Hubbl Diagnostics

Terms and Conditions

These Terms and Conditions (the “Terms”) govern access to and use of the Services by individuals or entities who purchase or obtain a license to use the Services and their Authorized Users (collectively, “you” or the “Client”). This is a legal agreement entered into between the Client and Uncommon Purpose Ventures Inc. (the “Company”), relating to the Services.  By: (I) clicking through these Terms electronically; or (II) execution of an Order Form, or (III) using the Services, you and the Company mutually agree to be bound by these Terms. If you do not accept these Terms, you are not permitted to use the Services. If you are entering into this Agreement as an agent, employee or representative of the Client, you represent and warrant that you have the authority to act on such party’s behalf.

AGREEMENT:

In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Client agree as follows:

1. Definitions. Unless the context requires otherwise, capitalized terms in this Terms shall have the following meanings:

a. “Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party;

b. "Aggregate Data" means data and information that has been accessed by the Company in the provision of the Services, which includes metadata of the Salesforce Org obtained by the Company in the provision of the Services, namely, information about the configuration of the Salesforce Org, and aggregated and anonymized metadata about Salesforce orgs of others, namely, information about the configuration of such others’ Salesforce orgs; provided that in all cases, such Aggregate Data shall be aggregate and anonymized;

c. “Agreement” means the agreement between the Company and the Client whereby the Client agrees to purchase one or more licenses to use the Services, and includes these Terms, any Order Form, and incorporates the Company’s Privacy Policy, located at https://www.hubbl.com/privacy-policy

d.  “Applicable Law” means any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to the Services and the Client’s use thereof;

e. "Authorized Users" means the Client’s employees, consultants, contractors, agents and anyone including persons whom the Client provides access and use of the Services under the rights granted to the Client pursuant to this Agreement;

f.  “Client Data” means: (i) any information contained within the Salesforce Org that is considered confidential by the Client and includes any information about an identified or identifiable individual or entity; and (ii) data or information entered into the Services by the Client that has not been made publicly available; but excludes Aggregate Data;

g. “Company Materials” means the Services, the Documentation, and Aggregate Data and any and all other information, data, documents, materials, works, and other content, methods, processes, software, and other technologies and inventions, plans, or reports, that are provided or used by the Company in connection with the Services or otherwise comprise or relate to the Services. For the avoidance of doubt, Aggregate Data and any information, data, or other content derived from Aggregate Data are confidential information belonging to the Company. Company Materials does not include Client Data;

h. “Documentation” means this Agreement and other user documentation related to the use or operation of the Services, each as made available by the Company electronically via the Services or otherwise in writing;

i. “Effective Date” means the earlier date of (i) any Order Form issued in relation to this Agreement; (ii)  the delivery of the Services by Company to the Client; or (iii) the Client’s first use of the Services;

j.  “Fees” means the aggregate of all fees payable by Client to Company for the use of the Services in accordance with these Terms, plus all applicable duties, levies, and taxes in association with such fees;

k. “Term” means the period of time commencing on the Effective Date and ending on the date that the Client is no longer authorized to use the Services, whether by way of expiration of any license term or other termination permitted hereunder, and includes any subsequent Renewals;

l. “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes;

m. “Intellectual Property Rights” means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property;

n.  “Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between the Company and the Client, and may include an online order of the Services through the Company’s website or through a third party website;

o. “Salesforce” means the Salesforce.com company that has entered into an agreement with the owner of the Salesforce Org, by way of separate agreement;

p.  “Salesforce Org” means the Salesforce account(s) to which the Services are applicable, as approved by the Company, and to which the Client has received all necessary authorization to access and use in accordance with this Agreement.

q.  “Services” means: i) the Company’s software application currently described as “Hubbl Diagnostics”, including any updates, upgrades, patches, technology, material, modifications, bug fixes, enhancements, data, features, related website, related technologies, and contents, as it may be added or removed by Company from time to time and including all written information, documentation, and materials provided to Client in respect of same; and ii) any software, materials or content made available in connection with the Services.

2. Use and License.

a.  Subject to Client’s and Authorized Users compliance with all the terms and conditions of this Agreement, Company grants Client a non-exclusive, non-transferable right to access and use the Services during the Term, solely for the internal use and business operations of (i) the Client; or (ii) where the Client is a service provider authorized by the owner of the Salesforce Org to access the Salesforce Org, the owner of such Salesforce Org. Except as expressly set out herein, unless otherwise expressly agreed to by the Company in an Order Form, Client may not use the Services as a service for any third party.

b.  The Client agrees that it will not use the Services in a manner that (i) infringes or violates the intellectual property rights or other rights of Company or any third party; (ii) violates any law or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) accesses the source code, modifies, copies, creates derivative works from, reverse engineers, decompiles or disassembles the Services.

c.  Upon the termination or expiration of the Term, Client shall immediately discontinue use of the Services.

d.  Client shall at all times: (i) be responsible for the accuracy, quality and legality of the Client Data, the means by which Client acquired it,  and Client’s use of Client Data with the Services, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Company promptly of any such unauthorized access or use, (iii) use the Services  only in accordance with the Documentation and Applicable Laws; and (iv) comply with terms of service of Salesforce and any third-party applications with which Client uses the Services. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client would be deemed a breach of this Agreement by Client.

e.  Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any persons to (i) copy, modify, or create derivative works of the Services in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law.


3. Confidentiality.

a.  When used herein, “Confidential Information” means any non-public information, in any form or medium (whether oral, written, electronic, or other) that: (i) the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, Intellectual Property, pricing; (ii) information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential"; and (iii)  information designated in writing, or orally at the time of disclosure, by the Disclosing Party as “confidential” or “proprietary”. Client Data shall be the confidential information of the Client, and Aggregate Data shall be the confidential information of the Company.

b.  In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other Party (as the "Receiving Party"). Neither party will, subject to the licenses granted in this Agreement, make any unauthorized use or disclosure, in whole or in part, of the Disclosing Party’s Confidential Information, or use the Disclosing Party’s Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement.

c.  The restrictions in this section do not apply to information that: (i) is independently developed by the Receiving Party without access to the other party’s Confidential Information; (ii) becomes publicly known through no breach of this section by the Receiving Party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the Disclosing Party; or (v) is required to be disclosed by a legal or government authority.

d.  Each Receiving Party agrees to protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; and promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.

e.  Notwithstanding the foregoing, the Company may access or disclose the Client’s Confidential Information if: (i) the Company in good faith believes that disclosure is necessary to comply with any Applicable Law, legal process or government request; (ii) to perform under or enforce the terms of this Agreement, including instructing a third party for collection of outstanding amounts owed by the Client under this Agreement; or (iii) to protect the security or integrity of the Services. In each of the foregoing cases, the Company will disclose only such Confidential Information as the Company believes, in good faith, is necessary. Further, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Applicable Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

4. Indemnification.

a.  Company’s IP Indemnification. Company shall defend, indemnify and hold the Client harmless against any loss, damage or costs (including reasonable attorneys’ fees) actually payable to unaffiliated third parties arising from claims, demands, suits, or proceedings (“Claims”) brought against the Client by such third parties alleging that the use of the Services as contemplated hereunder infringes a valid patent, copyright, trademark or trade secret of such a third party; provided, that the Client: (i) promptly gives written notice of any such Claim to Company; (ii) gives Company sole control of the defense and settlement of the Claim; and (iii) provides to Company, at Company’s cost, all reasonable assistance. The foregoing obligations do not apply with respect to portions or components of the Services: (A) not created by Company; (B) resulting in whole or in part from the Client’s specifications or data/content; (C) that are modified or combined with other products, processes or materials where the alleged infringement relates to such combination; (D) where the Client continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; and (E) where the Client’s use is not strictly in accordance with the Terms and all Documentation made available by Company; or (F) where there has been any breach of the Terms by the Client. Company has no obligation with respect to any Claim if the Claim is solely caused by Client Data, use of the Services other than as specified in the Documentation, or Client’s combination of the Services with any products, software, services, data or other materials not provided by, required by, or approved by Company, unless such use is necessary in order to use the Services as instructed by Company.

b.  Client Indemnification. Client shall defend, indemnify, and hold Company harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging that Client’s use of the Services has harmed a third party or infringes upon the privacy rights of a third party or is in violation or alleged violation of  any Applicable Laws provided Client is notified in writing by Company as soon as reasonably practicable as to any such claim. Company shall provide reasonable information, cooperation and assistance in defending any such claim.

5. Third Party Software.

a.  Third Party Applications. The Client consents to the Company accessing the Salesforce Org for the purpose of performing the Services in accordance with these Terms, and the Services may include features that permit the Client to connect the Services to third-party applications requested by the Client (“Third Party Applications”) developed by third parties (“Third Party Developers “). No representation or warranty by Salesforce or such Third Party Developers is binding on Company nor shall breach of such representation or warranty by Salesforce or a Third Party Developer relieve Client of its obligations to Company.

b.  Google API Services.  The Services include functionality that permits Authorized Users to export certain data output by the Services (which includes Aggregate Data) to a google sheet file within an Authorized User’s google drive. These services are not activated automatically, but require explicit authorization by an Authorized User. By using this functionality, the following additional terms apply:

(i) the Client authorizes the Company to connect the Services to the Client’s google drive by way of the Google API Services;


(ii) the purpose of this functionality is to export certain data resulting from the Client’s use of the Services to a Google sheet in the Authorized User’s google drive and for no other purpose; specifically, the Services will save a clone google sheet to the Authorized User’s google drive and the Services will populate such clone google sheet with the exported data;

(iii) the Company will only request the minimal technically feasible scope of access that is necessary to implement the functionality; and

(iv) to the extent the Company obtains Client credentials to access the Google API Services, the Company will keep these credentials confidential.

6. Intellectual Property.

a.  The Company and its Affiliates owns all rights, title and interest, including all Intellectual Property Rights, in and to the Company Materials and any improvements to the Services or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from the Feedback. Except for the License, no right, title, or interest is granted in the Services or Aggregate Data.

b.  The Client shall retain all right, title and interest in and to all Client Data. The Client grants to Company a worldwide, royalty-free, non-exclusive license to access and use the Client Data: (i) for the purposes of providing the Services to the Client during the Term; and (ii) compiling the Aggregate Data.

c.  The Company grants the Client a limited license to use the Intellectual Property as part of the Client’s use of the Services in accordance with the Terms (the “License”).

7. Fees and Payment Terms.

a.  The Client will pay the Company all Fees as set forth in the applicable Order Form and in accordance with this section, without off-set or deduction. Unless otherwise agreed to by the Company in an Order Form, the Fees for the initial Term will be due in advance of the Client’s access to the Services, and the Fees for each Renewal will be due within ten days of the date of the Renewal

b.  The Client is solely responsible for payment of any goods and services taxes, sales taxes, value added taxes, and excise taxes, as applicable, resulting from the Client’s use of the Services.

c.  To the extent that Fees are billed and paid through a third party credit card processor, such third party’s terms and conditions shall apply.

d.  Except where otherwise expressly provided, all monetary amounts applicable to the Terms are stated and shall be paid in U.S. Dollars (USD).

8. Term.

a.  This Agreement shall commence on the Effective Date and shall continue until the expiration of the Term.

b.  At the end of the initial Term (and each Renewal), the Client may renew the Term, by entering into a new Order Form (each, a “Renewal”). The Company may change the Fees for any Renewal.

9. Termination.

a.  During the Term, the Client may terminate the Agreement in the case of Company’s material breach of the Agreement if such breach has not been cured within thirty (30) days of the Client’s provision of notice of such breach to Company, or such time period Company mutually agreed upon by the parties. The Company may terminate the Agreement and the Client’s access to the Services immediately upon the Client’s breach of this Agreement.

b.  In the event of termination for reasons other than Company’s material breach: (i) the Client will remain liable for all Fees due at the date of termination; and (ii) the Company will not refund any prepaid Fees. In the case of termination for the Company’s material breach, the Company will provide a pro-rated refund of any prepaid Fees. Upon termination of the Services, all rights and licenses granted to the Client with respect to the Services shall immediately terminate. Upon written request both parties shall return any of the other party’s Intellectual Property and all Confidential Information used in the delivery of the Services within thirty (30) days of the date of termination. If no written request for a party’s Intellectual Property and Confidential Information is received within 30 days of the date of termination, each party shall delete the other party’s Intellectual Property and all Confidential Information in its possession.

c.  The Company may terminate this Agreement immediately in the event that the Services are no longer available for use in conjunction with Salesforce’s services and/or the Services are no longer able to access the information databases required for the Services.

10. Warranties.

a.  Each party represents and warrants to the other party that: (i) it has the full right, power and authority to enter into this Agreement; and (ii) this Agreement is a valid binding obligation of such party.

b.  Company warrants that the Services, as utilized pursuant to the terms of this Agreement (i) will not transmit a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to the Client’s systems; and (ii) will be performed in a workmanlike manner in accordance with generally accepted industry standards.

c.  Company has no special relationship with or fiduciary duty to the Client. The Client acknowledges that Company has no control over, and no duty to take any action regarding: (i) which of the Client’s users gain access to the Services; (ii) how the Client may interpret or use the Services; or (iii) what actions the Client may take as a result of having used the Services.


11. Limitation of liability.

a.  Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN: (1) THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND; AND (2) TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS AFFILIATES EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY A REPRESENTATIVE  OF COMPANY OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF COMPANY WHATSOEVER. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE COMPANY SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THE COMPANY MAY OCCASIONALLY EXPERIENCE DISRUPTION DUE TO INTERNET DISRUPTIONS OR DISRUPTIONS THAT ARE NOT WITHIN THE COMPANY’S CONTROL. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.

b.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.

c.  EXCEPT FOR CLAIMS ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE COMPANY’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED AMOUNTS PAID OR DUE BY THE CLIENT TO THE COMPANY UNDER IN THE CALENDAR TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE YEAR IN WHICH THE CLAIM AROSE.


12. Dispute resolution.

a.  Negotiation.  If there is a dispute or difference (“Dispute”) between the Company and the Client arising out of or in connection with this Agreement, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each of the Company and the Client shall meet and use all reasonable endeavors, acting in good faith, to resolve the Dispute by joint discussions.

b.  Court proceedings and other relief. If the negotiation in Section 12.a fails to resolve the issue, the Company and the Client shall attempt to resolve the Dispute through mutually acceptable mediation. If mediation fails to resolve the Dispute, it shall be settled by a single arbitrator administered by the Canadian Arbitration Association (“CAA”) under its Arbitration Rules, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The seat of the arbitration shall be Vancouver, British Columbia or such other location as the parties mutually agree.

13. Miscellaneous.

a.  Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia and the parties agree to attorn to the exclusive jurisdiction of Vancouver, British Columbia.

b.  Survival. Sections 2, 3, 4, 6, 10, and 11 of these Terms shall survive any expiration or termination of this Agreement for any reason.

c.  Headings. The headings used in these Terms are for convenience and reference only and shall not affect the construction or interpretation of the Agreement.

d.  Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign or transfer this Agreement in connection with a merger or acquisition or other corporate reorganization provided the assigning party provides notice to the other party.

e.  Subcontractors. Company may from time to time in its reasonable discretion may have third parties perform any part of the Services. Company will at all times remain responsible for such third parties and their compliance in accordance with this Agreement.

f.  Feedback. Client may from time to time provide suggestions, comments or other feedback regarding the Services to the Company (“Feedback”). Client agrees that all Feedback is and shall be given entirely voluntarily. To the extent, if any, that ownership in such Feedback does not automatically vest in Company or its Affiliates by virtue of this Agreement or otherwise, Client grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate such Feedback into the Services.

g.  Evaluations, trials and betas. Company may, but is not obligated to, provide access to trial accounts, trial use and beta versions to the Client.  This Agreement shall apply to the Client’s use of the Services both during any trial period and during any subsequent Term, and may be subject to any additional terms that the Company may specify. The Client’s use of the Services is only permitted during the term designated by the Company (or, if not designated, until terminated in accordance with the Agreement).  The Company may modify or terminate Client’s right to use trial accounts and beta versions at any time and for any reason in its sole discretion, without liability to the Client. The Client understands that beta versions are still under development, and may be inoperable or incomplete and are likely to contain more errors and bugs than the generally available on the Services.

h.  Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service, sent via courier (with evidence of delivery in any case), or secured electronic means. All notices shall be in English and shall be effective upon actual receipt, except for notices sent by e-mail or other electronic means, which shall be deemed to have been received the day after such notices are sent.

Notices to Company shall be sent to attention: Legal Department, Address: 851 Glencoe Drive, Port Moody, British Columbia, CANADA V3H 4G7, Email: legal@uncommonpurpose.com

Notices to Client shall be sent to the address provided by the Client on the most current Order Form.

Either party may change the address for notice by providing written notice to the other party from time to time.

i.  Force Majeure. Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, acts of God, war, terrorism, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labor disputes, civil insurrection, civil or military authority, inability to obtain necessary labor, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances.

j.  Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.

k.  Relationship. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement.

l.  Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of this Terms may be made accordingly as the context requires.

m.  Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties

n.  Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable

o.  Entire Agreement. The provisions of these Terms and any Order Forms constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of these Terms and such Order Forms.

p.  No Strict Construction.  The language in all parts of these Terms shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to the Terms.

q.  Enurement. The Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of these Terms, their respective heirs, executors, administrators, successors and permitted assigns.

r.  U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.