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KingFish Technologies SERVICE PROVIDER AGREEMENT

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This Service Provider Agreement (“Agreement”) is entered into by and between you(“Service Provider”) and KingFish Technologies (“KingFish”) and made effective as of the date you clicked submit.  The parties agree as follows:

 

  1. Length of Agreement:  This agreement shall remain in place from the execution date above until either party breaches the contract or as specified in the terms of Section 11 of this agreement.  It is expected and required that the Service Provider will adequately perform the duties herein contained in this Service Provider Agreement from execution date until written notice of termination has been received.  Renewal and or continuation will be subject to approval by KingFish , it’s Board and any other controlling parties as well as subject to price/delivery/subscription fee changes.

  2. Access to Platform; Authorization. KingFish  hereby agrees to provide Service Provider with remote access via web browser to its proprietary Tank Tracker platform (the “Platform”).  The Platform is subject to modification from time to time at KingFish ’s sole discretion.  

  3. Tank Inspections:  KingFish Technologies, INC (KingFish , KingFish Technologies, Tank Tracker and any other affiliated brands associated with KingFish Technologies Inc) including any employees, board members, investors, advisors and persons with any affiliation with KingFish Technologies are in no way guaranteeing the outcome of the Tank Tracker inspection.  Should a Service Provider approve a tank for delivery using our technology it is the sole responsibility of the Provider to accept any claims related to that tank at any time.  Additionally, any information either intentionally or unintentionally incorrect, collected by the Tank Tracker application is 100% the responsibility of the Service Provider.

  4. Relationship:  The relationship between the consumer (end user) and the Service Provider is to be entirely and wholly managed by the Service Provider.  KingFish  is not responsible for any outcomes of that relationship at any time.

  5. Additional Services.  Service Provider may offer additional services in addition to the delivery of heating oil.  These services may include but are not limited to:  annual cleanings, installations or repair of HVAC and or DHW equipment.  KingFish  reserves the right to offer these services through its network of providers as well which may or may not include Service Provider.    

  6. Customer Contact Information.  KingFish will not use any of your customer contact information contained within the platform to solicit any business unless the Service Provider specifically approves.  The approval will be submitted to the Service Provider in written form and will include any and all information as it pertains to the solicitation.

  7. Records and Audit. Service Provider shall further keep and maintain for four (4) years after the termination of this Agreement accurate books and records demonstrating Service Provider’s compliance with the terms of this Agreement and the veracity of all information submitted to Service Provider via the Platform.  KingFish  shall be entitled to provide such documentation to Customers if necessary to address Customer concerns or resolve any Customer disputes.  

  8. Warranty. Service Provider warrants that the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any rights of third parties or any obligation Service Provider may have to others.  Service Provider further warrants that it has, and that it will maintain at all times during the term of this Agreement, all licenses, permits, registrations, and other authorizations required to fulfill Orders and otherwise perform its obligations under this Agreement.  Service Provider shall ensure that its personnel are aware of Service Provider’s obligations under this Agreement, shall cause such Personnel to comply with such obligations at all times in connection with their performance in relation to this Agreement, and shall be responsible for any breach of the terms of this Agreement by any such personnel (as if the acts or omissions of such personnel were the acts or omissions of Service Provider).

  9. Limitation of Liability. IN NO EVENT WILL  KingFish  BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF KingFish  HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF KingFish  FOR ANY AND ALL DAMAGES UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE DIFFERENCE BETWEEN THE AMOUNT RECEIVED BY SERVICE PROVIDER FROM THE RELEVANT CUSTOMER(S) IN CONNECTION WITH THE ORDER(S) GIVING RISE TO THE CLAIM FOR DAMAGES AND THE AMOUNTS PAYABLE BY KingFish  TO SERVICE PROVIDER IN CONNECTION WITH SUCH ORDER(S).  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

  10. Indemnification.  Service Provider shall (i) defend and hold harmless KingFish  from any claims, allegations, suits, investigations or proceedings (“Claims”) related to Service Provider’s performance or failure to perform under this Agreement (including any fulfillment or non-fulfillment of any Order) any breach by Service Provider of its representations, warranties and/or covenants under this Agreement and (ii) indemnify KingFish  from any losses, damages, costs, penalties, fines, judgments, awards, settlements and/or attorney’s fees incurred by KingFish  in connection with any such Claims.  

  11. Termination.  If either party materially breaches a material provision of this Agreement, the other party may terminate this Agreement upon 30 days’ written notice unless the breach is cured within the notice period.  KingFish  and may also terminate this Agreement at any time, for any or no reason, upon thirty (30) days written notice to the Service Provider.  Service Provider may terminate this agreement at any time, for any or no reason, upon ninety (30) days written notice to KingFish .  

  12. Relationship of the Parties.  Notwithstanding any provision hereof, for all purposes of this Agreement, each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract except that KingFish  is authorized to accept, modify and cancel Orders on Service Provider’s behalf as expressly contemplated herein.  Service Provider is an independent contractor and is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including, but not limited to, Workers’ Compensation Insurance; and Service Provider agrees to defend, indemnify and hold KingFish  harmless from any and all claims, damages, liability, attorneys’ fees and expenses on account of an alleged failure by Service Provider to satisfy any such obligations or any other obligation (under this Agreement or otherwise).  Service Provider will ensure that its employees and agents are bound in writing to Service Provider’s obligations under this Agreement.  

  13. Miscellaneous.  All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice.  Neither party shall have the right to assign, transfer, or subcontract any obligations under this Agreement without the written consent of the other party. Any attempt to do so shall be void. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.  No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, discussions or understandings, whether oral or written, explicit or implicit, prior to the execution hereof.  In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflicts of laws provisions thereof. Headings herein are for convenience of reference only and shall in no way affect the interpretation of the Agreement.

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