API License Agreement

AERS COMMERCIAL API LICENCING AGREEMENT

This API License Agreement (the "Agreement") is made by and between ADVANCED E-COMMERCE REASEARCH SYSTEMS INC, a British Columbia company with its principal place of business at Suite 2307 - 4464 Markham Street, Victoria, British Columbia, Canada, V1Z 7X8 ("AERS"), and your company or person as set out in the registration information("Licensee).

DEFINITIONS

"AERS Site" means www.researchadvanced.com owned and operated by AERS.
"AERS User" means any party who accesses any page on the AERS Site.
"Agreement" means this Agreement and any and all schedules or appendices attached hereto.
"Analysis" means the research and statistical analysis developed by AERS for eBay Data whether the analysis is metered or unmetered.
"API" means the applications programming interface developed by AERS for the Licensee to access and use the Analysis to create their own interface or application from the Analysis.
"API Package" means the service and pricing options for the API and Analysis licenses, certification fees, annual membership fees and usage fees, including pre-payment for API calls, selected by the Licensee that are set out on the web page entitled "AERS COMMERCIAL API License" (the "ACCEPT PAGE").
"Application" means the Licensee's own applications programming interface or application developed from the API and or Analysis.
"Certification" means the process by which the Application developed by the Licensee is certified by AERS or a third party designated by AERS in accordance with security and stability guidelines and thereafter entitles the Licensee to use and display the Analysis and AERS API Program in accordance with this Agreement.
"Effective Date" means the date of acceptance by the Licensee of this Agreement upon completion of the registration application and confirmation in AERS records of electronic acceptance of the license terms through the ACCEPT PAGE.
"eBay Data" means raw data licensed from eBay under an eBay Private or Public License or AERS' Private or Public Sublicense.
"eBay Site" means any web site owned and operated by eBay or eBay AG.
"eBay User Data" means any eBay user data or customer information (customer information being eBay user information that Licensee collects directly from users of the Application or Licensee's Site independent of AERS) that is included in the Analysis or that Licensee may receive from AERS, regarding eBay users.
"Licensee Site" means the website set out in registration process as the website owned and operated by the Licensee.
"Permitted Use" means those uses of the API and Analysis by Licensee permitted in accordance with Section 2.4 below.
"Price List" means the listing of fees payable by the Licensee for the scope of use of the API as selected by the Licensee on ACCEPT PAGE as part of the registration process which pricing may be amended by AERS, in its sole discretion, from time to time with thirty (30) days written notice to the Licensee and by posting such amendments to the Price List on the AERS website.
"Publicly Displayed" means that the Analysis and or Application are on public display or publicly displayed on the Licensee's Site.
"Sandbox" means the simulated research and analysis environment provided by AERS in which all development of the Application by the Licensee shall take place using the API and AERS API Program, whether certified or not, shall be undertaken.
"Third Party Service Provider" means a service provider who is reasonably needed to undertake the Permitted Use of this Agreement and who is subject to all the restrictions herein, including the confidentiality provisions at least as restrictive as those set forth in Section 9 below.

LICENSE

GRANT OF API LICENSE. AERS hereby grants to Licensee a limited non-exclusive, non-transferable license to use the API in the Sandbox to undertake development of the Analysis and ensure the API functions in the manner provided by AERS based on the API Package selected by the Licensee in accordance with the terms and conditions of this Agreement.
GRANT OF ANALYSIS LICENSE. Upon the Licensee receiving Certification for its Application and subject to the terms and conditions of this Agreement, AERS hereby grants to Licensee a non-exclusive, non-transferable license to access the API, Analysis, test environment, production environment, technical support and related documentation (the "AERS API Program") and to publicly perform and publicly display the Analysis on the Application and the Licensee Site, as applicable, only as necessary and in a manner consistent with the terms and conditions of this Agreement.
RESERVATION. AERS reserves the right to modify, change, update and or enhance the API, the Analysis, the AERS API Program, the Permitted Use(es) and or the AERS Site (the "Modifications") in its sole and exclusive discretion and the Licensee acknowledges and agrees that such Modifications may affect the Application and may require the Licensee to make changes to the Application at the Licensee's cost to enable the Application to continue to be compatible with and or interface with the API and or AERS API Program.
PERMITTED USES UNDER ANALYSIS LICENSE. Upon the grant of the Analysis License, the Licensee may access the Analysis from the API in the manner provided by AERS to:

Experiment with the Analysis, as applicable, and retrieve there from information necessary to facilitate the display of AERS Analysis.
Make limited intermediate copies of the Analysis only as necessary to perform an activity constituting Permitted Use under this Agreement, provided however, Licensee shall destroy such copies following performance of relevant obligation:
Modify Analysis ( solely in order to rearrange or reorganize) for the purposes of the Application developed by Licensee and/or the Licensee's Site.
With written consent of AERS, enabling eBay data to interact with www.researchadvanced.com only; and
Display Analysis in accordance with the trademark requirements attached as Exhibit A and in the specifications set forth in Sections 2.4, 2.5 and 2.8.

LICENSE CONDITIONS AND LIMITATIONS. Subject to any limitations set out below in Section 10, AERS shall not be liable for any costs incurred by Licensee, lost profits of any kind arising out of or in connection with any modification of the Application. The Licensee agrees that all development of the Application shall be undertaken in the Sandbox, whether the development is certified or not. The Licensee shall not use the API, Analysis or AERS API Program in any way not expressly granted under this Agreement, nor use any alternative means such as robots, spyders, scraping or other technology to access, query, or use www.researchadvanced.com, or any other website owned or operated by AERS or any of its affiliates or subsidiaries (collectively "AERS Site"), or use the Analysis or AERS API Program to obtain any information, other than as provided by AERS to Licensee pursuant to this Agreement. Licensee may not distribute, facilitate, enable or allow access or linking to the AERS' Analysis or AERS API Program from any location or source other than the Licensee's Application or Licensee Site. Licensee shall not permit or enable third parties to copy or obtain AERS Analysis from the Licensee's Application or Licensee Site in any unauthorized manner including, but not limited to, the use of robots, spyders, scraping or any other technology. Following expiration or termination of this Agreement, Licensee shall not use or facilitate use of any alternative means such as robots, spyders, scraping or other technology to access, query, or use the AERS Site, Analysis or AERS API Program to obtain information.
GENERAL RESTRICTIONS. Licensee shall not use the API, Analysis or AERS API Program, or permit the same to be used in any manner, whether directly or indirectly, that would: (i) permit the disclosure of the API, Analysis or AERS API Program (other than AERS Analysis authorized by this Agreement to be Publicly Displayed), or the use of the use of the API, Analysis and AERS API Program by anyone other than Licensee's employees or Third Party Providers; (ii) enable the AERS API Program to be used in any other location other than those set forth herein, unless AERS agrees otherwise in writing; or (iii) result in the copying, distribution, reproduction or modification or use of the API, Analysis and AERS API Program in any "service bureau" or "timesharing" business. All license rights granted herein, including all intellectual property rights, are not sub licensable, transferable or assignable, except as otherwise provided herein.
SPECIFIC PROHIBITIONS. Notwithstanding anything contrary to this Agreement, Licensee shall not: (i) use the Application or the API to interface with any web site owned or operated by AERS other than www.researchadvanced.com; (ii) sell, transfer, sublicense, or disclose the User ID to any third party, other than its Third Party Service Providers subject to the terms set forth herein; (iii) without the express written consent of AERS, sell, transfer, sublicense and or assign any interest in the Analysis except in accordance with the terms of this Agreement; this restriction does not preclude the Licensee's Application from selling access to the results of its Application after acquiring written consent of AERS; (iv) collect personally identifiable information of any AERS User without the user's express written consent; (v) transmit, facilitate, enable or otherwise provide the Analysis or AERS API Program to any third parties not expressly authorized by this Agreement; (vi) modify, decompile or other alter the Analysis or AERS API Program; (vii) commercialize (i.e. sell, rent, lease), copy, store or cache the Analysis, other than for the intermediate purposes allowed by this Agreement, or use or access the Analysis or AERS API Program in a manner inconsistent with the terms of this Agreement; or (viii) perform and additional analysis on raw listing data ("Listing Data") returned with the Analysis which Listing Data is provided for viewing what the Analysis is based on an is not permitted to be analyzed.
CERTIFICATION. Licensee's shall only have continued access to the API and Analysis beyond the API License as long as all the fees associated with the Application and Analysis have been received by AERS in accordance with Section 6.6 below. Licensee's use of the AERS Analysis and participation in the AERS API Program in accordance with the Analysis License is dependent upon the Certification of the Application. Upon Certification, Licensee shall be granted production keys to move the Application into a production environment. The Licensee shall be responsible for all costs associated with Certification as set forth in Section 6.1.5. Future modifications of the Application or Licensee's Site, as applicable, use or display of the Analysis or AERS API Program are subject to re-certification. Following Certification, Licensee shall be responsible for maintaining its Certification in accordance with the terms of this Agreement. Failure to maintain Certification is cause for immediate termination of this Agreement.
DISPLAY OF ANALYSIS. Licensee may only display the AERS Analysis in accordance with the following specifications:
1. All rules set out and applicable in AERS API disclosed in the then-current AERS User Agreement and Privacy Policy available on www.researchadvanced.com shall apply to Licensee's use and display of the Analysis;
2. Prior to Certification, any and all display of the Analysis must be in the form of private display and therefore shall not be available publicly on the Licensee's Site;
3. Following Certification, all Public Display of Analysis shall be on the Licensee's Application and or Licensee's Site through the Application;
4. In the Public Display of Analysis, Licensee may not co-mingle, modify or display the Analysis with the content of third parties;
5. In the Public Display of the Analysis, the Licensee shall segregate AERS Analysis from non-AERS analysis by presenting the AERS Analysis in such a way that the Analysis are visually separate (as with lines or colour changes) from non-AERS analysis on the Licensee Site through the Application, as applicable, ("AERS" Area") and no third party analysis, tools, or methods of any kind may be combined with AERS Analysis or displayed anywhere within the AERS Area;
6. Licensee shall not use or display the Analysis or the API in any form or manner that shall enable a third party to have unauthorized use of the Analysis or to use the Analysis to derive any of the following eBay information: (i) eBay site-wide statistics, or any other statistics to any eBay Site; (ii) take up rates for enhanced listings (e.g. gallery, featured, category featured, etc.); (iii) gross merchandise sale of any eBay Site or other statistics relating to the performance (financial or otherwise) of any eBay Site; (iv) average selling price or gross merchandise sold for any eBay category;
7. Licensee shall not use or display the Analysis or API in any form or manner that shall enable a third party to derive any of the following eBay information, except for the private display or displays of the Analysis or API as provided in this Agreement: (i) information relating to specific eBay users or category/types of eBay users; (ii) conversion, completion or success rates; or reserve auction information;
8. Licensee shall not profile eBay content for the purposes of establishing eBay user identity (es);
9. Licensee shall not publish or distribute eBay content in any form or manner that is not expressly permitted hereunder or by eBay;
10. Licensee shall not frame, meaning divide the browser display area into separate sections, each of which constitutes a different web page, any web page served by eBay servers or on www.eBay.com or any other eBay Site under any circumstances.
AERS LOGO AND EBAY BUTTON. Licensee may display on the Application and Licensee's Site, as applicable, a logo designed by AERS designating Licensee as a participant in the AERS API Program ("API Application Logo") provided the Licensee complies with the AERS API Application Logo usage requirements as determined by AERS and attached as Exhibit 1 hereto ("AERS API Application Logo Usage Requirements"). Licensee may use the eBay Button on the Application and Licensee's Site provided the Licensee complies with the eBay Buttons policy and procedure as set out at www.eBay.com.

USER DATA

COLLECTION LIMITATIONS. Licensee acknowledges and agrees that any eBay User Data that is included in the Analysis may not be used for any purpose other than to develop and test the Application. Notwithstanding the foregoing, Licensee agrees that any eBay User Data provided to the Licensee by AERS shall be limited to information reasonably necessary to perform the Licensee's obligations under this Agreement or the activities permitted under this Agreement. The Licensee shall not use, disclose or permit any third party to use or disclose, except for Third Party Service Providers, eBay User Data or user IDs or passwords or other data from eBay users without disclosing on the Application and the Licensee's Site, as applicable, that such information is communicated to AERS. Licensee shall be liable and responsible to AERS for any breach of this Section 2 by an Third Party Service Provider.
EBAY USER AGREEMENT. Licensee further agrees to that any use of eBay User Data that Licensee obtains shall be only authorized by this Agreement and subject to the then-current eBay User Agreement downloadable from www.eBay.com and any use of customer information derived from eBay User Data shall be authorized by the eBay user and subject to the Licensee's reasonable privacy policy and such privacy policy shall be adequately displayed through out the Application and Licensee's Site, as applicable, and meet current industry standards.
RESTRICTIONS ON USE EBAY USER DATA. Without limiting the foregoing, Licensee shall not use the API, Analysis, AERS API Program or eBay User Data to communicate with eBay users or to send or to facilitate the sending of unsolicited communications of any type. Licensee shall not solicit or facilitate the solicitation by any third party of eBay User Data or eBay users as a result of their status as eBay users or members. Except as permitted herein, Licensee shall not sell, rent, lease or otherwise disclose the eBay User Data.

OWNERSHIP OF INTELLECTUAL PROPERTY

OWNERSHIP OF ANALYSIS. Except as otherwise provided in this Agreement, as between AERS and Licensee: (i) AERS retains all rights, title and interest in and to all intellectual property rights embodied in or associated with the API, Analysis, AERS API Program, AERS Site and any and all AERS services and any materials created or derived therefrom; and (ii) Licensee and your suppliers retain all rights, title and interest in and to all intellectual property embodied in or associated with Licensee's Site excluding (i) above and any other intellectual property rights owned by AERS.
RESERVATION. There are no implied licenses granted under this Agreement, and any rights not expressly granted to Licensee hereunder are reserved by AERS or its suppliers. Licensee shall not take any action inconsistent with AERS' ownership of the API, Analysis, AERS API Program. Neither party shall exceed the scope of the licenses granted hereunder.
TRADEMARK LICENSE. Subject to the terms and conditions of the API Application Logo Usage Requirements as prescribed by AERS (attached as Exhibit 1 hereto), AERS hereby grants to License a non-exclusive, worldwide license to use the API Application Logo and other AERS trademarks solely in links on Licensee Site or in connection with the Analysis. Licensee shall furnish at its expense such samples of the use of the AERS API Applications Logo for inspection and analysis as AERS may reasonably request.
TRADEMARK RESTRICTIONS. AERS may immediately terminate this Agreement if, in its reasonable discretion, Licensee's use of the AERS API Applications Logo or Analysis tarnishes, blurs or dilutes the quality associated with AERS, the AERS API Application Logo or Analysis. All right, title, interest and ownership of the AERS API Applications Logo and all other AERS marks remain with AERS. Licensee shall use the AERS API Applications Logo and any other AERS marks exactly in the form provided and in conformance with AERS' trademark usage policies. Licensee shall not use a trademark confusingly similar to any AERS mark, and or in such proximity to any of Licensee's own trademarks or third party trademarks so as to create a combination or composite mark. Without limiting the foregoing, if AERS modifies the AERS API Application Logo or other AERS marks and requests Licensee to modify any use accordingly, Licensee shall modify such items as soon as commercially practicable. Licensee shall not take any action inconsistent with AERS' ownership of the AERS API Application Logo or other AERS marks, and any benefits accruing from use of the AERS API Application Logo or other AERS marks shall automatically vest in AERS. Licensee shall not form any combination marks with other Licensee marks.
NOTICE. All of Licensee's materials bearing the AERS API Applications Logo shall carry the following notice: AERS and the AERS API Application Logo are trademarks of Advanced E-Commerce Research Systems Inc.", or upon written agreement by AERS the following notice: Designated trademarks and brands are the property of their respective owners." The AERS API Application Logo provided to Licensee contains © ® or ™ symbol and those symbol should never be deleted.
MARK DISPLAY. Subject to the terms of this Agreement, Licensee may display the AERS API Application Logo (to be provided by AERS in an electronic file) only in the form provided to the Licensee by AERS. Without the prior written approval of AERS, Licensee may not modify or alter the AERS API Application Logo in any, including size, colour, proportions, elements, type or in any other respect.
PRIOR APPROVAL. AERS reserves the right to approve in writing all of Licensee's materials incorporating the AERS API Application Logo in advance of their use. AERS may withhold its approval of such materials in AERS' sole discretion. In the event that AERS requests to review such materials, Licensee shall give AERS no less than fifteen (15) business days to review and approve said materials. AERS shall have the opportunity to review and approve (or disapprove) in writing in advance of the Licensee's use the revised versions of any such materials reflecting changes as may be requested by AERS, on no less than two (2) business days notice to AERS.
RESEARCH ADVANCED LOGO. Any and all API Accounts shall display the Research Advanced logo with a link to the AERS Site.

UPTIME, SECURITY AND STABILITY

NO GUARANTEE. AERS makes no guarantee with respect to the availability or uptime of www.researchadvanced.com, any other AERS Site, the API or the Analysis. The current scheduled downtime for maintenance is from 01:00am to 03:00am (Pacific Time) each and every Friday; provided, however, such scheduled maintenance may be changed by AERS in its sole and exclusive discretion without notice to the Licensee at any time.
SECURITY AND STABILITY. Licensee acknowledges that it is in the best interests of both parties that AERS maintain a secure and stable environment, to that end; AERS reserves the right to change the method of access to the API, Analysis and AERS API Program at any time. Licensee also agrees that, in the event of any degradation or instability of AERS' system or an emergency, AERS may, in its sole discretion, temporarily suspend Licensee's access to the API, Analysis and or AERS API Program under this Agreement in order to minimize threats to and protect the operational stability and security of the AERS system. Licensee's continued access to API, Analysis and or AERS API Program is subject to Licensee's compliance with the security standards as determined by AERS.

FEES AND PAYMENT

FEE SCHEDULE. Licensee shall pay AERS the fees set forth in the API Package selected on the ACCEPT page for use of the API and Analysis and as described in the Pricing List available on the AERS site and all fees associated with the API membership level that Licensee selects from the ACCEPT PAGE upon completion of the registration process via the third party payor found on the ACCEPT PAGE for access to the API, Analysis and AERS API Program. All fees identified and selected by Licensee on the ACCEPT PAGE shall form part of the terms and conditions of this Agreement.
ANNUAL MEMBERSHIP FEES. Licensee shall pay AERS the annual membership fees ("AMF") as selected by the Licensee from the ACCEPT PAGE for each twelve (12) month period of the term of this Agreement. The first AMF is due upon the completion of the registration process and the date of acceptance of the Agreement by Licensee. AERS shall invoice Licensee for all subsequent AMF on the anniversary of the Effective Date.
USAGE FEES. Licensee shall also pre- pay AERS fees for API calls on the first day of each month in advance as per the API Package selected from the ACCEPT PAGE ("Usage Fees"). Such Usage Fees are charged for each API call on a pro-rated basis and are billed by invoice to the Licensee by AERS on a monthly basis in advance of usage unless otherwise agreed by AERS. AERS may terminate the Licensee's access to API calls in the event that the Licensee fails to pay its monthly Usage Fees by the fifteen day (15th) of each month.
UPGRADE. In the event that Licensee wishes to upgrade the Annual Membership from one tier to another tier (i.e. basic to professional or professional to enterprise), there is no fee for such upgrades and all AMF paid to date shall be credited to the higher tier however AMF due and owing as of the date of the upgrade shall be at the upgrade level.
DOWNGRADE. In the event that Licensee chooses to downgrade the Annual Membership from one tier to another tier (i.e. enterprise to professional or professional to basic), there is no fee for such downgrades.
CERTIFICATION FEES. Licensee shall pay all costs associated with Certification as set out in the ACCEPT PAGE and any modification(s) necessary to meet the Certification criteria.
NON-REFUNDABLE FEES. All fees paid pursuant to this Agreement are non-refundable payments by Licensee.
TAXES. All fees and payments made by Licensee under this Agreement shall exclude taxes and Licensee shall pay any and all sales, use, excise, gross receipts or other taxes associated with such fees and payments of this Agreement (excluding taxes based on AERS' net income).
SURCHARGE. In the event that the Licensee chooses to directly or indirectly license eBay Data from another party or eBay and not AERS, Licensee agrees that AERS shall have a right to charge the Licensee a surcharge for use of the API of up to $250,000 based on the terms of the Licensee's data license effective the date of execution by the Licensee of a data license with another third party or eBay. Licensee further agrees to provide adequate information to AERS regarding the terms of the data license in order for AERS to properly calculate the amount of surcharge payable by Licensee. In the event that the Licensee fails to provide such information, AERS shall be entitled to charge the maximum surcharge of $250,000 for use of the API.

TERM, RENEWAL AND TERMINATION

TERM AND RENEWAL. The term of this Agreement shall begin on the date on the Effective Date and shall continue for one (1) year from the Effective Date ("Initial Term") unless the Agreement is terminated in accordance with provision 7.2. This Agreement will automatically renew for additional one-year period (each a "Renewal Term"), unless either party provides written notice of its intent not to renew prior to the expiration of the then-current Term, with the understanding that notice by AERS in accordance with any notice requirement pursuant to this Agreement shall be deemed "written notice" as that term is used in this Section. The Initial Term and Renewal Term shall collectively be referred to herein as "Term".
TERMINATION. This Agreement shall terminated immediately without notice, in the event that the Licensee uses any alternative means such as robots, spyders, scraping or other technology to access, query or use any AERS Site in violation of the provisions of Section 2.5 (General Conditions and Limitations), Section 3.1 to 3.3 (User Data) and Section 5 (Fees and Payment) or if Licensee breaches the provisions of Section 2.1, 2.2. 2.5 to 2.7, 2.9, 2.10 and 3.1 to 3.3 of this Agreement. This Agreement may be terminated early if: (a) Licensee shares User ID with any third party, other than its Third Party Service Providers; (b) a party materially breaches this Agreement and does not cure such breach within thirty (30) days following written notice thereof from the non-breaching party; (c) there is mutual agreement of the parties; (d) Licensee fails to pay any amounts due under Section 6 within ten (10) days of the due date; or (e) AERS for convenience gives thirty (30) days written notice.
EFFECT OF TERMINATION. Upon expiration or termination of this Agreement, all licenses granted hereunder shall terminate, Licensee's User ID shall be revoked, and Licensee shall provide written proof to AERS of the destruction of any AERS Analysis or eBay User Data within ten (10) days of such expiration or termination. Without limiting the foregoing in any manner, AERS may choose to suspend Licensee's access to the API, Analysis and AERS API Program rather than terminate this Agreement.

REPRESENTATIONS AND WARRANTIES

REPRESENTATIONS AND WARRANTIES. Licensee represents and warrants that Licensee shall at all times comply with all laws and regulations applicable to the Application, Licensee's products and or services, related promotional activities and the Licensee's performance under this Agreement.
DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY (TO THE EXTENT POSSIBLE UNDER SUCH APPLICABLE STATUTES), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANITES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AERS DOES NOT REPRESENT OR WARRANT THAT THE RESEARCHADVANCED SITE OR THE API AND OR ANALYSIS SHALL OPERATE SECURELY OR WITHOUT INTERRUPTION. Each party acknowledges that it has not entered into this Agreement in reliance of any warranty or representation except those specifically set forth herein.

CONFIDENTIALITY

DEFINITION. "Confidential Information" shall include information provided by AERS to Licensee hereunder, and shall include, but not be limited to, the terms of this Agreement, Analysis, AERS API Program and eBay User Data (including User IDs and passwords).
CONFIDENTIAL REQUIREMENT. Licensee agrees not to disclose Confidential Information to any third party, and shall not use Confidential Information other than as required to perform this Agreement. Confidential Information shall not include, and such restrictions do not apply to information which (a) becomes publicly known through no act or fault of Licensee; (b) Licensee receives from a third party without restriction on disclosure or use; or (c) Licensee independently develops without reference to the Confidential Information as evidenced by written records. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, Licensee shall immediately notify AERS upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. Notwithstanding any contrary provision regarding notification requirements, notification for the purposes of this section may be provided by personal delivery on same day or overnight basis, overnight courier, confirmed facsimile or confirmed email. Licensee's confidential requirements shall survive the expiration and or termination of this Agreement for a period of three (3) years.
RETURN OF CONFIDENTIAL INFORMATION. Upon expiration and or termination of this Agreement, Licensee shall return to AERS within ten (10) days all Confidential Information and all documents or media containing such Confidential Information and any and all copies or extracts thereof without retaining any copies except as required by law.
INJUNCTIVE RELIEF. The parties acknowledge that monetary damages may not be sufficient remedy for unauthorized use or disclosure of Confidential Information and that AERS shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction, without obligation to post bond.
COMPETITIVE OR SIMILAR MATERIALS. Notwithstanding the foregoing, in no event shall either party be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and or distributing materials which are competitive with each others products and or services (collectively "Products"), irrespective of their similarity to current Products or Products that each may develop hereafter provided such actions do not breach any term or condition of this Agreement.

LIMITATION OF LIABILITY

INDEMNIFICATION

AERS INDEMNIFICATION. AERS shall indemnify Licensee against any and all claims, losses, costs and expenses, including reasonably attorney fees (collectively "Claims") which Licensee may incur as a result of any third party actions arising from or related to infringement by AERS API Applications Logo of a Canadian or U.S. copyright, trademark or other intellectual property right of a third party, except where AERS API Applications Logo has been modified without authorization and such modification is the basis of the Claim.
LICENSEE INDEMNIFICATION. Licensee shall indemnify AERS against any and all Claims which AERS may incur as a result of any third party actions arising or relating to: (i) Licensee or Third Party Service Provider's use of the AERS API Program, the Analysis or AERS API Program in excess of the rights granted hereunder; and or (ii) infringement by the Application of a Canadian or U.S. patent, copyright, trademark or other intellectual property right of a third party or misappropriation of any third party trade secret.
NOTICE. The foregoing obligations in 11.1 and 11.2 are conditioned on the indemnified party: (i) giving the indemnifying party written notice of the relevant Claim; (ii) cooperating with the indemnifying party, at the indemnifying party's expense, in the defense of such Claim; and (ii) giving the indemnifying party the right to control the investigation, defense and settlement of any such Claim, except that the indemnifying party shall not enter into any settlement that affects the indemnified party's rights or interest without the indemnified party's written approval. The indemnified party shall have the right to participate in the defense at is expense.

GENERAL TERMS

SURVIVAL. The following sections of the Agreement shall survive the expiration or termination of this Agreement: Section 2.5 (General Conditions and Limitations) and 2.4 (Restrictions on Use), Section 3 (User Data), Section 4 (Ownership of Intellectual Property), Section 6 (Fees and Payment), Section 8 (Representations and Warranties), Section 9 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Indemnification).
GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the Province of British Columbia as such laws are applied to agreements entered into and to be performed entirely within British Columbia between British Columbia residents. For purposes of this Agreement, both parties submit to personal jurisdiction in British Columbia and further agree that any cause of action arising under this Agreement shall be brought exclusively in Supreme Court of British Columbia or Federal Court as applicable.
FORCE MAJEURE. If performance hereunder is interfered with by any condition beyond a party's reasonable control, the affected party shall be excused from such performance to the extent of such condition.
INDEPENDENT CONTRACTORS. This Agreement does not create, and nothing contained in this Agreement shall be deemed to establish an agency, partnership, joint venture, employment or franchise relationship and neither party may make any commitment on behalf of the other.
SEVERABILITY. If any provision of this Agreement is deemed illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
WAIVER. The waiver of a breach hereunder does not waive any other or subsequent breach.
NOTICE. Any notices hereunder shall be in writing and shall be delivered via email, facsimile, PDF or other electronic means (upon proof of receipt) or registered mail, return receipt requested (that shall be effective when signed for) to the addresses above or such address as otherwise provided by a party in writing.
ENTIRE AGREEMENT. This Agreement, the Schedules hereto, the AERS Terms of Use and AERS Site User Agreement set forth the entire Agreement and understandings between the parties with respect to the matters set forth herein. In the event of a conflict between this Agreement and the AERS Site User Agreement relating to the API, Analysis and or AERS API Program, this Agreement shall govern. In all other circumstances, the AERS Site User Agreement shall apply.
AMENDMENT. AERS may from time to time unilaterally amend the API and Analysis and Price List by posting amended terms on the AERS Site (www.researchadvanced.com). All amended terms shall automatically be effective thirty (30) days after they are first posted on the AERS Site unless otherwise agreed to by AERS. Licensee's continued use of the API after the effective date of any amendment shall constitute acceptance of the Agreement as modified by such amendments. If Licensee does not agree to any future revisions of the API and Analysis and Price List, Licensee must stop using the API and send a termination notice to www.researchadvanced.com ("Amendment Termination Notice") before the effective date of the amendment(s). The Amendment Termination Notice must be received by AERS prior to the date on which the amendment(s) become effective. The most current version of this Agreement will be available on the AERS Site and will supercede all previous versions of this Agreement.
NO ASSIGNMENT. Licensee may not assign its rights nor delegate its obligations hereunder without AERS' express written consent. Such consent shall not be unreasonably denied.
DISPUTE RESOLUTION. The parties agree to first try to resolve any dispute or controversy arising out of, in connection with, or relating to this Agreement between them. If they are unable to do so, the parties then agree to seek mediation before a mediator acceptable to each of the parties. If mediation fails to resolve the controversy and where such dispute has not been settled within thirty (30) days after notice from either party to the other of the existence of the dispute, such dispute will be submitted for binding arbitration with the following conditions: (a) the parties agree to submit the dispute or controversy to binding arbitration conducted by an arbitrator mutually selected by the parties in accordance with the rules of the British Columbia International Commercial Arbitration Centre; (b) any decision rendered in arbitration shall be binding and final on all the parties. (c) the proceeding will be held before a single arbitrator; (d) except as modified by this article, the British Columbia International Commercial Arbitration Centre Rules will govern the arbitration; (c) the proceeding will be conducted in English; (d) the proceeding will be held in British Columbia, Canada; (e) the law, including the common law, of the Dominion of Canada and the Province of British Columbia will govern all aspects of this Agreement; (f) the arbitrator will decide the assignment of the costs of the arbitration; (g) the proceeding will be closed except to the parties, their lawyers, representatives, witnesses and experts, all of whom must agree to maintain the confidentiality of the dispute; (h) the existence, proceeding and resolution of the dispute will be kept confidential by the parties and will only be disclosed to parties and individuals with a need to know of its existence and who will agree to maintain confidentiality; and (i) it is the intention of the parties that the decision of the arbitrator will be enforceable in any national court of competent jurisdiction pursuant to the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards of 1958 commonly known as the "New York Convention."

Exhibit 1 - API APPLICATION LOGO USEAGE REQUIREMENTS

Overview

AERS wishes to ensure that all use of the API Application Logo adheres to the following useage requirements to ensure that all marketing and useage of the AERS API Application Logo is consistent and protects the brand of AERS and therefore the Licensee agrees to adhere to the following requirements:

API Application Logo consists of the following design mark:
http://api.researchadvanced.com/images/aers_logo_114x36.gif
Always use only the approved API Application Logo as shown in 1 above.
Minimum size requirements refers to the smallest size the API Application Logo may be reproduced and still remain legible. The minimum size shall be approved in advance by AERS on a case by case basis. The API Application Logo may be adjusted to meet the nature of the particular media used provided AERS approves such adjustment in advance.
Clear space requirements refers to the required space around the API Application Logo that shall be free of other logos, symbols or text. The clear space shall be approved in advance by AERS on a case by case basis.
Colour, Colour modes and File Formats for the API Application Logo shall be used as provided in electronic form by AERS.
The API Application Logo may be displayed with the Licensee's logo however such display does not constitute endorsement or sponsorship of the Licensee's products and or services and merely is displayed for the purposes of associating the API Application Logo with the development of a third party product using the AERS API and Analysis.
Allowed Placement of the API Applications Logo: on Licensee's website, on product developed from API and Analysis, on product demos, on event signage that mentions the product offering and on advertising mentioning the product offering.
Prohibited Placement of API Applications Logo: on Licensee business cards, on resumes, on products not created by API and or Analysis and on signage not mentioning product offering.
The API Application Logo shall be redrawn, redesigned or altered, nor may the colours, colour modes or file formats be altered or amended or reconfigured or add any shadows or recreated or rescaled or rotated or animated.
The ® or ™ shall not be removed from API Applications Logo.

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1.888.483.DATA (3282)

or by emailing us at: info@researchadvanced.com