cojilio Portal, and the Cojilio IP will conform in all material respects, to its specifications in the Cojilio Documentation, and (b) the media on which the Cojilio App and Cojilio Portal are provided will be free of defects in materials and workmanship.
55. Correction of Defect If, during the Warranty Period, the Cojilio, App, the Cojilio portal or the Cojilio IP fails to meet the above warranties, NCX will use reasonable commercial efforts, without charge to the Client, to correct the defects.
56. Services Warranty. NCX warrants that all Services provided under this Agreement will be conducted in a manner that is consistent with the level of skill and care ordinarily exercised by members of its profession currently practicing under similar conditions.
57. Patent Infringement. While NCX cannot warrant that the Cojilio IP does not infringe any pending patent of any third party, NCX does warrant that it has exercised due diligence to ensure, within reasonable commercial limitations and legislated limitations on access to information, that it does not so infringe, and NCX is not aware of any claim of infringement.

IP INDEMNITIES OF NCX

58. Indemnity. NCX will indemnify and hold harmless the Client from any claims, losses, damages, penalties, judgments and liabilities, including all reasonable related costs and expenses, arising in connection with any action or claim that the use of the Cojilio App, Cojilio Portal or any Cojilio IP provided by NCX under this Agreement infringe third party copyrights or trade secrets, provided that (i) the Client assists in the defense; and (ii) NCX controls the defense, negotiation and settlement of any such claim. Any settlement intended to bind the Client will not be final without the Client’s written consent, which will not be unreasonably withheld.
59. Notice. The Client will promptly provide NCX with written notice of any claim or information known to the Client that might lead to a claim for indemnity by the Client under this provision. Failure by the Client to notify NCX of such claim or information, which results in NCX being materially prejudiced, will relieve NCX of its liability under this indemnity provision.
60. Remedies. If the Client cannot use the Cojilio App or Cojilio Portal or associated Cojilio IP because a court of final appeal has held that their use constitutes an infringement of a third party’s intellectual property rights, NCX will, in its sole discretion, provide the Client with one of the following remedies:

1. without impairing the Cojilio App, Cojilio Portal or Cojilio IP functionality or performance in any material adverse way, (i) modify the infringing portion or element therof so that it is non-infringing or (ii) replace the same with equally suitable, non-infringing components; or
2. procure for the Client the right to continue to use the infringing material.

61. Exclusion. NCX will have no liability to the Client with respect to any claim of intellectual property rights infringement based on (i) the use or modification of the Cojilio App or any Cojilio IP not in accordance with the NCX Cojilio Documentation; or (ii) the combination of the Cojilio IP with machines, systems or devices not approved by NCX.

Limitations of NCX Liability

62. Sole Remedy. If the Cojilio App, the Cojilio Portal, or the Cojilio IP fail to conform in all material respects to its specifications as set out in the Cojilio Documentation, the Client’s sole remedy shall be as specified herein and subject to the limitations expressly set out herein.
63. THE CLIENT AGREES THAT THE LIMITATIONS ON LIABILITY SET OUT IN THIS AGREEMENT ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT NCX WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE CLIENT’S AGREEMENT TO LIMIT NCX’S LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN.
64. NCX’S LIABILITY TO THE CLIENT OR ANY PERSON CLAIMING THROUGH THE CLIENT FOR ANY AND ALL DIRECT, COMPENSATORY LOSS OR DAMAGES, UNDER ANY THEORY OF LAW OR EQUITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE INTENDED FULFILLMENT OF ANY OF NCX’S OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE STRICTLY LIMITED IN THE AGGREGATE TO THE CEILING AMOUNT SET OUT BELOW.
65. THE CLIENT SHALL NOT SEEK, APPLY FOR OR OTHERWISE CLAIM ANY EXEMPLARY, AGGRAVATED OR PUNITIVE DAMAGES WHATSOEVER, OR HOWSOEVER INCURRED, IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER.
66. UNDER NO CIRCUMSTANCES WILL NCX BE LIABLE TO THE CLIENT OR ANY PERSON CLAIMING THROUGH THE CLIENT FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES, COMPENSATION OR LOSS OF PROFITS, ANTICIPATED REVENUE, SAVINGS OR GOODWILL, OTHER ECONOMIC LOSS OF THE OTHER PARTY OR ANY COSTS, EXPENSES OR INTEREST RELATED THERETO, UNDER ANY THEORY OF LAW OR EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
67. THE OBLIGATIONS OF NCX EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
68. ALL OF THE PROVISIONS HEREOF UNDER THE HEADING ‘LIMITATION OF LIABILITY’ SHALL APPLY EVEN IN THE EVENT OF A BREACH OF CONDITION, A BREACH OF AN ESSENTIAL OR FUNDAMENTAL TERM, OR AN ESSENTIAL OR FUNDAMENTAL BREACH OF THIS AGREEMENT.
69. Ceiling Amount The aggregate liability of NCX to the Client for all matters governed by or the subject matter of this agreement at any time shall in no circumstances exceed in the aggregate the total license fees paid by the Client to NCX under this Agreement during the period of six months prior to the occurrence of the events in respect of which liability is established.

Client Warranties

70. General. The Client represents and warrants to NCX that:

1. it is not a party to any agreement or business relationship that prevents it from carrying out its obligations under this Agreement;
2. it has the right and full power to enter into this Agreement;
3. this Agreement creates legal, valid and binding obligations on it and is enforceable against it in accordance with its terms.

MUTUAL Confidentiality

71. Definition. “Confidential Information” means all information that the disclosing party designates as confidential or which ought to be considered as confidential from its nature or from the circumstances surrounding its disclosure, including without limitation all regulatory, commercial, financial, administrative and technological information of either party and any information concerning this Agreement except information which:

9. is known to the receiving party before receipt from the other party, as substantiated by cogent and reliable evidence;
10. is disclosed to the receiving party in good faith by a third party who had a right to make such disclosure;
11. is made public by the originating party, or is established to be a part of the public domain otherwise than as a consequence of a breach by the receiving party of its obligations hereunder; or
12. is required to be disclosed by law or by a valid order of any governmental body or competent securities regulatory authority, provided that the receiving party shall give the disclosing party reasonable notice of such disclosure and shall take all reasonable steps available to maintain the information in confidence.

72. Limited Use. All Confidential Information of each party shall be used by the other party strictly and only for the purposes in this Agreement.
73. Reasonable Care. Each party shall have a fiduciary duty to hold all Confidential Information of the other party in confidence strictly for, and on behalf of the other party.
74. Obligations of the Parties. Each party shall have an obligation commensurate with the duty of care set out in this Article to prevent the other party’s Confidential Information in its possession control from being misappropriated, or wrongfully communicated by any Business Partner, employee, consultant or other person under the obliged party’s control.

ADDITIONAL Termination Rights

75. Termination by NCX. In the event the Client (i) commits a breach of any material obligation of this Agreement, (ii) is in default of any covenant or condition contained herein, or (iii) becomes insolvent or bankrupt, or receivership proceedings are initiated by or against the Client, and if such breach or default is not cured within thirty (30) days thereafter, NCX may (i) forthwith terminate this Agreement and the rights and licenses granted herein, (ii) require the Client to immediately pay all fees currently owing, (iii) require the immediate return of all Cojilio IP in the possession of the Client (iv) require the Client to discontinue use of the Cojilio IP and (v) pursue any other remedy existing at law or in equity.

MISCELLANEOUS

76. Governing Law. The construction, validity and performance of this Agreement will be governed by the laws of the Province of Ontario, except for any interpretation that is needed of NCX’s or NCX’s licensors’ patents, in which case patents will be interpreted in accordance with the laws and by the courts of the country in which the patent was granted or the patent application is pending.
77. Non-Assignability The Client may not assign, transfer or convey this agreement or any of its rights hereunder without the prior written consent of NCX.
78. Notices. Any notices provided for under this Agreement shall be given through the Cojilio Portal or by receipt-acknowledged email and shall be deemed received on the day given unless it is not a business day, in which event it shall be deemed received on the first business day following such transmission.
79. Entire Agreement. This Agreement, including all matters incorporated by reference, constitutes the entire Agreement between the parties with respect to the subject matter hereof.
80. Successors and Assigns. All successors, receivers, managers, trustees and permitted assigns of the parties will be bound by the rights and liabilities set out in this Agreement.
81. Severability. If any provision of this Agreement is determined to be invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision shall be deemed to be severed from the Agreement, and the remaining provisions shall not be affected.
82. No Waiver. No failure on the part of any party to exercise, and no delay in exercising any right, power or single or partial exercise of any right, power or remedy by any party will preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
83. Survival. All sections who by their terms or nature will survive termination of this Agreement, including without limitation sections 38, 43, 44, 53, 61, 70 ,72, 73 and 74.