Agreements & Policy

Click Armor

Software as a Service Subscription Agreement

This Software as a Service (SaaS) Subscription Agreement (this “Agreement“), is entered into between Click Armor (“Provider“) and You or Your Organization, (“Customer“, and together with Provider, the “Parties“, and each, a “Party“).

WHEREAS, Customer wishes to procure from Provider the software services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.          Definitions

“Access Credentials” means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, investigative, regulatory or other, whether at law, in equity or otherwise.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

“Agreement” means this agreement and all schedules, exhibits, attachments or appendices specifically referenced herein or therein.

“Authorized User” means each of the individuals authorized to use the Hosted Services pursuant to Section 3.1 and the other terms and conditions of this Agreement, as identified in Schedule B.

“Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the internet and operating in material accordance with the Specifications.

“Backup Policy” has the meaning set forth in Section 6.

“Business Day” means any day other than a Saturday, Sunday or any other day on which commercial banks located in the City of Ottawa, province of Ontario, are authorized or required by law to be closed for business.

“Confidential Information” has the meaning set forth in Section 10.1.

“Control” (and the terms “Controlled by” and “under common Control with“) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Customer” has the meaning set forth in the preamble.

“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, which is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Hosted Services (including the Service Software) such as employee names or user names, business email addresses, roles in the Customer’s organization or in an organization to which the Customer is licensed to deliver the software services, group associations and mobile or office phone numbers. Customer Data specifically excludes customized training modules for the Service Software which may be created by or with the assistance of the Customer, unless otherwise agreed. Ownership of the module configurations, scenarios, text and other data created for the Service Software shall, subject to the Provider removing Personal and Confidential Information of the Customer and/or Authorised Users, belong to the Provider.

“Customer Failure” has the meaning set forth in Section 4.2.

“Customer Indemnitee” has the meaning set forth in Section 13.1.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.

“Deactivation” means the designation that a User is no longer an Active User, with the intent of reducing the number of Active Users, to stay within the maximum limit of an authorized “Floating License”.

“Disclosing Party” means a party that discloses Confidential Information under this Agreement.

“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“Effective Date” means date first set forth above].

“Fees” has the meaning set forth in Section 8.1.

“Floating License” means the right to allow up to a maximum number of Users to be Active Users that have access to the Services at any given time.

“Force Majeure Event” has the meaning set forth in Section 15.1.

“Governmental Authority” means any federal, provincial, territorial, municipal or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, trojan horse, worm, backdoor, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Hosted Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

“Hosted Services” has the meaning set forth in Section 2.1.

“Hosted Service Failure” means a material failure of the Hosted Services preventing the Customer or an Authorized User from Accessing the Service Software

“Hosted Service Level Failure” means a Hosted Service Failure for a period of at least twenty (20) days for every twelve (12) month period.

“HST” means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax).

“Inactive User” means a user that has been Deactivated to reduce the number of Active Users, allowing a Customer to make other Users Active.

“HST Act” means Part IX of the Excise Tax Act, R.C.S. 1985, c. E-15.

“Indemnitee” has the meaning set forth in Section 13.3.

“Indemnitor” has the meaning set forth in Section 13.3.

“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trade-marks; (c) internet domain names, whether or not Trade-marks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and industrial design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the Laws of any jurisdiction in any part of the world.

“Law” means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

“Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Managed Service Provider” (MSP) means a Customer that provides various subscription-based services to a number of organizations and their employees, and that is authorized and responsible for controlling and servicing the systems of those Parties.

“Partner” means an organization that has an arrangement in place with the Provider to sell and/or deliver Services to an agreed set of organizations and/or individuals. Arrangements for responsibilities of the Partner are defined in a Reseller Agreement.

“Party” (and the term “Parties“) has the meaning set forth in the preamble to this Agreement.

“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates and patent utility models).

“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations and more specifically, to:

1.     Provide educational instruction to Authorised Users;

2.     Assess knowledge and/or proficiency of Authorised Users regarding various topics;

3.     Perform aggregated analysis/analytics on aspects of workforce or the Authorised User base knowledge and/or proficiency; and

4.     Enable client administrators to configure game and training exercises.

“Person” means an individual, corporation, partnership, unlimited liability company, Governmental Authority, unincorporated organization, trust, association or any other entity.

“Personal Information” means any information that does or can identify a specific individual/Authorised User or by or from which a specific individual/Authorised User may be identified or contacted.

“Security Policy” has the meaning set forth in Section 7.1.

“Process” means to take any action or perform any operation or set of operations that the Hosted Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, transform or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. “Processing” and “Processed” have correlative meanings.

“Provider” has the meaning set forth in the preamble.

“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Hosted Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Indemnitee” has the meaning set forth in Section 13.2.

“Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Hosted Services and/or the Service Software, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Hosted Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.

“Representatives” means, with respect to a party, that party, its Affiliates, and their respective employees, officers, directors, consultants, agents, independent contractors, and legal advisors.

“Resultant Data” means information, data and other content that is derived by the Provider from Processing Customer Data and for which the resulting information does not contain Personal Information or Confidential Information. For the avoidance of doubt, Resultant Data includes data such as the industry of the Customer, data resulting from inputs by the Customer’s administrative users to configure any part of the Hosted Service’s software, raw inputs such as mouse or keyboard events from any user, or answers, decisions or actions taken by any user when accessing the Hosted Services.

“Scheduled Downtime” has the meaning set forth in Section 5.3.

“Service Credit” has the meaning set forth in Section 5.2.

“Service Manager” has the meaning set forth in Section 2.3.

“Service Software” means the Provider software application or applications and any third-party or other software that Provider provides remote access to and use of as part of the Hosted Services, as detailed in Schedule A and Schedule C, and all new versions, updates, revisions, improvements and modifications of the foregoing.

“Services” has the meaning set forth in Section 2.1.

“Specifications” means the specifications for the Services set forth in Schedule C and, to the extent consistent with the foregoing, the Documentation.

“Subcontractor” has the meaning set forth in Section 2.5.

“Support Schedule” has the meaning set forth in Section 5.4.

“Support Services” has the meaning set forth in Section 5.4.

“Taxes” means any commodity tax, including sales, use, excise, value-added, services, HST, consumption or other similar tax, including penalties and interest, imposed, levied or assessed by any Governmental Authority.

“Term” has the meaning set forth in Section 11.1/Section 11.2.

“Territory” means Worldwide.

“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.

“Trade-marks” means all rights in and to Canadian and foreign trade-marks, trade dress, trade and business names, brand names, logos, design rights, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

“Users” means individuals licensed to access and use the Services. Users may be Active or Inactive for the purposes of specifying which users are authorized to access the Services at any given time, based on the limit of a “Floating License”.

2.          Services.

2.1       Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the attached Schedule A and this Agreement (collectively, the “Services“) in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users (“Hosted Services“) in substantial conformity with the Specifications 24 hours per day, seven days per week, every day of the year, except for:

(a)      Scheduled Downtime in accordance with Section 5.3;

(b)      Service downtime or degradation due to a Force Majeure Event;

(c)      any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and

(d)      any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Hosted Services as permitted by this Agreement.

2.2       Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

(a)      Provider has and will retain sole control over the hosting, operation, provision, management and maintenance of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and

(b)      Customer has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Hosted Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use. If the Customer is a Managed Service Provider (MSP), then the Customer assumes the responsibility for all above access on behalf of the organizations and/or individuals for which it has been granted licenses.

Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, Canada.

2.3       Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services (each, a “Service Manager”). Each Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its Service Manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties’ initial Service Managers are identified in Schedule B. Each party shall use commercially reasonable efforts to maintain the same Service Manager in place throughout the Term. If either party’s Service Manager ceases to be employed by such party or such party otherwise wishes to replace its Service Manager, such party shall promptly name a new Service Manager by written notice to the other party.

2.4       Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. The Customer may at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in Schedule D. No requested changes will be effective unless and until memorialized in a written change order signed by both parties, except that Customer may increase or decrease the number of Authorized Users for any Services pursuant to Section 3.3.

2.5       Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).

2.6       Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a Governmental Order that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under this Agreement.

3.          Authorization and Customer Restrictions.

3.1       Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, and to have its licensed users access and use, solely in the Territory and during the Term, the Hosted Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.

3.2       Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a)      copy, modify or create derivative works or improvements of the Services or Provider Materials;

(b)      rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with any time-sharing, service bureau, software as a service, cloud or other technology or service;

(c)      reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, or any part thereof;

(d)      bypass or breach any Provider Disabling Device, security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then-valid Access Credentials.

(e)      input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;

(f)       damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;

(g)      remove, delete, alter or obscure any Trade-marks, Specifications, Documentation, warranties or disclaimers, or any copyright, trade-mark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;

(h)      access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;

access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; and/or

(i)       otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.

3.3       Service Use and Data Storage. Schedule A sets forth a schedule of Fees for designated levels of Hosted Service usage and data storage (each a “Service Allocation”), beginning with the Fees payable by Customer for the levels of Hosted Service usage and data storage in effect as of the Effective Date. Provider will use commercially reasonable efforts to notify Customer in writing if Customer has reached 80 percent of its then current Service Allocation and Customer may increase its Service Allocation and corresponding Fee obligations in accordance with Schedule A. If Customer exceeds its Service Allocation 10% for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees set forth in Schedule A. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that:

(a)      Provider has no obligation to permit Customer to exceed its then-current Service Allocation; and

(b)      Customer is not entitled to any Service Credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Hosted Services fail to meet the Availability Requirement during such period.

4.          Customer Obligations.

4.1       Customer Systems and Cooperation.  Customer shall at all times during the Term:

(a)      set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used;

(b)      provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications;

(c)      ensure that it employs reasonable network defenses and controls to mitigate against malicious access to the Hosted Services from within its network environment by any individuals attempting to cause damage or disrupt services (for example, in the case where an attacker may use a keylogger program running on a Customer’s system to obtain credentials for accessing an authorized user’s account on the Hosted Services); and

(d)      provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2       Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure“).

4.3       Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.2, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

4.4       Non-Solicitation. During the Term and for ONE (1) year after, Customer shall not, and shall not assist any other Person to, directly or indirectly, in any manner recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior 12 months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 4.4, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 4.4.

4.5       Breach of Non-Solicitation. In the event of a violation of Section 4.4, Customer shall, on demand, pay to Provider as liquidated damages a sum equal to one year’s basic salary or fees payable by Provider or any Subcontractor to that employee, worker or independent contractor.

5.          Service Levels and Credits.

5.1       Service Levels. Subject to the terms and conditions of this Agreement:

(a)      For purposes of calculating a Hosted Service Level Failure, the following are  “Exceptions“, and the Hosted Services  will not be considered un-Available nor any Hosted Service Level Failure be deemed to occur if the ability of Customer or its Authorized Users to access or use the Hosted Services is due, in whole or in part, to any:

(i)      act or omission by Customer or any Authorized User/access to or use of the Hosted Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications;

(ii)    Customer Failure;

(iii)   Customer’s or its Authorized User’s internet connectivity;

(iv)   Force Majeure Event;

(v)     failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement;

(vi)   Scheduled Downtime; or

(vii)  disabling, suspension or termination of the Services pursuant to Section 2.6.

5.2       Service Level Failures and Remedies. Subject to the following conditions, Provider shall issue a credit to Customer in the amount of ONE (1%) per cent of the annual Fees (or pro-rated equivalent based on the current billing plan, if not annual) for the Hosted Services for any consecutive (72) hour period of Hosted Service Failure above the Hosted Service Level Failure (each a “Service Credit“).

(a)      Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Level Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within ONE (1) days of the Service Level Failure being resolved; and

(b)      in no event will the total of all Service Credits available to the Customer exceed FIVE (5%) percent of the Fees for the Hosted Services that are payable during the Term.

Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Level Failure giving rise to the Service Credit. This Section 5.2 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Hosted Service Level Failure.

5.3       Scheduled Downtime. Provider will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Hosted Services between the hours of (2) a.m. and (6 a.m., Eastern Time; and (b)] give Customer at least 24 hours prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime“).

5.4       Service Support. The Services include Provider’s standard customer support services (“Support Services“) at the support levels subscribed for by Customer in accordance with the Provider service support schedule, a current copy of which is attached as Schedule E/available at ClickArmor.ca (or a successor website address) (the “Support Schedule“). Provider may amend the Support Schedule from time to time in its sole discretion. Customer may purchase enhanced support services separately at Provider’s then current rates.

6.          Data Backup. While the Services may automatically save configuration and Resultant Data within its own server environment, this does not replace the need for Customer to maintain regular data backups or redundant data archives. Provider may provide a mechanism for Customer to save copies of its configuration and resultant data locally, within its own Customer systems, to allow for faster recovery in the event of an unexpected loss of this information within the Services environment. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

7.          Security and Privacy.

7.1       Provider Systems and Security Obligations. Provider will employ security measures in accordance with Provider’s security policy as amended from time to time (“Security Policy“).

7.2       Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).

7.3       Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) Confidential Information; (c) mission-critical or time-critical data (each of the foregoing, “Prohibited Data“). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Hosted Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

7.4       Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Hosted Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

7.5       Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.

7.6        Privacy Policies. Provider collects data from the Customer and the Authorised Users through the Hosted Services, including the Service Software in accordance with Provider’s privacy policies.

8.          Fees and Payment Terms.

8.1       Fees. Customer shall pay Provider the fees set forth in Schedule A (“Fees“) in accordance with this Section 8.

8.2       Fee Increases. Provider may increase Fees no more than once annually for any contract year after the first contract year of the Term, including any contract year of any Renewal Term, by providing written notice to Customer at least 60 calendar days prior to the commencement of that contract year/such Renewal Term, and Schedule A will be deemed amended accordingly.

8.3       Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of all applicable Taxes (including HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable taxes, duties and levies levied on that Party from time to time in relation to this Agreement.

8.4       Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth in Schedule A. Customer shall make all payments hereunder in Canadian dollars by cheque, wire transfer or electronic funds transfer. Customer shall make payments to the address or account specified in Schedule A or such other address or account as Provider may specify in writing from time to time.

8.5       Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

(a)      Provider may charge interest on the past due amount at the annual rate of 20% or, if lower, the highest rate permitted under applicable Law;

(b)      Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including legal fees on a solicitor-and-client basis, court costs and collection agency fees; and

(c)      if such failure continues for Two (2) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

8.6       No Deductions or Set-offs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason.

9.          Intellectual Property Rights.

9.1       Reservation of Rights. All right, title and interest in and to the Services, Provider Materials and Third Party Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third Party Materials. Customer acknowledges and agrees that it has no right, license or authorization with respect to any of the Services, Provider Materials or Third Party Materials (including any Intellectual Property Rights therein) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.2 All other rights in and to the Services, Provider Materials and Third Party Materials are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9.2       Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.

10.       Confidentiality.

10.1    Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party indicates explicitly is confidential or proprietary, including, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms of this Agreement are the Confidential Information of Provider.

10.2    Exclusions. Confidential Information does not include information that:

(a)      was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;

(b)      was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement;

(c)      was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or

10.3    Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

(a)      not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b)      except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3;

(c)      safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

(d)      ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.

10.4    Compelled Disclosures.

(a)      If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:

(i)      promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and

(ii)    provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

(b)      If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

11.       Term and Termination.

11.1    Term. The term of this Agreement commences as of the Effective Date specified in a purchase order for either (i) a one-month period; (ii) a year; or (iii) a predefined period of time; and, unless terminated earlier pursuant to any of this Agreement’s express provisions, will continue in effect for the defined period in the purchase order (the “Term“).

11.2    Renewal. This Agreement will automatically renew for a period equal to the most recently active Term (the “Renewal Term“) unless earlier terminated pursuant to this Agreement’s express provisions or if either party gives the other party written notice of non-renewal at least 30 days prior to the expiration of the then-current term.

11.3    Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a)      Provider may terminate this Agreement, effective on written notice to Customer, if Customer:

(i)      fails to pay any amount when due hereunder, and such failure continues more than TWO (2) days after Provider’s delivery of written notice thereof; or

(ii)    breaches any of its obligations under Section 3.2 (Use Limitations and Restrictions), Section 7.3 (Prohibited Data) or Section 10 (Confidentiality).

(b)      either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach:

(i)      is incapable of cure; or

(ii)    being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. Notwithstanding the foregoing, this provision is not a remedy available to the Customer for a Service Level Failure; and

(c)      either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party:

(i)      fails to pay its debts generally as they become due or otherwise acknowledges its insolvency;

(ii)    ceases to carry on business in the ordinary course;

(iii)   makes a general assignment for the benefit of its creditors;

(iv)   commences or institutes any application, proceeding or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plans of arrangement, relief or protection of debtors, compromise of debts or similar Laws, seeking:

(A)     to have an order for relief entered with respect to it;

(B)     to adjudicate it as bankrupt or insolvent;

(C)     reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or

(D)     appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any part of its assets.

11.4    Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a)      all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;

(b)      Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and

(i)      within 120 days return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and

(ii)    permanently erase all Customer Data and Customer’s Confidential Information from the Provider Systems, provided that, for clarity, Provider’s obligations under this Section 11.4(b) do not apply to any Resultant Data;

(c)      Customer shall immediately cease all use of any Services or Provider Materials and

(i)      Within 20 days return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider’s Confidential Information; and

(ii)    permanently erase all Provider Materials and Provider’s Confidential Information from all computer systems Customer directly or indirectly controls; and

(iii)   certify to Provider in a signed written instrument that it has complied with the requirements of this Section 11.4(c);

(d)      Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;

(e)      if Customer terminates this Agreement pursuant to Section 11.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will:

(i)      refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination; and

(ii)    pay to Customer any unpaid Service Credits to which Customer is entitled;

(f)       if Provider terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider’s invoice therefor; and

11.5    Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.2, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.

12.       Representations and Warranties.

12.1    Mutual Representations and Warranties. Each party represents and warrants to the other party that:

(a)      it is a corporation duly organized and validly existing; ;

(b)      it has all required corporate power and capacity to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;

(c)      the execution of this Agreement by its Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action; and

(d)      when executed and delivered by each of the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

12.2    Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

12.3    Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

12.4    DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.

13.       Indemnification.

13.1    Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer permitted successors and permitted assigns (each, a “Customer Indemnitee“) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Customer Indemnitee) alleging that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement infringes a Canadian Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

(a)      access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Provider;

(b)      modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification; or

13.2    Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and permitted assigns (each, a “Provider Indemnitee“) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or relates to any:

(a)      Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;

(b)      any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;

(c)      allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or

(d)      negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

13.3    Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

13.4    Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:

(a)      obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;

(b)      modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or

(c)      by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that if such termination occurs prior to 3 months after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in Section 11.4, Customer will be entitled to a refund of 50% of the prorated value of the remaining term of the agreement.

THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.

14.       Limitations of Liability.

14.1    EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14.2    CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE MAXIMUM AMOUNT IN SERVICE CREDITS PURSUANT TO SECTION 5.2. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

15.       Force Majeure.

15.1    No Breach or Default. In no event will either party be liable or responsible to other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including:

(a)       acts of God;

(b)      flood, fire, earthquake or explosion;

(c)      war, terrorism, invasion, riot or other civil unrest;

(d)      actions, embargoes or blockades in effect on or after the date of this Agreement;

(e)      national or regional emergency;

(f)       strikes, labor stoppages or slowdowns or other industrial disturbances;

(g)      passage of Law or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown; or

(h)      national or regional shortage of adequate power or telecommunications or transportation facilities; or

(i)       any other event which is beyond the reasonable control of such party such as  blockages, data shaping or throttling or restrictions placed on intermediate connections by network service providers that affect the ability of users to access the Hosted Services.

(each of the foregoing, a “Force Majeure Event“).

15.2    Affected Party Obligations. A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15.3    Extension of Agreement.  Unless this Agreement is terminated in accordance with this Section 11.3, the Term of this Agreement shall be automatically extended by a period equal to the period of suspension.

16.       Miscellaneous.

16.1    Further Assurances. Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.

16.2    Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.3    Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s Trade-marks, trade dress, brand names, logos, corporate names and domain names or other similar designations of source, sponsorship, association or origin, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer’s consent, include Customer’s name and/or other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials. Without limiting the generality of the foregoing, the Provider shall be entitled to use, and the Customer provides a non-exclusive and royalty free licence to the Provider to use the Customer’s registered and/or unregistered trademarks (including logos and name) in its list of current or former customers and in promotional and marketing materials.

16.4    Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (in either case, with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 16.4).

Contact Info:

Click Armor Corp.

Email:    support@oldclickarmdev.wpenginepowered.com

Facsimile:

Attention:

16.5    Interpretation. For purposes of this Agreement: (a) the words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

16.6    Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

16.7    Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

In the event of any conflict between the terms and provisions of this Agreement and those of any exhibit, schedule, attachment or appendix (other than an exception expressly set forth as such therein), the following order of precedence shall govern: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

16.8    Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent Provider may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

16.9    No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

16.10 Amendment and Modification: Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by an authorized representative of each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16.11 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16.12 Governing Law: Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the province of Ontario and the federal laws of Canada applicable in that province, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than those of the province of Ontario. Any Action arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the courts of Ontario located in the City of Ottawa, and each party irrevocably submits to the jurisdiction of such courts in any such Action. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any Action brought in any such court.

16.13 Equitable Relief. The Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Section 10, , Section 3.2, Section 4.3 or Section 7.3, would cause the Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

16.14 Legal Fees. In the event that any Action is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual legal fees and court costs from the non-prevailing party.

16.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

SCHEDULE A

SERVICES AND FEES

Click Armor Services include its web-based gamified learning software platform and associated learning and assessment content and functionality, for which the Customer has been authorized to provide access for up to the number of simultaneous Active Users, licensed for the fee and Term prescribed in the authorized order.

SCHEDULE B

SERVICE MANAGERS AND AUTHORIZED USERS

Service Managers

The Click Armor Service Manager is the company’s Chief Operating Officer. The Customer’s Service Manager is specified in the order.

SCHEDULE C

SERVICE SOFTWARE, SPECIFICATIONS AND DOCUMENTATION

Service Software

 “Service Software” means the Provider software application or applications and any third-party or other software that Provider provides remote access to and use of as part of the Hosted Services, as detailed in Schedule A and Schedule C, and all new versions, updates, revisions, improvements and modifications of the foregoing.

Specifications

Please contact Click Armor for information about technical specifications.

Documentation

Please contact Click Armor for technical documentation or guidelines.

SCHEDULE D

CHANGE PROCEDURE

For a Change Order to be effectively submitted to the Provider, it shall:

1.     Be sent by the Customer’s Service Manager to the Service Manager of the Provider at: support@oldclickarmdev.wpenginepowered.com

2.     Outline in sufficient detail of the change request;

3.     The Provider’s Service Manager shall (a) review the request; (2) establish if it is feasible to accomplish the request and (3) respond to the Customer’s Service manager and outline his findings and the costs of the change request associated.

SCHEDULE E

SERVICE SUPPORT

 1)    Acknowledgement of email or phone support requests within 1 business day;

2)    Upon review of the support request, Provider shall within a further business day request additional information (if required) and confirm the support request’s level of priority;

3)    For confirmed HIGH priority requests, Provider shall accomplish the one of the following as soon as reasonably possible:

  • Provide a resolution to the problem;

  • Provide an explanation that the item in the service request won’t be resolved and its reasons behind the decision;

  • Provide an estimated timeline for the resolution of the issue;

 4)     For confirmed Non-HIGH priority requests, Provider shall accomplish  one of the following within TEN (10) business days:

  • Provide a resolution to the problem;

  • Provide an explanation that the item in the service request won’t be resolved and its reasons behind the decision; or

  • Provide an estimated timeline for the resolution of the issue.

**For the purposes of this Service Support Schedule, a service request shall only be considered a High priority in the event of a material failure of the Hosted Services preventing the Customer or an Authorised User from accessing of operating the Service Software.

Why Click Armor?