TERMS AND CONDITIONS

Version 2.0 — May 15, 2026

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INTRODUCTION

These Terms and Conditions are an agreement made between KANARY INC, a Florida S-Corporation located at 950 Brickell Bay Drive #5011 Miami, FL 33131 ("Kanary"), and the party that submits a Purchase Order for Services from Kanary, as identified in such Purchase Order (the "Client"), each sometimes referred to herein individually as a "Party" and collectively as the "Parties." These Terms and Conditions are effective as of the date that the Client accepts them through the submission of the Purchase Order that is followed by confirmation of acceptance from Kanary through an Invoice (the "Effective Date").

These Terms and Conditions are fully incorporated into the specific Purchase Order that describes the Services the Client is buying along with related fees, and in any Invoice applicable to such Purchase Order, unless expressly amended, superseded, or excluded by or from any such Invoice presented by Kanary. These Terms and Conditions do not apply to other services that may be agreed on between the Parties through Kanary's DLP branch, which are not part of the Services and shall be governed by separate written agreements. All capitalized terms are as defined herein.

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RECITALS

Kanary specializes in providing sourcing, logistics, and quality control services to businesses.

Client is in the business of ecommerce and requires services that Kanary provides.

The Parties hereby agree that the Services that Client will order from Kanary and that Kanary will provide to Client will be subject to these Terms and Conditions.

These Terms and Conditions are agreed to in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and incorporating the summary set forth above.

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DEFINITIONS

The following terms referenced in these Terms and Conditions have the following meanings:

1. "Accept" or "Acceptance" means a written notification of acceptance by Client to Kanary upon inspection of the results of the Services, or a failure to Reject within the period set forth herein.
2. "Applicable Law" means all foreign, federal, state, and local laws and regulations, applicable to the activities of any Party described herein, including, without limitation those that may affect the provision of Services or the Client's business.
3. "Client Indemnitees" means Client and its directors, officers, employees, representatives, contractors and agents, and each of their respective successors, heirs and assigns.
4. "Client Property" means all tangible property, including but not limited to Intellectual Property, goods, equipment, documents, designs, spreadsheets, notes, disks, text, artwork, computer software, and similar property, that is developed or acquired by Client exclusively at its own expense, and provided to Kanary by Client.
5. "Confidential Information" means any Party's proprietary information and data, Intellectual Property, as well as any other non-public information or material regarding such Party's legal or business affairs, vendors, suppliers, contacts, finances, customers, properties, or data, which is clearly marked as "Confidential" or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (ii) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who did not receive it, directly or indirectly, from the Disclosing Party.
6. "Disclosing Party" means the Party disclosing the Confidential Information.

7. "Effective Date" has the meaning ascribed to it in the Introduction.
8. "Feedback" means ideas, advice, recommendations, suggestions, enhancement requests, feedback or proposals provided by either Party to the other related to the Services.
9. "Force Majeure Event" means, with respect to a Party, any events beyond that Party's control and occurring without that Party's fault or negligence, including, but not limited to, acts of God, epidemics, pandemics, acts of government, flood, internet outages, fire, civil unrest, acts of terror, strikes or other labor problems (other than those labor problems involving Kanary's or Client's employees, respectively), supply chain disruptions, Vendor failures, government shutdown, and changes to Applicable Law.
10. "Indemnified Party" means a Party claiming indemnification from the other Party.
11. "Indemnifying Party" means a Party from whom the other Party is claiming indemnification.
12. "Intellectual Property" means all concepts, inventions (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, publicity rights, names, likenesses, know-how, ideas (whether or not protected under trade secret laws), and all other subject matter protected under patent (or which is not patented, but is subject matter that is protected under patent law), copyright, derivative work, mask work, trademark, trade secret, or other laws, whether existing now or in the future, whether statutory or common law, in any jurisdiction in the world, for all media now known or later developed, including without limitation all new or useful art, combinations, discoveries, formulae, algorithms, specifications, manufacturing techniques, technical developments, systems, computer architecture, artwork, software, derivative work, programming, applets, scripts, designs, processes, and methods of doing business. "Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under the law of any country, or under any treaty.
13. "Invoice" means any written document requesting and summarizing the payments due by Client to Kanary for the Services provided or to be provided pursuant to the Purchase Order, as may be amended and supplemented from time to time, which is sent by Kanary to the Client following the submission of the Purchase Order and which shall be deemed a part of the Purchase Order.
14. "Kanary Indemnitees" means Kanary and its directors, officers, employees, representatives, contractors and agents, and each of their respective successors, heirs and assigns.

15. "Losses" means any liability, damage, loss, or expense (including reasonable attorneys' fees and expenses of litigation).
16. "Notice" means written notification addressed to the individual, or its successors, signing these Terms and Conditions at the address the other Party has on record, that is (i) delivered by hand; (ii) sent by traceable nationwide parcel delivery service, overnight or next business day service; (iii) sent by certified United States mail; or (iv) is emailed. Properly mailed Notice will be deemed given three (3) days after the date of mailing, and any other Notice will be deemed made when received. A Party may change its address for notice purposes by providing Notice of such change to the other Party. Notwithstanding the foregoing, day-to-day communications and notifications under these Terms and Conditions (excluding notices of default, renewal, termination and indemnification) may be made through other means, including through email.
17. "Person" means a natural person or legal person such as a corporation, LLC or other business entity created by statute or law.
18. "Purchase Order" means the specific request for Services that is submitted by Client to Kanary.
19. "Receiving Party" means the Party to which the Confidential Information is disclosed.
20. "Reject" or "Rejection" means a written notification of rejection by Client to Kanary upon inspection of the results of the Services, due to noncompliance identified by Client.
21. "Services" means the services provided by Kanary under and specifically identified in the Purchase Order agreed to between the Parties, and all Invoices related thereto, which services shall include but not be limited to, the sourcing, ordering and arranging for the shipping of products on behalf of Client, and any due diligence related thereto.
22. "Term" means the period beginning on the Effective Date and continuing until either the final Acceptance of the Services, or the termination of the Services, as applicable; provided that all provisions in these Terms and Conditions that by their terms survive such date shall so survive.
23. "Vendor" means an outside supplier, manufacturer, or other third party with which Kanary engages on behalf of Client in support of the provision of the Services.

TERMS OF SERVICE

1. SERVICES

1.1 Performance. Subject to these Terms and Conditions, Kanary shall provide the Services as described in the Purchase Order in accordance with industry standards. The Parties shall perform their respective obligations as set forth in the Purchase Order and these Terms and Conditions, and shall cooperate with and support the other Party's performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other Party. Kanary is responsible for delivering and performing only those Services specifically identified in the Purchase Order; provided, however, that in the event that the Parties mutually agree to revisions to the Purchase Order, such revisions shall be documented in an amended Purchase Order or subsequent Invoice sent by Kanary to Client.

1.2 Lead Times and Delays. When a part of the Services involves arranging third-party manufacturing on behalf of Client, Kanary shall give estimated lead times to Client for each purchase from. If there are delays, Kanary will notify Client within a reasonable period after receipt of such delay information from the manufacturer. When a part of the Services involves arranging shipping from a third-party on behalf of the Client, Kanary will notify Client of estimated lead times before the shipments depart from their location. Any shipping delays that Kanary is aware of before it places an order on behalf of Client shall be communicated to Client before the order is placed. Any delays that Kanary is made aware of after an order is placed on behalf of Client shall be communicated to Client within a reasonable period following Kanary's receipt of such information.

1.3 Quality Control. After the products are received by Kanary (and otherwise if the Purchase Order is specifically for Quality Control Services), Kanary will inspect the products to ensure there are no visible product or packaging defects. Any defects detected by Kanary shall be reported to Client with accompanying pictures or videos of the defective products. Kanary shall then work with the supplier to replace any defects. Kanary shall use commercially reasonable efforts to renegotiate pricing with the supplier on future orders to compensate for defects. For the avoidance of doubt, any quality control performed as part of the Services shall be limited to the identification of physical defects as compared to the Purchase Order, and shall not include any legal or regulatory review of product specifications.

1.4 Client Delays. Both Parties acknowledge and agree that prompt and timely performance is important for Kanary to fulfill its obligations hereunder. Furthermore, the Parties acknowledge that Client's failure to timely perform its material obligations may adversely affect Kanary's ability to meet its performance obligations hereunder and the Parties hereby agree to negotiate in good faith to arrive at an equitable adjustment to the terms of the Purchase Order to compensate Kanary for such additional effort and costs directly caused by the Client's delay or failure to perform.

1.5 Client Insurance Obligations. From the Effective Date and for a period of three (3) years after the completion of the Term, Client shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers that includes, but is not limited to, commercial general liability and products liability coverage, which insurance covers Client's business activities that involve Kanary in any respect. Upon Kanary's request, Client shall provide Kanary with a certificate of insurance from Client's insurer evidencing the insurance coverage specified in these Terms and Conditions. The certificate of insurance shall name Kanary as an additional insured. Client shall provide Kanary with thirty (30) days' advance written notice in the event of a cancellation or material change in Client's insurance policy. Except where prohibited by law, Client shall require its insurer to waive all rights of subrogation against Kanary's insurers and Kanary.

11.6 Acceptance. If the Services involve the receipt of products, Client shall have thirty (30) days from receipt of the products to determine whether they comply in all material respects with the requirements of the Purchase Order. Upon inspection of the products, Client shall notify Kanary of its Acceptance or Rejection of the Services. A Rejection must be based on material nonconformance. If Rejecting, Client shall send a Rejection notification with accompanying pictures or videos of the defects and a written list of items that must be corrected to Kanary. On receipt of Client's notice, Kanary shall promptly commence all reasonable efforts to promptly cure such necessary corrections, repairs and modifications to the Services to bring them into full compliance with the Purchase Order. In the event Client does not deliver a Rejection notice to Kanary within the foregoing thirty (30) day period, Client is deemed to have Accepted the Services. If any corrective measures are required by Kanary, upon its completion of all such measures, Kanary shall notify Client in writing and the process set forth in this paragraph shall be repeated; provided that in all cases, Kanary shall be deemed to have substantially performed the Services if Kanary has fulfilled the essential purpose of the Services, even with minor, non-material deviations. If Kanary determines that any nonconformance may not be repaired, Kanary may terminate the Services under the Purchase Order, and the amounts owing after termination shall be adjusted to reflect the portion of the Services that was substantially performed. Without limiting the foregoing, in the event that Client Rejects any Services that materially comply with the Purchase Order, or otherwise Rejects or terminates the Services in bad faith, Client shall indemnify Kanary from any damages, including but not limited to, the full amount payable under the Purchase Order and the attorney's fees and court costs that result from Client's Rejection of the Services.

1.7 Force Majeure. If a Force Majeure Event prevents a Party from complying with any one or more obligations under these Terms and Conditions, that inability to comply will not constitute breach if (i) that Party uses reasonable efforts to perform those obligations; (ii) that Party's inability to perform those obligations is not due to its failure to (a) take reasonable measures to protect itself against events or circumstances of the same type as that Force Majeure Event, or (b) develop and maintain a reasonable contingency plan to respond to events or circumstances of the same type as that Force Majeure Event, and (c) that Party complies with all other obligations of these Terms and Conditions. During a Force Majeure Event, the noncomplying Party shall use reasonable efforts to limit damages to the other Party and to resume its performance under these Terms and Conditions.

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2. FEES

2.1 Fees. The Client shall pay the fees for the Services ordered that are set forth in the Purchase Order and in the Invoices, including, without limitation, any schedules incorporated therein. In addition, the following fees shall also apply, unless otherwise agreed to between the Parties in writing.

2.2 Vendor Fees. If Kanary engages with Vendors in connection with the Services, Kanary shall pay the Vendors directly for any orders placed on Client's behalf in connection with the Services.

2.3 Shipping Insurance. Kanary will purchase shipping and ocean/rail or cargo insurance on behalf of Client at Client's expense. Kanary will provide the insurance details after the payments have been made. If air shipments require insurance, Client shall notify Kanary prior to the shipment of any products. For ocean/rail freight insurance, there is a one-time set up fee of one thousand five hundred dollars ($1,500.00) and a container fee of seven hundred and fifty dollars ($750) per container fee for each shipment. These fees shall be paid to Kanary with the freight fees. There are no fees to pay to Kanary for air shipments.

2.4 Freight Fees. For ocean freight costs, payments are due to Kanary once the shipment has departed, or as Client is otherwise notified by Kanary. Air freight payments will be paid from Client to Kanary after the purchase invoices have been paid by Kanary. Air freight payments are due upon invoice by Kanary to Client.

2.5 Taxes. All customs, duties or other taxes levied on Client's goods for the importation thereof shall either be paid by Client directly to the tax levying body (for example, Customs and Border Protection), or, at Kanary's discretion, Kanary may pay the customs, duties and other taxes on behalf of Client and charge them to Client. All reimbursements to Kanary for such fees are due upon invoice.

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3.TERM AND TERMINATION

3.1 Term. These Terms and Conditions shall remain effective between the Parties for the duration of the Term; provided that following any Acceptance or termination of the Purchase Order, any surviving rights and obligations between the Parties shall so survive.

3.2 Termination of the Purchase Order. Either Party may terminate the Services if (i) the other Party defaults in performance of any material provision of the Purchase Order, Invoices, or these Terms and Conditions, and such default is not cured within a period of thirty (30) days following Notice describing the specific default in reasonable detail (including, without limitation, failure of Client to pay any deposit or other undisputed fees set forth in the Invoice once due); (ii) the other Party files a voluntary petition in bankruptcy or an involuntary petition is filed against it which is not dismissed within sixty (60) days; (iii) the other Party is adjudged bankrupt; (iv) a court assumes jurisdiction of the assets of any Party under a federal reorganization act or other statute; (v) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of any Party; (vi) any Party becomes insolvent, suspends business or ceases to conduct its business in the ordinary course; and (viii) any Party makes a general assignment of its assets for the benefit of its creditors. The Services may also be terminated if the Services are Rejected by Client or terminated by Kanary for any reason permitted hereunder, through the process set forth herein.

3.3 Effect of Termination or Expiration. Upon any termination of the Purchase Order for any reason or upon the final Acceptance of the Purchase Order (whichever occurs): (i) the Services will be deemed completed as of the effective date of termination; and (ii) Client will pay to Kanary all sums due to Kanary for Services through the effective date of such termination in accordance with the processes set forth in the Invoices. The Client expressly acknowledges and agrees that certain fees, including all deposits, are non-refundable, as set forth in the Invoices.

3.4 Confidential Information following Termination or Expiration. Following the completion of the Term, each Party shall, at the other Party's option and upon its written request: (i) promptly return or destroy and erase from all systems it directly or indirectly uses or controls, all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate or are based on a Party's Confidential Information; and (ii) provide a written statement to the disclosing Party certifying that it has complied with the requirements of this Section 3.4.

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‍4. CONFIDENTIAL INFORMATION AND RESTRICTIVE COVENANTS

4.1 Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any Confidential Information disclosed by the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party's performance of these Terms and Conditions; (ii) restrict disclosure of such Confidential Information within the Receiving Party's and its Affiliates' organizations to only those of the Receiving Party's and its Affiliates' employees, advisors and contractors who have a need to know such Confidential Information in connection with the Receiving Party's performance of these Terms and Conditions; and (iii) not disclose such Confidential Information to any Third Party (other than its advisors and contractors) unless authorized in writing by the Disclosing Party to do so or as required by law, governmental body regulation or court order.

4.2 Protection of Confidential Information. The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own Confidential Information (but no less than a reasonable degree of care) unless a higher standard of care is mandated by Applicable Law.

4.3 Required Disclosures. If a Party is requested to disclose any of the other Party's Confidential Information pursuant to any judicial or governmental order, that Party will not disclose the Confidential Information without first giving the other Party written notice of the request and sufficient opportunity (as possible) to contest the order, to the extent such notice and opportunity to contest may be lawfully given.

4.4 Ownership. These Terms and Conditions do not confer to Kanary a license in, ownership of, or interest in Client Property. Client Property, and all right, title, and interest in and to it, is and will remain the exclusive property of Client, including all Intellectual Property rights contained therein. Any product, idea or expression that is the result of the Services constitutes a "work made for hire," as that term is defined in Section 101 of Title 17 of the United States Code. Kanary will not use any Confidential Information disclosed by Client to Kanary in connection with these Terms and Conditions to contest the validity of any Intellectual Property rights of Client or its licensors. Any such use of Client's Confidential Information will constitute a material, non-curable breach of these Terms and Conditions. Any Feedback, by their receipt, grants the receiver a royalty free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to commercialize, use and incorporate such Feedback as it deems necessary or desirable in its business. As between Kanary and Client, Client retains all right, title and ownership rights to its Confidential Information. Client hereby grants to Kanary a limited, revocable, non-sub-licensable right and license to the Confidential Information for the purpose of performing the Services; provided, however, that such rights shall immediately terminate and be of no further force or effect upon the completion of the Term.

4.5 Pre-Existing Client Property. Kanary acknowledges and agrees that Client owns all right, title and interest to the Client Property. Kanary agrees to deliver the Client Property back to Client promptly upon Client's request, but in any event, after Kanary is finished using the Client Property in performing its obligations under these Terms and Conditions. Nothing in the foregoing shall be deemed to limit any of Kanary's rights relating to Intellectual Property that it creates or develops without the use of Client's Confidential Information and at its sole cost and expense.

‍4.6 Non-Solicitation. From the Effective Date and for a period of two (2) years after the completion of the Term (the "Restrictive Period"), neither Party shall: (i) solicit, cause any other person to solicit, or assist any other Person in soliciting, the employment or engagement of any Person who was, at the time of such solicitation, or who was within 180 days of such solicitation, an officer or employee of the other Party or any of the other Party's affiliates; (ii) hire or otherwise engage the services of any officer or employee or former officer or employee of the other Party or any of its affiliates; (iii) solicit, entice, persuade, induce, contact or otherwise discuss with any Person, who at any time during the period of the engagement with Kanary is an employee of the other Party or any of the other Party's affiliates, to terminate, reduce or refrain from renewing or extending their relationship with the other Party (or any of its subsidiaries or affiliates), or to become a customer or client of or enter into any contractual or other relationship with the soliciting Party or any third party for the provision of any goods or services of any type similar to or competitive with any provided by or through the other Party or its affiliates; or (iv) approach any such Person for such purpose or authorize to cooperate with the taking of any such action by any third party.

4.7 Non-Circumvention. Without limiting any other terms of these Terms and Conditions in any manner, Client acknowledges and agrees that any affiliation or relationship that Client has with any person, entity, or party who provides services on behalf of Kanary pursuant to these Terms and Conditions shall exist and be managed exclusively through Kanary. Client covenants and agrees that throughout the Restrictive Period it (a) will not participate with, solicit, recruit, induce, entice or attempt to participate with, solicit, recruit, induce, entice, whether by itself or through a third party, any manufacturers, vendors, sources or any other persons that were involved in the provision of the Services performed hereunder, or assist any such person or entity in any manner to cease its relationship with Kanary or to maintain a separate relationship with Client or with any other party; and (b) will otherwise respect the propriety of the relationship between Kanary and its manufacturers, vendors, sources or any other persons involved in the provision of the Services.

4.8 Enforcement and Liquidated Damages. Without limiting any other term of these Terms and Conditions, a breach by Client of any provision of this Article 4 shall be deemed a material breach of these Terms and Conditions. The Parties acknowledge and agree that a breach of this nature would cause irreparable harm to Kanary and the monetary value of such harm would be impossible to quantify. Therefore, the Parties hereby agree that in the event of any such breach by Client: (i) Client shall pay to Kanary the sum of twenty percent (20%) of the aggregate amount paid and payable by Client to Kanary (regardless of payment status) under any and all Purchase Orders submitted by Client, and all of the Invoices provided by Kanary, and any Terms and Conditions, in each case during the time period that has elapsed from the Effective Date until the date of breach; and (ii) without limiting the foregoing and in addition to any other remedies available at law or in equity, Kanary shall have the right to seek an injunction or other equitable relief to enforce the provisions of this Article 4, without the necessity of proving actual damages or posting a bond. The terms of this Section 4.8 shall not be deemed to limit any other rights or remedies of Kanary under these Terms and Conditions (including, without limitation, those regarding dispute resolution) or applicable law, which are cumulative and include, without limitation, Kanary's right to seek injunctive relief, and to collect any other fees payable hereunder. The Client hereby consents to the jurisdiction of the courts specified in this Agreement for the enforcement of such rights and remedies.

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5. LIABILITIES AND LIMITATIONS

5.1 Compliance. Each Party is responsible for compliance with, and shall comply with, all Applicable Laws, including, without limitation, all applicable federal, state and local laws, rules and regulations, including, without limitation, those relating to imports and exports, environmental matters; wages, hours and conditions of employment; discrimination; occupational health/safety; products liability; consumer protection; advertising; obligations relating to the drugs, food, cosmetics, and other consumable goods supply chain; and the prohibitions against unprofessional conduct, each as related to the exercise of such Party's rights and performance of its obligations under these Terms and Conditions. Each Party shall take all measures necessary to promptly remedy any violation(s) of Applicable Law for which it is responsible and shall promptly notify the other Party of any violation(s) thereof. Each Party shall obtain at its own cost any and all necessary consents, licenses, approvals and permits required in connection with its responsibilities under these Terms and Conditions.

5.2 Kanary's Role in Supply Chain. The Parties acknowledge and agree to the following: (i) the Services provided hereunder are not designed to include, and Kanary reserves the right to refuse to provide, any services that involve or may reasonably be interpreted to involve activities that would cause Kanary to be deemed to be a manufacturer, packer, or distributor of any food, drug, or cosmetic product within the meaning of the United States Federal Food, Drug, and Cosmetic Act of 1938, the Fair Packaging and Labeling Act, or the Modernization of Cosmetics Regulation Act of 2022, any regulations promulgated under the foregoing, or any other Applicable Law; (ii) Client is solely responsible to ensure that its products conform to any and all legal requirements; (iii) in the provision of the Services, Kanary does not have the responsibility to advise on, and does not guarantee the compliance of, any of Client's operations; and (iv) each Party understands that it is hereby advised to consult its own attorney regarding its business operations.

5.3 Kanary Representations and Warranties. Kanary represents and warrants to Client that: (i) Kanary's personnel will perform the Services in a professional and workmanlike manner; (ii) Kanary will provide the Services in conformance with the Purchase Order and Invoices in all substantial respects; and (iii) each of its agreements with its subcontractors that have access to Confidential Information contains or will contain provisions regarding the protection of Confidential Information as contemplated herein.

5.4 Client Representations and Warranties. Client represents and warrants to Kanary that: (i) Client is the sole and exclusive owner of all products and Intellectual Property related to the Services and such Intellectual Property does not and will not infringe upon the rights of any third party; (ii) no third party has asserted, or threatened, to assert any claim regarding any Intellectual Property related to the Services within the last five (5) years; (iii) Client shall be the sole beneficiary of the Services; and (iv) the execution, delivery and performance of these Terms and Conditions by Client does not and will not conflict with or violate any permit, license, law or governmental order.

5.5 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that, with respect to each party making the representation: (i) it has the requisite corporate power and authority to execute and perform its obligations under these Terms and Conditions; (ii) the person executing these Terms and Conditions on its behalf has the authority to bind it hereunder and that such Party's execution of these Terms and Conditions is not in violation of such Party's bylaws, certificate of incorporation, or other comparable governing document; and (iii) the execution of these Terms and Conditions does not constitute a material breach by such Party of any covenants or agreements by which such Party or any of its assets are bound.

5.6 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KANARY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY SERVICE OR ITEM PROVIDED HEREUNDER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICES ARE PROVIDED "AS IS." KANARY DOES NOT WARRANT THAT SERVICES WILL BE ERROR-FREE OR WILL BE PROVIDED (OR AVAILABLE) WITHOUT INTERRUPTION OR MEET CLIENT'S BUSINESS, COMPLIANCE, OR OPERATIONAL NEEDS. WITH THE EXCEPTION OF ANY APPLICABLE EXHIBITS, NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KANARY OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF KANARY'S OBLIGATIONS HEREUNDER. CLIENT HAS NOT RELIED ON ANY REPRESENTATIONS, WARRANTIES, OR STATEMENTS OF FACT NOT SPECIFICALLY INCLUDED IN THESE TERMS AND CONDITIONS, AND SHALL NOT ASSERT, AND SHALL CAUSE ITS AFFILIATES AND PERSONNEL NOT TO ASSERT, ANY CLAIM AGAINST KANARY WITH RESPECT TO ITS OR THEIR RELIANCE ON ANY REPRESENTATIONS, WARRANTIES OR STATEMENTS OF FACT NOT SPECIFICALLY INCLUDED IN THESE TERMS AND CONDITIONS. UNDER NO CIRCUMSTANCES WILL KANARY BE LIABLE OR RESPONSIBLE FOR ANY USE, OR ANY RESULTS OBTAINED BY THE USE, OF THE SERVICES IN CONJUNCTION WITH ANY SERVICES, SOFTWARE, OR HARDWARE THAT ARE NOT PROVIDED BY KANARY, OR IN CONJUNCTION WITH ANY VENDOR FAILURES, PROVIDED, HOWEVER, THAT THIS DISCLAIMER SHALL NOT APPLY TO CLIENT'S USE OF ANY THIRD PARTY SERVICES, SOFTWARE OR HARDWARE THAT ARE SPECIFIED IN THE PURCHASE ORDER AS REQUIRED FOR CLIENT TO ACCESS THE SERVICES AND THAT ARE PROVIDED OR LICENSED DIRECTLY BY KANARY TO CLIENT. ALL SUCH USE WILL BE AT CLIENT'S SOLE RISK AND LIABILITY.

5.7 Limitations on Liability. KANARY'S CUMULATIVE, AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING IN ANY WAY OR IN ANY DEGREE FROM THESE TERMS AND CONDITIONS, FROM SERVICES, OR OTHERWISE FROM THE ACTS OR OMISSIONS OF KANARY WILL NOT EXCEED THE TOTAL AMOUNT PAID OR DUE AND PAYABLE BY CLIENT TO KANARY IN THE FOUR (4) MONTHS BEFORE SUCH CLAIM AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, KANARY WILL NOT BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS OR BUSINESS OPPORTUNITIES.

5.8 Exclusions. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, THE LIMITATION SET FORTH IN SECTION 5.7 SHALL NOT APPLY FOR DAMAGES ARISING FROM THE FOLLOWING: (I) KANARY'S GROSS NEGLIGENCE, FRAUD, INTENTIONAL MISREPRESENTATION OR WILLFUL MISCONDUCT; OR (II) KANARY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS.

5.9 Reasonable Remedies. Each Party hereby acknowledges that the remedies set forth above are reasonable and will not fail of their essential purpose.

5.10 Kanary Indemnification. Kanary shall indemnify, defend and hold harmless the Client Indemnitees from and against any Losses incurred by or imposed upon such Client Indemnitees, or any of them, in connection with any third party claims, suits, actions, demands or judgments to the extent arising out of: (i) a breach of Kanary's representations and warranties as set forth in these Terms and Conditions; or (ii) the gross negligence or willful misconduct on the part of Kanary or any subcontractor, if adjudicated by any judicial or other legal authority.‍

5.11 Client Indemnification. Client shall indemnify, defend and hold harmless the Kanary Indemnitees from and against any Losses incurred by or imposed upon such Kanary Indemnitees, or any of them, in connection with any claims (including, without limitation, strict liability or Intellectual Property infringement claims), suits, actions, demands or judgments, to the extent arising out of (i) Client's gross negligence or willful misconduct; (ii) any specifications, information, Intellectual Property or other materials provided by Client, including the Confidential Information; (iii) any breach of any of Client's representations and warranties as set forth in these Terms and Conditions; (iv) any breach of any Client's covenants as set forth in these Terms and Conditions; (v) any actions of Kanary or any Kanary Indemnitee related to these Terms and Conditions (other than as a result of gross negligence or willful misconduct of any Kanary Indemnitee as adjudicated by any judicial authority); or (vi) any actions or inactions in contravention of the terms agreed upon in Section 5.2.

5.12 Indemnification Procedures. An Indemnified Party shall give prompt written notice to the other Indemnifying Party no more than thirty (30) days following Indemnified Party's notice of any claim, event or matter as to which indemnity may be sought, provided, that the failure of the Indemnified Party to give notice as provided in this sentence shall not relieve the Indemnifying Party of its obligations, except to the extent that such failure actually and materially prejudices the right of any such Indemnifying Party and only to the extent of such prejudice.

5.13 Judgment. In the defense of any such claim or litigation, the Indemnifying Party shall not, except with the prior written consent of the Indemnified Party, consent to entry of any judgment or entry into any settlement (i) which does not include as an unconditional term thereof, the giving by the claimant or plaintiff to the Indemnified Party, a release from all liability in respect to such claim or litigation; or (ii) which could reasonably be expected to restrict materially the conduct of business of the Indemnified Party.

5.14 Calculations. The amount of any claim for which indemnification is provided under this Article 5 shall be calculated net of amounts actually recovered by the Indemnified Party under insurance policies, net of any actual collection costs and reserves and deductibles, and net of any increase or reasonably anticipated increase in insurance premiums resulting from such recovery. Notwithstanding the foregoing, (a) the Indemnified Party need not wait until determination of an insured (or denied) claim prior to seeking indemnity and being indemnified pursuant to these Terms and Conditions; and (b) any increase in the cost of any renewal of such insurance to the extent attributable to the Indemnifying Party making any such claim shall be considered a Loss of the Indemnified Party.

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6. MISCELLANEOUS

6.1 Dispute Resolution. Any action or proceeding seeking to enforce any provision of or based on any right arising out of these Terms and Conditions may be brought against any of the parties only in the courts of the State of New York, County of New York, or, if it has or can acquire the necessary jurisdiction, in the U.S. District Court for the Southern District of New York. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world. Each Party hereto acknowledges and agrees that any controversy which may arise under these Terms and Conditions is likely to involve complicated issues, and therefore each such party hereby irrevocably and unconditionally waives any right such Party may have to a trial by jury in respect to any litigation among the parties arising out of or related to these Terms and Conditions. The prevailing Party in any dispute between the Parties pursuant to these Terms and Conditions shall be entitled to payment by the non-prevailing Party of all costs incurred in connection with such dispute, including, without limitation, reasonable attorneys' fees.

6.2 Choice of Law. These Terms and Conditions will be governed exclusively by the laws of the State of New York, without regard to its choice or conflict of laws principles.

6.3 Entire Agreement and Amendment. Article and section titles are for convenience only and will not affect the meaning of these Terms and Conditions. These Terms and Conditions constitute the entire agreement between the Parties relating to the terms and conditions of the Purchase Order and supersede all prior agreements, understandings, and representations relating to the Purchase Order, unless expressly superseded by an amended Purchase Order or Invoice agreed to between the Parties. Kanary may, at its discretion, change these Terms and Conditions at any time, with Notice to the Client. Following such Notice, the Client's continuation of the Services relating to the Purchase Order and failure to terminate the Services will be deemed acceptance of such amended Terms and Conditions, which will be effective and binding on the Client through such acceptance.

6.4 Assignment. These Terms and Conditions are not assignable without written consent of the Parties. These Terms and Conditions are binding on the Parties and their successors and permitted assigns.

6.5 Independent Contractors. The Parties intend that nothing contained in these Terms and Conditions be construed to create a joint venture, partnership, or a like relationship between the Parties, and their relationship is and will remain that of independent Parties to a contractual service relationship. Neither Party will be liable for the debts or obligations of the other Party.

6.6 No Third-Party Beneficiaries. Except as explicitly set forth herein, none of the provisions of these Terms and Conditions will be for the benefit of or enforceable by any third party.

6.7 No Waiver. No failure by a Party to insist upon the strict performance of any term or condition of these Terms and Conditions or to exercise any right or remedy hereunder will constitute a waiver. Despite the possibility that one Party or its representatives may have prepared the initial draft of these Terms and Conditions or any provision hereof or played a greater role in the preparation of subsequent drafts, neither Party shall be deemed the drafter of these Terms and Conditions and no provision hereof shall be construed in favor of one Party on the ground that such provision was drafted by the other.

6.8 Severability. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability will not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such other term or provision.