EXHIBIT A
NATURETOT INC. CUSTOMER AGREEMENT
This Customer Agreement (the “Agreement”) outlines the terms and conditions under which NatureTot Inc. (the “Company”) agrees to supply products and services to the Customer identified and defined in one or more Order Forms referencing this Agreement and executed by such parties (each, an “Order Form”). This Agreement incorporates each such Order Form by reference and is effective as of the effective date specified in the first Order Form under this Agreement (the “Effective Date”).
Certain capitalized terms used herein are defined in Section 11 of this Agreement. Any capitalized terms used but not defined in this Agreement may be defined in an Order Form, and such definitions apply hereto.
THE COMPANY AND THE CUSTOMER HEREBY AGREE AS FOLLOWS:
1. PURCHASE AND SALE
1.1 Purchase and Sale of the Work. Subject to the terms and conditions of this Agreement and the Order Form(s), in exchange for the Fees, the Company will supply to the Customer, and the Customer will obtain from the Company, the Work.
1.2 Shipment and Delivery of Goods. The Customer agrees and acknowledges that:
(a) The Company may provide an estimate for the delivery date of the Goods; however, the Company is not liable for late or delayed delivery. Late or delayed delivery is not a basis for Customer’s termination of this Agreement or cancellation of any order for Goods.
(b) Title and risk of loss of the Goods passes to the Customer when the Goods are picked up by the shipping carrier at the Company’s premises.
2. FEES AND PAYMENT TERMS
2.1 Fees. The Customer will pay to the Company the Fees in the amounts, at the times and according to the terms set out in each Order Form. All Fees payable under this Agreement are exclusive of any and all applicable taxes and shipping and handling charges, which will be payable together with the Fees. Unless otherwise provided in the applicable Order Form, invoices under this Agreement are payable, without holdback or setoff, within thirty (30) days of delivery, except where such Fees invoiced are disputed by the Customer in good faith. Invoice disputes will not affect the undisputed portions of the Fees payable by the Customer.
2.2 Failure of Payment. Interest will accrue on amounts past due at a rate of two percent (2%) per month. Without limiting any other remedy available to the Company by law or equity, in the event that any of the Customer’s payment obligations are overdue and outstanding for a period of five (5) days or more, the Company may, in its sole discretion: (a) terminate this Agreement immediately upon written notice to the Customer; and/or (b) suspend its obligations to the Customer relating to the Work until such time as all amounts due and owing under this Agreement are paid in full.
3. CERTAIN CUSTOMER OBLIGATIONS
The Customer: (a) will cooperate with the Company in all matters relating to the Work and, if applicable, provide such access to Customer’s premises and other facilities as may reasonably be requested by Company for the purposes of performing the Work; (b) will not reverse-engineer, disassemble, re-assemble, modify or decompile any Products without the Company’s prior written consent; and (c) will not re-sell the Products; and (d) will not sub-license the Products to any third party (but for certainty, this will not prevent the Customer’s own educators, assistants and students from using the Products in accordance with this Agreement). The foregoing covenants in sub-clauses (b), (c) and (d) will survive any termination of this Agreement.
4. INTELLECTUAL PROPERTY
4.1 Ownership. The Customer acknowledges and agrees that, notwithstanding anything in this Agreement:
(a) the Company will retain all Intellectual Property Rights used to design, embodied in and otherwise relating to the Products and Services and any of their component parts;
(b) any and all of the Company’s Intellectual Property Rights are the sole and exclusive property of the Company; and
(c) the Customer will use the Company’s Intellectual Property Rights only in accordance with this Agreement and any instructions of the Company.
4.2 Licenses. Upon payment of the applicable Fees:
(a) the Company grants to the Customer a license to use the Intellectual Property Rights related to the Goods on a non-exclusive, worldwide, non-transferrable, fully paid-up, royalty-free and perpetual basis solely as is necessary for the operation of the Goods in accordance with their original intended and marketed purpose; and
(b) the Company grants to the Customer a license to use the Intellectual Property Rights related to the Digitals on a non-exclusive, worldwide, non-transferrable, fully paid-up, royalty-free basis during the term of this Agreement and solely as is necessary for the operation of the Digitals in accordance with their original intended and marketed purpose.
5. CONFIDENTIALITY
5.1 Obligation. Receiving Party hereby acknowledges that the Disclosing Party’s Confidential Information is an asset of considerable value, the unauthorized use or disclosure of which would be damaging. Receiving Party will, during and subsequent to the term of this Agreement: (a) keep the Confidential Information of the Disclosing Party confidential and use such Confidential Information solely for the purposes of exercising its rights and performing its obligations under this Agreement; (b) not directly, or indirectly, without authorization from the Disclosing Party reveal, report, publish, disclose or transfer such Confidential Information to any third party; (c) utilize procedures constituting a high degree of care to maintain the security of such Confidential Information and in no event less than a reasonable standard of care under the circumstances; and (d) disclose such Confidential Information to its employees and contractors, solely on a need-to-know basis as reasonably required under this Agreement, provided that, any access or disclosure to the Disclosing Party’s Confidential Information that is granted by the Receiving Party to its employees and contractors will first require the Receiving Party to enter into a written agreement with each such employee and contractor that contains confidentiality obligations that are in content at least as protective as the provisions hereof. If a Receiving Party is required by law or court order to disclose any Confidential Information of the Disclosing Party, such Receiving Party will: (i) first notify the Disclosing Party of same in writing and without delay; and (ii) cooperate with the Disclosing Party, and use its own best efforts, to limit any such disclosure to the minimum disclosure necessary to comply with such law or court order.
5.2 Return of Confidential Information. Subject to the terms of this Agreement, Receiving Party will return or irretrievably destroy the Confidential Information of the Disclosing Party within thirty (30) days after such request from the Disclosing Party, or upon termination of this Agreement, whichever is earlier. If requested by the Disclosing Party, the Receiving Party will provide a statutory declaration certifying the return or destruction (as applicable) within five (5) days thereafter.
5.3 Injunctive Relief. Each party acknowledges and agrees that should it breach its confidentiality obligations under this Section, the other party may suffer harm which may not be adequately compensated by monetary damages. In such event, the non-breaching party may, in addition to any other remedy available in law or equity, seek specific performance and injunctive or other equitable relief without bond or proof of damages.
6. REPRESENTATIONS & WARRANTIES
6.1 Mutual Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has capacity (if an individual), or full power and authority (if not an individual), to execute and deliver this Agreement and to perform its obligations hereunder; and (b) the execution, delivery, and performance of this Agreement constitutes a legal, valid, and binding agreement of such party.
6.2 Company Representations and Warranties. The Company hereby represents and warrants to the Customer that: (a) it will perform the Services in compliance with applicable laws and regulations; (b) it will perform the Services in a professional manner; (c) the Products and Services will conform in all material respects to the applicable Order Form; and (d) the Products will be free from defects in materials or workmanship, subject to the following limitations: (i) use of the Products is supervised by an educator who has completed the educator training provided by the Company; and (ii) any claim for defects must be reported to the Company no later than (1) year from the date of shipment of the applicable Product. However, notwithstanding anything herein, the foregoing representations and warranties concerning defects do not apply to garden sprayer bottles. If the foregoing representations and warranties are not met, the Company will replace and/or re-perform the applicable Products and Services, as the case may be, and this will be the Customer’s sole and exclusive remedy and the Company’s entire liability for any breach of the foregoing representations and warranties.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET OUT IN THIS AGREEMENT, NEITHER COMPANY NOR ANY PERSON ON COMPANY’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING ANY (A) CONDITION OR WARRANTY OF MERCHANTABILITY; (B) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) CONDITION OR WARRANTY OF TITLE; OR (D) CONDITION OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
7. TERM & TERMINATION
7.1 Term. This Agreement will commence on the Effective Date and remain in effect until terminated pursuant to the terms and conditions herein.
7.2 Termination for Convenience. Either party may terminate this Agreement for any or no reason with at least five (5) days’ prior written notice to the other party.
7.3 Termination for Cause. Either party may terminate this Agreement immediately upon written notice if the other party: (a) fails to correct a material breach of its obligations under this Agreement; or (b) files a bankruptcy petition, has a bona fide petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
7.4 Effect of Termination. Upon termination of this Agreement for any reason: (a) all Order Forms in effect will immediately terminate; (b) the Company will deliver to the Customer a final statement of account and/or invoice for Fees and any other charges accrued up to and including the date of termination; and (c) any provision of this Agreement that imposes an obligation after termination will survive the termination of this Agreement, including Sections: 2, 3(b) – 3(d) (inclusive), 4.1, 4.2(a), 5, 6, 7.4, 8 and 9.
8. INDEMNITY
Each party (the “Indemnitor”) will defend, indemnify and hold harmless the other party and their officers, directors, contractors, and employees (together, the “Indemnitees”) against and from any and all third party claims, demands, actions, causes of action, damage, loss, suits, proceedings, costs, liabilities, expenses and charges incurred or suffered by the Indemnitees as a result of or in connection with any material non-fulfillment or breach of any warranty or covenant, or any material misrepresentation, under this Agreement by the Indemnitor. This Section will survive termination and expiry of this Agreement for a period of two (2) years.
9. LIMITATION OF LIABILITY
IN ANY EVENT, THE COMPANY’S MAXIMUM LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT IS THE AGGREGATE AMOUNT PAID BY THE CUSTOMER FOR THE PRODUCTS AND SERVICES GIVING RISE TO THE CLAIM.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THIS SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
10. GENERAL
10.1 Entire Agreement. This Agreement, which includes all Order Forms and the Website Policies, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement. To the extent of any conflict among this Agreement, an Order Form, and/or the Website Policies, the following order of precedence will apply (highest to lowest): this Agreement, an Order Form and the Website Policies.
10.2 Assignment. This Agreement will not be assigned by either party, whether voluntarily or involuntarily or by operation of law, in whole or in part, to any other entity without the prior written consent of the other party. Notwithstanding the foregoing, upon written notice, either party may assign this Agreement to a successor in interest, upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of the assets of such party, and any such assignment will not require the consent of the other party. Any assignment in violation of this Section will be null and void from the beginning and will be deemed a material breach of this Agreement.
10.3 Waiver and Amendment. No amendment or waiver of any provision of this Agreement will be effective unless made expressly in writing and signed by both of the parties hereto; provided that, the Website Policies may be amended by the Company in its discretion by posting the amended Website Policies to its website from time to time. No failure or delay by a party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.
10.4 Choice of Law. This Agreement will be governed by the laws of the Yukon Territory and the federal laws of Canada applicable therein.
10.5 Force Majeure. If the Company is prevented from or interfered with in any manner whatsoever, or otherwise delayed, in performing the Services or any other obligations hereunder by reason of any event beyond the Company’s reasonable control, then the Company’s non-performance will not be deemed a breach of this Agreement provided that notice is given to the Customer without delay, and the Company’s obligations hereunder will be extended by such reasonable amount of time determined by the Company in good faith.
10.6 Notices. If any notice or other communication is required or permitted to be given to a party hereunder, such notice or communication will be in writing and: (a) personally delivered; or (b) transmitted by e-mail to the address provided in the most recent Order Form. All such notices or other communications will be deemed to have been given and received upon confirmation of delivery.
10.7 Currency. All monetary amounts under this Agreement are in US Dollars, except where expressly provided otherwise.
10.8 Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither party will have any right, power or authority to create any obligation or responsibility on behalf of the other.
10.9 Severability. In the event that any covenant, provision or restriction contained in this Agreement is found to be void or unenforceable (in whole or in part) by a court of competent jurisdiction, it will not affect or impair the validity of any other covenant, provisions or restrictions contained herein, nor will it affect the validity or enforceability of such covenants, provisions or restrictions in any other jurisdiction or in regard to other circumstances. Any covenants, provisions or restrictions found to be void or unenforceable are declared to be separate and distinct, and: (a) the remaining covenants, provisions and restrictions will remain in full force and effect; and (b) to the maximum extent permitted under applicable law, the impugned covenants, provisions or restrictions will be deemed to be reformulated in order to be compliant with applicable law while satisfying their original intent as closely as possible.
10.10 Interpretation. No ambiguity in any provision of this Agreement will be interpreted against a party by reason of authorship. Headings in this Agreement are for convenience of reference only. The words “include” and “including” are not words of limitation and will be deemed to be followed by the words “without limitation”.
11. DEFINITIONS
(a) “Confidential Information” means information that is not generally known to the public or that otherwise constitutes a trade secret under applicable law, including technical information, know-how, technology, software applications and code, prototypes, ideas, inventions, methods, improvements, data, files, information relating to customer identities and other customer information; provided that, Confidential Information does not include any of the foregoing information that Receiving Party can demonstrate: (i) has entered into the public domain through no wrongful act or breach of any obligation of confidentiality by the Receiving Party; (ii) was in the lawful knowledge and possession of, or was independently developed by, the Receiving Party prior to the time it was disclosed to, or learned by, the Receiving Party hereunder as evidenced by written records; (iii) was rightfully received by Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (iv) was approved in writing for release by the Disclosing Party.
(b) “Disclosing Party” means the party who discloses or otherwise divulges Confidential Information to the other party.
(c) “Fees” means the Product Fees and the Service Fees, together with any other fees payable by the Customer for products and services supplied by the Company under this Agreement.
(d) “Goods” means those Products that are physical goods, which may include cabinets, learning materials and kits of consumables.
(e) “Intellectual Property Rights” means (i) copyrights and copyrightable works, whether registered or unregistered; (ii) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names and e-mail address names), whether registered or unregistered; (iii) patents, patent applications, patent disclosures and inventions (whether patentable or not); (iv) trade secrets, processes, methods, data privacy rights, know-how and rights in designs; and (v) all other forms of intellectual property or any other proprietary rights in every jurisdiction worldwide.
(f) “Digitals” means those Products that are online or digital products.
(g) “Products” means the products to be supplied by the Company to the Customer as specified under an Order Form(s), and subject to the terms and conditions of this Agreement.
(h) “Product Fees” means the fees to be paid by the Customer to the Company for the Products supplied in the Order Form(s).
(i) “Receiving Party” means the party who receives or otherwise obtains Confidential Information from the Disclosing Party or from the Disclosing Party’s employees, agents, representatives, consultants, customers, contractors or suppliers.
(j) “Services” means the services to be supplied by the Company to the Customer as specified under the Order Form(s), and subject to the terms and conditions of this Agreement.
(k) “Service Fees” means the fees to be paid by the Customer to the Company for the Services supplied in Order Form(s).
(l) “Work” means the supply of Products and performance of Services by the Company to the Customer as specified under the Order Form(s) and subject to the terms and conditions of this Agreement.