Kickstart HR

KICKSTARTHR TOOL KIT LICENSE AGREEMENT

IMPORTANT!

YOUR PAYMENT OF LICENCES FEES OR THE PURCHASE OF GOODS OR SERVICES ON THIS WEB SITE IS SUBJECT TO LEGALLY BINDING TERMS AND CONDITIONS. CAREFULLY READ ALL OF THE APPLICABLE TERMS AND CONDITIONS AS SET OUT BELOW. IF YOU ACCEPT THESE TERMS AND CONDITIONS, CLICK ON THE BUY/PURCHASE BUTTON BELOW. THAT ACTION IS THE EQUIVALENT OF YOUR SIGNATURE AND INDICATES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS AND THAT YOU INTEND TO BE LEGALLY BOUND BY THEM. IF THERE IS AN ERROR IN THE TERMS AND CONDITIONS OR IF YOU DO NOT AGREE WITH THEM, PLEASE EXIT THIS WEB SITE.

This KICKSTARTHR TOOLS LICENCE AGREEMENT is between you, the purchaser of the products or services referred to on this web site as the KSHR Tools as identified by the required information you provided on this web site (the "Licensee") and KICKSTARTHR Services Inc. (KICKSTARTHR). The effective date of this Agreement is when the Licensee accepts this Agreement in accordance with the procedures set out herein.

WHEREAS:

A. KICKSTARTHR has developed and compiled certain information, documents, knowledge, forms, procedures, insight and other matters to assist organizations with the effective delivery of human resources management services (the "KICKSTARTHR Tools"), as defined below; and

B. Licensee wishes to license the use of the KICKSTARTHR Tools and KICKSTARTHR has agreed to license such use, pursuant to the terms of this Agreement.

NOW THEREFORE, for and in consideration of the foregoing and of the mutual covenants and promises hereinafter contained, and in further consideration from each Party to the other given, the receipt and sufficiency of which are hereby acknowledged, and other good and valuable consideration, the Parties hereto agree and understand as follows:

1. DEFINITIONS. In this Agreement, the following terms shall have the meanings set out below:

"Affiliate" means, with respect to any Person, any other Person who directly or indirectly controls, is controlled by, or is under direct or indirect common control with, such Person, and includes any Person in like relation to an Affiliate. A Person shall be deemed to control a Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the term "controlled" and "controlling" shall have a similar meaning;

"Agreement" means this KICKSTARTHR Tools License Agreement including the recitals hereto and all schedules annexed to this Agreement as the same may be amended from time to time in accordance with the provisions hereof, "hereof", "hereto" and "hereunder" and similar expressions mean and refer to this Agreement and not to any particular article or section;

"Article" or "Section" means and refers to the specified article or section of this Agreement;

"Business Day" means any day which is not a Saturday, Sunday or a civic or statutory holiday in British Columbia, Canada.

"Confidential Information" means all data and information relating to the business and management of either Party, including the KICKSTART HR Tools, trade secrets and technology to which access is obtained hereunder by the other Party, and any materials provided by KICKSTARTHR to Licensee provided, however, that Confidential Information shall not include any data or information which:

(i) is or becomes publicly available through no fault of the other Party;

(ii) is already in the rightful possession of the other Party prior to its receipt from the other Party;

(iii) is rightfully obtained by the other Party from a third party;

(iv) is disclosed with the written consent of the Party whose information it is; or

(v) is disclosed pursuant to court order or other legal compulsion;

"including" means including without limitation and the term "including" shall not be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it; and "includes" means includes without limitation;

"Modifications" means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, upgrades or updates thereto; and "Modify" shall mean the creation of any of the foregoing;

"Parties" means both KICKSTARTHR and Licensee and "Party" means either one of them as the context requires;

"Person" includes an individual, sole proprietorship, corporation, limited liability corporation, not-for-profit corporation, partnership, trust, association, joint venture, unincorporated organization, the Crown or any agency or instrumentality thereof and any other judicial entity recognized by law;

"KICKSTART HR Tools" means the human resources guides, tools and documents included in the KICKSTARTHR toolsand any Modifications that KICKSTARTHR may provide to Licensee;

"Use" means to use, store, merge, Modify, publish, display, transmit and copy KICKSTART HR Tools;

2. LICENSE. Subject to the terms of this Agreement, KICKSTARTHR hereby licenses to Licensee, for the internal use of Licensee only, the personal, non-transferable and non-exclusive, perpetual end user right to Use the KICKSTART HR Tools. For greater certainty, this license does not provide Licensee with any right to resell or make any commercial use of the KICKSTARTHR Tools.

Licensee agrees to reproduce and include on any copy made or portion merged into another work, all KICKSTARTHR proprietary notices, including without limitation any notices with respect to this license, copyrights and trademarks.

3. LICENCE RESTRICTIONS. Except as otherwise provided in section 2 above, Licensee shall not market, transfer, loan, rent, lease, assign, share, sub-license or make available to another Person, the KICKSTART HR Tools, in any way, in whole or in part or otherwise use the KICKSTART HR Tools except as authorized herein. Licensee agrees to take all reasonable precautions to prevent third parties from using the KICKSTART HR Tools in any way that would constitute a breach of this Agreement including, without limitation, such precautions as Licensee would otherwise take to protect its own proprietary software or hardware or information. This KICKSTART HR Tools may include mechanisms to limit or inhibit copying.

4. DELIVERY. KICKSTARTHR shall deliver by download, one copy of the KICKSTART HR Tools being licensed under this Agreement to the computer and file location designated by the Licensee at the time of download.

5. FEES Licensee shall pay to KICKSTARTHR the license fee displayed on the KICKSTARTHR web site at the time of online transfer, plus any applicable taxes (the "License Fee").

The License Fee shall be paid by Licensee by valid credit card at the time of online order. Licensee represents that it has full authority and capacity to enter into this transaction and that the Licensee is eighteen years or older.

6. KICKSTARTHR's LIMITED REPRESENTATIONS AND WARRANTIES.

KICKSTARTHR represents and warrants:

(1) KICKSTARTHR has the authority to enter into this Agreement;

(2) KICKSTART HR has not granted any rights or licenses to the whole or any part of the KICKSTART HR Tools, or any other intellectual property or technology that would conflict with this Agreement; and

(3) To the best of KICKSTARTHR's knowledge, and except as expressly stated herein, no portion of the KICKSTART HR Tools, as delivered to the Licensee, contains any disabling mechanism or protection feature designed to prevent its use. This includes, without limitation, any computer virus, worm, lock, drop dead device, Trojan-horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable the KICKSTART HR Tools.

7. OWNERSHIP. The Parties acknowledge and agree that as between the Parties, KICKSTARTHR shall be the owner of all intellectual property rights in the KICKSTART HR Tools and all related Modifications, written materials, logos, trademarks, trade names, copyright, patents, trade secret and moral rights, registered or unregistered. No proprietary interests or title in or to the intellectual property in the KICKSTART HR Tools or any Modifications is transferred to Licensee by this Agreement. KICKSTARTHR reserves all rights not expressly licensed to Licensee under section 2.

8. CONFIDENTIALITY. Each of KICKSTARTHR and Licensee shall use reasonable efforts (and, in any event, efforts that are no less than the efforts used to protect its own Confidential Information) to protect from disclosure such information that is the Confidential Information of the other. Each of KICKSTARTHR and Licensee shall divulge such Confidential Information only to its employees, contractors or agents who require access to it for the purposes of this Agreement or as otherwise provided in this Agreement. Each of KICKSTARTHR and Licensee (the "Indemnifying Party") agree to indemnify the other (the "Indemnified Party") for all Losses incurred by the Indemnified Party as a result of a failure of the Indemnifying Party to comply with its obligations under this section 8 provided that the Indemnified Party has given prompt notice of any such claim and, to the extent that a claim may lie against a third party for the unauthorized disclosure of such Confidential Information, the right to control and direct the investigation, preparation, action and settlement of each such claim and, further, provided that the Indemnified Party reasonably co-operates with the Indemnifying Party in connection with the foregoing and provides the Indemnifying Party with all information in the Indemnified Party's possession related to such claim and such further assistance as reasonably requested by the Indemnifying Party.

9. LIMITATION OF LIABILITY. The limitation of liability provisions of this Agreement reflect an informed voluntary allocation of the risks (known and unknown) that may exist in connection with the licensing of the KICKSTART HR Tools hereunder by KICKSTARTHR and that such voluntary risk allocation represents a material part of the Agreement reached between KICKSTARTHR and Licensee. Should KICKSTARTHR be in breach of any obligation, Licensee agrees that Licensee's remedies will be limited to those set forth in this Agreement. No action, regardless of form, arising out of this Agreement may be brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, Licensee.

(1) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6, THE KICKSTART HR TOOLS IS NOT GUARANTEED AND IS PROVIDED "AS IS" AND KICKSTARTHR GIVES NO OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

(2) EXCEPT FOR BREACH OF CONFIDENTIALITY IN SECTION 8, IN NO EVENT SHALL EITHER PARTY , ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS BE LIABLE FOR ANY CLAIM FOR: (i) PUNITIVE, EXEMPLARY, OR AGGRAVATED DAMAGES, (ii) DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS; (iii) INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES; (iv) CONTRIBUTION, INDEMNITY OR SET-OFF IN RESPECT OF ANY CLAIMS AGAINST THE OTHER PARTY; (v) ANY DAMAGES WHATSOEVER RELATING TO THIRD-PARTY PRODUCTS OR SERVICES, THE OTHER PARTY'S MATERIALS; OR (vi) ANY DAMAGES WHATSOEVER RELATING TO INTERRUPTION, DELAYS, ERRORS OR OMISSIONS.

(3) EXCEPT FOR BREACH OF CONFIDENTIALITY IN SECTION 8, IN ANY EVENT KICKSTART HR'S, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, MAXIMUM TOTAL LIABILITY FOR ANY CLAIM WHATSOEVER, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, AND LICENSEE'S SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID TO KICKSTARTHR UNDER THIS AGREEMENT

10. TERM AND TERMINATION.

(1) The term of this Agreement shall be concurrent with the term of the License.

(2) Either Party shall have the right on notice to the other Party to terminate this Agreement if:

(a) the other Party should fail to pay an amount to the other when due hereunder and such breach is not cured within thirty (30) days after written notice of such is given to it by the other Party;

(b) the other Party shall file a voluntary petition in bankruptcy or insolvency or shall petition for reorganization under any bankruptcy law (and such is not dismissed within ten (10) days);

(c) the other Party shall consent to involuntary petition in bankruptcy or if a receiving order is given against it under the Bankruptcy and Insolvency Act or the comparable law of any other jurisdiction (and such is not dismissed within ten (10) days);

(e) the other Party shall fail to perform any of the other material obligations set forth in this Agreement and such default: in the case of a default which is remediable continues for a period of thirty (30) days after written notice of such failure has been given by the non-defaulting Party; or (ii) in the case of a non-remediable default, immediately upon notice.

(3) Notwithstanding this section 10, KICKSTARTHR may forthwith terminate this Agreement if Licensee is in breach of any of sections 2, 3 or 8 of this Agreement. KICKSTARTHR shall provide written notice of such termination as soon as practicable but written notice shall not be a necessary prerequisite to such termination.

Nothing in this section 10 shall limit either Party's rights or remedies available at law, in equity or otherwise.

11. SURVIVAL. The provisions of sections 1, 3, 5, 7, 8, 9, 11, and 14 shall survive the expiry or termination of this Agreement.

12. FORCE MAJEURE. Dates and times by which KICKSTARTHR is required to render performance under this Agreement shall be automatically postponed to the extent and for the period that KICKSTARTHR is prevented from meeting them by reason of any cause beyond its reasonable control, provided KICKSTARTHR notifies Licensee of the commencement and nature of such cause and uses its reasonable efforts to render performance in a timely manner.

13. ASSIGNMENT. KICKSTARTHR may assign this Agreement, or any of its rights or obligations hereunder including the License, in whole or in part. Licensee shall not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, with the prior written consent of KICKSTARTHR, which consent may not be unreasonably withheld.

14. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of British Columbia and federal laws of Canada applicable therein and shall be treated, in all respects, as a British Columbia contract. The Parties submit to the exclusive jurisdiction of the courts of British Columbia. The Parties have required that this Agreement and all documents relating thereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais. Licensee agrees to waive any right it may have to: (i) a trial by jury; and (ii) commence or participate in any class action against KICKSTARTHR related to the KICKSTART HR Tools or this Agreement and, where, applicable, Licensee also agree to opt out of any class proceedings against KICKSTARTHR or its Affiliates.

15. AMENDMENT. This Agreement may not be modified unless agreed to in writing by both Parties. Any consent by a Party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.

16. SEVERABILITY. If any part of this Agreement is held to be unenforceable or invalid, it will be severed from the rest of this Agreement, which shall continue in full force and effect.

17. NUMBER AND GENDER. Words importing the singular include the plural and vice versa; and words importing gender include all genders.

18. TERMS CONSENTING TO ELECTRONIC DOCUMENTS. Licensee hereby consents to the exchange of information and documents between Licensee and KICKSTARTHR electronically over the Internet or by e-mail and that this Agreement in electronic form shall be the equivalent of an original written paper agreement between Us.

19. ACCEPTANCE PROCEDURE, SIGNATURE AND ERROR CORRECTION TERMS. Licensee hereby agrees to the acceptance and payment procedures set out herein, including in at the beginning of this agreement.

20. ENTIRE AGREEMENT. This Agreement and any schedules or other documents referred to herein, constitutes the entire agreement between the Parties relating to the licensing of the KICKSTART HR Tools and supersedes all prior written or oral agreements, representations and other communications between the Parties, and shall endure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns.