Franchisee Terms & Conditions

Please read these Terms and Conditions (the “Terms”) carefully. This is a legal agreement between the entity named (“you” or “your”) on any order form that incorporates the Terms by reference (each an “Order Form”) and 10net Managed Solutions Ltd. (“10net”).

The Terms govern any: (i) hardware product; (ii) software as a service, platform as a service, or online application; (iii) content and content design recommendations; (iv) professional or custom services; (v) support and maintenance services; and/or (vi) any other products, services, deliverables and Intellectual Property (defined below) created, used or provided by 10net pursuant to an Order Form and all Intellectual Property Rights (defined below) in and to the foregoing, including any modifications, enhancements, improvements or derivative works (collectively, the “Products”). 

You acknowledge and agree that, while you are permitted to order the Products via an Order Form, nothing in the Terms or any Order Form shall be interpreted as making you a party to 10net’s agreement with your franchisor (the “Master Agreement”).

  1. Definitions. When used in the Terms, the following terms shall have the following meanings unless the context otherwise requires: 
    • “Client Data” means all data processed, stored, or transmitted through the Products or otherwise provided by you to 10net, including, but not limited to, (i) data, records, files, or Confidential Information, and (ii) all reports generated for or by you as a result of the provision or use of the Products, except to the extent such reports contain 10net Intellectual Property;
    • “Confidential Information” means any and all information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is not public information and that is marked “confidential” or “proprietary” or which the Receiving Party knows or ought reasonably to know is regarded by the Disclosing Party as such;
    • “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by 10net that describe the features, functionality or operation of the Products;
    • “Intellectual Property” means any information or materials, whether oral or recorded in any form or medium and whether or not capable of protection by patent, industrial design, trade secret, copyright, or trademark including, but not limited to, any process, machine, manufacture, composition of matter, technology, systems, software (including both Source Code (defined below) and object code), models, documentation, data, data-bases, data structures, techniques, methods, know-how, trade secrets, designs, kits, compositions of matter, formulae, photographs, drawings, plans, images, schematics, products, specifications, reports, studies, technology plans, research plans, technical procedural manuals, and any and all improvements or modifications to any of the foregoing;
    • “Intellectual Property Rights” means all intellectual and industrial property rights existing from time to time under any law, whether domestic or foreign, whether common law, civil code, commercial code or by statute or regulation including, without limiting the generality of subsections 1.d and 1.e, any rights provided under (1) patent law, (2) copyright law, (3) trade-mark law, (4) design patent or industrial design law or (5) any other statutory provision or common law principle applicable to the foregoing, including trade dress and trade secret law, which may provide a right;
    • “Personal Information” has the meaning given to it under the California Consumer Privacy Act, as same may be amended from time to time; and
    • “Source Code” means a series of instructions to the computer for carrying out the various tasks that are performed by any software that are in a human-readable programming language, including, but not limited to, all comments and any procedural code such as job control language.
  1. Term & Termination. The Terms shall commence as of the date of the first Order Form between you and 10net and shall continue until either (a) termination of the Master Agreement; or (b) termination of an Order Form in accordance with Section 3.
  1. Termination Rights. Without prejudice to any other rights or remedies which it may have, a party may terminate an Order Form if: (a) the other party materially breaches the terms of an Order Form or the Terms and such breach, if capable of being cured, remains uncured 30 days after receiving written notice of such breach; (b) the other party is declared insolvent or bankrupt; (c) a petition is filed in any court to declare the other party bankrupt or for a reorganization under bankruptcy law or any similar statute and such petition is not dismissed in 60 days; or (d) a trustee in bankruptcy or a receiver or similar entity is appointed for the other party.
  1. Effect of Termination. Upon termination or expiration of an Order Form, all rights granted herein in relation to the applicable Products shall revert to the granting party and all licenses shall hereby immediately and automatically terminate. All accrued rights to payment under such Order Form shall survive termination of such Order Form.
  1. Approved Equipment. You shall be responsible for obtaining, maintaining, and updating any equipment and ancillary services needed to connect to, access or otherwise use the Products, including, without limitation, the internet connectivity, hardware, servers, software, operating systems and other equipment designated as approved equipment in the Documentation (“Approved Equipment”). 10net shall not be responsible for any inability to access or use the Products resulting from such a failure to obtain, maintain, or update the Approved Equipment. For the avoidance of doubt, 10net may make improvements and modifications to the Products that enhance its functionality, performance, and/or security, provided that the Products continue to comply with the functional descriptions and requirements under the Documentation. You will, at your sole cost and expense, make any and all reasonably necessary upgrades, changes, or replacements to the Approved Equipment to ensure that you can, in 10net’s sole assessment, continue to securely access and use the Products, as improved or modified by 10net. Your failure to make the reasonably necessary upgrades, changes or replacements to the Approved Equipment may result in the partial or complete loss of connection, access or use of the Products. 10net reserves the right, in its sole and absolute discretion, to immediately suspend your connection, access or use of the Products if 10net suspects the continued connection, access or use of the Products on outdated equipment by you poses a security risk to 10net or its customers, suppliers or affiliates. 
  1. Usage Restrictions. Except as expressly permitted in writing by 10net, in advance, you shall not and shall not authorize any third party to: (i) reverse engineer, decompile, disassemble decode, adapt, or otherwise attempt to discover or derive or gain access to the Source Code, whether by converting, translating, decompiling, disassembling or otherwise, or the underlying structure, ideas or algorithms of the Products; (ii) copy or duplicate the Products or modify, translate, adapt, or create derivative works based on the Products; (iii) rent, lease, lend, distribute, license, sublicense, resell, pledge, grant a security interest in, assign or otherwise transfer, provide access to or encumber rights to the Products or Documentation or use the Products or Documentation in any service bureau or time sharing arrangement, or facility management or other arrangement where you utilize the Products or Documentation for the benefit of a third party; (iv) bypass or breach any security device or protection used or contained in the Products or Documentation, including, but not limited to, any licensing restrictions; (v) attempt to gain unauthorized access to any portion of the Products or its related systems or networks; (vi) use the Products in a manner that interferes with or disrupts the integrity or performance of the Products; (vii) probe, scan or attempt to penetrate or ascertain the security of the Products in any manner; (viii) use any data mining, robots or similar data gathering or extraction methods in connection with the Products; (ix) use the Products to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of 10net or any third party; (x) use the Products to upload, collect, transmit, store, use or process, or ask 10net to obtain from third parties, any data: (A) that you do not have the lawful right to copy, transmit, distribute and display (including any Client Data that would violate any confidentiality or fiduciary obligations that you might have with respect to the Client Data); (B) for which you do not have the consent or permission from the owner of any Personal Information contained therein; (C) that infringes, misappropriates or otherwise violates any Intellectual Property Rights or other proprietary rights of any third party; (D) that is tortious, defamatory, obscene or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability; (xi) remove, delete, alter, obscure, or otherwise change any trademark notices or other proprietary symbols or notices on or relating to the Products or any copy of the Documentation; (xii) enter or manipulate data or information within any database underlying the Products other than via the permitted methods in the Products; (xiii) use the Products for benchmarking or competitive analysis, for the purposes of developing, using, or providing a competing product or service, or for any purpose not authorized by the Terms or that is to 10net’s detriment or commercial disadvantage; or (xiv) use the Products other than as permitted by the Terms.
  1. Retention of Rights. Excluding at all times Client Data and Client Intellectual Property: (i) 10net retains all right, title, and interest in and to the Products and any and all Intellectual Property contained therein or produced, created, conceived, developed, or reduced to practice by 10net, you, or any of your agents, employees, or contractors while 10net is providing the Products to you and any and all Intellectual Property Rights related to any of the foregoing; and (ii) you acknowledge that nothing contained in the Terms shall constitute an assignment or transfer of any Product to you. Excluding at all times Client Data and Client Intellectual Property, to the extent that the you obtain ownership of any Intellectual Property Rights in any Products or any of Intellectual Property contained therein, you hereby assign to 10net any and all right, title and interest you might have in and to any such Products and any and all Intellectual Property therein and any and all Intellectual Property Rights related thereto.
  1. Disclaimer. THE PRODUCTS ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. 10NET HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY WARRANTIES WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, CURRENCY, COMPLETENESS, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. 10NET DOES NOT WARRANT THAT THE PRODUCTS SHALL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR WILL MEET YOUR REQUIREMENTS, AND 10NET EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO YOU IN CONNECTION WITH YOUR USE OF THE PRODUCTS IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON FOR ANY PURPOSE WHATSOEVER.
  1. Limitation of Liability. IN NO EVENT SHALL A PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS, WHETHER ARISING UNDER THE TERMS, AND/OR THE MASTER AGREEMENT BETWEEN 10NET AND YOUR FRANCHISOR, AND/OR 10NET’S AGREEMENT WITH ANY OTHER FRANCHISEE OF YOUR FRANCHISOR, IN AGGREGATE, EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE; OR (II) $250,000. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE TERMS, AND/OR THE MASTER AGREEMENT BETWEEN 10NET AND YOUR FRANCHISOR, AND/OR 10NET’S AGREEMENT WITH ANY OTHER FRANCHISEE OF YOUR FRANCHISOR, SHALL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. FOR GREATER CERTAINTY, THIS IS A SINGLE, CUMULATIVE CAP ACROSS ALL AGREEMENTS AND ALL CLAIMS, AND THE EXISTENCE OF MULTIPLE AGREEMENTS OR MULTIPLE CLAIMS SHALL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. FOR GREATER CERTAINTY, YOU ACKNOWLEDGE AND AGREE THAT YOUR FRANCHISOR SHALL HAVE PRIORITY IN THE ALLOCATION OF ANY AMOUNTS RECOVERABLE UNDER THE AGGREGATE LIABILITY CAP SET OUT IN THIS SECTION 9, AND AMOUNTS PAYABLE IN RESPECT OF CLAIMS SHALL BE SATISFIED ONLY FROM ANY REMAINING PORTION OF THE CAP, IF ANY. IN NO EVENT WILL 10NET’S AGGREGATE LIABILITY EXCEED THE MAXIMUM AMOUNT SPECIFIED IN THIS SECTION 9. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE TERMS, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL 10NET BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS. YOU AGREE THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THE TERMS, YOU HEREBY GIVE UP YOUR RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE. THE PROVISIONS OF THIS SECTION 9 SHALL NOT APPLY TO: (W) ANY INDEMNITY OBLIGATION OF A PARTY UNDER THE TERMS; (X) CLAIMS FOR FEES OWED TO 10NET UNDER THE TERMS AND ANY REASONABLE DIRECT COST, EXPENSE OR FEES INCURRED IN COLLECTION; (Y) LOSSES ARISING AS A RESULT OF A PARTY’S GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR OMISSION OR FRAUD; OR (Z) LOSSES ARISING AS A RESULT OF YOUR BREACH OF THE OBLIGATIONS SET OUT IN SECTION 5.
  1. Client Indemnity. You shall defend, indemnify and hold 10net its affiliates, and their respective officers, directors, employees, and agents (“10net Indemnified Parties“) harmless from and against all third party claims, suits, demands, or actions, and shall indemnify the 10net Indemnified Parties against all costs, expenses, and resulting damages awarded (including reasonable attorneys’ fees) to the extent arising from: (i) a claim that the Client Data infringes any Intellectual Property Right of a third party or any other third party right; provided that, your liability in such circumstances shall be, in addition to your indemnification obligations; (ii) your use of any Product in a manner expressly prohibited under the Terms or the applicable Documentation; (iii) your grossly negligent, willful misconduct or fraudulent action or omission, or those of your subcontractors, employees, agents, affiliates, assigns, independent contractors, officers, directors or principals in connection with the performance of their obligations under the Terms; (iv) the breach of any of the representations, warranties or agreements made by you hereunder; and (v) any non-compliance with laws, ordinances, rules or regulations applicable to you. 
  1. Confidentiality Obligation. The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in strict confidence, (ii) to limit access to the Disclosing Party’s Confidential Information to those of its employees, contractors or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (iii) not to use the Disclosing Party’s Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the Receiving Party shall not be in violation of this Section 11 with regard to a disclosure that was in response to a valid court order, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure, to the extent permitted by law, sufficient to permit the Disclosing Party to seek confidential treatment of such Confidential Information and Receiving Party limits such disclosure to only what is strictly necessary to comply with such order. The restrictions on use and disclosure of Confidential Information set forth herein shall not apply to any Confidential Information, or portion thereof, which (i) is or becomes a part of the public domain through no act or omission of the Receiving Party, (ii) was in the Receiving Party’s lawful possession prior to the disclosure, as shown by the Receiving Party’s written records, (iii) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information, as shown by the Receiving Party’s written records, or (iv) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure. The Receiving Party acknowledges that any violation of the provisions of this Section 11 may cause irreparable harm to the Disclosing Party not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief may be sought without necessity of posting bond to prevent any actual or threatened violation of such provisions. Within 30 days of any termination or expiry of the Terms, upon instruction by the Disclosing Party, a Receiving Party shall return to the Disclosing Party or destroy (at the discretion of the Disclosing Party), all Confidential Information and Personal Information of the Disclosing Party, provided that if the Receiving Party has not received any instructions within 30 days it may elect, with 10 days’ written notice to the Disclosing Party, to delete any such Confidential Information or Personal Information which it has in its custody or control. For clarity, the foregoing does not limit the right of either party to retain such information as required by law or as permitted under the Terms.
  1. Notices. All notices, demands, consents, authorizations, approvals and other communications under the Terms must be given in writing to: (i) you at the address listed on the Order Form; and (ii) 10net at the following address: 10net Managed Solutions Ltd., 315 Mansfield Pl, North Vancouver, BC V7J 1E4; Attention: Trevor Nuttall; Email: trevor.nuttall@10net.net. Notices shall be deemed to have been given upon receipt (or when delivery is refused) and may be (1) delivered personally, (2) sent via certified mail (return receipt requested); (3) sent via electronic mail (with confirmation of receipt; provided however that a read receipt or automatic reply shall not constitute written acknowledgment), or (4) sent by recognized air courier service. A party may change its address for notice under the Terms by giving written notice to the other party by the means set forth in this Section 12.
  2. Miscellaneous Terms. Unless otherwise expressly provided for in the Terms, no rights or licenses to any data, information, technology, trademarks or any other item containing the Intellectual Property of a party or any third party are granted by virtue of the Terms. If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is prevented by reason of any circumstances beyond a party’s reasonable control, including, but not limited to, acts of God, labor strikes and other labor disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the impacted party shall be excused from such performance to the extent necessary. Each party shall use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non-performance. Neither party shall be permitted to assign the Terms without the consent of the other party, which consent shall not be unreasonably withheld, delayed, or conditioned. Notwithstanding the foregoing, a party may assign the Terms at any time, without the other party’s consent, in connection with a merger, amalgamation, transfer of control, reorganization or sale of all or substantially all of its assets or equity interests. 10net and your franchisor may amend the Master Agreement from time to time. 10net reserves the right to amend the Terms at any time in connection with any amendments to the Master Agreement by providing notice to you. In the event that any provisions of the Terms shall be found to be illegal, void or unenforceable, that provision shall be enforced to the maximum extent permissible and the remainder of the Terms shall remain in full force and effect. Any waiver or failure to enforce any provision of the Terms on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The Parties are independent contractors. No agency, partnership, joint venture or employment relationship is created as a result of the Terms, and neither party has any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other party’s name or on its behalf.
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