ARTICLE 7
OBLIGATIONS OF LICENSEE
7.1 Training: The Licensee has to study provided by Web Systems Int. manual prior the start of work.
7.2 Successful Promotions: Successful Promotion means the result of the Licensee’s efforts that actually brought to Licensor new Subscription for RestaurantFlyer.com services or kept Current and Valid the previous subscription of any restaurant from Licensee’s Territory during a period of License Agreement.
7.3 Good Relations: The Licensee shall use its best efforts to maintain good commercial relations with restaurants and potential restaurants of the Subscriptions in the Territory, and promote the interests of Licensor in the Territory. In case that restaurant refuses to subscribe for the services because of inappropriate Licensee’s behaviour, complains or if not enough information or support was provided, this Agreement will be terminated, no any payments will be made for any Subscriptions to the Licensee and charges for the damages may be applied. The Licensee is responsible for the reputation that he/she/it creates for Web Systems Int. and RESTAURANTFLYER.COM.
7.4 Orders: In case a restaurant from Licensee’s Territory requires help with its Subscription the Licensee shall promptly submit all requests to Licensor.
7.5 Communications: The Licensee shall maintain communications with Licensor throughout the term of this Agreement in order to facilitate the promotion and sale of the Subscriptions in the Territory. The Licensee shall provide information to Licensor on weekly basis about all the work that was done by the Licensee, about the new information discovered by the Licensee about the restaurants and about any needs of the restaurants regarding RestaurantFlyer.com services. Licensor has the requirement to track all the phone calls. The Licensee can use Excel file or online management system for these purposes.
ARTICLE 8
LICENSOR’ OBLIGATIONS
8.1 Territory Description: Licensor shall provide the full list of 1000 restaurants that determine Licensee’s Territory.
8.2 Sales Literature: Licensor shall assist the Licensee by furnishing the Licensee with descriptive literature and information as are necessary to promote the sale of the Subscriptions, and including promotional literature, if requested by the Licensee. The Licensee shall be responsible for the expense of any translation, reproduction and printing necessary to make the information suitable for use in the Territory.
8.3 Subscription Improvements: Licensor shall advise the Licensee of all improvements and changes regarding the Subscription, and assist the Licensee in communicating such information to restaurants.
8.4 Pricing Changes: Licensor shall advise the Licensee of all changes to the Subscription Fee.
ARTICLE 9
RELATIONSHIP
9.1 The relationship created by this Agreement does not constitute the granting of a franchise to the Licensee by Licensor and no federal or provincial franchise statute, law, regulation or rule is intended to or has been applied by the parties, nor shall any such franchise, statute, law, regulation or rule be deemed or construed to apply to the formation, operation, administration or termination of this Agreement.
ARTICLE 10
TERMINATION
10.1 Either party may terminate this Agreement without notice or other act if:
(a) either party is in default in any material respect in the performance of any of its obligations under this Agreement or otherwise commits any material breach of this Agreement, and such default continues after thirty days’ written notice from the non-defaulting party to the defaulting party stating the particulars of such default; or
(b) bankruptcy or insolvency proceedings are instituted by or against the other party, or the other party is adjudicated a bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or proposes or makes any arrangements for the liquidation of its debts or a receiver or receiver and manager is appointed with respect to all or any part of the assets of the other party.
10.2 Licensor may terminate this Agreement without notice or other act if:
(a) the Licensee’s actions intentionally or not intentionally caused problems in relationships between Web Systems Int., RestaurantFlyer.com and restaurants; or
(b) the Licensee assigns or purports to assign this Agreement without the prior written consent of Licensor.
10.3 After the expiry of the first twelve (12) months of the term of this Agreement, this Agreement will be terminated unless the Licensee renews his license and pays to the Licensor the Fee for the next twelve (12) months.
10.4 Upon termination of this Agreement for any reason, the following provisions shall apply:
(a) all rights granted to the Licensee under or pursuant to this Agreement shall cease, and where appropriate, revert to Licensor;
(b) the Licensee shall immediately cease acting on behalf of Licensor and shall cease its activities concerning the Subscription; the Licensee shall also promptly return all sales literature, sales brochures and other materials furnished by Licensor for the use of the Licensee under this Agreement; and
(c) the provisions of this Agreement which are expressed to survive this Agreement or to apply notwithstanding termination of this Agreement shall be observed by the Licensee;
(d) License Fee will not be refunded.
10.5 Anything in this Agreement to the contrary notwithstanding, termination of the this Agreement shall in no way affect any outstanding obligations for any payments due and owing from Licensor to the Licensee, whether then due or to become due to the Licensee under this Agreement or otherwise or any other obligation of the parties pursuant to this Agreement or otherwise, all of which obligations, if any, existing at the time of any such termination, the parties agree to fulfil and perform.
ARTICLE 11
INTELLECTUAL PROPERTY
11.1 The Licensee acknowledges the validity and ownership of Licensor’ trade marks, trade names as well as of all other proprietary marks which are affixed to the services sold by Licensor (collectively the “Trade Marks”) and agrees that the Trade Marks are and shall remain the property of Licensor.
11.2 The Licensee further acknowledges the validity and ownership of Licensor’ copyright in all material supplied by Web System to the Licensee, and agrees that copyright in such materials (the “Copyright”) is and shall remain the property of Licensor.
11.3 The Licensee shall not in any way do anything to infringe upon, harm or contest the validity of the Trade Marks or Copyright.
ARTICLE 12
INDEMNIFICATION
12.1 The Licensee agrees to indemnify and hold Licensor harmless against any liability, damage or expense (including costs and legal fees and expenses) by reason, or arising out of or relating to any acts, duties or obligations or omissions of the Licensee, and the Licensee shall, at the request of Licensor, assume the defence of any demand, claim, action, suit or proceeding brought against Licensor by reason thereof and pay any and all damages assessed against or that are payable by Licensor as the result of the disposition of any such demand, claim, action, suit or proceeding. Notwithstanding the foregoing, Licensor may be represented in any such action, suit or proceeding at its own expense and by its own counsel.
ARTICLE 13
CONFIDENTIALITY
13.1 Each party shall, during the term of this Agreement, and thereafter, treat as confidential any and all information learned by the other concerning the business or affairs of the other, and in particular, the Licensee will:
(a) not disclose to any third party the terms and conditions of this Agreement;
(b) not disclose Subscription contracts, marketing plans, price structures and the identity of restaurants;
(c) not disclose any confidential information of Licensor; and
(d) safeguard all documents against theft, damage or access by unauthorized persons.
13.2 The obligation to keep information received pursuant to this Agreement confidential shall continue indefinitely after expiration or termination of this Agreement.
13.3 The Licensee acknowledges the validity and ownership of Licensor in all forms, restaurant lists, supplier lists, programs, notes, course codes, manuals, computerized programs, systems and manuals or other such information systems provided by Web System Int. to the Licensee for the purposes of this Agreement, and agrees that all such materials are and shall remain the property of Licensor.
13.4 The Licensee further acknowledges that no material mentioned in Article 11, Article 13 or in any other provision of this Agreement may be removed, borrowed or copied without the prior written consent of Licensor.
ARTICLE 14
MISCELLANEOUS
14.1 Acknowledgment and Acceptance: Licensor shall acknowledge and accept all Subscriptions to the extent that the price and terms of such Subscription are unchanged; and if changed, to the extent Licensor has agreed in writing to such changes in the price and terms.
14.2 Non-Competition: The Licensee agrees that while providing services to Licensor in accordance with this Agreement and for a six (6) month period following the termination of this Agreement, the Licensee covenants and agrees to not directly or indirectly, in any capacity, engage in any activity in competition with, perform services for or become interested in, whether as an individual, manager, consultant, independent Licensee, employee, employer, partner, syndicate member, officer, director, advisor, principal, agent, trustee, lender of money, shareholder or in any other manner whatsoever, carry on, advance or lend money to, guarantee the debts or obligations of or permit the Licensee’s name to be used, serve or cater to, in any relation or capacity whatsoever, with any person, business, firm, corporation or other entity which is involved in any manner whatsoever in a business competitive with the business of Licensor or any similar product or service of Licensor or which sells or markets any product or service competitive with the products and services offered by Licensor.
14.3 Disclosure: This Agreement may be filed with any governmental agency or official as determined to be appropriate by either party.
14.4 Governing Law: This Agreement shall be governed as to all matters, including validity, construction and performance, by and under the laws of the Province of Ontario, Canada. The parties hereby irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Ontario.
14.5 Assignment: Neither this Agreement nor any of the rights or duties of the Licensee shall be assigned, transferred or conveyed by the Licensee, by operation of law or otherwise, nor shall this Agreement or any rights of the Licensee enure to the benefit of any trustee in bankruptcy, receiver, creditor, trustee or successor of the Licensee’s business or of its property, whether by operation of law or otherwise, or to a purchaser of all of the shares of the Licensee or to a purchaser of the entire business or substantially all or the majority of the assets of the Licensee, without the prior written consent of Licensor, which may be arbitrarily withheld. The Licensee acknowledges that Licensor may assign this Agreement to an affiliate or subsidiary.
14.6 Severability: If any provision of this Agreement is declared invalid by any court of competent jurisdiction for any reason whatsoever, then such provision shall be deemed automatically adjusted to conform to the requirements for validity as declared at such time and, so adjusted, shall be deemed a provision of this Agreement as though originally included therein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though the provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in full force and effect.
14.7 Extended Meanings: Words importing the singular number include the plural and vice versa and words importing gender include all genders.
14.8 Headings: The division of this Agreement into paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
14.9 Entire Agreement: This Agreement constitutes the entire agreement of all the parties with respect to the subject-matter hereof and, except as stated in this Agreement and in the instruments and documents to be executed and delivered pursuant to it, contains all of the representations, undertakings and agreements of all parties respecting the subject-matter hereof. There are no representations, undertakings or agreements of any kind between all the parties respecting the subject-matter hereof except those contained in this Agreement.
14.10 Currency: Unless otherwise specifically provided in this Agreement, all references to dollar amounts or other money amount are expressed in terms of lawful money of Canada or the US depending on the Licensee location.
14.11 Notices: All notices, requests, demands, acceptances, consents, communications or other writings required or permitted to be given hereunder or for the purposes hereof (“Notice” in this paragraph) will be in writing and be sufficiently given if personally delivered, sent by prepaid registered mail or transmitted by telex, telecopier or other form of recorded communication tested prior to transmission, addressed to Licensor as follows:
120 Eglinton Avenue East No. 1100 , Toronto, Ontario M4P 1E2,
e-mail: yumky@websystemsint.com,
Fax: (416) 322 – 5075
or such other address of which Notice has been given. Any Notice mailed as aforesaid will be deemed to have been given and received on the third business day following the date of its mailing. Any Notice personally delivered will be deemed to have been given and received on the day it is personally delivered, provided that if such day is not a business day, the Notice will be deemed to have been given and received on the business day next following such day. Any Notice transmitted by telex, telecopier or other form of recorded communication will be deemed given and received on the first business day after its transmission.
14.12 Amendment of Agreement: None of the terms, conditions or provisions of this Agreement shall be held to have been changed, waived, varied, modified or altered by any act or knowledge of either party, their respective Licensees, servants or employees unless done so in writing signed by both parties.
14.13 Waiver of Breach: No waiver on behalf of any part of any breach of the provisions of this Agreement shall be effective or binding upon such party unless the same shall be expressed in writing and any waiver so expressed shall not limit or affect such party’s rights with respect to any future breach of any of the provisions of this Agreement.
14.14 Further Assurances: Each of the parties covenants and agrees that he, his heirs, executors, administrators, successors and permitted assigns will execute such further documents and do and perform or cause to be done and performed such further and other acts as may be necessary or desirable from time to time in order to give full effect to the provisions of this Agreement.
14.15 Successors and Assigns: This Agreement shall be binding on and enure to the benefit of the successors and permitted assigns of both parties and all persons or corporations succeeding to or acquiring the business now carried on by Licensor or the Licensee.
14.16 Recitals: The recitals hereto are true in substance and in fact and are hereby incorporated to this Agreement by reference.
14.17 Execution: This Agreement may be executed in one or more counterparts and by facsimile, each of which shall constitute one and the same Agreement.