TERMS AND CONDITIONS

These Terms and Conditions (“Agreement”) are made as of the Effective Date by and between Kenco Spares, a UK based Company with offices located at 35 Castlereagh St, Belfast, BT5 4NE, (“Company”) and the Subscriber, as defined hereunder.

WITNESSETH

WHEREAS, Company has developed and owns that certain APPOINTMENT MANAGEMENT SYSTEM (as defined hereinafter) for use and access by Subscriber via the Internet; and

WHEREAS, Subscriber desires to access and use the APPOINTMENT MANAGEMENT SYSTEM in accordance with the terms and provisions of this Agreement;

NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Subscriber and Company hereby agree as follows:

ARTICLE I: RECITALS AND DEFINITIONS

Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.

Section 1.02 -- Definitions: The following definitions shall apply:

(1) Access: The term “access” and variants thereof (including, without limitation, “accessing” and “accessible”) shall mean to store data in, retrieve data from or otherwise approach, display, reproduce, frame, establish a Link to, or make use of (directly or indirectly) through electronic means or otherwise.

(2) APPOINTMENT MANAGEMENT SYSTEM: The term “APPOINTMENT MANAGEMENT SYSTEM” shall mean that certain Web Site referred to as the APPOINTMENT MANAGEMENT SYSTEM, which is located on the Internet at [Web Site Address], including any and all Company Technology used, incorporated, stored or accessible therein, as implemented on the Company System and made accessible to Subscriber through the Internet using the Password.

(3) Effective Date: The term “Effective Date” shall mean the date the Subscriber receives the Password from Company or accesses the APPOINTMENT MANAGEMENT SYSTEM, whichever occurs first.

(4) Company Marks: The term “Company Marks” shall mean trademarks, trade names, service marks and trade dress of Company and parent companies, subsidiaries and affiliates of Company, including, without limitation, the [Trademark].

(5) Company System: The term “Company System” shall mean computer systems and communication equipment used for hosting the APPOINTMENT MANAGEMENT SYSTEM and providing Subscriber access to the APPOINTMENT MANAGEMENT SYSTEM.

(6) Company Technology: The term “Company Technology” shall mean any and all Technology developed by or for Company

(7) Internet: The term “Internet” shall mean that certain global network of computers commonly referred to as the Internet, including (without limitation) the world wide web.

(8) Licensed Content: The term “Licensed Content” shall mean third party Technology incorporated in whole or part into the APPOINTMENT MANAGEMENT SYSTEM.

(9) Link: The term “Link” shall mean text, icons, graphic symbols that upon selection or activation, link or associate to, execute, access or retrieve an off-screen Web Site or Technology.

(10) Password: The term “Password” shall mean that certain password and SUBSCRIBER name assigned by Company to Subscriber for accessing the APPOINTMENT MANAGEMENT SYSTEM as may be modified from time to time as provided hereunder.

(11) Policy Statement: The term “Policy Statement” shall mean those certain written statements of policies (in printed or electronic form) concerning access to the APPOINTMENT MANAGEMENT SYSTEM as may be adopted by Company and as modified by Company from time-to-time.

(12) Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act and 18 U.S.C. §1839.

(13) Subscriber: The term “Subscriber” shall mean the individual or entity assigned the password used to access the APPOINTMENT MANAGEMENT SYSTEM.

(14) Technology: The term “Technology” shall mean information, data, ideas, works of authorship, computer software, source code, object code, executable code, software libraries, documentation, databases, database designs, data dictionaries, data models, fields, records, scripts, texts, interfaces, interface designs, screen displays, Web Sites, web pages, Links, visual works, graphic images, audio, video, compilations, formulas, methodologies, techniques, processes, procedures, adaptations, derivative works, computers, hardware, peripherals, components, networks, product lists, supplier lists and customer lists.

(15) Term: The term “Term” shall mean a period of time starting on the Effective Date and ending on the date either party cancels the Password as provided hereunder.

(16) Unauthorized Access: The term “Unauthorized Access” shall mean any access to APPOINTMENT MANAGEMENT SYSTEM except for access during the Term for the exclusive purpose of viewing, browsing, retrieving, uploading and posting information on and ordering products through the APPOINTMENT MANAGEMENT SYSTEM using the Password on behalf of Subscriber in accordance with this Agreement.

(17) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the APPOINTMENT MANAGEMENT SYSTEM except for Subscriber and employees and agents of Subscriber authorized by Subscriber to access the APPOINTMENT MANAGEMENT SYSTEM for purposes of viewing, browsing, retrieving, uploading and posting information on and ordering products through the APPOINTMENT MANAGEMENT SYSTEM during the Term using the Password on behalf of Subscriber in accordance with this Agreement.

(18) Web Site: The term “Web Site” shall mean that certain multimedia interactive product which is a compilation of data, information, computer software, graphics, audiovisual, components and coding formatted for use on the world-wide-web of the Internet and commonly referred to as a web site.

ARTICLE II: SCOPE OF USE

Section 2.01 -- Access: Company hereby grants Subscriber a non-exclusive, non-transferable and revocable license to access the APPOINTMENT MANAGEMENT SYSTEM, during the Term, solely for viewing, browsing, retrieving, uploading and posting information, and ordering products on or through the APPOINTMENT MANAGEMENT SYSTEM, subject to the terms and provisions of this Agreement.

Section 2.02 -- Policy Statement: During the Term, Subscriber shall comply with the Policy Statement. Company may modify the Policy Statement from time to time at the exclusive discretion of Company

Section 2.03 -- Password: Subscriber hereby accepts responsibility for, and shall be liable for, all access to the APPOINTMENT MANAGEMENT SYSTEM in connection with the Password. Subscriber shall be responsible for the confidentiality of the Password. Modification of the Password shall be subject to the approval of Company

Section 2.04 -- Unauthorized Access: Subscriber shall prevent Unauthorized Users from accessing the APPOINTMENT MANAGEMENT SYSTEM. Subscriber shall prevent Unauthorized Access to the APPOINTMENT MANAGEMENT SYSTEM.

Section 2.05 -- Cancellation: Company may cancel the Password, for convenience and in the exclusive discretion of Company, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.06 of this Agreement. Subscriber may cancel the Password, for convenience and in the exclusive discretion of Subscriber, upon providing written notice of such cancellation to Subscriber in accordance with Section 5.07 of this Agreement. Upon cancellation of the Password, Subscriber shall immediately cease and desist any and all access to and attempts to access the APPOINTMENT MANAGEMENT SYSTEM.

ARTICLE III: INTELLECTUAL PROPERTY

Section 3.01 -- Ownership and Title: Title to the APPOINTMENT MANAGEMENT SYSTEM (excluding Licensed Content), including ownership rights to any and all patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of Company

Section 3.02 -- Unauthorized Use: Subscriber shall not copy or download the APPOINTMENT MANAGEMENT SYSTEM without the prior written consent of Company Subscriber shall not access, modify, reverse engineer, reproduce, display, perform or distribute, including (without limitation) by framing or similar means, the APPOINTMENT MANAGEMENT SYSTEM without the prior written consent of Company Subscriber shall not (directly or indirectly) promote, advertise, market or provide any Web Site similar to or competitive with the APPOINTMENT MANAGEMENT SYSTEM.

Section 3.03 -- Trademarks: Company shall retain all rights, title and ownership interests in the Company Marks and goodwill associated therewith. Subscriber acknowledges that, excepting the Company Marks, all other product, service and company names mentioned in the APPOINTMENT MANAGEMENT SYSTEM may be trademarks of their respective owners.

Section 3.04 -- Proprietary Information: Subscriber shall hold Company Technology in strict confidence and shall not access or disclose Company Technology except as otherwise permitted under this Agreement. Subscriber hereby acknowledges and agrees that the Company Technology derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements. 

Section 3.05 -- No Contest: Subscriber shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets (as applicable) of Company in connection with the APPOINTMENT MANAGEMENT SYSTEM.

Section 3.06 -- Subscriber Submissions: Any Technology (except the Password and ordering information) uploaded, posted or submitted by Subscriber on the APPOINTMENT MANAGEMENT SYSTEM shall be deemed non-confidential. Subscriber hereby grants Company an irrevocable, worldwide, perpetual, nonexclusive license to access, use, reproduce, modify, adapt, release, perform, display, distribute, sell and disclose such Technology, in whole or in part, in any manner and for any purpose whatsoever, and to have and authorize others to do so. Subscriber represents and warrants that Subscriber possesses all necessary rights, title and interests to rightfully grant Company the foregoing license, free and clear of any encumbrances, third party interests and restrictions. Subscriber also represents and warrants that all information provided by Subscriber in connection with the APPOINTMENT MANAGEMENT SYSTEM and this Agreement is true, complete and accurate.

ARTICLE IV: WARRANTY AND INDEMNIFICATION

Section 4.01 -- Express Warranties: Subscriber hereby acknowledges and agrees that Company (including officers, employees, agents, directors and independent contractors of Company has not made or granted to Subscriber any express warranties concerning the APPOINTMENT MANAGEMENT SYSTEM or any products and services offered through the APPOINTMENT MANAGEMENT SYSTEM. Subscriber hereby acknowledges that the APPOINTMENT MANAGEMENT SYSTEM does not constitute grant of an express warranty concerning any products and services offered through the APPOINTMENT MANAGEMENT SYSTEM and Subscriber hereby waives any and all claims of warranty based on the APPOINTMENT MANAGEMENT SYSTEM.

SECTION 4.02 -- WARRANTY LIMITATION: THE APPOINTMENT MANAGEMENT SYSTEM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL WARRANTIES BY COMPANY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS IN CONNECTION WITH THE APPOINTMENT MANAGEMENT SYSTEM AND PRODUCTS AND SERVICES OFFERED THROUGH THE APPOINTMENT MANAGEMENT SYSTEM. COMPANY DOES NOT WARRANT AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE APPOINTMENT MANAGEMENT SYSTEM BY SUBSCRIBER WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE APPOINTMENT MANAGEMENT SYSTEM OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE APPOINTMENT MANAGEMENT SYSTEM. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET AND APPOINTMENT MANAGEMENT SYSTEM SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER AND SUBJECT TO THE RESTRICTIONS, TERMS AND CONDITIONS, RULES, REGULATIONS, POLICIES, APPLICABLE LAWS AND CODES OF CONDUCT GOVERNING THE INTERNET AND THE APPOINTMENT MANAGEMENT SYSTEM.

Section 4.03 -- Inaccuracies: Subscriber hereby acknowledges that the APPOINTMENT MANAGEMENT SYSTEM may contain errors, inaccuracies and omissions. Subscriber shall assume any and all risk of loss, harm or damage associated with Subscriber access to and use of the APPOINTMENT MANAGEMENT SYSTEM.

Section 4.04 -- Limitation of Liability: Company shall not be liable for any lost profits or consequential, exemplary, incidental or punitive damages (including, without limitation, in connection with (i) use, performance or operation of the APPOINTMENT MANAGEMENT SYSTEM; (ii) use, performance or operation of the Internet or use of the Internet by Subscriber; (iii) loss of data; AND (IV) PRODUCTS AND SERVICES OFFERED THROUGH THE APPOINTMENT MANAGEMENT SYSTEM), regardless of the form of action, whether in contract or in tort, including negligence, AND regardless of whether Company has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.

Section 4.05 -- Limitation of Damages: the sole remedy of subscriber for any reason and for any cause of action whatsoever in connection with this agreement, the APPOINTMENT MANAGEMENT SYSTEM, and products and services offered through the APPOINTMENT MANAGEMENT SYSTEM, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the APPOINTMENT MANAGEMENT SYSTEM, as determined by Company.

Section 4.06 -- Indemnification: Subscriber shall release, defend, indemnify and hold harmless Company (including its officers, directors, employees, affiliates, contractors and agents) from and against any expense, loss, cost or liability (including, without limitation, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to (i) use by Subscriber of the Internet, APPOINTMENT MANAGEMENT SYSTEM or products or services offered through the APPOINTMENT MANAGEMENT SYSTEM (including, without limitation, any claims for breach of warranty, loss of data, libel, slander, invasion of privacy or false advertising); (ii) performance of the APPOINTMENT MANAGEMENT SYSTEM; (iii) Subscriber’s negligence or any tortious acts (or failures to act) of Subscriber; (iv) products or services offered through the APPOINTMENT MANAGEMENT SYSTEM; and (v) any breach by Subscriber of the obligations of Subscriber under this Agreement.

Section 4.07 -- Export Assurance: Subscriber shall not perform any act in conflict with or in violation of the export laws and regulations of the United States of America, including (without limitation) the Export Administration Act, 50 U.S.C. §2401, et seq., the Export Administration Regulations, 15 C.F.R. Parts 730-774, the Arms Export Control Act, 22 U.S.C. §2751, and the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130, as amended.

Section 4.08 -- Links: Subscriber hereby acknowledges that the APPOINTMENT MANAGEMENT SYSTEM may contain Links to third party Web Sites. Any such Links are provided solely as a convenience to Subscriber and do not constitute an endorsement by Company of such Web Sites and the third party content therein.

ARTICLE V: MISCELLANEOUS

Section 5.01 -- Entire Agreement: This Agreement contains the entire understanding of the parties relating to the subject matter hereof and supersedes all previous verbal and written agreements between Company and Subscriber relating to the subject matter hereof.

Section 5.02 -- Amendments and Modifications: Excepting modifications made to the Policy Statement by Company and modifications made to this Agreement by Company, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by an authorized representative of Company

Section 5.03 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.

Section 5.04 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.

Section 5.05 -- Governing Law: This Agreement shall be governed by the laws of the state [City and State of Governing Law], without regard to any rules of conflict or choice of laws which may require the application of laws of another state, and venue shall be [Venue].

Section 5.06 -- Subscriber Notice: All notices to Subscriber shall be in writing. Notices to Subscriber shall be deemed delivered when posted conspicuously on the APPOINTMENT MANAGEMENT SYSTEM or when delivered to Subscriber electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand. Notices to Subscriber shall be deemed given when dispatched. Notices posted conspicuously on the APPOINTMENT MANAGEMENT SYSTEM or delivered to Subscriber electronically (including, without limitation, electronic mail) shall be deemed written notices.

Section 5.07 -- Company Notice: All notices to Company shall be in writing. Notices to Company shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the address set forth below for Company. Notices to Company shall be deemed given on the date notice is received by Company (as evidenced in the case of Certified or Registered Mail by Return Receipt).

Company Address

APPOINTMENT MANAGEMENT SYSTEM, Inc. [Street Address]

[City, State & Zip]

Section 5.08 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural as the context shall require.

Section 5.09 -- Remedies: All remedies under this Agreement are in addition to equitable remedies and remedies provided by law and are cumulative. The parties hereby acknowledge and agree that damages at law will be an inadequate remedy to Company In addition to remedies at law and other rights which may be available, Company shall have the right of specific performance, injunction or other equitable remedy (including, without limitation, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Subscriber.

Section 5.10 -- Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.

Section 5.11 -- Survival: The terms and provisions of Sections 2.04 and 2.05 and Articles I, III, IV and V of this Agreement shall survive cancellation of the Password.

Section 5.12 -- Public Announcements: All public announcements concerning the APPOINTMENT MANAGEMENT SYSTEM or the relationship of Subscriber and Company shall be subject to the prior written approval of Company

Section 5.13 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of MyTechnologyLawyer.com in [City and State of Arbitration]. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of MyTechnologyLawyer.com. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by MyTechnologyLawyer.com.

Section 5.14 -- Litigation Expense: In the event of litigation or arbitration arising out of or relating to this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).