1 AGREEMENT This Agreement (the "Agreement") is made between, (hereinafter "JEMIX") and (hereinafter ""). RECITALS WHEREAS, JEMIX is engaged in offering Internet-based online educational services and other financial services and benefits through payment platforms and stored value products, including but not limited to financial E-wallet products, prepaid debit cards and stored value cards approved by JEMIX's financial institutional processors, together with any and all other services or program offerings JEMIX may in the future make available (collectively, the "Programs" as more specifically defined in Section 1 hereof); WHEREAS, JEMIX has developed associations with education, banks, processors, networks, and affiliates in offering Programs administrated by JEMIX (collectively, the "Partners" as more specifically defined in Section1hereof); WHEREAS, desires to market, promote and sell customers, clients and/or other individuals (collectively the "Prospective Customers" as further defined in Section 1 hereof) and the opportunity to participate in one or more of the Programs offered by JEMIX and subject to the terms and conditions of this Agreement; and WHEREAS, Prospective Customers who have entered into a fully executed client agreement (hereinafter "Client Agreement" as further defined in Section 1 hereof) with JEMIX shall be deemed a client (hereinafter "Client" as further defined in Section 1 hereof); and NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual promises and conditions contained herein, and in reliance on and subject to the terms, conditions, covenants and limitations contained herein, the parties agree as follows: SECTION I DEFINITIONS The following definitions shall have the following meanings in this Agreement (such meanings to be equally applicable to both the singular and plural forms of the terms defined): "Account" shall mean (i) a formal contractual relationship established to provide services, and (ii) a record or narrative description of financial events which shall include, but not be limited to a statement of recent transactions and the resulting balance, account status, etc.. "Account Holder" shall mean a Client Customer that accepts an approved Account from JEMIX. "ACH" (Automated Clearing House) shall mean the nationwide batch-oriented electronic funds transfer system governed by the NACHA operating rules which provide for the interbank clearing of electronic payments for participating depository financial institutions. "ACH Reversal" shall mean a request to the Bank to cancel out a previously- submitted ACH transaction
2 "Amendment" shall mean any change or amendment to the Agreement, fully executed by both JEMIX and. "ASP" (Application Software Provider) shall mean software-based services and solutions distributed from a central data base center to customers via the Internet. "Bank" shall mean the financial institutional and/or processor providing banking solutions, including but not limited to SVCP's and/or EPP's. "Client" shall mean any person, business or entity that has entered into a Client Agreement. "Client Agreement" shall mean an exclusive agreement defining the terms and conditions of the business relationship between JEMIX and Client. "Client Customer" shall mean accounts, clients, customers and other individuals doing business with Client. "Commission" shall mean a Residual granted to for its promotion and sale of the Programs. "Contact" shall mean business relationships, associations and/or other business affiliations JEMIX has established, including but not limited to banks, processors, networks, strategic partners, software services, customers, customer lists, clients or client lists. "Electronic Payments" shall mean a method of making monetary payments via the Internet. "EPP" shall mean Electronic Payment Programs. "Exhibit" shall mean an attachment to the Agreement setting forth (i) additional information about the services offered, and/or (ii) additional terms to this Agreement. "Fee" shall mean any charge for any service provided. "FinCEN" shall mean the Financial Crimes Enforcement Network. "FX Rate" (Foreign Exchange Rate) shall mean the fee charge for one currency to be exchanged into another currency; also known as rate of exchange, exchange rate or currency exchange rate. Incentives shall mean any offering designed to increase the desirability of JEMIX offerings to its account holders and/or to increase the participation of account holders in the various offerings of the program. "Ineligible Customer" shall mean any individual, person, business, company or entity that is not allowed to contact or pursue to become a Client. "IPR" (Intellectual Property Rights) shall mean JEMIX's exclusive right to all copyright and other intellectual property, howsoever arising and in whatever media, whether or not registered, including (without limitation) ideas, logos, patents, trademarks, service marks, trade names, domain names, database rights, registered designs and any applications for the protection or registration of these rights and all renewals and extension thereof throughout the world. "Material Breach" shall mean (i) material non-compliance with the terms of the Agreement, or (ii) unauthorized usage of the JEMIX Marketing Materials. "NACHA" (National Automated Clearing House Association) shall mean the electronic payment association overseeing the ACH (Automated Clearing House) network.
3 "NDA" (Non-Disclosure Agreement) shall mean an agreement between two or more parties not to pass any shared information on to a third party (or any party not covered by the NDA). "JEMIX Marketing Materials" shall mean any promotional or distribution support materials offered to Prospective Customers, including but not limited to brochures, advertisements, web addresses and/or websites promoting JEMIX, the IPR's, the Programs or Partners. "JEMIX Software" shall mean any technical information, including but not limited to ideas, research, development, procedures, algorithms, software, software programs, software source codes and documents, hardware, network structure, data, designs sketches, drawings, models, inventions, know-how and formulae related to the current, future and proposed products and services software, including but not limited to the Payment Platform software. "Partner" shall mean any Educational Div., Bank, processor, network, affiliate or other third party providing services to JEMIX for the creation and/or maintenance of the Programs. "Payment Addendum" shall mean the addendum JEMIX and enter into defining the Residual for Prospective Customer(s) that enter into Client agreement(s). "Payment Platform" (also known as an ewallet), is a secure web -based user application (ASP) for (i) establishing online accounts, (ii) making personal and small business electronic payments in multiple government-issued currencies, (iii) exchanging currencies in real time, (iv) making and receiving web site payments, (v) issuing, receiving and paying electronic invoices, (vi) tracking transaction history, (vii) maintaining bank account references, and (viii) storing, managing and reporting data for Internet electronic financial transactions. "Program" shall mean any service provided by JEMIX, including but not limited to Education & Payment Platform, Electronic Payments, PAC or SVC's, and when required approved by a Partner. "Prospective Customer" shall mean (i) any eligible individual, person, customer or client, or (ii) any eligible business, company or entity is pursuing to become a Client. "Residual" shall mean the Commission may earn from any commissionable Program utilized by Account Holders. "Residual Statement" shall mean the monthly statement reporting the Residuals earned by. "Schedule" shall mean the attachment to the Payment Addendum that (i) defines the price, terms and conditions for the Programs offered to Client, and (ii) the Residual schedule for those Programs. "SVC" shall mean stored value cards (also known as prepaid debit cards) that are either physical (a plastic card) or Virtual. "SVC Active" shall mean stored value cards having a monetary balance. "SVC Non-Active" shall mean any SVC that does not have any money deposited to the SVC within the first ninety (90) days from the SVC Delivery Date. "SVCP" shall mean stored value card programs.
"Virtual SVC" shall mean a prepaid debit card consisting of an SVC number and expiration date issued (or usable) without a corresponding plastic SVC. The funds associated with the Virtual SVC can be accessed without the use of a plastic SVC. SECTION II S DUTIES JEMIX grants the non-exclusive right to represent the Programs. Commencing with the execution of the Agreement, agrees it will use its best efforts to promote, market and sell the Programs to Prospective Customers. is an independent contractor with JEMIX and is not an employee, partner or engaged in a joint venture with JEMIX. is operating at its own risk and expense and is free to exercise its own judgment as to the time, place and manner of performing the services in this Agreement. is solely responsible for its own actions and those of its employees, s and contractors. shall adhere to the highest standard of honesty, integrity, fair dealing and ethical conduct in all dealings with all Prospective Customers whom it solicits hereunder. agrees JEMIX may refuse to do business at any time with any person, business, entity or Prospective Customer whom JEMIX believes, in its sole discretion, is using the Programs for any illegal, fraudulent or improper purposes, and further agrees JEMIX shall not be held responsible or liable to any person, business, entity or Prospective Customer for any such refusal 4 shall notify JEMIX in writing within five (5) business days of the commencement of any material action, suit or proceeding, and of the issuance of any material order, writ, injunction award or decree of any court, agency or other governmental instrumentality, involving or any business conducted by. In the event elects to develop JEMIX Marketing Materials for the Programs is soliciting to Prospective Customers, shall bear all expenses relating thereto. JEMIX and Partners grant, effective the date of this Agreement, a revocable, royalty free, right to use the IPR's of JEMIX and JEMIX Partners, provided such IPR's shall be prominently displayed on all JEMIX Marketing Materials in a form and substance acceptable to JEMIX. acknowledges and agrees there is no substantial association between the operation of s business and any trademark, service mark, trade name, logotype, advertising or other commercial symbol designating JEMIX, or any Partners. shall have all JEMIX Marketing Materials approved by JEMIX in writing prior to the implementation of any/all JEMIX Marketing Materials. (A) Notwithstanding the above, any/all advertising or other marketing materials not promoting JEMIX or its Partners do not need to be approved. ACKNOWLEDGES AND AGREES THE IMPLEMENTATION OFANY/ALL JEMIX MARKETING MATERIALS BY WITHOUT JEMIX'S EXPRESS WRITTEN CONSENT SHALL BE A MATERIAL BREACH OF THE AGREEMENT AND, AT JEMIX'S SOLE DISCRETION, SHALL RESULT IN THE IMMEDIATE TERMINATION OF THE AGREEMENT.
5 JEMIX shall have the express right and may at any time notify to immediately cease using JEMIX Marketing Materials, including the use of JEMIX's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating JEMIX or any of JEMIX's Partners. unconditionally agrees to immediately comply with JEMIX's Notification. Notwithstanding the above, if JEMIX's notice to cease using JEMIX Marketing Materials is not a result of 's Material Breach of the Agreement, then JEMIX shall make a good faith effort to provide with as much advance notice as circumstance reasonably allow. agrees to refrain from any business or advertising practice which may be injurious to JEMIX's business and the goodwill associated with its IPR's. Prospective Customers. shall: (i) solicit and promote the Programs within the guidelines as set forth by JEMIX from time to time; (ii) regularly communicate with JEMIX to keep JEMIX apprised of Prospective Customer leads and lead responses; and (iii) disclose to JEMIX all material information on Prospective Customers. Prospective Customers shall not be considered customers of JEMIX and shall not solicit, sell or represent the Programs until such time as Prospective Customer has been approved by JEMIX as a Client and has entered into a fully executed Client Agreement with JEMIX. JEMIX retains the right to not enter into a Client Agreement with any Prospective Customer. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ANY PROSPECTIVE CUSTOMER UPON ENTERING INTO AN AGREEMENT WITH JEMIX SHALL BECOME A CLIENT. During the term of the Agreement and for a period of One (1) years thereafter, (i) JEMIX shall be 's exclusive provider of any Program offered by JEMIX, and (ii) agrees it shall be prohibited from promoting, marketing or selling any service that is the same or similar in nature to the Programs offered by JEMIX through any person, business, entity or third party provider, including but not limited to its own organization. will not directly or indirectly for his own account or as investor, representative, consultant, officer, director, partner, joint venture or otherwise, engage within the geographic area served by JEMIX, in any phase of the business in which JEMIX is engaged or otherwise compete with JEMIX and its products. is not authorized to execute any documents or enter into any agreement in the name of or on the behalf of JEMIX, or to make any representation or assume any commitment or liability of any kind, or otherwise commit or bind JEMIX to any contract or other legal obligation, or alter or limit any term, condition or provision of any JEMIX agreement, except as specifically authorized in writing by JEMIX. acknowledges and agrees the Programs are a valuable asset of JEMIX and any unauthorized use (as defined herein) will cause JEMIX irreparable harm and loss. agrees (i) not to adapt, duplicate, copy, recreate, reverse engineer and/or assimilate the services and Programs for use by or any third party; (ii) to exercise the highest degree of care in safeguarding the Programs against loss, theft, or inadvertent or purposeful transfer or disclosure of the Programs to any third party; and (iii) to exercise the highest degree of care in the allowed dealings may have with any Partner or in the authorized usage of the Programs by, directly or indirectly or with any third party. Any acts inconsistent with the above shall constitute an unauthorized use.
6 Non-interference. During the term of this Agreement and for a period of three (1) years thereafter, unconditionally agrees it (i) will not disrupt, damage, impair, or interfere with JEMIX's contractual relationship with any Client, and (ii) will not alone or in combination with anyone, engage in, or assist others in the engagement in, efforts or activities, to do business with any existing customer, Client, Partner or Contact of JEMIX for (a) any reason related to JEMIX's business relationship, contract or future dealings with the parties, or (b) for purposes of engaging such parties to provide Programs directly to. Nothing in this provision reduces JEMIX's protection at law with respect to remedies to which it is entitled should engage in any actionable conduct, with respect to JEMIX's or JEMIX's Partners after the 1-year period herein referenced. recognizes in the event of an intentional violation of Section 2.12 of this Agreement, monetary damages would be inadequate to compensate JEMIX. Therefore, agrees and acknowledges any such violation or threatened violation by a party shall cause irreparable injury to JEMIX and, in addition to any other remedies that may be available in law, equity, or otherwise, JEMIX shall be entitled to obtain injunctive relief against the threatened breach or the actual breach without the necessity of proving actual damages. To the extent this Agreement, or JEMIX through this Agreement, imposes any requirements on how conducts its business, such requirements shall be no broader than necessary, to allow JEMIX in the exercise of its reasonable judgment to monitor s obligations under this Agreement. SECTION III TERM This Agreement shall be effective on the first date set forth above and shall continue in full force and effect for ONE (1) year and shall terminate on the date which is the first anniversary of the date first set forth above, unless earlier terminated by JEMIX as provided in Sections 2, 5, or 6 hereof, or by as provided in Section 5 hereof. Provided remains in compliance with the terms of this Agreement, the Agreement shall be renewable at the end of the current term for successive one (1) year terms, unless either party gives written notice of its intention not to renew thirty (30) days before the expiration of the current term. SECTION IV PAYMENT At the time Prospective Customer enters into a Client agreement, JEMIX agrees to concurrently enter into a Payment Addendum with. Residual Payment. Residuals shall be defined in the applicable Schedule of the Payment Addendum. It is understood and agreed by any Residual owed to shall be paid to out of monies actually received by JEMIX (i.e. a "paid on paid" arrangement). If for any reason JEMIX's Partners should decline to pay JEMIX, and such uncollected payment is specifically allocable to Residual(s) of 's Client(s), then JEMIX shall not be obligated
to pay for any Residual unless and until JEMIX receives such payment(s) from its Partner(s), at which point past due Residual(s) to shall become payable. Residual Statements will be issued by JEMIX to on the 20 th day of the current month for the preceding month Residuals earned. If for any reason JEMIX's Partners should decline to provide JEMIX with transactional activity for the previous months activity, then JEMIX shall not be obligated to provide with the Residual earned information in the proceedings months Residual Statement, with respect to such withheld Partners transactional information. At the time JEMIX receives past due and/or missing transactional activity, Residual earned shall then become reportable to in the Residual Statement for the month following the reporting of the past due or missing data. acknowledges and agrees any/all Residual shall earn is limited to and shall only be the Residual as defined in the applicable Payment Addendum(s). If this Agreement is terminated for any reason, shall be entitled to the Residuals as set forth and in the amounts defined in the Payment Addendum(s) for all Account Holders of each and ever)' Client under this Agreement and for as long as such Clients maintain Account Holders on JEMIX's Programs; 7 Unless otherwise agreed to in writing by the parties, the currency defined in the Agreement shall be U.S. Dollars. Events of Default SECTION V DEFAULT shall be in default under this Agreement immediately upon the happening of any of the following events: (i) failure by to pay any invoice, Fees or other charges arising under this Agreement when due; (ii) dissolution, termination of existence, insolvency on a balance sheet basis, or business failure of ; the commencement by of a voluntary case under the federal bankruptcy laws or under any law relating to insolvency or debtor's relief; the entry of a decree or order for relief against in an involuntary case under the federal bankruptcy laws or under any other applicable law relating to insolvency or debtor's relief; the appointment or the consent by to the appointment of receiver, trustee, or custodian of or of any of s property; or an assignment for the benefit of creditors by ; (iii) any misrepresentation or omission of a material fact made to JEMIX by any way connected with the Agreement; (iv) any actual or attempted assignment of this Agreement by in violation of Section 7.4; (v) the suspension of s business operations; or (vi) failure by to comply with or perform any other term, obligation, condition or covenant imposed upon or applicable to under this Agreement or any addendum hereto, including but not limited to the unauthorized use of the Programs. JEMIX shall be in default under this Agreement immediately upon the happening of any of the following events: (i) any misrepresentation or omission of a material fact made to by JEMIX in any report or other information provided to pursuant to this Agreement; (ii) the suspension of JEMIX's business operations; or (iii) failure by JEMIX to comply with or perform any other term, obligation, condition or covenant imposed upon or applicable to under this Agreement or any addendum hereto. In the event either party defaults or breaches any of the provisions of this Agreement, the defaulting party shall have the right to cure said default or breach within a thirty (30) day period after receiving written notice by the non-defaulting party of said default or breach. Notwithstanding Client's right to cure as set forth above, in this section, if is in default more than 3 times during the course of the Agreement, or more than twice in one 12-
8 month period, JEMIX, in its sole discretion, may exercise any of its remedies under this Agreement without giving the the opportunity to cure its default. The waiver by either party of any default or breach of any provision of this Agreement shall not be construed as a waiver of any subsequent default or breach of the same or any other provision, and failure to exercise any right arising from any default or breach hereunder shall not be deemed a waiver of such right, which may be exercised at any subsequent time. No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the party against whom the waiver is sought to be enforced and shall be effective only in the specific instance and for the specific purpose for which it was given. Remedies on Default. In the event of a default by a party under this Agreement or any addendum hereto that has not been cured within the thirty (30) days referred to in Section 5.1.3, or is not curable under that section, the non-defaulting party may, in its sole discretion, take the following step, which shall be in addition to and not in lieu of any and all other remedies and damages available for any and all breaches of this Agreement to which the non-defaulting party may be entitled to under applicable law, immediately upon giving written notice, terminate this Agreement in which event all obligations of the non-defaulting party and all rights of the defaulting party hereunder shall terminate. SECTION VI SUSPENSION AND TERMINATION JEMIX may, at its option and in its sole and absolute discretion, suspend any or all of 's rights under this Agreement. JEMIX may terminate this Agreement at any time, with or without cause, upon written notice to. Under no circumstances shall JEMIX be liable to for any loss, damage or liability incurred or suffered by as a result of the termination of this Agreement, including without limitation any consequential, incidental, indirect or special damages, including any damages for loss of use, profits, revenue or business. Upon the termination of the Agreement, agrees to immediately remove any of JEMIX's or Partner's IPR's from all of s JEMIX Marketing Materials. unconditionally agrees it will not in any form, manner, concept, or otherwise, represent itself as an of JEMIX or the Programs, nor will it associate its name with JEMIX or the Programs. shall return any/all manuals, brochures or any other written materials JEMIX may have provided and/or sold to. 's termination right pursuant to Section 5 shall be the exclusive means by which may terminate its obligations under the Agreement and shall be in lieu of any and all other termination rights otherwise available to at law. Any termination of the Agreement for whatever reason shall not affect any accrued rights of JEMIX, nor shall it affect the coming into force or continuance in force of any provision hereof which is express or by implication intended to continue in force on or after its termination. SECTION VII MISCELLANEOUS Entire Agreement. This Agreement executed herewith constitutes the entire, final and complete agreement and understanding of the parties regarding the subject matter hereof and supersedes and replaces (i) all prior negotiations,
(ii) all agreements proposed, (iii) all executed agreements, and (iv) any/all understandings heretofore made or existing by and between JEMIX and or their representatives with respect thereto. No Parol Agreements. Collateral. Verbal Agreements. No promises or other inducements or consideration and no oral understandings not contained in this Agreement have been exchanged or offered between the parties other than those contained, in writing, in this Agreement. Both parties enter this Agreement based only on those inducements and mutual promises set forth herein. Notwithstanding the above, if for any reason the name on the NDA is different in name, spelling, incorporation, nature, language or otherwise from, the parties expressly agree to be bound by the terms of the NDA and hereby waive any/all rights to dispute (i) the existence of the NDA, (ii) the terms of the NDA, or (iii) any intent not to enter into the NDA. During the term of the Agreement and for a period of three (1) years thereafter, the parties agree to be bound by the terms of the NDA. To the extent any term or provision of the NDA is inconsistent with or in direct conflict with any term of the Agreement, the Agreement shall supersede and control any such provision in the NDA to the extent of such direct conflict or inconsistency. 9 Amendments. This Agreement cannot be amended, changed nor modified for any reason whether oral or written unless such Amendment is in writing and signed by JEMIX and. Each Amendment shall be effective only in the specific instance and for the specific purpose of which it was given. Severability. Any provision of this Agreement which in any way contravenes the law of any country, state or province in which this Agreement is effective shall, in such country, state or province, as the case may be, to the extent of such contravention of law, be deemed severable and shall not affect any other provision herein or the validity hereof. Assignment. The rights and obligations of created under this Agreement may not be transferred, or assigned to a third party, or for the benefit of a third party, either directly or indirectly, without the prior written approval of JEMIX. JEMIX may transfer this agreement in its entirety to any entity not prohibited by law. No Solicitation. shall not during the period of its representation hereunder and for a period of twenty-four (24) months after termination for any reason solicit or attempt to induce, directly or indirectly, any employee, principle, contractor or Affiliate of JEMIX to accept employment or representation with a competitor of JEMIX or with any business or enterprise intending to compete with JEMIX. Use of Name. During the term of this Agreement, JEMIX may use s name for the purpose of advertising the services JEMIX provides to its customers, and may use JEMIX's name in representing the services. IPR. shall not use in any manner whatsoever any IPR or other copyrighted material, including but not limited to any contracts, agreements, JEMIX Marketing Materials, web sites or any other information is owned or has been created by JEMIX to conduct business, or has been provided by JEMIX in order for to do business with JEMIX, without the direct written permission of JEMIX. The shall notify JEMIX immediately if the becomes aware of any unauthorized use of the whole or any part of the IPR by any person, party, business or entity.
Association. There is no substantial association between the operation of 's business and any IPR, advertising or other commercial symbol designating JEMIX. Nothing in this Agreement creates a franchise relationship, fiduciary relationship, joint venture, or partnership relationship. Liability. JEMIX'S SOLE LIABILITY AND AGENJEMIX EXCLUSIVE REMEDY FOR ERROR, DELAY OR NONPAYMENT OCCURRING PURSUANT TO THIS AGREEMENT OR OTHER CLAIM, COST, LOSS, OR OTHER POTENTIAL OR ACTUAL EXPENSE THAT IN ANY WAY RELATES, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT, WHETHER AS THE RESULT OF JEMIX'S NEGLIGENCE, FAULT, OMISSION, OR NONPERFORMANCE, HUMAN, MECHANICAL OR ELECTRONIC ERROR, SHALL BE LIMITED TO THE TOTAL AMOUNT DUE TO FOR ANY RESIDUAL EARNED AND NOT PAID, OR ONE THOUSAND DOLLARS, WHICHEVER IS HIGHER. THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE NATURE OF THE CLAIM OR THE FORM OF THE ACTION EMPLOYED, WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE. JEMIX SHALL NOT BE LIABLE TO WHETHER BY BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR STATUTORY DUTY FOR ANY LOSS OF PROFIT, LOSS OF CONTRACT, LOSS OF BUSINESS OR GOODWILL OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. Disassemble. unconditionally agrees not to disassemble, decompile, or in any manner tamper with or alter or copy any JEMIX Software, including but not limited to Payment Platform software. agrees it will not divulge, disclose, make available to any third party whatsoever, make any use whatsoever, copy, or in any way replicate the JEMIX Software or allow any third party to do the same. Force Majeure. If an event or circumstance which would otherwise constitute or give rise to an Event of Default under this Agreement insofar as such event or circumstances relates to the failure or delay in the performance of this Agreement and to the extent said failures or delays are directly caused by circumstances beyond the parties control and occurring without either party's fault or negligence, including but not limited to the performance failure of suppliers, subcontractors, banks, networks or processors, it will not constitute an Event of Default, provided that as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other party prompt written notice with full details following the occurrence which gave rise to the failure or delay. Dates by which the performance obligations are to be met will be extended for a period of time equal to the time lost due to any delay so caused. War, strikes, floods, acts of God, acts of terrorism, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a default or breach of this Agreement. 7.12 Injunctive Relief. agrees (i) JEMIX is entitled to seek preliminary and permanent injunctive relief, without being required to show any irreparable harm or post any bond or security, as well as to seek ancillary compensatory and punitive damages, in any action brought by it to enforce the provisions of the Non-interference and Non-Disparagement covenants, and (ii) Section 7.15 herein with respect to arbitration procedures does not apply for preliminary or injunctive relief. Costs of Enforcement. If any fees or costs are incurred to enforce this Agreement, or if any suit or action is brought to enforce any provision of this Agreement, or for damages for the breach of any of the terms of this Agreement, the prevailing party shall be entitled, at trial and on appeal, if any, to reasonable attorney fees and costs as awarded by the court. 10
No Representation. acknowledges and agrees no representation or warranty has been made by JEMIX, its directors, officers, employees, shareholders, s or contractors regarding the effect upon s revenues or profits in the promoting and selling of JEMIX's Program. s services under this Agreement are not, in any way or within any geographical area, exclusive to ; has not relied upon any representation or warranty except those received in writing and contained herein and is relying solely upon his own investigation and that of his advisors; Indemnification. agrees to indemnify' and hold harmless JEMIX, its officers, employees, shareholders, s or contractors and assigns from and against any and all suits, claims, actions, losses, injuries, damages, liabilities, costs and expenses (including reasonable attorney's fees) arising out of or based on s negligence, default, or misconduct in Agreement, hereby waives any rule of construction of interpretation which would construe ambiguity in this contract against the drafter. Instead, to the extent any Court of law finds ambiguity in this Agreement, such ambiguity will be resolved through inquiry into the intent of the parties without presumption in favor of either party. 11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument. IN WITNESS WHEREOF, the parties have executed or caused to be executed this Agreement as of the date written above. of By: PTE LTD(Sinagpore) By: Date: Date: