1.1 DEFINITIONS

Unless otherwise indicated, capitalized words and expressions appearing in the Terms and Conditions shall be interpreted or construed according to the meanings specified:

“Confidential Information”

means any information that is treated as confidential by a Party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to Parties, pricing and marketing. Confidential Information shall not include information that: (a) is already known to the receiving Party without restriction on use or disclosure before receipt of such information from the disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the receiving Party; (c) is developed by the receiving Party independently of, and without reference to, any Confidential Information of the disclosing Party; or (d) is received by the receiving Party from a third party who is not under any obligation to the disclosing Party to maintain the confidentiality of such information.

“Intellectual Property Rights”

means rights in all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, (e) industrial designs and design rights, and (f) all other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Clientele”

shall mean all current, past or future customer/clients that have provided consideration to Company for services to be rendered or potential customer/client or maturing business opportunity of the Company.

“Territory”

shall mean the geographical area that Company services. To be more precise, the boundaries of the geographical area will include the geographical location of where Clientele is physically located, and the geographical area serviced by Company to Clientele. In the event that the Territory is found by any court of competent jurisdiction to be unreasonable or abusive, the geographic area applicable to the non-competition undertaking provided for in this section shall be Canada.

1.1 ACKNOWLEDGEMENT

• (a) Finder acknowledges that Company, has a legitimate interest in protecting its Intellectual Property Rights and Confidential Information.

• (b) Each party acknowledges that a breach by a party of Intellectual Property Rights or Confidentiality may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

1.2 INTELLECTUAL PROPERTY RIGHTS

• (a) Company is, and shall be, the sole and exclusive owner of all right, title and interest in and to the introduced Qualified Leads, including all Intellectual Property Rights therein. Finder hereby irrevocably assigns and shall cause their employees and permitted subcontractors to irrevocably assign to Company, in each case without additional consideration, all right, title and interest throughout the world in and to the introduced Qualified Leads, including all Intellectual Property Rights therein. The Finder shall cause their employees and permitted subcontractors to irrevocably waive, to the extent permitted by applicable Law, any and all claims such employee and permitted subcontractors may now or hereafter have in any jurisdiction to any moral rights with respect to the introduced Qualified Leads.

• (b) Upon the reasonable request of Company, Finder shall, and shall cause their employees to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Company to prosecute, register, perfect or record its rights in or to any introduced Qualified Leads.

• (c) Company and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to the introduced Qualified Leads, including all Intellectual Property Rights therein.

1.3 CONFIDENTIALITY

• (a) The receiving Party agrees:(i) not to disclose or otherwise make available Confidential Information of the disclosing Party to any third party without the prior written consent of the disclosing Party; provided that the receiving Party may disclose the Confidential Information of the disclosing Party to its and its affiliates, and their officers, directors, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by non-disclosure obligations at least as restrictive as those set forth in this Section;
  (ii)  to use the Confidential Information of the disclosing Party only for the purposes of performing its obligations under the Agreement; and
  (iii) to notify the disclosing Party if it becomes aware of any loss or disclosure of any of the Confidential Information of disclosing Party.
  

• (b) If the receiving Party becomes legally compelled to disclose any Confidential Information, the receiving Party shall provide:(i) prompt written notice of such requirement so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
  (ii) reasonable assistance, at the disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
  (iii)  If, after providing such notice and assistance as required herein, the receiving Party remains required by Law to disclose any Confidential Information, the receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the receiving Party’s legal counsel, the receiving Party is legally required to disclose.
  

• (c) Nothing in this Agreement shall prevent either party from using any general methodologies or know-how contained in the unaided memory of such party’s personnel or those of its Affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this section or using any Intellectual Property Rights of the other party or any of its affiliates.

1.4 RESERVATION OF RIGHTS

Company hereby reserves all rights not expressly granted to Finder under the Agreement. Without limiting the foregoing, all rights granted to Finder under the Agreement are subject to Company and its Affiliates’, reserved right to use the Intellectual Property Rights in its respective business, including, but not limited to, Intellectual Property Rights in connection with the promotion, advertising, distribution, and monetization or other services similar to or competitive with the Services rendered by the Finder, anywhere in the world.

1.5 NON-COMPETITION / NON-SOLICITATION

You acknowledge that the covenants and restrictions set out below (“Restrictions”) are reasonably required to protect the Company, which term includes any parent, subsidiary, affiliated, related or associated company for whom you rendered services at any time prior to the Termination Date as defined below and its goodwill from unfair competition, are ongoing, and will survive the cessation for any reason whatsoever of this Agreement.

Both during the Agreement with the Company, and for a period of 12 months from the date of termination of this Agreement (without reference to and notwithstanding any applicable notice period to which you may be entitled, whether under statute, common law, contract, or otherwise) (the “Termination Date”), you must not, directly or indirectly, in any capacity whatsoever on your own behalf or on behalf of any other person, firm, company or association (unless you have the Company’s prior written approval) in the Territory:

• (a) approach or solicit (or attempt to solicit) business from Clientele, wherever situated, for the benefit of any business which is the same as or directly competitive with the business of the Company (“Competitive Services”) in an attempt to direct any such Customers away from the Company;

• (b) provide Competitive Services to any Clientele of the Company;

• (c) solicit or divert any Clientele away from the Company;

• (d) induce or persuade any Clientele, supplier, agent or other person under contract or otherwise associated or doing business with the Company to reduce or alter any such association or business with the Company;

• (e) hire or arrange for hiring of or approach or solicit (or attempt to solicit) for the purposes of hiring or arranging the hire of:(i) a sub-contractor hired under a placement arranged by the Company or;
  
  (ii)  an employee of the Company;for the benefit of any business offering Competitive Services;
  

• (f) disparage the Company, its affiliated companies, their services and their employees, officers or directors or otherwise interfere or attempt to interfere with any of the contractual, business or economic relationships of the Company with other parties; or

• (g) solicit or entice away (or attempt to solicit or entice away) any person or entity who is known by you to be employed or engaged by the Company as of (or within 12 months following) the Termination Date, for the purpose of inducing such person or entity to end their employment or engagement with the Company.

You acknowledge that it would be difficult to compute the monetary loss to the Company arising from your breach or threatened breach of the Restrictions and that, accordingly, the Company will be entitled, in addition to any other rights and remedies that it may have at law or equity, to a temporary or permanent injunction restraining you from engaging in or continuing any such breach.  You acknowledge and agree that a temporary or permanent injunction will not prevent you from earning a reasonable livelihood.

If any provision herein is held by a court of competent jurisdiction to be overly broad, that provision is to be construed to afford the Company the maximum protection permitted by law.  If any provision of herein is held by a court of competent jurisdiction to be invalid or unenforceable, that provision is to be deleted in such jurisdiction only, and the other provisions remain in effect and are valid and enforceable to the fullest extent permitted by law.

The contravention of this undertaking by Finder shall result in a penalty that equals one year of salary of the solicited employee or equal to all revenue generated by the solicited clientele. Such penalty shall be payable to Company which shall, however, preserve its right to commence the proceedings it considers appropriate in order to cause the above-mentioned contravention to cease without the need to prove actual damages. This penalty shall be payable to Company not later than FIVE (5) days from the receipt by Finder of a demand to such effect and shall bear interest at the 5% in effect on the date of the receipt of the demand, which interest shall begin to accrue as of the above-mentioned date.

1.6 INDEMNIFICATION BY FINDER

Finder shall defend, indemnify and hold harmless Company, any third party that Company has assigned, transferred, encumbered or sold any of the interest in the introduced Qualified Leads, its subsidiaries, its affiliates and their respective shareholders, directors, officers and employees from and against all claims, whether or not arising due to third party claims, which may be made or brought against Company, or which Company may suffer or incur, directly or indirectly, as a result of or in connection with or relating to:

• (i) any non-fulfillment or breach of any covenant or agreement on the part of the Finder contained in this Agreement or in any certificate or other document furnished by or on behalf of the Finder pursuant to this Agreement;

• (ii) any breach of any representation or warranty of the Finder contained in this Agreement or in any certificate or other document furnished by or on behalf of the Finder pursuant to this Agreement;

• (iii) any liability for Taxes in respect of any taxation year or other period ended prior to the Closing Date, or any portion of a taxation year or other period up to and including the Closing Date, for which no adequate reserve has been provided and disclosed in the Financial Statements; or

• (iv) any Excluded Asset or any Excluded Liability.The benefit of this indemnity or any other indemnity or penalty referred to in the Agreement may be assigned in whole or in part by the Company.
  

1.7 RELEASE OF CLAIM

The rights and remedies provided in the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.

To the fullest extent permitted by Law, Finder undertakes to hold Company harmless from lawsuits and not liable for any direct, indirect damages or any other kind of business and/or legal damages incurred (ex: loss of profits, reputation, revenue, anticipated profits, contracts, opportunities, etc, for any reason whatsoever as a result of this Agreement or as a result to the negotiation between the Parties prior to the Agreement.

Finder expressly waives and hereby releases any and all claims which it has or may in the future have, directly or indirectly, against and forever discharges Company, its parent corporation and its parent corporation’s wholly and partially owned subsidiaries, and their respective successors, assigns, partners, directors, officers, shareholders, lawyers and employees (herein referred to as “Releases”) from any and all claims, demands, cross-actions, damages, losses, rights, liabilities and obligations, at law or in equity whatsoever, known or unknown, whether past, present or future, now held, owned or possessed by Finder, or which Finder may, as a result of any actions or inactions occurring on or prior or past to the Effective Date, hereafter hold or claim to hold under common law or statutory right due to negligence by Company and all other Releases any  rights arising, directly or indirectly out of this Agreement or as a result to the negotiation between the Parties prior to the this Agreement.

1.8  LIMITATION OF CONSEQUENTIAL DAMAGES

The rights and remedies provided in the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.

SUBJECT TO THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, PROVIDED, FOR CLARIFICATION PURPOSES, THESE LIMITATIONS SHALL APPLY TO COMPANY LIABILITY, IF ANY, FOR CONTRIBUTION OR INDEMNITY EVEN IN THE EVENT OF COMPANY  WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.

1.9    PUBLICITY AND ANNOUNCEMENTS

Finder shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of Company, except to the extent that Finder (based upon the reasonable advice of counsel) is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.