Terms of Service

This Agreement is entered into between DataTrax Technologies, Inc. (“DataTrax”), a Canadian corporation, and the Customer utilizing the services on the TICKETTRAX application. This is an agreement (“Agreement“) between you and DataTrax Technologies, Inc. This Agreement governs your use of any TICKETTRAX Software or TICKETTRAX Service operated by DataTrax Technologies.

DATATRAX OFFERS THE TICKETTRAX SOFTWARE AND SERVICE TO YOU CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT. YOUR USE OF THE SOFTWARE AND SERVICE CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT.

Description of services and software. DataTrax Technologies provides to you the TICKETTRAX system, which consists of software for point of sale (POS) hardware supported by DataTrax to accept payment, issue tickets and generate cash out reports. DataTrax will also provide back-end servers (at the DataTrax facilities) to manage customer product data, transaction data, and generate emailed business reports based on captured transaction data. Where applicable, DataTrax will provide airtime accounts and SIM chips for wireless POS hardware.

DataTrax operates and maintains all necessary back-end servers for the TICKETTRAX system. This includes servers, communication lines for wireless and wired networks, report servers and a web portal (available Q1 2006) to allow customers to manage their product information and access reports 24/7 from a centralized location. In addition DataTrax supplies second level support available 24/7, all DataTrax software upgrades and telephone training. Please see the description of the particular DataTrax product for more details at www.datatraxtechnologies.com.

Software Product License. The TICKETTRAX SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The TICKETTRAX SOFTWARE is licensed, not sold.

Grant of License. This agreement grants you the following rights:

(a)Applications Software. You may install, use, access, display, run, or otherwise interact with (“RUN”) one copy of the TICKETTRAX SOFTWARE, or any prior version for the same operating system, on multiple computers such as; a single computer, workstation, terminal, handheld PC, pager, “smart phone,” Point Of Sale Terminal, or other digital electronic device (“COMPUTER”) approved for such purpose by DataTrax Technologies, Inc. (b)

Reservation of Rights. All rights not expressly granted are reserved by DataTrax Technologies Inc.

Description of Other Rights and Limitations. (a)

Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the TICKETTRAX SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

(b)Separation of Components. The TICKETTRAX SOFTWARE is licensed as a single product. Its component parts may not be separated for use on more than one COMPUTER.

(c)Trademarks. This agreement does not grant you any rights in connection with any trademarks or service marks of DataTrax Technologies Inc.

(d)Rental. You may not rent, lease, or lend the TICKETTRAX SOFTWARE.

(e)Support Services. DataTrax Technologies Inc. may provide you with support services related to the TICKETTRAX SOFTWARE (“Support Services”). Use of Support Services is governed by the DataTrax Technologies Inc. policies and programs described in the user manual, in “online” documentation, and/or in other DataTrax Technologies Inc.-provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part of the TICKETTRAX SOFTWARE and subject to the terms and conditions of this agreement. With respect to technical information you provide to DataTrax Technologies Inc. as part of the Support Services, DataTrax Technologies Inc. may use such information for its business purposes, including for product support and development. DataTrax Technologies Inc. will not utilize such technical information in a form that personally identifies you.

(f)Software Transfer. This software license is non-transferable.

(g)Termination. Without prejudice to any other rights, DataTrax Technologies Inc. may terminate this agreement if you fail to comply with the terms and conditions of this agreement. In such event, you must destroy all copies of the TICKETTRAX SOFTWARE and all of its component parts.

Upgrades. If the TICKETTRAX SOFTWARE is labelled as an upgrade, you must be properly licensed to use a product identified by DataTrax Technologies Inc. as being eligible for the upgrade in order to use the TICKETTRAX SOFTWARE. A TICKETTRAX SOFTWARE labelled as an upgrade replaces and/or supplements (and may disable) the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this agreement. If the TICKETTRAX SOFTWARE is an upgrade of a component of a package of software programs that you licensed as a single product, the TICKETTRAX SOFTWARE may be used and transferred only as part of that single product package and may not be separated for use on more than one COMPUTER.

Copyright. All title and copyrights in and to the TICKETTRAX SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the TICKETTRAX SOFTWARE), the accompanying printed materials, and any copies of the TICKETTRAX SOFTWARE are owned by DataTrax Technologies Inc. or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the TICKETTRAX SOFTWARE is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This agreement grants you no rights to use such content. If this TICKETTRAX SOFTWARE contains documentation which is provided only in electronic form, you may print one copy of such electronic documentation. You may not copy the printed materials accompanying the TICKETTRAX SOFTWARE.

Term. The term of this Agreement (the “Term”) commences as of the Effective Date and shall continue until the earlier of (i) the date this Agreement is terminated in accordance with section 23 or any other applicable provision of this Agreement; and (ii) the day upon which the last of the TICKETTRAX devices is disconnected from the DataTrax Facilities.

DataTrax’s Facilities. The Services will be provided to Customer using DataTrax’s applicable data center facilities (the “DataTrax Facilities“) within the area that DataTrax provides the Services (which area may be enlarged or reduced in scope from time to time by DataTrax in its sole discretion). The Customer acknowledges that the geographic areas within which DataTrax provides different Services may vary. Requests for changes to the quantity or type of Services ordered by the Customer, whether oral or in writing remain subject to the terms and conditions of this Agreement. Customer acknowledges and agrees that DataTrax reserves the right in its discretion and without notice to Customer, from time to time to make changes in any aspect of the DataTrax Facilities.

In addition to DataTrax’s rights set forth in section 17 below, DataTrax shall have the right to suspend all or part of the Services or access to the Services immediately if DataTrax reasonably suspects or determines that there is a malfunction, abuse, incorrect configuration or use of the Devices, the Customer’s System (as defined below), the Services, the Third Party Services (as defined below) or the DataTrax Facilities. Customer agrees that, to maintain or improve service, or for other business reasons, DataTrax may at its sole discretion modify or temporarily restrict or suspend all or part of the Services without notice.

Customer acknowledges that the Services are subject to telecommunication carriers, internet service providers, wired and wireless networks, transmission limitations caused by atmospheric or topographical conditions or equipment failures are outside and or beyond the reasonable control of DataTrax. The Services may be temporarily refused, interrupted or curtailed due to governmental regulations or orders, system capacity limitations or equipment modifications, upgrades, reallocations, repairs, maintenance and similar activities necessary for the proper operation of the Services.

Fees. Customer agrees to pay all fees and charges specified in this Agreement and relating thereto, including, but not limited to, applicable Charges (as defined below) in advance of or on the established due dates and to pay late payment charges at the rate set forth on the reverse-side of Customer’s invoices, as same may be amended from time to time, on any overdue amounts. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of DataTrax’ rights to collect the full amount due under this Agreement.

Customer’s Obligations. In addition to the Customer’s other obligations set forth in this Agreement, the Customer agrees and covenants:

1. that the Customer and its Corporately Paid Employees will not use the Services for an illegal purpose, including but not limited to, violating the law, or interfering with DataTrax’ services to other customers;
2. that the Customer and its Corporately Paid Employees will not resell, transfer or share any of the Services;
3. that the Customer and its Corporately Paid Employees will not reproduce, change or tamper with the Identifiers on the Devices or to allow anyone else to do so. For the purposes of this Agreement “Identifier” means the hardware serial and/or model number, terminal ID (TID), applicable electronic serial number (ESN), mobile identification number (MIN), International Mobile Equipment Identity (IEMI) number, International Mobile Subscriber Identity (IMSI) number, Mobitex Access Number (MAN) and/or the Subscriber Identity Module (SIM) number, as the case may be;
4. that the Customer and its Corporately Paid Employees will use only DataTrax approved Devices and other hardware with the Services and will not use any SIM in a Device or other hardware which has not been approved by DataTrax.

Payments/Invoices. DataTrax or it’s authorized distributors will bill the Customer for the Services provided to the Customer in accordance with this Agreement. DataTrax charges monthly service fees each month in advance and all monthly recurring costs may be prorated. DataTrax may bill customer up to one year from the date particular charges were incurred. The Customer agrees to pay DataTrax all amounts set forth in each invoice by the applicable due date (collectively, the “Charges”) including, without limitation:

1. the cost of all local and long distance calls, character and data usage charges, and charges for messages and other Services made or sent from or received on the Devices including any charges relating to access to the services of other telephone companies or telecommunication carriers;
2. the monthly and other fees for using the Services, Devices and other

equipment described in this Agreement including, without limitation, system access fees, as same may be amended from time to time;

1. deposit(s), the price of software, Devices, other equipment and accessories (if any), shipping and handling and any other fees, charges or costs that arise out of this Agreement; and
2. all applicable taxes and similar charges relating to the foregoing, as same may be amended from time to time.

Early Cancellation Fees. For each device which is deactivated prior to the end of the Term the Customer will pay to DataTrax an amount (the “Early Cancellation Fee”) will be the product of (i) twenty ($25.00) dollars plus applicable taxes; times (ii) the number of months remaining in the Term for each device.

The parties acknowledge and agree that the Early Cancellation Fees are payable by the Customer as a genuine pre-estimate of liquidated damages and not as a penalty.

Third Party Applications and Other Services. As between DataTrax and

the Customer, Customer shall have total responsibility for its purchase and/or use of any applications, software, content, data query functions and other services produced, manufactured or performed by third parties for installation on the Devices and/or for use in connection with the Services together with any maintenance and support relating thereto (collectively, “Third Party Services“), whether offered by such third parties, DataTrax or a separate third party. The parties acknowledge that in certain instances where Third Party Services are offered, directly or indirectly, DataTrax may invoice Customer with respect to such Third Party Services.

DataTrax shall have no responsibility hereunder to correct or fix any problems or errors relating to or caused by the installation, configuration, modification or use of any Third Party Services or any components thereof and the installation and/or use of Third Party Services shall be at the sole risk of the Customer. If the third party is supplied directly from DataTrax, then DataTrax will be responsible.

The Customer’s System. Where Customer is purchasing Services which require

additional equipment, software and/or services, Customer acknowledges and agrees that it shall be Customer’s sole responsibility to purchase, install, configure and maintain, at Customer’s cost, (i) all required equipment, software and services, including interconnections and network configurations (the “Customer’s System”) to enable Customer to purchase and receive the Services; and (ii) any additional equipment, software, services, enhancements or upgrades (“Upgrades”) that become available for use with the Services. DataTrax shall have no responsibility hereunder to correct or fix any problems or errors relating to or caused by the installation, configuration or modification of the Customer’s System or any components thereof.

Privacy of Communications. DataTrax will maintain adequate security procedures and take all necessary measurements to prevent the unauthorized access to Customer’s data and will promptly notify Customer of any known unauthorized access to such information. DataTrax makes no representation, warranty or covenant that Customer’s use of the Services will be entirely secure and private. Customer acknowledges that it may be possible for third parties to monitor communications while Customer uses the Services. Customer assumes full responsibility for the establishment of appropriate security measures to control access to its equipment and to the information transmitted by Customer. In addition, Customer acknowledges and agrees that Customer is solely responsible for taking the necessary precautions to protect its networks and systems, and all software, data and files stored on or otherwise forming part of its network and the Customer’s System, against unauthorized access by its employees or any third party, and that such responsibility includes, without limitation, protection against unauthorized access through the Services. DataTrax will not be liable for any claims, losses, actions, damages, suits or proceedings whatsoever resulting from, arising out of or otherwise relating to Customer’s failure to take appropriate precautions to protect its networks and systems and all software, data and files stored on or otherwise forming part of its network and systems, against unauthorized access by its employees or any third party or any other breach of customer’s security or privacy.

Unauthorized Usage. Customer shall be responsible for the payment of all charges, costs, damages, losses and liabilities suffered by DataTrax in respect of any of DataTrax Facilities as a direct or indirect result of the unauthorized use, misuse, or abuse by Customer or any of its employees, agents or representatives of the Devices, the Customer’s System, the Services, the Third Party Services, the DataTrax Facilities and/or any software used in connection therewith.

Suspension/Reactivation/Return Cheques. DataTrax may cancel or suspend any or all of the Services without notice if (a) Customer does not pay any amount owing to DataTrax when due; (b) Customer does not follow this Agreement, as same may be revised by DataTrax; (c) DataTrax reasonably suspects that one or more of the Devices is the subject of fraud or unlawful or improper use by the customer or those for whom the customer is in law responsible; (d) Customer gives DataTrax false or misleading information; (e) Customer uses the Services or the DataTrax Facilities fraudulently, unlawfully or improperly or in a way that adversely affects DataTrax’ operation or the use of services by other customers; or (h) Customer fraudulently or improperly seeks to avoid payment to DataTrax. If DataTrax suspends or cancels the Services, (i) Customer must still pay any amount owing to DataTrax; and (ii) DataTrax may also suspend or cancel without notice Customer’s Services under any other agreement or account that Customer has with DataTrax. If Customer has prepaid its account the amount paid will be forfeit.

During temporary suspension of the Services, the monthly fees still apply. If DataTrax suspends or terminates the Services for non-payment or excessive balance, including unbilled usage and pending charges, fees and adjustments, DataTrax shall have the right to charge the Customer a fee for the reactivation or restoration of the Services. Reactivation of the Services will result in a reactivation charge payable by Customer as established by DataTrax. Service-restoration charges may be waived if the applicable Device is lost or stolen. Payments for the Services which are returned by banks or credit card companies for insufficient funds will result in a charge to Customer of $25.00 or such higher amount as is charged by the applicable bank(s) relating to such returned payment.

Indentification. Customer shall defend and indemnify DataTrax, its parents, successors, affiliates and agents from any claims, damages, losses or expenses (including without limitation legal fees and costs) incurred by DataTrax in connection with all claims, suits, judgements, and causes of action (i) for infringement of patents or other proprietary rights arising from combining with or using any device, system or service in connection with DataTrax Facilities; (ii) for libel, slander, defamation or infringement of copyright or other proprietary right with respect to material transmitted by Customer over the DataTrax Facilities; or (iii) injury, death or property damage arising in connection with the presence, use or non-use of the Services or the Devices.

Limitation of Liability. DATATRAX, ITS DIRECTORS, OFFICERS, CONTRACTORS OR AGENTS (IT BEING ACKNOWLEDGED BY CUSTOMER THAT FOR THE PURPOSES OF THIS SECTION ONLY, DATATRAX IS CONTRACTING AS AGENT ON BEHALF OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS) SHALL NOT BE LIABLE TO CUSTOMER, ANY END USER OR ANY OTHER PERSON (EXCEPT FOR PHYSICAL INJURIES AS A RESULT OF DATATRAX’ NEGLIGENCE) FOR (I) ANY DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA, LOSSES RESULTING FROM A THIRD PARTY’S UNAUTHORIZED ACCESS TO DATA, LOSS OF PROFIT, LOSS OF EARNINGS, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITY, PERSONAL INJURY, DEATH OR ANY OTHER DAMAGE OR LOSS HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE TERMS AND CONDITIONS HEREIN AND THE SERVICES, DEVICES, OTHER EQUIPMENT, THIRD PARTY SERVICES, THE DATATRAX FACILITIES OR THE CUSTOMER’S SYSTEM, INCLUDING ANY ROAMING CALLS; (II) ANY ACTS OR OMISSIONS OF A TELECOMMUNICATIONS CARRIER OR INTERNET SERVICE PROVIDER WHOSE FACILITIES ARE USED TO ESTABLISH CONNECTIONS BETWEEN DEVICES, DATATRAX FACILITIES AND CUSTOMER’S OWN FACILITIES; (III) DEFAMATION OR COPYRIGHT INFRINGEMENT THAT RESULTS FROM MATERIAL TRANSMITTED OR RECEIVED OVER THE DATATRAX FACILITIES; OR (IV) INFRINGEMENTS OF PATENTS ARISING FROM COMBINING OR USING CUSTOMER’S OWN FACILITIES WITH THE DATATRAX FACILITIES. THESE LIMITS APPLY TO ANY ACT OR OMISSION OF DATATRAX, DATATRAX’ EMPLOYEES, OR AGENTS, WHICH WOULD OTHERWISE BE A CAUSE OF ACTION IN CONTRACT, TORT OR ANY OTHER DOCTRINE OF LAW.

No Warranty. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND ALL DEVICES, OTHER EQUIPMENT AND THIRD PARTY SERVICES ARE PROVIDED BY DATATRAX “AS IS” AND “AS AVAILABLE” AND, TO THE EXTENT PERMITTED BY LAW, WITHOUT WARRANTY BY DATATRAX OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DATATRAX SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER FOR: (I) ANY INTERRUPTIONS OR DISRUPTIONS OF THE SERVICES, THE INTERNET OR THE THIRD PARTY SERVICES OR ANY OTHER DAMAGES SUFFERED BY CUSTOMER WHICH ARE CAUSED BY DIRECTLY OR INDIRECTLY BY ANY FAILURES OF THE DEVICES, OTHER EQUIPMENT, THE SERVICES, THE DATATRAX FACILITIES, THE INTERNET OR THE THIRD PARTY SERVICES; (II) ANY POWER FAILURES; (III) ANY ACTS OR OMISSIONS OF CUSTOMER OR ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS INCLUDING, WITHOUT LIMITATION, DEFAMATION OR COPYRIGHT INFRINGEMENT; (IV) ANY DISRUPTION OF ANY PART OF THE EQUIPMENT USED TO PROVIDE THE SERVICES BY PARTIES OTHER THAN DATATRAX; (V) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH CUSTOMER’S USE OF THE DEVICES, OTHER EQUIPMENT, THE SERVICES OR THE THIRD PARTY SERVICES; (VI) ANY EVENT OF FORCE MEASURE, AS DEFINED IN SECTION 30 OF THIS AGREEMENT; OR (VII) ANY SUSPENSION OR TERMINATION OF THE SERVICES. FURTHER, TO THE EXTENT PERMITTED BY LAW, DATATRAX DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE TICKETTRAX SERVICE. DATATRAX DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO CUSTOMER (WHETHER BY E-MAIL OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME.

*DataTrax is not the end provider of the Internet and other services. It relies on the services of others and cannot guarantee that those services will be available at all times. In the event of contract termination, DataTrax will provide the Customer with an electronic copy of the database, including the last five years of operation of this service.

Confidentiality of Customer Information.

1. Customer hereby authorizes DataTrax to obtain information about the credit history of Customer and acknowledges that DataTrax may provide information to others about Customer’s credit experience with DataTrax.
2. Unless Customer provides express consent or disclosure is pursuant to a legal power, all information regarding Customer kept by DataTrax, other than customer’s name, address and listed telephone number, is confidential and may not be disclosed by DataTrax to anyone other than:

(i) Customer;

(ii) a person who, in DataTrax’ reasonable judgment, is seeking the

information as Customer’s agent;

(iii) an agent retained by DataTrax in the collection of Customer’s account or to perform other administrative functions for DataTrax, provided the information is required for and used only for that purpose;

(iv) a law enforcement agency whenever DataTrax has reasonable grounds to believe that Customer has knowingly supplied DataTrax with false or misleading information or are otherwise involved in unlawful activities directed against DataTrax;

(v) an agent retained by DataTrax to evaluate Customer’s creditworthiness, provided the information is required for and is to be used only for that purpose;

(vi) a public authority or agent of a public authority, if in DataTrax’s reasonable judgment, it appears that there is imminent danger to life or property which could be avoided or minimized by disclosure of the information.

Express consent may be taken to be given by Customer where Customer provides:

(i) written consent;

(ii) oral confirmation by an independent third party;

(iii) electronic confirmation through the use of a toll-free number; or

(iv) electronic confirmation via the Internet.

Customer’s account information may, from time to time, be disclosed to other members of the DataTrax Technologies organization and to DataTrax’s agents and authorized dealers in order to service Customer’s account, to respond to Customer’s and end users’ questions and to promote additional products and services offered by DataTrax that may of interest to Customer and its end users. If Customer or an end user does not wish to be marketed by related DataTrax companies please advise, in writing, DataTrax Customer Care at the following address: 145 Claireport Crescent, Suite #4, Toronto, Ontario Canada M9W 6R6.

In addition, DataTrax may use e-mail, short text messages, telemarketing and direct mail to inform Customer and its end users about products and services from DataTrax and related DataTrax companies that DataTrax’ feels may interest Customer and/or end users. If Customer or its end users does not wish to receive these types of communications, Customer or end users, as the case may be, please advise, in writing, DataTrax Customer Care at the following address: 145 Claireport Crescent, Suite #4, Toronto, Ontario Canada M9W 6R6.

Lost and Stolen Equipment. The Customer shall notify DataTrax immediately if a Device or related SIM card, if any, of the Customer is lost, stolen, or destroyed. The Customer will be required to replace the Device or SIM card and shall be responsible to pay DataTrax for all charges up to the time of notification. If the Device or SIM is not replaced, the Customer will pay DataTrax any applicable Early Cancellation Fees relating thereto.

Early Termination. Notwithstanding any other provision herein, this Agreement may be terminated immediately and at any time by DataTrax:

1. without any liability to Customer whatsoever, if any changes in any applicable law, regulation, requirement, rule, ruling, guideline, policy or directive prohibits or adversely affects DataTrax’s ability to provide the Services or to fulfill its obligations hereunder, or if a notice from a government agency or department indicates DataTrax is not permitted to provide any portion or all of the Services to be provided or to operate all or any portion of the DataTrax Facilities; or
2. without any liability to Customer whatsoever, if Customer materially breaches a term of this Agreement and fails to cure such breach within ten (10) days after receipt by Customer of written notice of such breach; for greater certainty: a material breach on the part of the Customer shall include, without limitation: (i) fraudulent or other improper use of the Services or the Devices by Customer or any of its employees, agents or representatives or contractors; and (ii) consistent late or nonpayment by Customer of undisputed amounts owing to DataTrax; or
3. without any liability to Customer whatsoever upon 30 day written notice to Customer, if DataTrax decides to cease offering the Services; or
4. without any liability to Customer whatsoever, if the Customer uses the Services or facilities in any way that adversely affects DataTrax’ operations or the use of DataTrax’s services by other customers; or
5. without any liability to Customer whatsoever , if proceedings are commenced for the liquidation, dissolution, winding-up or suspension of operations of the Customer; or
6. without any liability to Customer whatsoever , if the Customer becomes bankrupt or insolvent, makes any assignment for the benefit of creditors, makes any proposal under applicable bankruptcy legislation, seeks relief under any bankruptcy, insolvency or analogous law, is adjudged bankrupt, files a petition or proposal to take advantage of any act of insolvency, consents to or acquiesces in the appointment of a trustee, receiver of other person with similar powers over itself or all or substantially all of its assets or commences any proceeding seeking reorganization or arrangement or consents to or acquiesces in such proceedings; or
7. without any liability to Customer whatsoever, upon ninety (90) days written notice to Customer at any time at DataTrax’s sole discretion.

Paragraph (c) applies only if DataTrax ceases to carry on providing the service. The timeline in Paragraph (g) can be extended to 180 days, which would coincide with a season, but DataTrax has the right to end the agreement on reasonable notice.

Survival of Obligations. All agreements that by their context are intended to survive the termination of this Agreement will survive termination of this Agreement; including the non-disclosure clauses.

Arbitration. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) arising out of or relating to: (a) this Agreement; (b) the services or equipment provided to Customer by DataTrax; (c) oral or written statements, or advertisements or promotions relating to this Agreement or to the services or equipment; or (d) the relationships that result from this Agreement (collectively the “Claim“) will be determined by arbitration to the exclusion of the courts. Customer agrees to waive any right Customer may have to commence or participate in any class action against DataTrax related to any Claim and, where applicable, Customer also agrees to opt out of any class proceedings against DataTrax. Please give notices of any claims to: Legal Department, 145 Claireport Crescent, Suite #4, Toronto, Ontario Canada M9W 6R6. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province of Ontario that are in effect on the date of the notice.

Data Usage. Customer will be charged for all data usage sent through DataTrax’s network regardless of whether the Devices actually receive the information. Where Customer’s third party software, service and/or equipment results in data usage on DataTrax’s account or systems, Customer will be charged for data usage. Customer agrees that to the extent there is any dispute as to the amount of data transmitted to and from a Device in a particular period of time then the amount of data transmitted as determined by DataTrax’ billing system shall govern. Without limiting the generality of the foregoing, Customer agrees that Customer will not and will cause its end users to not use any Device or other feature of the Services to, directly or indirectly:

1. invade another person’s privacy; unlawfully use, possess, post, transmit or disseminate obscene, profane or pornographic material; post, transmit, distribute or disseminate content that is unlawful, threatening, abusive, libelous, slanderous, defamatory or otherwise offensive or objectionable; unlawfully promote or incite hatred; or post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any municipal, provincial, federal or international law, order or regulation;
2. copy, distribute or sublicense any software DataTrax provides or makes available to Customer or its end users;
3. alter, modify or tamper with any Device or other feature of the Services;
4. restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy any Device or other feature of the Services, or create an unusually large burden on the DataTrax Facilities, including, without limitation: posting or transmitting any information or software that contains a virus, lock, key, bomb, worm, trojan horse or other harmful or debilitating feature; or otherwise generating levels of traffic sufficient to impede others’ ability to send or retrieve information;
5. disrupt any backbone network nodes or network service used by DataTrax, or otherwise restrict, inhibit, disrupt, or impede DataTrax’s ability to monitor or deliver any data or other feature of the Services;
6. interfere with computer networking or telecommunications service to or from any user, host or network, including but not limited to denial of service attacks, overloading a service, improper seizure or abuse of operator privileges (“hacking”) or attempting to “crash” a host; i) resell any Device or other feature of the Services, or use any Device or other feature of the Services for anything other than Customer’s own business purposes. Without limiting the foregoing, Customer agrees that Customer and end users will not use the Services to provide any Device, or any feature of the Services to any third party;

In addition to DataTrax’s termination rights set out elsewhere in this Agreement, DataTrax may terminate this Agreement if Customer or its end users engage in one or more of the above prohibited activities. Additionally, DataTrax reserves the right to charge Customer for any direct or indirect costs incurred by DataTrax or its affiliates, in connection with Customer’s or its end users’ breach of any provision of this section of this Agreement, including costs incurred to enforce Customer’s and end users’ compliance with it.

Data Monitoring. (a) DataTrax has no obligation to monitor content or Customer’s and end users’ use of DataTrax’s network. However, Customer agrees that DataTrax has the right to monitor and investigate content and Customer’s and end users’ use of DataTrax’ network electronically from time to time and to disclose any information as necessary to: satisfy any law, regulation or other governmental request or to assist in the pursuit of any legal action against Customer or end users; operate the Service(s) properly; ensure or enforce compliance with this Agreement; or protect DataTrax or DataTrax’s customers.

Content. DataTrax assumes no responsibility for and exercises no control over the content contained accessible through the Services. Customer agrees that all content that Customer and end users access using the Services is accessed and used by Customer and end users at their own risk, and that DataTrax will not be liable for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to Customer’s and/or end users access to such content.

Notice. All notices given under this Agreement shall be in writing and shall be deemed to have been duly delivered, effective upon receipt if faxed or hand delivered, or effective three business days after being deposited, postage prepaid, return receipt requested, in the mail and sent to the following addresses or facsimile numbers:

If to Customer, at the address on file at DataTrax Technologies.

If to DataTrax, at DataTrax Technologies Inc., 145 Claireport Crescent, Suite #4, Toronto, ON Canada M9W 6R6, Attention: VP Sales, Facsimile: (416) 208-0471;

Any party may at any time give notice in writing to the other party of any change

of address of the party giving such notice and from and after the giving of such notice the address therein specified shall be deemed to be the address of such party for the giving of notices hereunder.

General. (a) Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting this instrument which are not expressly set forth herein. (b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. (c) Waiver of Default. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default. (d) Severability. If a provision of this Agreement, shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire agreement, but rather the entire agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions. (e) Language. The parties hereto have required that this Agreement and all documents or notices resulting therefrom or ancillary thereto be drawn up in the English language. (f) Force Majeure. Other than with respect to the payment of Charges and other amounts to DataTrax, in no event shall either party have any liability for failure to comply with this Agreement, if such failure results from the occurrence of any contingency beyond the reasonable control of the party including, without limitation, strike or other labor disturbance, riot, theft, flood, lightning, storm, any act of God, power failure, war, national emergency, interference by any government or governmental agency, embargo, seizure, or enactment of any law, statute, ordinance, rule, or regulation. (g) No Third Party Beneficiaries. Except as otherwise specifically stated in this Agreement, the provisions of this Agreement are for the benefit of the parties hereto and not for any other person. (h) Prevailing Terms. The terms and conditions of any order form, purchase order or invoice shall incorporate only the terms and conditions of this Agreement and the terms and conditions contained in this Agreement shall supercede any conflicting terms and conditions contained in any such order form, purchase order or invoice. (i) Headings/Gender. The headings of all articles or sections herein are inserted for convenience of reference only and shall not affect the construction or interpretation hereof. Except where the context otherwise indicates, words importing the singular number only shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine gender. (j) Binding. This Agreement shall be binding on the Parties and their respective legal successors and permitted assigns.

1. Amendment. DataTrax may amend, add or remove portions of these General Terms and Conditions at any time and from time to time without notice and the then current version can be found at the following website: www.datatraxtechnologies.com/terms-of-service
   
2. Confidential Information. Customer hereby agrees to provide to DataTrax information regarding Customer which shall be referred to as “Confidential Information”. “Confidential Information” shall also mean any non-public information disclosed by Customer to DataTrax in connection with the information.
3. Restrictions. DataTrax covenants and agrees it shall not disclose any Confidential Information. DataTrax may only disclose the Confidential Information to its employees, agents, subcontractors, banks, credit card processors or any other person or entity retained by DataTrax [collectively, “Agents”] who are necessary to enable DataTrax to perform duties as agreed to between the parties. DataTrax shall insure that such Agents are bound to the requirements of this Agreement. DataTrax may also release Confidential Information if DataTrax believes its release is necessary to comply with law, enforce or apply this or other agreements, or protect the rights, property, or safety of DataTrax, our users, or others. This includes exchanging information with other companies and organizations for fraud protection and risk reduction. DataTrax agrees to segregate all Confidential Information from other data or materials it possesses to prevent any commingling of the data. DataTrax shall take all reasonable security precautions to keep the Confidential Information strictly confidential.
4. Ownership. All data and other information, of any nature provided to DataTrax by Customer under this Agreement shall be and remain Customer’s sole and exclusive property. DataTrax hereby represents and warrants to Customer that DataTrax shall secure from its Agents any and all agreements necessary so as to provide Customer the unrestricted ownership rights granted to Customer pursuant to this paragraph. Further, DataTrax, on behalf of itself and its Agents hereby expressly waives to the greatest extent permitted by law, any and all rights respecting the ownership of the data, including, but not limited to, any statutory rights pursuant to provincial and federal laws.