Software as a Service (SaaS) Agreement

Please read this Software as a Service Agreement (“Agreement”) carefully and only click on “Agree” if you agree that Customer shall be bound by all of its terms and conditions.

By clicking on “Agree”, the individual doing so hereby represents and warrants that he/she is authorized by Customer to bind Customer to enter into this Agreement with KitchenFuel. KitchenFuel and Customer agree that the following terms and conditions will apply to the services provided under this Agreement.

1. Definitions

 In this Agreement and the schedules annexed hereto, the following terms shall have the respective meanings indicated below:

“Authorized User”: means a Permitted User who Customer has authorized to access and use the Services.

“Confidential Information”: means this Agreement, the Software, Customer Data and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished and to be furnished or made available by one Party to the other, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party’s actual and potential customers and other Intellectual Property Rights of such Party, provided, however, that Confidential Information shall not include any data or information: (i) that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving Party, whether through breach of this Agreement or otherwise; (ii) that, prior to disclosure by the disclosing Party, was already in the possession of the receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving Party; (iii) independently developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party’s Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development; (iv) which, subsequent to disclosure, is obtained from a third Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) who does not prohibit either Party from disclosing such information to others; or (v) is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.

“Customer “: means collectively any data, files, documentation or other information: (i) that Customer or any of its Authorized Users may upload to the KitchenFuel Platform when using the Services; and (ii) processed through the use of the Services. It does not include transaction data.

“Effective Date”: means the date this Agreement was agreed upon and entered into.

“Fees”: means the charges, as set out in para. 7 attached hereto, to be paid by Customer to KitchenFuel for the performance of the Services.

“Intellectual Property”: means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.

“Intellectual Property Rights”: means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.

“Licensed Materials”: means collectively the KitchenFuel Platform and Software.

“Objectionable Content”:

“Party”: means either KitchenFuel or Customer; and “Parties” means both of them.

“Permitted User”: means an employee of Customer or an independent contractor who is an individual that performs all or substantially all of his or her work for Customer.

“person”: means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, Governmental Authority or other entity or organization and includes any successor to any of the foregoing.

“KitchenFuel Platform”: means the Software, KitchenFuel Server and such devices and peripherals physically located with the KitchenFuel Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure located behind the Point of Access.

“Services”: means collectively the services to be provided by KitchenFuel to Customer as described and set out in this Agreement and the Schedules referenced herein.

“Subscription Term”: has the meaning ascribed to it in para. 7..

2. Services Generally

 Subject to the terms and conditions contained in this Agreement and payment of the Fees by Customer to KitchenFuel, KitchenFuel shall provide the Services as set out herein to Customer in accordance with the terms hereof and the policies and procedures in relation to the Service, which are established by KitchenFuel from time to time.

3. KitchenFuel Platform

(a) Provision and Access to KitchenFuel Platform

 The Service will require access and use of the KitchenFuel Platform. KitchenFuel shall operate and maintain the KitchenFuel Platform in accordance with the terms of this Agreement. Access to the KitchenFuel Platform may be through a secure connection with the public internet. Customer acknowledges and agrees that KitchenFuel is not responsible or liable for any communication over the public internet, or for the Network Aggregator Provider’s network or its operation or the Network Aggregator Provider’s network’s failure to deliver communication to and from the KitchenFuel Platform on a timely basis.

(b) Security

 Customer acknowledges that the KitchenFuel Platform uses the Internet for data transfer and Internet-connected servers to store Customer Data and while KitchenFuel uses commercially reasonable security measures with respect to such servers, no security measures are 100% effective. As such, KitchenFuel does not represent or warrant the security of the Customer Data.

(c) Maintenance

 From time to time, it will be necessary for KitchenFuel to perform maintenance on the KitchenFuel Platform. Such maintenance includes routine maintenance to ensure the continued provision of the Services through the continued operation of the KitchenFuel Platform or upgrading, updating or enhancing the KitchenFuel Platform. KitchenFuel shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the KitchenFuel Platform to Customer. To the extent KitchenFuel is able, KitchenFuel shall notify Customer in advance of any scheduled maintenance by posting a message on the website or by sending an e-mail to the designated Customer Service Manager of the scheduled maintenance time and the anticipated duration of such maintenance.

(d) Changes

 KitchenFuel may, at any time, with or without notice to Customer: (i) make changes that are necessary to comply with applicable safety, security or other statutory requirements or orders from applicable Governmental Authorities; (ii) supplement or make changes to its rules of operations, access procedures, security and privacy procedures and policies; (iii) change the components, type and location of the KitchenFuel Platform; and (iv) KitchenFuel reserves the right to modify and update the features and functionality of the Platform from time to time in its sole discretion.  While KitchenFuel shall use commercially reasonable efforts to ensure the ongoing availability of the KitchenFuel Platform, KitchenFuel makes no representation, warranty or guarantee regarding the continuous availability or performance of the KitchenFuel Platform.  Customer acknowledges that the KitchenFuel Platform may, in whole or in part, be unavailable for use from time to time without notice to Customer. 

(e) Customer Data

 Customer acknowledges and agrees that KitchenFuel: (i) will not be responsible for the accuracy, completeness or adequacy of any Customer Data or the results generated from any Customer Data uploaded to the KitchenFuel Platform and processed by the Software; (ii) has no control over any Customer Data or the results therefrom; (iii) does not purport to monitor Customer Data; and (iv) shall not be responsible to back up or maintain any back up of the Customer Data or portion thereof.

 As between the parties, Customer shall own the Customer Data, subject to the licenses granted to Servicer Provider herein.  Customer hereby grants KitchenFuel a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data as is reasonably necessary or desirable for KitchenFuel’s operation of the KitchenFuel Platform and as otherwise authorized herein.  KitchenFuel may use and disclose Customer Data as follows: (i) KitchenFuel may use Customer Data for KitchenFuel’s internal business purposes (such as analyzing usage of and developing and improving KitchenFuel’s products and services); (ii) KitchenFuel may disclose Customer Data to its third-party service providers that assist it in making the KitchenFuel Platform available as is reasonably necessary for such assistance; (iii) KitchenFuel may disclose Customer Data as may be required by law or legal process; (iv) KitchenFuel may disclose Customer Data where it is aggregated with data unrelated to Customer and Customer is not identified; and (v) Servicer Provider may disclose Customer Data as authorized by Customer.

4. Use of Services

(a) Grant by KitchenFuel

 Subject to the terms and conditions of this Agreement commencing as of the Effective Date and for the duration of the Subscription Term, KitchenFuel hereby grants to Customer a non-exclusive, non-transferable, revocable right, for Customer’s internal business purposes and for that number of permitted Authorized Users as displayed to Customer at the time of submission at checkout and as may be modified from time to time, to access the KitchenFuel Platform in accordance with the security protocols as set out herein for the purpose of:

(i) using the KitchenFuel Platform and Software;

(ii) uploading, processing, viewing, displaying, using and downloading Customer Data to and from the KitchenFuel Platform.

 Customer acknowledges that KitchenFuel Platform features and functionality available to Customer may vary based upon the subscription option for which Customer is registered. 

(b) Restrictions on Use

 Any rights not granted herein are strictly reserved by KitchenFuel. Customer shall not: (i) permit any third Person to use the Licensed Materials; (ii) re-license or sublicense, lease, loan or otherwise distribute the Licensed Materials to any third Person; (iii) process or permit to be processed the data of any other Person; or (iv) use the Licensed Materials or the Service in the operation of a service bureau. Customer shall not, and shall not permit others to, reverse engineer, decompile, disassemble or translate any software used by KitchenFuel to deliver the Services, including the Software, or otherwise attempt to view, display or print such software, including the Software’s, source code.

(c) Authorized Users

 Customer shall ensure that all Authorized Users are aware of the provisions of this Agreement, including their obligation to comply with the provisions contained herein as it relates to their use of the Services and the Software. Customer shall be responsible and liable for the actions and omissions of each Authorized User and their compliance of the provisions herein.

5. Customer’s Obligations

(a) Grant by Customer

 Customer hereby grants to KitchenFuel a royalty-free, non-exclusive, non-transferable right and licence to use, copy, store and display the Customer Data solely for the purpose of enabling KitchenFuel to perform the Services under this Agreement.

(b) Customer Responsibilities

 In addition to its other obligations contained in this Agreement, Customer shall:

(i)

 be responsible for procuring, installing, operating, supporting and maintaining Customer’s systems, including computer hardware and software, including browsers, necessary for Customer to access the Services;

(ii)

 be responsible for the accuracy, completeness and adequacy of all Customer Data; for the management, manipulation and processing of Customer Data; and the back up and maintenance of all Customer Data;

(iii)

 use the Services, KitchenFuel Platform and Software, by itself and Authorized Users, in accordance with Applicable Laws, the terms of this Agreement; and

(iv)

 comply, at all times, with all applicable legal and regulatory requirements and with KitchenFuel’s conduct and security policies in respect of the use of the Services and the Software.

(c) Prohibited Activities

 Customer shall not:

(i)

 use the Services for improper or unlawful purposes;

(ii)

 include, or knowingly allow others to include, any Objectionable Content or introduce Viruses to the KitchenFuel Platform and shall institute such security procedures and safeguards as Customer deems necessary to prevent the posting, uploading or inclusion of any Objectionable Content or Viruses to the KitchenFuel Platform;

(iii)

 intercept or attempt to intercept any messages transmitted to and from the KitchenFuel Platform that are not intended for Customer or any of its Authorized Users;

(iv)

 take any action that imposes an unreasonable or disproportionately large load on the KitchenFuel Platform;

(v)

 use the Services or the Software to develop any derivative works or any functionally compatible or competitive software;

(vi)

 copy or download the Software or any other software used by KitchenFuel to provide the Services and which is contained within the KitchenFuel Platform; or

(vii)

 remove any copyright or other proprietary rights notice on the Software or any copies thereof.

6. Fees, Payment, and Subscription Changes

(a) Fees

 By registering for any paid Software subscription account or any paid add-on features and providing payment information, Customer agrees to pay KitchenFuel the recurring and/or nonrecurring fees as displayed to Customer at the time of submission at Checkout and as may be modified from time to time, as well as any other fees Customer chooses to incur through the KitchenFuel user interface.  Other than to the extent otherwise specified within the Checkout at the time of submission, recurring Software subscription fees will be charged in advance immediately prior to the applicable subscription period.  Customer acknowledges and agrees that the payment instrument provided by Customer to KitchenFuel will be automatically charged all fees incurred in connection with use of the Software, and Customer represents and warrants that it has all necessary rights relating to such payment instrument to authorize KitchenFuel to make such charges.  Customer’s use of the Software may be suspended if KitchenFuel is unable to charge such payment instrument for any reason or if Customer’s account is otherwise past due. The fees applicable to Customer’s Software account type may be subject to modification from time to time pursuant to notice (which may be given via email) provided by KitchenFuel at least thirty (30) days in advance of the first payment date for which the modification would be effective.  All fees must be paid in Canadian dollars and are non-refundable.  Customer is responsible for any and all taxes associated with payments made to KitchenFuel hereunder. 

(b) Taxes

 Customer shall be responsible for the payment of any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on KitchenFuel’s net income.

(c) Interest on Late Payments

 Where Customer fails to pay any amount in accordance with the payment terms set out as displayed to Customer at the time of submission at Checkout and as may be modified from time to time, KitchenFuel shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of 5% per month calculated daily, compounded monthly both before and after any court judgement in respect of the same from the date such payment was due.

(d) Third-Party Transaction Services Provider.

 Customer acknowledges that the Software requires Customer’s use of “Stripe” online payment processing services (individually and collectively “Merchant Account”) for the financial transactions on Customer’s website, and that account crediting, refunds, fraud protections and other transactional services for Customer’s Merchant Account are controlled by the policies and procedures of Stripe and Customer’s bank(s). Customer agrees to look solely to Customer’s Merchant Account, Customer’s bank(s) and/or Customer’s customer(s) with regard to any issues that may arise concerning those accounts and/or Customer’s customer transactions, including but not limited to payment processing, credits, refunds, and fraudulent purchases. Further, Customer agrees to indemnify KitchenFuel against all claims, demands, damages, losses, causes of action and the like which may arise from and/or relate to any transaction(s) and/or attempted transaction(s) by, with and/or through Customer’s Merchant Account and/or Customer’s bank(s). Customer understands that KitchenFuel utilizes Stripe as its payment processor and that all transactions and fees are processed through the Stripe system. KitchenFuel uses a customized integration with Stripe. Any fee associated with the usage of Stripe is found on their website https://stripe.com/pricing. Customer agrees to pay to KitchenFuel a one and one-half percent (1.5%) application fee per transaction.

(e) Refunds

 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Customer.

7. Subscription Term

 The term of this Agreement and the rights and obligations of the Parties hereto is subscription-based and shall commence as of the date of execution and shall continue in full force and effect until such subscription is terminated as set forth herein.

8. Suspension and Termination

(a) Suspension of Services

 In the event that Customer does not pay the Fees or any portion thereof, when due, KitchenFuel may immediately suspend Customer’s and each of its Authorized Users’ right to receive the Services and access and use of the Software.

(b) KitchenFuel’s Right to Terminate

 Subject to paras. 8.(c) and (g), KitchenFuel may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Customer:

(i)

 fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of five (5) Business Days after delivery of a written notice by KitchenFuel requiring Customer to correct such failure;

(ii)

 infringes the Intellectual Property Rights of KitchenFuel;

(iii)

 breaches any other material provision of this Agreement and such breach continues for a period of twenty (20) Business Days after delivery of a written notice by KitchenFuel requiring Customer to correct such failure; or

(iv)

 becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Customer applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer is appointed without the consent of Customer; or Customer institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment or debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against Customer and is not dismissed within sixty (60) Business Days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of Customer’s property and remains unsatisfied for sixty (60) Business Days.

(c) Waiver

 The waiver by KitchenFuel of a breach or default of any provision of this Agreement by the Customer shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of KitchenFuel to exercise or avail itself of any right, power or privilege constitute a waiver.

(d) Effect of Termination

 Upon the termination of this Agreement for any reason:

(i)

 KitchenFuel shall terminate and invalidate any Authentication IDs associated with Customer and any of its Authorized Users;

(ii)

 KitchenFuel shall, but not earlier than 30 Business Days after the termination or expiration of this Agreement, maintain any copies of the Customer Data contained in the KitchenFuel Platform by aggregating with data unrelated to Customer and Customer is anonymized and any identifying information will be destroyed.

(iii)

 Customer shall pay to KitchenFuel the full amount of all Fees payable hereunder as of the date of termination, if any, whether already invoiced or not (including any amounts due as late payment charges), and any other monies owing to KitchenFuel hereunder; and

            (e) Customer Data upon Termination

 If Customer fails to download the Customer Data from the KitchenFuel Platform in a timely manner, it may not have access to such information or such information may be destroyed by KitchenFuel in accordance with the terms of paras. 8.(d) and (e). Subject to para. 8.(f), it is Customer’s responsibility to download and obtain all Customer Data prior to the expiration or termination of this Agreement. KitchenFuel shall have no responsibility, or any liability to Customer, for maintaining or providing to Customer the Customer Data or any portion thereof from and after the 5 Business Days after the termination or expiration of this Agreement.

(f) Transition Assistance

 Commencing at the earlier of: (i) one (1) month prior to the scheduled expiration date of this Agreement; or (ii) the delivery of any notice of termination or non-renewal of this Agreement, and continuing through the effective date of expiration or termination and for a period of 5 Business Days thereafter (the “Transition-Out Period”), KitchenFuel will, to the extent requested by Customer, provide to Customer (or at Customer’s request to Customer’s designee) such reasonable cooperation, assistance and services to facilitate the orderly wind down, transition and migration of the Services and transfer of the Customer Data from KitchenFuel to Customer or Customer’s designee (the “Transition-Out Services”). Customer will continue to pay for Services properly rendered during the Transition-Out Period, in each case until they are wound down or discontinued. For additional services and resources required to provide Transition-Out Services, the applicable rate card then in effect under this Agreement will apply. As part of the Transition-Out Services, Customer shall download any and all Customer Data contained on the KitchenFuel Platform and store such Customer Data on Customer’s systems.

(g) Survival of Covenants

 Notwithstanding the termination or expiration of this Agreement for any reason, the covenants set out in this para. 8.(g) and paras. 6.(c), 8.(d), 8.(f), 9., 10., 13., 14. and those provisions set out in para. 1 and 18., as necessary to interpret the foregoing provisions, of this Agreement shall survive any such termination or expiration.

9. Ownership

 Customer acknowledges and agrees that, as between Customer and KitchenFuel, KitchenFuel owns all worldwide right, title and interest, including all Intellectual Property Rights, in and to: (i) the KitchenFuel Platform; (ii) Software; and (iii) any modifications, enhancements, upgrades, updates or customization to the Software. Customer does not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the licenses granted herein.

10. Confidentiality

 Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third person other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.

11. Representations, Warranties and Disclaimers

(a) General

 KitchenFuel does not guarantee, represent or warrant Customer’s use of services will be uninterrupted, timely, secure or error-free. KitchenFuel does not warrant that the results that may be obtained from the use of the service will be accurate or reliable. Customer agrees that from time to time KitchenFuel may remove the service for indefinite periods of time or cancel the service at any time, without notice to Customer. Customer expressly agrees that Customer’s use of, or inability to use, the service is at the Customer’s sole risk. The service and all products and services delivered to Customer through the service provided is ‘as is’ and ‘as available’ for Customer’s use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

 In no case shall KitchenFuel, its owners, partners, employees, affiliates, agents, contractors, interns, suppliers, service providers, or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including without limitation, lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from Customer’s use of any of the services or any products procured using the service, or for any other claim related in any way to Customer’s use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. As some provinces or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such provinces or jurisdictions, KitchenFuel’s liability shall be limited to the maximum extent permitted by law.

(b) Third-Party Services

 While using the Services, you may enable, use, or purchase services, products, software, embeds, or applications (like themes, extensions, plugins, or blocks) developed by a third party or yourself (“Third-Party Services”).

If you use any Third-Party Services, you understand that:

            (i)

Third-Party Services aren’t vetted, endorsed, or controlled by KitchenFuel.

            (ii)

Any use of a Third-Party Service is at your own risk, and we won’t be responsible or liable to anyone for Third-Party Services.

            (iii)

Your use is solely between you and the respective third party (“Third Party”) and is governed by the Third Party’s terms and policies.

            (iv)

Third-Party Services like plug-ins that provide legal templates are not legal advice from KitchenFuel and we won’t be responsible or liable to anyone for the use of these types of Third-Party Services. These may include auto-generated pages with legal language based on the information provided by Client regarding governing law, legal entity, etc.

            (v)

Some Third-Party Services may request or require access to your data — or to your visitors’ or customers’ data — through things like pixels or cookies. If you use the Third-Party Service or grant them access, the data will be handled in accordance with the Third Party’s privacy policy and practices, which you should carefully review before you use any Third-Party Services. Third-Party Services may not work appropriately with our Services and we may not be able to provide support for issues caused by any Third-Party Services.

If you have questions or concerns about how a Third-Party Service operates or need support, contact the Third Party directly. In rare cases we may at our discretion, suspend, disable, or remove Third-Party Services from your account or website.

12. Indemnities

 Customer agrees to indemnify, defend and hold harmless KitchenFuel, its owners, partners, employees, affiliates, agents, contractors, interns, suppliers, service providers, or licensors, harmless from any claim or demand, including reasonable legal fees, made by any third-party due to or arising out of Customer’s breach of this Agreement or the documents it incorporates by reference, or Customer’s violation of any law or the rights of a third-party.

13. Limitation of Liability

 In no event shall KitchenFuel be liable to the Customer or any third-party for any consequential, incidental, exemplary or punitive damages even if advised in advance of the possibility of such damages. Further KitchenFuel shall not be liable to Customer for any lost revenue, lost profit or lost savings.

14. Dispute Resolution

(a) Discussions

 Each Party agrees to utilize all reasonable efforts to resolve any dispute, whether arising during the term of this Agreement or at any time after the expiration of termination of this Agreement, which touches upon the validity, construction, meaning, performance or affect this Agreement or the rights and liabilities of the Parties or any matter arising out of or connected with this Agreement, promptly and in an amicable and good faith manner by negotiations between the Parties.

(b) Mediation

 Either Party may submit a dispute to mediation by providing written notice to the other Party. In the mediation process, the Parties will try to resolve their differences voluntarily with the aid of a single, impartial mediator, who shall attempt to facilitate negotiations. The mediator shall be selected by agreement of the Parties. If the Parties cannot otherwise agree on a mediator within 30 Business Days, a single mediator shall be designated by the ADR Institute of Canada, Inc. or any successor organization (“ADR”) at the request of a Party. Any mediator so designated must not have a conflict of interest with respect to any Party. The mediation shall be conducted as specified by the mediator and agreed upon by the Parties. The Parties agree to discuss their differences in good faith and to attempt, with the assistance of the mediator, to reach an amicable resolution of the dispute. The mediation shall be treated as a settlement discussion and therefore shall be confidential. The mediator may not testify for either Party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings. Each Party shall bear its own costs and legal fees in the mediation. The Parties shall share the fees and expenses of the mediator equally.

(c) Arbitration

 Subject to para. 14.(d), any dispute that has proceeded through mediation established in para. 14.(b) without resolution may be submitted to arbitration. Any arbitration conducted pursuant to this Agreement shall take place in the City of Hamilton. The costs of the arbitration shall be borne equally by the Parties or as may be specified in the arbitrator’s decision. The provisions of Ontario’s Arbitration Act, S.O. 1991, c. 17, as amended, except as otherwise provided in this Agreement, shall govern the arbitration process. The Parties agree to exclude the appeal provisions of the Arbitration Act, as may be amended from time to time, and in particular, s. 45 thereof. The determination arising out of the arbitration process shall be final and binding upon the Parties to the arbitration.

(d) Exceptions to Arbitration

 The following matters shall be excluded from arbitration under this Agreement:

(i)

 any disputes involving third Persons;

(ii)

 breach of confidentiality by Customer; and

(iii)

 intellectual property claims, whether initiated by third Persons or by one of the Parties to this Agreement.

15. Miscellaneous

(a) Entire Agreement

 This Agreement, together with any other documents to be delivered pursuant hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties. Except as expressly provided in this Agreement, there are no representations, warranties, conditions other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect this Agreement. The execution of this Agreement has not been induced by, nor do either of the Parties rely upon or regard as material, any representations, warranties, conditions, other agreements or acknowledgements not expressly made in this Agreement or in the other documents to be delivered pursuant hereto.

(b) Governing Law

 This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.

(c) Severability

 In the event that any provision (or any portion of a provision) of this Agreement shall, for any reason, be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.

(d) No Assignment

 Neither this Agreement nor any rights or obligations hereunder shall be assignable by Customer without the prior written consent of KitchenFuel.