Terms of Services Agreement

Last updated: September 16, 2020

These terms of service (“Terms”) govern your rights and obligations regarding your access and use of the websites and applications (collectively, the “Site”) owned or controlled by FoodByte Inc. or our subsidiaries (herein referred to as “FoodByte”, “we”, “us” or “our”), and our Products and Services made available through the Site. These Terms constitute a fully binding agreement between FoodByte and you, the customer identified in the Order Form (herein referred to as “Customer”, “you” or “your”), so please read them carefully. The Order Form is incorporated into, and forms part of these Terms.

BY USING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS AND OUR PRIVACY POLICY, FOUND AT [https://www.joinfoodbyte.com/terms-services], INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS OR THE PRIVACY POLICY, YOU MUST IMMEDIATELY CEASE ACCESS AND USE OF THE SITE.

Unless otherwise expressly set out in these Terms, FoodByte reserves the right, in its sole discretion, to revise, modify and update these Terms from time to time without notice to you. The date on which these Terms were last updated will appear at the top of this page, and any and all such modifications are effective immediately upon posting. Your continued use of the Site after any such modifications constitutes your acceptance of, and your agreement to be bound by the new Terms. You should periodically review these Terms so that you are aware of any revision to which you are bound. If we intend to make what we deem to be a material change to these Terms, we will provide you with advance notice in accordance with these Terms.

The Site (or any portion thereof) may be changed, withdrawn or terminated at any time in our sole discretion without notice. We will not be liable if, for any reason, all or any part of the Site is restricted to users or unavailable at any time or for any period.

1.             ABOUT US

We offer a full food safety suite that enables SME food processors to quickly develop and easily maintain food safety programs that are compliant with modern food safety standards (e.g. SFCR).

New features are added each year, and the current software includes pre-requisite program development and monitoring, HACCP plan development and monitoring, traceability, production tracking and inventory management, SOPs, and consumer protection.                

 

2.             DEFINITIONS

In these Terms, unless the context otherwise requires, the following words and expressions will have the following meanings:

(a)   “Agreement” means these Terms, together with the Order Form;

(b)   “Anonymized Information” means information that does not contain personally identifiable information and is non-identifiable such that the information is not Personal Information;

(c)   “Authorized Users” means those Personnel of the Customer who are authorized by FoodByte to use the Services;

(d)   “Customer Data” means all forms and types of information, data, and other content, in any form or medium, that is provided by Customer or its Authorized Users to FoodByte, or is otherwise collected, received, transmitted, uploaded, stored, and/or processed by FoodByte from Customer or its Authorized Users in the course of providing the Services to Customer or otherwise as Customer or its Authorized Users access and use the Site;

(e)   “Confidential Information”, means any information written or otherwise disclosed in any medium by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under this Agreement and marked or otherwise designated as “Confidential” or clearly by its nature is likely to be confidential. However, Confidential Information will not include any information of the Disclosing Party that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party or otherwise available to the public other than by breach of this Agreement; or (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; or (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party without access or reference to the Confidential Information;

(f) “Derivative Works” means any and all revisions, modifications, changes, translations, abridgements, compilations, condensations or expansions of the applicable underlying work or any form in which that work may be recast, transformed or adapted, together with all documentation and instructions relating to such revisions, modifications, changes, translations, abridgements, compilations, condensations or expansions, made during the Term;

(g)   “Effective Date” means the effective date of these Terms, identified in the Order Form;

(h)   “Fees” means the fees payable by Customer for the Services in the amounts set out in the Order Form;

(i) “Intellectual Property Rights” means current and future copyrights, patent rights, trademark rights, industrial design rights (whether registered or unregistered, including any applications with respect thereto), proprietary information rights, and utility modules (including all such rights in computer software and databases), grants and registrations, claims for infringement and misappropriation and all other similar proprietary rights now known or hereafter recognized in any medium anywhere in the world;

(j) “Order Form” means the order form describing your order for the Products and Services, completed and submitted by you on the Site;

(k)   “Parties” means FoodByte and Customer and “Party” means either one of them;

(l) “Personal Information” means information that is personally identifiable information that can be used to identify a natural person, either alone or in combination with other information;

(m)   “Personnel” includes directors, officers, employees, agents, consultants, representatives, and other individuals employed, engaged, or retained by Customer or FoodByte, as the context requires;

(n)   “Product” means FoodByte’s food safety plan software, including any configurations, customizations, improvements, upgrades, updates, amendments, modifications, enhancements or derivative works thereto, made available to Customer through the Site or such other access as may be developed by FoodByte during the Term;

(o)   “Services” means the hosting, management, operation, and maintenance of the Product, the making available of the Product to Customer through the Site, any additional services identified in the Order Form, and any other services performed by FoodByte pursuant to these Terms;

(p)   “Term” means the Initial Term and the Renewal Term, if any, of these Terms, as those terms are defined in Section 6.1.

3.             SERVICES

3.1          Subscription. On and subject to these Terms, Customer subscribes to the Services and FoodByte will provide Customer with the Services.

3.2          Provision of Services. FoodByte will use commercially reasonable efforts to provide such resources and services as it deems necessary to implement, update, improve, and facilitate use of the Product. The manner and means used by FoodByte to perform the Services are in the sole discretion and control of FoodByte. FoodByte has complete control of the Services and will manage, direct, perform, coordinate, and supervise the Services. Customer acknowledges and agrees that FoodByte may, in its sole discretion, subcontract the Services or any part thereof without the prior written consent of Customer.

3.3          Changes in Services. FoodByte reserves the right, in its sole discretion, to modify, discontinue, substitute, delete, or restrict any aspect or feature of the Services without notice to Customer.

3.4          Concealed or Unknown Conditions. In the performance of the Services, if FoodByte encounters unknown or unusual conditions or variations with Customer Data that differ materially from initial information provided to FoodByte, FoodByte shall notify Customer of such conditions promptly. If such conditions cause an increase in FoodByte’s cost and effort to provide the Services, FoodByte may amend the Order Form, on notice to Customer, to implement an adjustment in the applicable Fees.

4.             OWNERSHIP OF PROPERTY; ACCESS AND USE

4.1          FoodByte Property. As between the Parties, all rights, including Intellectual Property Rights, in and to the Product and Services (and Derivative Works thereto) that are developed and implemented in the course of providing the Services to the Customer hereunder (collectively, “FoodByte Property”), will remain the absolute property of FoodByte. Customer shall have no right, title, ownership, Intellectual Property Rights, and/or other interest of any kind in or to FoodByte Property, howsoever arising, and nothing in these Terms affects FoodByte’s ownership of all rights, title and interest in and to FoodByte Property. FoodByte makes no grant to Customer of any ownership interests, or other rights in the Foodbyte Property, except for the licenses expressly set forth in this Section 4.1. Customer acknowledges that FoodByte retains all rights to its knowledge, experience, and know-how (including any processes, ideas, concepts, and techniques) acquired in the course of providing the Services to the Customer hereunder.

4.2          Rights Granted. Upon the Effective Date and for the duration of the Term, FoodByte grants to Customer the non-exclusive, non-transferable, non-assignable, non-sub-licensable, royalty-free license to access and use the FoodByte Property solely for internal business purposes and subject to the terms of this Agreement. To the extent that FoodByte Property is embedded or embodied in materials or information downloaded, stored, exported or otherwise transferred onto the Customer’s server, website, webpage, network, database, computer or other similar Customer mediums or equipment via the Site or any other interface (collectively, the “Downloaded FoodByte Property”), FoodByte grants to Customer a non-exclusive, non-assignable,non-sub-licensable, royalty free, worldwide limited right and license to use, copy, distribute and translate such Downloaded FoodByte Property solely for Customer’s internal business operations. Upon the expiration or early termination of these Terms, Customer’s right to access and use the Product, FoodByte Property and the Downloaded FoodByte Property as set forth in this Section 4.2 shall terminate, and all Downloaded FoodByte Property shall be promptly returned to FoodByte. Customer may allow Authorized Users to use the Product and Services for this purpose and Customer is responsible for Authorized Users’ compliance with these Terms.

4.3          Ownership of Customer Data. As between FoodByte and Customer, all Customer Data, including Intellectual Property Rights in and to the Customer Data, is and will be the sole and exclusive property of Customer. Notwithstanding the foregoing, Customer hereby expressly grants to FoodByte: (a) during the Term, the non-exclusive, non-transferable, non-assignable, non-sub-licensable, royalty-free license to access, use, and combine (with other data, including data from third party sources) Customer Data for the purpose of: (i) carrying out its obligations pursuant to and in accordance with these Terms; and (ii) building, developing, and improving the FoodByte Property; and (b) during and after the Term, access, use, combine (with other data, including data from third party sources), and disclose (to third parties) Anonymized Information derived from the Customer Data for the purpose of: (i) building, developing, and improving the FoodByte Property; and (ii) preparing, delivering, and presenting “proof of concept” projects and demonstrations.

4.4          User Guidelines. Customer and its Authorized Users may access and use the Product and Services solely for Customer’s internal use in the normal course of Customer’s business. Customer is solely responsible for its Authorized Users and for all activities that occur under its User IDs (as defined in Section 4.5). Customer shall: (a) have sole responsibility for the accuracy and completeness of all information inputted into the Product; (b) prevent unauthorized access to, or use of, the Product and Services, and notify FoodByte promptly of any such unauthorized access or use; and (c) comply with all applicable federal, provincial, and local laws, rules, and regulations in using the Product and Services. Customer shall not: (i) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Product and Services or related materials available, to any third party other than, as expressly permitted under this Agreement; (ii) send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Product and Services or its related systems or networks; or (v) use the Product and Services for unlawful purposes or for any purpose not expressly permitted by this Agreement. Customer agrees that it shall provide and maintain, at its sole cost and expense, all hardware, mobile devices, tablets, software, internet access, and other materials and devices necessary to permit Customer’s and its Authorized Users access to and use of the Product and Services, as specified by FoodByte from time to time.

4.5          Permitted Access. Except as otherwise provided in these Terms, the Product and Services may only be accessed or used by Authorized Users. FoodByte will assign each Authorized User a unique account name (each, a “User ID”) and password for access to and use of the Product and Services. Customer shall be responsible for ensuring the security and confidentiality of all User IDs and passwords. Customer acknowledges that it will be fully and solely responsible for all liability incurred through use of any User ID and agrees that any use of the Product and Services under a User ID will be deemed to have been performed by Customer. Customer shall notify Foodbyte immediately of any suspected theft, loss or fraudulent use of any User ID or password. Authorized User subscriptions are personal to designated Authorized Users and shall not be shared, transferred, reassigned or used by more than one Authorized User. Customer shall not permit anyone other than Authorized Users to access the Product and Services. Customer shall notify Foodbyte immediately in the event any Authorized User is no longer employed by Customer or otherwise no longer requires access to the Product and Services.

4.6          Restrictions. Customer agrees that except as expressly provided herein, no part of the FoodByte Property may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying and recording. Customer also agrees that it may not: (i) remove or modify any FoodByte markings or any notice of FoodByte’s proprietary rights; (ii) make the FoodByte Property available in any manner to any third party for use in the third party’s business operations; (iii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the FoodByte Property (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the FoodByte Property in order to build or support, and/or assist a third party in building or supporting, products or services competitive to FoodByte; and (iv) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the FoodByte Property or related materials available, to any third party other than as expressly permitted under this Agreement. Customer agrees not to use or permit use of the FoodByte Property including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may constitute an infringement of intellectual property or other proprietary rights, or otherwise violate any applicable laws, ordinances or regulations.

4.7          Third Party Service Tools. If FoodByte provides Customer with access to or use of any third party information, tools, scripts, software and utilities in connection with the provision of the Product and/or Services to the Customer under these Terms (collectively, the “Third Party Service Tools”), Customer shall at all times act in accordance with and comply with the license terms and conditions specified (or provided) by FoodByte in connection with such Third Party Service Tools. To the extent that FoodByte does not specify (or provide) the license terms and conditions for such Third Party Service Tools, Customer shall have a non-transferable, non-exclusive, limited right to use such Third Party Service Tools solely to facilitate Customer’s use of the Product and Services. Any Third Party Service Tools are provided by FoodByte on an “as is” basis and FoodByte does not provide technical support or offer any warranties for such. Customer’s right to use the Third Party Service Tools will terminate upon the earlier of FoodByte’s notice to Customer of such termination, the expiration or termination of this Agreement and the date that the license to use the Third Party Service Tools ends under the applicable license terms specified (or provided).

5.             FEES AND PAYMENT

5.1          Fees. During the Term, Customer shall pay to FoodByte the Fees. Except as otherwise specified herein: (i) Customer shall pay all invoices for Fees within thirty (30) days of the date of the invoice; and (ii) payment obligations are non-cancellable and Fees paid are non-refundable. Customer will reimburse FoodByte for pre-approved, actual, reasonable out-of-pocket expenses incurred in connection with the Services.

5.2          Changes to Fees. Notwithstanding Section 3.4, FoodByte reserves the right to increase, or otherwise modify the Fees at any time, in its sole discretion, upon providing thirty (30) days prior written notice to Customer.

5.3          Taxes. All prices are exclusive of, and the Customer is responsible for, all fees and taxes, including any sales, use or other taxes, dues, and charges assessed or incurred in connection with the provision of goods and services under this Agreement.

5.4          Interest on Late Payments. Payment of Fees will be deemed defaulted if they remain unpaid thirty (30) days after they become due, at which time FoodByte shall be entitled to: (i) charge interest after due date at a rate of 12% per annum or the maximum amclientount allowed by applicable law, whichever is lower, calculated and payable monthly upon the amount, until paid, and/or (ii) suspend Services to Customer in accordance with Section 6.4 below.

6.             TERM AND TERMINATION

6.1          Term of Agreement. The initial term of these Terms shall come into effect on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall continue in full force and effect for a period of one (1) year (the “Initial Term”). At the expiration of the Initial Term, these Terms will automatically renew for successive terms of one (1) year (each, a “Renewal Term”) on the same terms and conditions set forth herein, unless either one of the Parties shall have provided notice to the other Party that it does not intend to renew these Terms at least sixty (60) days prior to the expiration of the then-current Term.

6.2          Termination of Agreement. This Agreement may be terminated by FoodByte for convenience, at any time and without cause, by giving sixty (60) days prior written notice to Customer. If this Agreement is terminated by Foodbyte pursuant to this Section 6.2, Customer shall be obligated to pay Fees up to an including the date of termination.  This Agreement may be terminated by Customer for convenience, at any time after the end of the Initial Term, by giving ninety (90) days prior written notice to Foodbyte. If this Agreement is terminated by Customer pursuant to this Section 6.2, Customer shall be obligated to pay Fees up to an including the date of termination

6.3          Agreement Breach. If either Party breaches a material term of this Agreement, and fails to correct the breach within sixty (60) days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the Services under which the breach occurred. The non-breaching party may agree in its sole discretion to extend the sixty (60) day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agrees that if it is in default under this Agreement, Customer may not use or access the Product or Services. If this Agreement is terminated pursuant to this Section 6.3, Customer shall be obligated to pay Fees as follows: i) in the event of a breach by Foodbyte, up to and including the date of termination; or ii) in the event of a breach by Customer, for the entire then current Term.

6.4          Suspension of Services. FoodByte may immediately suspend Customer’s password, account, and access to or use of the Services if Customer: (a) fails to pay FoodByte as required under this Agreement and does not cure within the first ten (10) days of the sixty (60) day cure period; or (b) violates any provision within Section 3 or Section 4 of this Agreement. FoodByte may terminate the Services if any of the foregoing is not cured within thirty (30) days after FoodByte’s initial notice thereof. Any suspension of the Services by FoodByte under this Section 6.4 shall not excuse Customer from its obligation to make payment(s) under this Agreement.

6.5          Insolvency/Bankruptcy. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement immediately upon written notice to the other Party, if the other Party is adjudged bankrupt, makes, attempts to make or gives notice of intention to make a proposal, arrangement or any general assignment for the benefit of creditors or seeks or threatens to seek to obtain the benefit of any insolvency, liquidation or arrangement laws, or if a receiver, receiver-manager, trustee, liquidator or similar person is appointed in respect of the whole or any part of its property, whether real or personal. If this Agreement is terminated by Foodbyte pursuant to this Section 6.5, Customer shall be obligated to pay Fees up to and including the date of termination.

6.6          Obligations on Termination. Upon termination of this Agreement for any reason: (i) Receiving Party shall promptly (at the Disclosing Party’s sole option) return to the Disclosing Party or destroy any and all the Disclosing Party’s Confidential Information in accordance with Section 7.3 below; and (ii) FoodByte has no obligation to retain Customer Data which may be irretrievably deleted by Foodbyte after sixty (60) days following the termination of this Agreement.

7.             CONFIDENTIAL INFORMATION

7.1          Non-Disclosure/Non-Use. Each Party acknowledges and agrees that all Confidential Information disclosed is confidential and proprietary to the Disclosing Party, and that as between the Parties, all ownership, license, intellectual property, and other rights to Confidential Information disclosed hereunder shall remain with the Disclosing Party. During the Term of this Agreement and thereafter, the Receiving Party shall: (a) keep and maintain all Confidential Information of the Disclosing Party in the strictest confidence; (b) disclose Confidential Information received hereunder only to such Personnel who have a direct need to know such Confidential Information and who are bound by written confidentiality obligations at least as restrictive as those contained herein; (c) not use the Disclosing Party’s Confidential Information for the Receiving Party’s own benefit or that of any third party or for any purpose other than the lawfully exercising its rights and/or performing its obligations under this Agreement; (d) exercise the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information which is at least equivalent to that which the Receiving Party uses to protect its own Confidential Information; and (e) take all reasonable steps to protect the Disclosing Party’s Confidential Information from any unauthorized use, duplication, and/or disclosure.

7.2          Injunctive Relief. The Receiving Party acknowledges and agrees that any unauthorized use or disclosure of Confidential Information of the Disclosing Party might cause irreparable harm and might result in significant damages to the Disclosing Party or its affiliates, which harm and/or damages might be difficult to ascertain, and in the event of such breach or threatened breach by the Receiving Party, the Disclosing Party, in addition to other remedies which may be available in law, equity or otherwise, has the right to equitable relief, including injunctive relief, against the Receiving Party, without the necessity of proving actual damages or showing irreparable harm.

7.3          Return of Confidential Information. Subject to any license or rights granted to FoodByte under Section 4.3 hereof, upon expiration or earlier termination of this Agreement, or upon the Disclosing Party’s earlier request, Receiving Party shall promptly return to the Disclosing Party (or, at the Disclosing Party’s written direction, destroy) all the Disclosing Party’s Confidential Information and all copies, partial copies, revisions or modifications thereof, in Receiving Party’s possession, in whatever medium. At the request of the Disclosing Party, an officer of Receiving Party shall certify in writing its compliance with the foregoing obligations.

8.             CUSTOMER REPRESENTATIONS & WARRANTIES

8.1          Customer represents and warrants that: (a) it has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations under these Terms and for FoodByte to, if applicable, use, operate, modify or adapt any of the Customer Data for the sole purpose of providing the Product and Services to the Customer hereunder; (b) the use by FoodByte of Customer Data to provide the Product and Services to the Customer hereunder, to the extent that the manner of such use is specified by Customer, will not infringe the Intellectual Property Rights of any third party; and (c) all Authorized Users have read, acknowledged and consented to the terms and conditions of these Terms and all of FoodByte’s policies made available by FoodByte.

8.2          In order to enable FoodByte to perform its obligations under these Terms, Customer agrees as follows: (a) Customer will designate a contact who shall be authorized to make decisions, approve Services, and grant access requests to Customer premises, if applicable, on behalf of Customer; (b) Customer shall fully cooperate with FoodByte by making available Customer information, materials, resources and Personnel as reasonably requested by FoodByte to perform the Services from time to time; (c) Customer shall keep User ID and password issued by FoodByte confidential and shall not disclose such User ID or password to any third party, except that Customer may disclose its User ID and/or password to Authorized Users authorized to access and/or use the Product and Services; (d) Customer will perform and complete any other obligations as specified within any policies of FoodByte of which FoodByte notifies, and makes available to Customer; and (v) Customer agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Product. Customer acknowledges and agrees that their failure to perform the foregoing covenants may prevent or materially impair or delay the ability of FoodByte to timely provide the Services or perform their obligations hereunder.

9.             FOODBYTE REPRESENTATIONS & WARRANTIES

9.1          FoodByte represents and warrants that: (a) it has the full right and capacity to grant the rights and licenses provided for in these Terms without the need for consent or permission of any other person or entity; (b) FoodByte has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations under these Terms; (c) FoodByte will perform all of its obligations hereunder in a professional, timely, workpersonlike manner, in accordance with the standards of care and diligence and the level of skill, knowledge and judgment normally practiced by organizations performing services of a similar nature; and (d) all of FoodByte’s Services hereunder shall comply at all times with all applicable laws.

10.          DISCLAIMER AND LIMITATION OF LIABILITY

10.1        Disclaimer. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE SITE, SERVICES, AND PRODUCTS PROVIDED BY FOODBYTE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOODBYTE DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. FOODBYTE FURTHER DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE, SERVICES, OR PRODUCTS ARE OR WILL BE ACCURATE, COMPLETE, SUITABLE FOR THE PURPOSES INTENDED, UNINTERRUPTED OR WITHOUT ERROR, OR BE TIMELY AND SECURE.

10.2        Exclusion of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THESE TERMS FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3        Cap on Liability. THE MAXIMUM LIABILITY OF FOODBYTE IN PROVIDING THE SERVICES TO CUSTOMER WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO FOODBYTE.

10.4        Indemnity. Each Party hereby agrees to defend, indemnify, and hold harmless the other Party against any liability, losses, damages or costs (including legal costs) incurred or suffered by such Party as a result of any breach or wilful default on the part of the other Party arising either directly or indirectly from the performance (or non-performance) by such Party of any obligations under these Terms.

10.5        Personal Information. FoodByte shall have no responsibility for the Customer’s use, collection, and disclosure of Personal Information, and Customer shall indemnify and hold harmless FoodByte for any damages, costs or other loss it may suffer from any claims related to Customer’s collection, use, or disclosure of Personal Information.

10.6        Limitation of Actions. No action, regardless of form, arising from these Terms may be brought by either Party more than two (2) years after the cause of action has accrued.

11.          GENERAL PROVISIONS

11.1        Independent Contractor. FoodByte will perform the Services as an independent contractor, and nothing contained in these Terms will be construed to create or imply a joint venture, partnership, principal-agent or employment relationship between the Parties. Neither Party will take any action or permit any action to be taken on its behalf that purports to be done in the name of or on behalf of the other Party and will have no power or authority to bind the other Party to assume or create any obligation or responsibility express or implied on the other Party’s behalf or in its name, nor will such Party represent to any one that it has such power or authority.

11.2        Notices. Notices to be given or submitted by either Party to other pursuant to these Terms will be in writing and shall be given by personal delivery, registered mail (postage prepaid), courier (courier prepaid) facsimile, or other similar means of confirmed electronic communication to the recipient at the address provided by each Party to the other.

11.3        Dispute Resolution. Any dispute regarding the interpretation, compliance with, or breach of these Terms will be resolved as follows: (a) the Parties agree to negotiate in good faith commencing upon written notice from one Party to the other containing a summary of the dispute (the “Dispute Notice”), and all such negotiations shall be confidential and inadmissible in any subsequent proceeding without the written consent of the Parties; (b) if the dispute is not resolved by negotiation as set out above within twenty (20) business days following the receipt of the Dispute Notice, the Parties may refer the dispute to a mediator acceptable to both Parties for non-binding mediation, and the costs of such mediation shall be shared equally by the Parties; (c) if the dispute is not settled pursuant to the foregoing within forty (40) business days after receipt of the Dispute Notice, either Party may seek any legal and equitable remedies available to it under applicable laws.

11.4        Governing Law. These Terms will be governed by the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein, without regard to conflicts of laws principles. These Terms is prepared and executed and will be interpreted in the English language only, and no translation of the Agreement into another language will have any effect.

11.5        Severability. If any term or provision of these Terms is determined to be invalid or unenforceable for any reason, it will be adjusted rather than voided, if possible, to achieve the intent of the Parties to the maximum extent possible. In any event, all other terms and provisions will be deemed valid and enforceable to the maximum extent possible.

11.6        Force Majeure. Any delay or failure in the performance of any duties or obligations of either Party (except for payment obligations) will not be considered a breach of these Terms if such delay or failure is caused by an act of God, or other event, omission or condition not reasonably within the Party’s control, including without limitation, any mechanical, electronic, technical, or communications failure, shortage of material, war, riot, terrorist act, embargo or government act (including any law or regulation).

11.7        Entire Agreement; Conflict. This Agreement together with any terms and/or conditions expressly incorporated by reference constitute the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior agreements, understandings, negotiations, commitments, communications, and proposals, whether oral or written, between the Parties relating to the subject matter hereof. In the event of any conflict or inconsistency between these Terms and any incorporated term or condition, these Terms will prevail. If an ambiguity or question of intent arises with respect to any provision of these Terms, these Terms will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favouring or disfavouring either Party by virtue of authorship of any of the provisions of these Terms.

11.8        Further Assurances. The Parties will perform all acts and execute, acknowledge, and deliver or will cause to be done, executed, acknowledged, and delivered, all such further documents, assurances, or things, and secure all necessary consents and approvals, as may be reasonably required for the more complete and perfect observance and performance by the Parties of their respective obligations under these Terms.

11.9        No Waiver. The failure of a Party to enforce any provision of these Terms will not constitute a waiver of such provision or the right of such Party to enforce such provision or any other provision.

11.10     Assignability. Customer shall not assign or transfer, directly or indirectly, this Agreement or any of its rights, interests or obligations hereunder without prior written approval of FoodByte. FoodByte may assign or transfer this Agreement or any of its rights, interests or obligations hereunder at any time, in its sole discretion, and without consent of Customer.

11.11     Interpretation. In construing or interpreting this Agreement: (i) the word “or” means either or both; (ii) the word “including” shall not be limiting or exclusive; (iii) words importing the singular number include the plural and vice versa; (iv) words importing any gender include all genders; and (v) words importing persons include all legal entities. This Agreement will be fairly interpreted in accordance with its terms without any strict construction in favour of or against either Party and ambiguities will not be interpreted against the drafting Party.