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Agreement
 
Bodega Listing Services Agreement

By completing the registration process and clicking a box that indicates you agree, you are indicating your agreement to be bound by all of the terms and conditions of the agreement below. Read the agreement carefully as it sets forth your rights and obligations with respect to the listing of your application(s) ("Applications") by myLocalStore Inc. d/b/a freshcode ("freshcode") on freshcode's Bodega desktop software application ("Bodega"), owned and operated by freshcode. If you are not willing to be bound by the terms and conditions of this agreement, you should not complete the registration.


1. Acknowledgement and Acceptance of Terms of Service

1.1 The listing services for Applications on Bodega ("Services") by freshcode to you ("Developer") are provided under the terms and conditions of these Bodega Terms of Services ("TOS") and any operating rules or policies that may from time to time be published and amended by freshcode. The TOS comprise the entire agreement between Developer and freshcode and supersede all prior agreements between the parties regarding the subject matter contained herein.

1.2 freshcode reserves the right to modify the terms and conditions of the TOS at any time and at its sole discretion. freshcode will post any update(s) to the TOS on the password protected developer accessible website ("Bodega Services Website") maintained and operated by freshcode. By continuing to use Services, Developer agrees to be bound by the amended TOS.


2. Description of Services

2.1 freshcode agrees to provide Developer with a linkable listing in Bodega to Developer's Applications where Bodega users may obtain additional information with respect to and purchase Applications. Developer is solely responsible for providing all equipment necessary to establish a connection to the Web and provide for Developer's own access to the Web, Bodega Services Website, and all other connection or service fees associated with such access.

2.2 freshcode reserves the right to modify the Services, or any portion thereof, at any time, with or without notice to Developer. freshcode will not be liable to Developer or any third party should freshcode exercise its right to modify the Services.


3. User Account, Password and Security

3.1 In consideration for Services, Developer agrees to provide certain current, complete and accurate information about Developer as prompted to do so by Services and maintain and update this information as required to keep it current, complete and accurate at all times. All information requested on original registration, as may be amended or updated from time to time, shall be referred to as registration information ("Registration Information"). If any Registration Information provided by Developer is inaccurate, freshcode retains the right to terminate Developer's rights to use the Services.

3.2 Developer is solely responsible for maintaining the confidentiality of Developer's password and account on Bodega Services Website, and for any and all activities which occur under Developer's account or password. Developer agrees to immediately notify freshcode of any unauthorized use of Developer's account, password, or any other breach of security known to Developer. Developer may change its/his/her password or Registration Information by following instructions on Bodega Services Website.


4. Commission and Payment

4.1 In consideration for the Services provided hereunder, Developer will pay to freshcode a commission equal to seven (7%) percent of the net sales revenue charged by Developer to its customers for the Applications where such customers have accessed the Developer's website via use of Bodega. freshcode shall invoice Developer for commission payments due and owing via Bodega Services Website. All commission payments hereunder shall be in United States Dollars ("USD"). In the event Developer's sales are in a currency other than USD, the sales and resulting commissions shall be based on a global spot rate conversion at the currency conversion rate in effect as at the time of sale.

4.2 Developer shall install a tracking mechanism (the "Tracking Mechanism"), to be provided by freshcode to Developer based on the Developer's specific e-commerce service and installed in accordance with freshcode's instructions, which shall track the number of users accessing Developer's website via Bodega and, in the event users purchase an Application, shall provide evidence for such sale and form the basis for the invoiced commissions due and owing to freshcode.

4.3 Commission payments are due and owing within thirty (30) days of invoicing thereof, and shall be paid by Developer to freshcode via a valid credit card, PayPal account or wire transfer. All payments shall be made in USD. Late payments will bear interest at twenty (20%) percent per annum, calculated semi-annually, not in advance. Developer will be responsible for all reasonable expenses (including legal fees and expenses on a solicitor-client basis) incurred by freshcode in collecting overdue amounts.


5. Representations and Warranties of Developer

5.1 Developer represents and warrants, and acknowledges that freshcode is relying on such representations and warranties, as follows:
(a) if an individual, you are 18 years of age or older and can lawfully enter into enter into this Agreement and into any transactions hereunder in the jurisdiction in which you conduct your business;
(b) if a partnership, corporation or other legal entity, you are and at all times shall be duly constituted, registered and in compliance with all applicable laws and/or regulations in the jurisdiction in which you conduct your business, all necessary actions and/or approvals have been taken or obtained by the Developer in order for this Agreement to be a legal, valid and enforceable contract between freshcode and Developer, and that the person accepting these TOS on behalf of the Developer is the authorized signatory of Developer capable of legally binding Developer;
(c) the Registration Information provided by you is and at all times shall be true, accurate, current and complete;
(d) you own and/or have licensed all rights, title and interest in and to the Applications and any and all parts thereof and have and at all times shall have the full right and authority to sell and distribute the Applications in any jurisdiction in which you conduct your business, to advertise and promote the Applications, and all other rights and authorities required in order for Developer to engage the Services and fully comply with Developer's obligations hereunder;
(e) you will not engage in any activities or upload or post to the Bodega Services Website any materials that:
(i) constitute or encourage a violation of applicable law or regulation including, but not limited to, the violation of export controls or obscenity laws;
(ii) defame, impersonate or invade the privacy of any third party or entity;
(iii) infringe the rights of any third party including, but not limited to, the intellectual property, business, contractual or fiduciary rights of others; or
(iv) in any way are connected with the transmission of "junk mail", "spamming", or other unsolicited mass distribution of e-mail, or with any unethical marketing practices;
(f) you are and shall at all times be registered under any applicable legislation in the jurisdiction in which you conduct your business for the purposes of collective and remitting all taxes payable as a result of sales of Developer's Applications, and you will remit said taxes to the appropriate taxing authority as and when legally required;
(g) you are not and shall not be bankrupt or insolvent, subject to a receiver or receiver-manager, subject to a proposal to creditors or any assignment for the benefit of creditors, subject to any bankruptcy or insolvency proceeding or an order for garnishment, seizure or attachment by any third party, including any governmental or regulatory body, or any court.


6. Obligations of Developer

6.1 Developer agrees and covenants that at all times during the term of this agreement Developer:
(a) will ensure and take such actions as are required to ensure that all representations and warranties set forth in Section 5 hereof are and remain true and correct in all material respects as when first given;
(b) will update and keep current at all times the Registration Information and any additional information as may be reasonably requested by freshcode from time to time;
(c) will install and maintain as required, and will not alter, remove or otherwise interfere with the Tracking Mechanism;
(d) will provide and keep current such information and material with respect to the Applications as reasonably requested and required by freshcode as from time to time set out on the Bodega Services Website;
(e) will make all payments as and when required by Developer hereunder, including payment of commissions to freshcode;
(f) will not access or attempt to access any other user or account information contained on the Bodega Services Website;
(g) will immediately notify freshcode of any violation or breach by Developer, or any event which with the passage of time may result in a violation or breach, of any of Developer's representations, warranties, covenants or other obligations hereunder or any claim or threatened claim arising from the Services provided hereunder;
(h) will not upload, post or otherwise transmit to the Bodega Services Website any content that is unlawful, harmful, tortious, defamatory, obscene, hateful or which is or may be deemed by freshcode to be objectionable in any manner;
(i) will at all times adhere to and comply with any operating rules or policies that may from time to time be published and amended by freshcode; and
(j) will not use any statistical or other data provided by freshcode with respect to the Services for any purpose other than Developer's internal marketing information and evaluation, and such data shall be strictly confidential and not released to any other person without freshcode's prior written consent unless required by applicable laws, in which event Developer shall immediately notify freshcode of such legal requirement.


7. Indemnification

7.1 Developer agrees to indemnify and hold harmless freshcode, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, of and from any liability, obligation, loss or damage whatsoever, made by any third part including, without limitation, any claim:
(a) due to or arising out of Developer's use of the Services or any part thereof;
(b) any violation of this TOS or any provision therein by Developer, or any breach or alleged breach of any of Developer's representations or warranties;
(c) any violation or alleged violation of any rights of any other person or entity including, without limitation, the infringement or misappropriation by Developer of any intellectual property rights of any person or entity;
(d) the use or misuse by Developer or third parties of Developer's password and accounts;
(e) any breach of any law applicable with respect to Developer and its sale of the Applications including, without limitation, any claims by or liabilities to taxing authorities for any applicable sales or similar taxes.
This liability, obligation, loss or damage shall include the costs of all actions, causes of action, costs, claims, interest, penalties, demands and expenses including, without limitation, all expenses actually incurred (including reasonable attorney's fees, fees for reports or opinions of experts of all types, and expenses incurred by such attorney's and/or experts).


8. Disclaimer of Warranties

8.1 freshcode provides Services on an "as is" and "as available" basis, and Developer uses such Services at its/his/her sole risk.

8.2 freshcode makes no warranty with respect to the effect or results that may be obtained from use of the Services, including without limitation no warranty that Services will increase Developer's sales of Applications, an further makes no warranty that Services will be uninterrupted, timely, secure, or error free.

8.3 freshcode expressly disclaims all warranties of any kind, whether express, implied or statutory, including, without limitation, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.

8.4 Developer understands and agrees that any material and/or data uploaded or otherwise provided by Developer through the Services is done at Developer's own discretion and risk. freshcode is not responsible for Developer's computer systems or loss of data that may occur during the upload of such material and/or data.

8.5 Notwithstanding the use of the Services and listing of the Applications in Bodega, freshcode makes no warranty, express or implied, regarding Developer's Applications or any transactions entered into through or as a result of the Services.

8.6 No advice or information, however communicated, obtained by Developer from freshcode shall create any warranty not expressly made herein.


9. Limitation of Liability

9.1 freshcode will not be liable for any loss of use, interruption of business, or any indirect, special, incidental or consequential damages of any kind (including but not limited to loss of profits) regardless of the form of action, whether in contract, tort (including negligence), strict product liability or otherwise, even if freshcode has been advised of the possibility of such damages.


10. Proprietary Rights

10.1 Developer hereby grants freshcode a non-exclusive license to use and incorporate all uploaded or posted information and content relating to the Applications provided by Developer, including descriptions and screen-shots, in Bodega for the purposes of providing the Services. freshcode may from time to time edit such information and content to the extent reasonably required to incorporate such content in Bodega without Developer's prior consent, or require Developer to edit such information and content accordingly.

10.2 Developer acknowledges and agrees that notwithstanding the listing of the Applications and information related thereto in Bodega, Developer shall acquire no right, title or interest of any manner in Bodega, and that Bodega shall at all times remain the sole property of freshcode.


11. Termination

11.1 Provided Developer is not in breach of any of its obligations and is up to date and current in payment of all commission payments due and owing hereunder, Developer may terminate the Services upon thirty (30) days prior notice in writing to freshcode. Upon receipt of such notice of termination, freshcode shall remove listings of the Applications from Bodega and cease the Services.

11.2 freshcode may terminate the Services upon thirty (30) days prior notice in writing to Developer, or immediately upon any material violation of the TOS or material breach of any covenant, representation or warranty of Developer hereunder.

11.3 freshcode may immediately suspend and/or terminate the Services with respect to any Application(s) without prior notice in the event freshcode, in its sole discretion, deems the Application(s) to be in any manner objectionable or otherwise in breach of Section 6.1(h).

11.4 Upon termination for any reason, Developer's obligation to pay commissions hereunder shall continue and shall cease and terminate fully only upon receipt by freshcode of all commission payments due and owing by Developer to freshcode.

11.5 To the extent Developer has any right to do so, Developer expressly waives any statutory or other legal rights in conflict with the provisions of this Section 11 which may otherwise be available to Developer.


12. Notice

12.1 All notices to a party shall be in writing in English and shall be made either electronic mail, fax, in writing or through the Bodega Services Website and shall be deemed delivered upon receipt by the party to whom such communication is directed, for Developer, at the addresses, including for electronic communications, provided in Developer's Registration Information, as updated.


13. Governing Law

13.1 The TOS shall be interpreted in English and be governed by and construed in accordance with the laws of the Province of Manitoba, Canada, with the same force and effect as if fully executed and performed therein. Each party hereby irrevocably submits to the exclusive jurisdiction of the courts of the Province of Manitoba, Canada with respect to any matter arising hereunder or related hereto.


14. Assignment

14.1 Developer may not assign or otherwise transfer this agreement or any of its rights or obligations under the TOS without the express written consent of freshcode. Any purported assignment or transfer without freshcode's prior written consent shall be null and void. freshcode may transfer assign this agreement, and all rights and obligations hereunder to any other person. This TOS shall be binding upon and shall inure to the benefit of the parties hereto and their respective representatives, heirs, administrators, successors and permitted assigns except as otherwise provided herein.


15. No Agency or Partnership

15.1 Nothing in the TOS shall be construed by the parties or by any third parties as creating a partnership, joint venture, association or principal/agency relationship between the parties hereto. Neither party shall be entitled to enter into any contracts in the name of or on behalf of the other party, nor will either party be entitled to pledge the credit of the other party in any way or hold itself out as having authority to do so.


16. Severability

16.1 If any provision(s) of the TOS are held by a court of competent jurisdiction to be contrary to law, or otherwise invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.


17. Waiver

17.1 Any waiver, express or implied, by either party of any breach of this TOS shall not constitute a waiver of any other or subsequent breach. No provision of the TOS will be waived by any act, omission or knowledge of a party or its agents or employees expect by an instrument in writing expressly waiving such provision and signed by a duly authorized signatory of the waiving party.


18. Privacy Policy

18.1 freshcode maintains information about Developer and Applications, including but not limited to Developer's Registration Information. All such information gathered and maintained by freshcode shall be subject to freshcode's Privacy Policy. For a complete copy of freshcode's Privace Policy, please refer to the Privacy Policy link on the Bodega Services Website.


19. Survival

19.1 The provisions of Section 7 (Indemnification), Section 8 (Disclaimer of Warranties), Section 9 (Limitation of Liability), Section 10 (Proprietary Rights) and Section 11 (Termination) of the TOS will survive any termination under Section 11.


20. Headings

20.1 Section headings in the TOS are solely used for the convenience of the parties and have no legal or contractual significance.
 

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