Terms and Conditions

In connection with the use of the Brokrete Storefront Platform (as defined below) you and/or your organization or corporation (the “Supplier”, as further defined below or “you”, “your”) and Brokrete Inc. (“Brokrete”, “we”, “us”) hereby agree to the terms and conditions contained herein (collectively, the “Supplier Terms and Conditions”).

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BY ACCEPTING THE SUPPLIER TERMS AND CONDITIONS BY SIGNING THE APPLICABLE STOREFRONT SUBSCRIPTION FORM (AS DEFINED BELOW) WHICH REFERENCES THE SUPPLIER TERMS AND CONDITIONS, SUPPLIER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY STOREFRONT SUBSCRIPTION FORM AND INCLUDING BROKRETE’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE SUPPLIER TERMS AND CONDITIONS ENTERED INTO BETWEEN BROKRETE AND SUPPLIER. IF, AFTER READING THE TERMS OF SERVICE, SUPPLIER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE BROKRETE STOREFRONT PLATFORM.

IF YOU ARE AN AGENT OR EMPLOYEE OF THE SUPPLIER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THE SUPPLIER TERMS AND CONDITIONS IS DULY AUTHORIZED TO ACCEPT THIS SUPPLIER TERMS AND CONDITIONS ON SUPPLIER’S BEHALF AND TO BIND THE SUPPLIER, AND (II) THE SUPPLIER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THE SUPPLIER TERMS AND CONDITIONS AND PERFORM ITS OBLIGATIONS HEREUNDER.

1. DEFINITIONS

2. In the Supplier Terms and Conditions:

   1. "Account(s)" means one or more Supplier accounts for the Brokrete Storefront Platform to perform various functions (the “Admin Account(s)”) created by one or more Users on behalf of Supplier pursuant to Section 4.1 hereof for the purposes of using the Brokrete Storefront Platform, configuring supplier storefront and/or performing administrative tasks as required.

   2. "Brokrete Storefront Platform" means Brokrete’s proprietary hosted software-as-a-service offering comprised of all Brokrete applications or derivatives software created by Brokrete, including “widget storefront”, “web storefront”, “app storefront”, “admin or management portal”, or “driver mobile application” (collectively, the “Brokrete Storefront Applications”) which resides on a server operated by or on behalf of Brokrete and which will be remotely accessible over the Internet by Supplier and its Users, together with any ancillary services available in connection therewith, as may be updated from time to time by Brokrete in its sole discretion.

   3. “Brokrete Payment Service” means a third-party payment processing service subcontracted by Brokrete to process orders, securely store payment card information, and provide related services.

   4. “Brokrete Terms of Service” means the Brokrete terms of service that Customer is required to accept and agree to prior to accessing and using the Brokrete Storefront Platform, which is available at https://brokrete.com.

   5. “Data Controller” shall mean the natural or legal person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.

   6. “Data Processor” shall mean the natural or legal person who processes Personal Information on behalf of the Data Controller.

   7. “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and the United States (including the Personal Information Protection and Electronic Documents Act (Canada), the Canadian Anti-Spam Legislation and the California Consumer Privacy Act (CCPA)), applicable to the Processing of Personal Information under the Supplier Terms and Conditions.

   8. “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Brokrete generally makes available to subscribers to the Brokrete Storefront Platform, as the case may be.

   9. “Error” means a defect in the Brokrete Storefront Platform that prevents the Brokete Storefront Platform from functioning substantially in accordance with Supplier’s specifications and/or the related Documentation.

   10. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.

   11. “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

   12. “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

   13. “Products” means any construction materials and/or product or services offered by Supplier to Customer for purchase and delivery through use of the Brokrete Storefront Platform.

   14. “Software” means Brokrete’s proprietary software program in machine-readable object code format and other related software, including the Documentation for such program(s).

   15. “Storefront” or “Supplier Storefront” means the e-commerce product or marketplace generated by using the Brokrete Storefront platform and used by the supplier to showcase, display and sell products and services directly to customers online.

   16. “Storefront Subscription Form” means Brokrete’s online or paper form of ordering document specifying Supplier’s subscription to the Brokrete Storefront Platform that is entered into between Brokrete and Supplier pursuant to mutually agreed upon terms and conditions.

   17. “Supplier” means the entity which has created an Account to use the Brokrete Storefront Platform and is named on the online or paper version of the Storefront Subscription Form.

   18. “Supplier Data” means the data submitted by or for Supplier to the Brokrete Storefront Platform or collected and processed by or for Supplier using the Brokrete Storefront Platform, including the data and location data of Supplier’s employees, contractors or customers, which will be protected in accordance with applicable Data Protection Laws.

   19. “Support Services” means the support and maintenance terms on which Brokrete provides technical support for the Brokrete Storefront Platform to Supplier.

   20. “Support” means the terms on which Brokrete provides Support Services to Supplier and which are available in the service level agreement (SLA) and the support terms below.

   21. “Term” means the period of time that Supplier is authorized by Brokrete to access and use the Brokrete Storefront Platform (including the Documentation) as described in the applicable Storefront Subscription Form.

   22. “User” means an employee or contractor of Supplier to whom Supplier (or Brokrete at Supplier’s request) has supplied a user identification and password.

3. THE BROKRETE STOREFRONT PLATFORM

   1. Right to Use the Brokrete Storefront Platform. Subject to the terms and conditions, Brokrete hereby grants to Supplier, and Supplier accepts, a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right during the Term to (a) access and use, and to permit Users to access and use, the Brokrete Storefront Platform; (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Supplier’s permitted use of the Brokrete Storefront Platform; and (c) supply the Products to Customers as ordered by Customer through use of the Brokrete Storefront Platform

   2. Documentation License. Subject to the terms and conditions contained in the Supplier Terms and Conditions, Brokrete hereby grants to Supplier a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Supplier’s internal business purposes in connection with its use of the Brokrete Storefront Platform.

   3. Reservation of Rights. Brokrete and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Software, Brokrete Storefront Platform and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Software and subject to all of the provisions of the Supplier Terms and Conditions. Supplier shall keep the Software and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in the Supplier Terms and Conditions, Brokrete reserves all rights, title and interest in and to the Software and Documentation. No rights are granted to Supplier pursuant to the Supplier Terms and Conditions other than as expressly set forth in the Supplier Terms and Conditions.

   4. Restrictions. Supplier shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Brokrete Storefront Platform or any part of the Brokrete Storefront Platform, including but not limited any component which comprises the Brokrete Storefront Platform, but not including any output from the Brokrete Storefront Platform; (b) knowingly interfere with service to any of Brokrete’s users and other customers, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software, the Brokrete Storefront Platform and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Brokrete Storefront Platform; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Brokrete Storefront Platform or Documentation in any form to any person without the written consent of Brokrete; (f) remove any proprietary notices, labels, or marks from the Brokrete Storefront Platform or Documentation; (g) create any “links” to or “frame” or “mirror” of the Brokrete Storefront Platform or any portion thereof; or (h) use the Brokrete Storefront Platform to create, collect, transmit, store, use or process any Supplier Data that: (i) Supplier does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).

   5. Rights in Derivative Data. Supplier acknowledges and agrees that the Brokrete Storefront Platform compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Brokrete Storefront Platform and for the creation of new products. Supplier hereby grants to Brokrete a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate Supplier Data and other such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Brokrete Storefront Platform, develop new products and services, to understand usage, and for any other business purpose. This Derivative Data is no longer associated with Supplier or a User and as such is not Supplier Data.

   6. Trademark Use.

      1. Subject to the Supplier Terms and Conditions, Supplier grants to Brokrete a non-exclusive, non-transferable right to use Supplier’s product names, trade names, logos and trade-marks (the “Marks”) in association with the Brokrete Storefront Platform solely for marketing and promoting Supplier and Supplier’s Products to Customers. Brokrete agrees not to use the Marks in association with any other product or service other than the Brokrete Storefront Platform. Notwithstanding anything contained herein to the contrary, Brokrete shall not use the Marks as its name (corporate or otherwise) and Supplier shall clearly indicate to the public, including potential Customers, that it is not Brokrete.

      2. During the Term, each Party is granted the right to (a) display the Marks of the other Party on its website; (b) describe the other Party’s business relationship on its website; and (c) include a link from its website to the other Party’s website.

4. ACCOUNT ACTIVATION AND DELETION

   1. Accounts. To access, use and publish a storefront using the Brokrete Storefront platform, Supplier must create an account by signing a web or paper Storefront Subscription Form (“Account”). Supplier shall ensure that such account activation information is accurate and complete and that such information remains current throughout the Term. Supplier is responsible for all activity that occurs in an Account. Supplier must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where the Supplier’s principal place of business is and from which you use the Brokrete Storefront Platform to open an Account.

   2. Passwords. Supplier understands that Brokrete will use the email address he provides on opening an Account or as updated from time to time as the primary method for communication with you (“Primary Email Address”). Supplier must monitor the Primary Email Address he provides to Brokrete and your Primary Email Address must be capable of sending and receiving messages. Supplier email communications with Brokrete can only be authenticated if they come from your Primary Email Address. Supplier is responsible for keeping your password secure. Brokrete cannot and will not be liable for any loss or damage from your failure to maintain the security of his Account and password.

   3. Account Deletion. Supplier may delete its Account if there is no outstanding payment due and payable to Brokrete. Supplier Data as referenced in Section 7.1 should be captured by Supplier prior to any deletion or termination of the Supplier Terms and Conditions in accordance with Section 13. After deletion of an Account or upon termination of this Agreement, Brokrete may, at its sole discretion, supply Supplier with Supplier Data upon Supplier’s request.

5. SUPPORT AND SERVICE LEVELS

   1. Brokrete shall provide Support to Supplier in accordance with its Support Terms and shall use commercially reasonably efforts to main the service levels as provided for in its Service Level Agreement which is available below

6. PAYMENT OF FEES AND TAXES

   1. Fees. Supplier will pay the Fees (as defined in this Section 5.1) applicable indicated in the Storefront Subscription Form including but not limited to applicable fees relating to the value of sales made through his Storefront when using all payment providers other than Brokrete (“Transaction Fees” for credit card processing), and any fees relating to Supplier’s purchase or use of any additional services such as shipping, third party party apps, API integration, implementation services, “buy now pay late” and custom feature or development services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”.

   2. Payment and Suspension for Non-Payment.

      1. Fees are paid in advance and will be billed monthly in thirty (30) day intervals (each such date, a “Billing Date”). Supplier will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to Supplier via the Primary Email Address provided. Payment obligations are non-cancellable and non-refundable.

      2. Supplier must keep a valid payment method on file with Brokrete to pay for all incurred and recurring Fees. Brokrete will charge the applicable Fees to any valid payment method that the Supplier authorizes (“Authorized Payment Method”), and Brokrete will continue to charge the Authorized Payment Method for applicable Fees until this Agreement is terminated and any and all outstanding Fees have been paid in full.

      3. If Brokrete is not able to process payment of the Fees using the provided Authorized Payment Method, we will contact Supplier in writing and make a second attempt to process payment using another Authorized Payment Method. If the second attempt is not successful, we will make a final attempt within twenty (20) days following the second attempt. If our final attempt is not successful, Brokrete may immediately suspend and revoke access to the Supplier’s Account and use of the Brokrete Storefront Platform. Supplier’s Account will be reactivated upon his payment of any outstanding Fees, plus the Fees applicable to his next billing cycle. If Supplier is unable to cure such non-payment within sixty (60) days following the date of suspension, Brokrete reserves the right to terminate this Agreement in accordance with Section 14. Brokrete will not be liable to Supplier or to any third party for any claims or arising from or related to suspension of the Brokrete Storefront Platform resulting from Supplier’s non-payment. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.

   3. Taxes. Except as otherwise provided in this Section 5.3, the Fees payable by Supplier to Brokrete do not include any taxes and fees (including, but not limited to, any applicable withholding taxes and VAT or any other tax or fee) levied by any duly constituted taxing authority against the fees payable by Supplier to Brokrete (“Taxes”). Supplier shall be solely responsible for the calculation and payment of any such taxes to the relevant taxing authority, and shall not reduce the amount of the fees payable for such tax payment. It is specifically understood and agreed that Supplier shall to the full extent allowed by applicable law self-assess any required Taxes, but if under applicable law any sum cannot be paid to Brokrete without a deduction or withholding, then Brokrete may in its discretion upon written notice to Supplier require Supplier to increase such payments due to Brokrete such that the net amounts received by Brokrete after such deduction or withholding (and the payment of any other amount that must be deducted or withheld as a result of such increase) shall be equivalent to the full amount that Brokrete would have received had such payments not been subject to any deduction or withholding. Supplier shall promptly provide to Brokrete full written documentation acceptable to Brokrete showing proof of payment of such withholding taxes together with Reseller’s calculation of such Taxes. For clarity, Brokrete is solely responsible for taxes assessable against it based on its income, property and employees.

   4. Overdue Charges. Any payment not received from Supplier by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Brokrete’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

   5. Payment Disputes. Supplier shall have two (2) weeks from the Billing Date to provide notice to Brokrete in regards to any payment dispute. Brokrete will not exercise its rights under Section 5.2 hereof if Supplier is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

   6. Bookkeeping. Supplier agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one (1) year after the termination or expiration of the Supplier Terms and Conditions with respect to matters necessary for accurately determining amounts due hereunder.

7. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

   1. Ownership of Brokrete Storefront Platform. The Brokrete Storefront Platform and its entire contents, features, and functionality, including but not limited to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by Brokrete, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including, without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.

   2. Brokrete Trademarks. Brokrete’s name and all related names, logos, product and service names, designs, images and slogans are trademarks of Brokrete or its affiliates or licensors. Supplier may not use such marks without the prior written permission of Supplier unless otherwise stipulated or allowed by the Supplier Terms and Conditions. Other names, logos, product and service names, designs, images and slogans mentioned or which appear on the Brokrete Storefront Platform are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action.

   3. Restrictions. Supplier shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Brokrete Storefront Platform, in any form or medium whatsoever except:

      1. Supplier’s computer and browser may temporarily store or cache copies of materials being accessed and viewed;

      2. In the event social media platforms are linked to certain content on the Brokrete Storefront Platform, Suppliers may take such actions as the Brokrete Storefront Platform and such third-party social media platforms permit.

   4. Breach. If Supplier copies or downloads any part of the Brokrete Storefront Platform in breach of these Supplier Terms and Conditions, Supplier’s right to use the Brokrete Storefront Platform will cease immediately and Supplier must, at Brokrete’s option, return or destroy any copies of the materials Supplier have made. Any use of the Brokrete Storefront Platform and materials not expressly permitted by the Supplier Terms and Conditions is a breach of the Supplier Terms and Conditions and may infringe or violate copyright, trademark, and other intellectual property or other proprietary laws.

   5. Supplier Materials. Supplier understands that Supplier Materials (as defined herein) may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. “Supplier Materials" means certain intellectual property rights (trademarks, copyright content, etc.) and any products or services that you sell through the Brokrete Storefront Platform including descriptions, prices, and any photos, images, videos, graphics, written content, audio files, code, information, or other data provided or made available by Supplier or Supplier’s affiliates to Brokrete or its affiliates.

8. THIRD PARTY SITES

   1. Third Party Sites. The Brokrete Storefront Platform may provide links or pointers to third party sites, content, resources or email content. Brokrete makes no representations about any other websites, content, resources or email content that may be accessed from the Brokrete Storefront Platform. If Supplier chooses to access any such sites, content, resources or email content Supplier does so at its own risk. Brokrete has no control over the contents of any such third party sites, content, resources or email content and accepts no responsibility for such sites, content, resources or email content or for any loss or damage that may arise from Supplier’s use of them. Supplier is subject to any terms and conditions of such third party sites, content, resources or email content that may apply. All statements and/or opinions expressed in any such third party site, content, resources or email content other than the content provided by Brokrete, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of Brokrete and Brokrete is not responsible, or liable to Supplier or any third party, for the content or accuracy of any third party materials.

9. SUPPLIER DATA

   1. Ownership. As between Brokrete and Supplier, Supplier exclusively owns all rights, title and interest in and to all Supplier Data. Brokrete does not acquire any rights, title or ownership interest of any kind whatsoever, expressed or implied, in any of the Supplier Data.

   2. License to Use Supplier Data. Supplier hereby irrevocably grants all such rights, licenses and permissions in or relating to Supplier Data to Brokrete as are necessary or useful: (i) for Supplier to use the Brokrete Storefront Platform; and (ii) to enforce the Supplier Terms and Conditions and exercise its rights and perform its obligations hereunder, including but not limited to making appropriate changes to the Supplier Data, or hiding or removing Supplier Data from the Brokrete Storefront Platform in Brokrete’s reasonable discretion.

   3. Supplier Obligations. Supplier is responsible for properly configuring and using the Brokrete Storefront Platform in a manner that provides security and redundancy of its Supplier Data to prevent unauthorized access to its Accounts and to prevent unauthorized access to Supplier Data, and ensuring the appropriate level of backup to prevent any loss of its Supplier Data.

   4. Supplier Data Portability and Deletion. Upon request by Supplier made during the Term hereof or within thirty (120) days after the effective date of termination of the Supplier Terms and Conditions, Brokrete will make the Supplier Data available to Supplier for export or download as provided in the Documentation. After such a thirty (120) day period, Brokrete will have no obligation to maintain or provide any Supplier Data, and will thereafter delete or destroy all copies of Supplier Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.

10. SUPPLIER RESPONSIBILITIES

    1. Brokrete Storefront Platform.

11. Supplier acknowledges and agrees that the Brokrete Storefront Platform is not a marketplace and any agreement or contract for purchase and sale made through the use of the Brokrete Storefront Platform is between Supplier and the relevant customer. Supplier, for the purposes of this Agreement, shall be considered the seller, merchant or storefront owner of record for all Products on the Brokrete Storefront Platform. Supplier is solely responsible for the creation, maintenance, operation, management and accuracy of its storefront and the Products that Supplier may sell on the Brokrete Storefront Platform, and all aspects of the transactions between Supplier and its customer(s).

12. Supplier is solely responsible for Products sold on the Brokrete Online Platform, including Product description, pricing, fees, taxes, defects, required legal disclosures, regulatory compliance, offers, or promotional content related to the Products.

13. Use Guidelines. Supplier shall use the Brokrete Storefront Platform solely for its internal business purposes as contemplated by the Supplier Terms and Conditions and shall not interfere with or disrupt the integrity or performance of the Brokrete Storefront Platform or the data contained therein. Supplier may not use the Brokrete Storefront Platform for any illegal or unauthorized purpose nor may Supplier, in the use of the Service, violate any laws in its jurisdiction (including but not limited to copyright laws), the laws applicable to Supplier in his customer’s jurisdiction, or the laws of Canada and the Province of Ontario.

14. Product Configuration. Supplier is responsible for all Product configuration (pricing, quantity, availability, etc.) as listed on the Brokrete Storefront Platform. Brokrete is not responsible for the configuration of any Product and is not liable to customer or Supplier for any failure of Supplier to adequately configure the Products. In case Brokrete has an implementation mandate to set up the Brokrete Storefront Platform for Supplier, Supplier will have to approve such configuration and will be solely responsible for the accuracy of the configurations.

15. Assistance and Support to the Supplier. Supplier shall act in a professional and courteous manner during all customer-related interactions on the Brokrete Storefront Platform and shall provide commercially reasonable information and assistance to Brokrete to enable Brokrete to deliver the Brokrete Storefront Platform. Supplier acknowledges that Brokrete’s ability to deliver the Brokrete Online Services is dependent on the accuracy and timeliness of

16. Equipment. Supplier is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Supplier to access and use the Brokrete Storefront Platform and for all expenses relating thereto. Supplier agrees to access and use, and shall ensure that all Users access and use, the Brokrete Storefront Platform in accordance with any and all operating instructions or procedures that may be issued by Brokrete from time to time.

17. Feedback. Supplier may provide reasonable feedback to Brokrete including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Brokrete Storefront Platform (“Feedback”). Supplier hereby grants to Brokrete a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Brokrete Storefront Platform, Documentation and any other Brokrete products or services, or for any other purposes, any Feedback provided by Supplier or its Users.

18. CONFIDENTIALITY OBLIGATIONS

    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of either Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of the Supplier Terms and Conditions, the Brokrete Storefront Platform and Documentation, Supplier Data (which is the Confidential Information of the Supplier), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

    2. Confidentiality. Subject to Section 11.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under the Supplier Terms and Conditions; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under the Supplier Terms and Conditions. Supplier shall not disclose any performance, benchmarking, or feature-related information about the Brokrete Storefront Platform.

19.  

    1. Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

20.  

    1. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosur

       1. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.

       2. Return of Confidential Information Upon Disclosing Party’s written request upon expiration or termination of the Supplier Terms and Conditions (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 11.6.

21. WARRANTIES AND DISCLAIMERS

22. Supplier Warranties Supplier hereby represents and warrants to Brokrete that:

23. Supplier has full power, corporate or otherwise, to enter into the Supplier Terms and Conditions, supply the Products, and perform its obligations hereunder;

24.  

25. Supplier is accessing and using the Brokrete Storefront Platform solely for Supplier’s own use;

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27. Supplier is responsible for complying with all rules, regulations and procedures of local, provincial, federal and foreign authorities applicable to Supplier and its business; and

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29. Supplier will be solely responsible for compliance with the Supplier Terms and Conditions by any User who manages an Account and any User or agent representing Supplier for the purposes of these Supplier Terms and Conditions.

30. Brokrete Warranties. Brokrete hereby represents and warrants to Supplier that:

31. During the Term the Brokrete Storefront Platform will perform materially in accordance with the specifications and Documentation therefor; and

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33. The Brokrete Storefront Platform will not contain any Malicious Code.

34. General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE BROKRETE STOREFRONT PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” AND BROKRETE MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THE SUPPLIER TERMS AND CONDITIONS; (II) THE BROKRETE STOREFRONT PLATFORM; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR SUPPLIER DATA TRANSMITTED TO OR FROM BROKRETE VIA THE BROKRETE STOREFRONT PLATFORM. BROKRETE WILL USE ALL REASONABLE EFFORTS, CONSISTENT WITH INDUSTRY STANDARDS, TO CURE ANY ERROR. NOTWITHSTANDING THE FOREGOING, BROKRETE DOES NOT REPRESENT OR WARRANT THAT THE BROKRETE STOREFRONT PLATFORM WILL MEET ANY OR ALL OF SUPPLIER’S PARTICULAR REQUIREMENTS, THAT THE BROKRETE STOREFRONT PLATFORM WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED. BROKRETE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

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36. Internet Connectivity Disclaimer. Brokrete makes the Brokrete Storefront Platform available for access via the Internet. Supplier shall provide, at Supplier’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Brokrete Storefront Platform over the Internet. Supplier is responsible for and shall ensure that Supplier’s computer equipment and an internet connection meets the minimum specifications published by Brokrete in the Documentation and updated from time to time on the Brokrete’s website, and Supplier shall periodically update Supplier’s computer equipment and/or Internet connection to meet such minimum specifications. Supplier hereby acknowledges that the Brokrete Storefront Platform may be interrupted due to (a) website downtime for scheduled maintenance at Brokrete’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Brokrete’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Brokrete’s control or network intrusions. Supplier hereby acknowledges and agrees that Brokrete shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Brokrete from any claims relating thereto.

37. LIMITATION OF LIABILITY

38. Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE SUPPLIER TERMS AND CONDITIONS OR OTHERWISE, IN NO EVENT WILL BROKRETE BE LIABLE FOR LOSS OR DAMAGES OF ANY KIND INCURRED PURSUANT TO ANY CLAIM MADE BY A RETAILER AGAINST BROKRETE ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO SUPPLIER’S ACT, OMISSION OR BREACH.

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40. Limitation of Liability. SUBJECT TO SECTION 13.3 HEREOF, IN NO EVENT SHALL BROKRETE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SUPPLIER TERMS AND CONDITIONS OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM SUPPLIER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

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42. Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THE SUPPLIER TERMS AND CONDITIONS SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS (SUBJECT TO THE LIMITATION CONTAINED IN SECTION 13.4 HEREOF), (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) FRAUD OR WILLFUL MISCONDUCT, OR (V) BODILY INJURY OR DEATH

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44. Application of Exclusions and Limitations. The foregoing limitations and exclusions of liability shall apply even if a Party had been advised of the possibility of any such costs, losses or damages or knew or ought to have known of such costs, losses or damages and shall apply regardless of whether the action arose in contract, including, without limitation, from a fundamental breach, or breach of a condition, fundamental term or warranty, or in tort (including, without limitation negligence) or otherwise. The foregoing provisions limiting the liability of Brokrete shall also apply to its officers, directors, employees, and agents as trust provisions for the benefit of such officers, directors, employees, and agents and shall be enforceable by such persons as trust beneficiaries.

45. TERMINATION

46. Termination for Cause. Either Party may terminate the Supplier Terms and Conditions on for cause (i) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period.

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48. Termination for Convenience. Either Party may terminate this Supplier Terms and Conditions, in whole or in part, at any time without cause and without liability, except for any outstanding payment obligations, by providing at least thirty (30) days’ written notice to the other Party. For the purposes of this section only, in the event the Supplier prepays a Fee to Brokrete for Services (such as the development of custom features), and the herein Supplier Terms and Conditions is terminated pursuant to this section by Brokrete, the Supplier shall be entitled to a return of a portion of the Fee calculated on a prorata basis.

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50. Termination for Insolvency. Ether Party may terminate the Supplier Terms and Conditions, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

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52. Suspension of Access to Service. In addition to any termination rights of Brokrete pursuant to the Supplier Terms and Conditions, extraordinary circumstances may require Brokrete to suspend or terminate (where appropriate), as determined in Brokrete’s reasonable discretion, Supplier’s access to and/or use of, or otherwise modify, the Brokrete Storefront Platform in order to: (a) prevent material damages to, or material degradation of the integrity of, Brokrete’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. Brokrete will notify Supplier of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, Brokrete will limit such suspension to that which is minimally required and will promptly restore Supplier’s access to the Brokrete Storefront Platform as soon as the event giving rise to the suspension has been addressed (including by Supplier agreeing to accept the risks associated with such suspension) or resolved.

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54. Effect of Expiration or Termination. Upon expiration or earlier termination of the Supplier Terms and Conditions, Supplier shall immediately discontinue use of the Brokrete Storefront Platform and immediately pay to Brokrete any and all amounts due. No expiration or termination will affect Supplier’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Supplier to any refund. Upon termination of this Agreement for any reason, Brokrete shall provide reasonable cooperation and assistance to facilitate the orderly transition of services hereunder upon written notice to the Supplier at least thirty (30) business days prior to termination or cancellation, and subject to the terms and conditions set forth herein.

55. DISPUTE RESOLUTION

56. In connection with a dispute arising out of or relating to this Agreement, the parties shall attempt in good faith to resolve such dispute promptly by negotiation through a representative from each party. Negotiations shall be commenced by written notice being delivered by a party to the other party that identifies the basis and details of such dispute. A representative from each party familiar with the circumstances surrounding the dispute shall meet within ten (10) business days after receipt of such notice, or such other date as may be mutually agreed, at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the dispute. If such representatives are unable to resolve a dispute within ten (10) business days after such meeting, the dispute shall be promptly submitted to the appropriate officers of Supplier and Brokrete for resolution. If the dispute remains unresolved within five (5) days after submission to such persons or remains unresolved within forty-five (45) business days after the receipt of the initial dispute notice, whichever is earlier, either party may resort to litigation or such other dispute resolution forum as mutually agreed in writing by authorized representatives of the parties. Notwithstanding the foregoing, either party may seek equitable remedies in any court of competent jurisdiction to protect its intellectual property or Confidential Information.

57. BUSINESS RESUMPTION AND CONTINGENCY PLAN

58. Brokrete shall maintain a disaster recovery plan in support of the processing and related functions it performs for Supplier under this Agreement. Brokrete's disaster recovery plan shall include, at a minimum, procedures for back-up/restoration of operating and application software; and procedures for the protection of Supplier’s source documentation. Such plans shall provide for notification of service interruptions within four (4) hours of the start of the interruption and restoration of service to Supplier within twenty-four (24) hours after the interruption of service. Brokrete agrees to release the information necessary to allow Supplier to develop necessary disaster recovery and continuity of business (“COB”) plans, which will work in concert with Brokrete’s disaster recovery and COB plans. Brokrete agrees to annually test its disaster recovery plan.

59. EXPORT RESTRICTIONS

60. Supplier hereby represents and warrants that Supplier is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States.

61. ANTI-CORRUPTION COMPLIANCE

62. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable Canadian and foreign anti-corruption laws, including without limitation, the Canadian Corruption of Foreign Public Officials Act (CFPOA) and U.S. Foreign Corrupt Practices Act of 1977, and similarly applicable anti-corruption and anti-bribery laws. Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under the Supplier Terms and Conditions.

63. ASSIGNMENT

64. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of the other party, which such consent shall not be unreasonably withheld. Any attempt by a party to assign its rights or obligations under the Supplier Terms and Conditions in breach of this Section 18 shall be void and of no effect. Subject to the foregoing, this Supplier Terms and Conditions shall bind and insure to the benefit of the Parties, their respective successors and permitted assigns. Brokrete may assign the Supplier Terms and Conditions in its entirety without the Supplier’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.