Master Services Agreement

IMPORTANT: READ CAREFULLY

ADVANCED SERVERS CORPORATION O/A BLACKBOX CONNECTIONS MASTER SERVICES AGREEMENT:

THESE TERMS OF USE, TOGETHER WITH THE ORDER FORM, CONSTITUTE THE “AGREEMENT.”

This Master Services Agreement contains the terms and conditions that govern your access to and use of the Advanced Servers Corporation o/a BlackBox Connections Services and is an agreement between Advanced Servers Corporation o/a BlackBox Connections (“Advanced Servers Corporation o/a BlackBox Connections,” “BlackBox Connections,” “we,” “us,” or “our”) and you or the entity you represent (“you”). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 12 for definitions of certain capitalized terms used in the Agreement.

1.0 Service

1.1 Generally. Subject to your compliance with the Agreement and timely payment of the applicable fees, we shall provide the implementation services and make the Service available to you and your authorized users in accordance with the Service Level Agreement and pursuant to this Master Services Agreement and the applicable Order Form during the Term.

1.2 Environment. We will provide you and your Users online access to and use of the Service via the Internet by use of a BlackBox Connections-approved customer-provided browser. The Service will be hosted on a server that is maintained by BlackBox Connections or its designated third party supplier or data center. You are solely responsible for obtaining and maintaining at your own expense, all equipment needed to access the Service, including but not limited to Internet access, adequate bandwidth and encryption technology.

1.3 Changes. Access is limited to the version of the Service in our production environment. We regularly update the Service and reserve the right to discontinue, add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. We will notify you of any material change to or discontinuance of the Service.

1.4 Security; Back-Ups. Without limiting Section 7.2 or your obligations under Section 3.4, we will implement reasonable and appropriate measures designed to help you secure Customer Data against accidental or unlawful loss, access or disclosure. We will perform back-ups in accordance with the Service Level Agreement.

1.5 Storage Space. We shall provide storage space for your use of the Service up to the amount set forth on the applicable Order Form. Additional storage space, if required, is subject to additional charges at our then prevailing rates.

1.6 Service Availability. We shall use commercially reasonable efforts to make the Service generally available in accordance with the Service Level Agreement applicable for each Service (“Service Availability”). Service Availability does not include interruption of Service as a result of (i) planned downtime for maintenance (ii) Internet Unavailability, (iii) Wireless Network Interruption Factors, (iv) Independent Customer Activity or (v) force majeure events or other events that are not under our control. Service Availability and the Service Level Agreement do not apply to Third Party Products.

1.7 Support Services. We shall provide the level of Support specified in the Order Form for the Service. Support is provided solely to the number of named “Champions” set forth on the Order Form. We will provide such Support under Advanced Servers Corporation o/a BlackBox Connections support policies in effect at the time the Support Services are rendered, as described in the Service Level Agreement. We are under no obligation to provide Support with respect to: (i) Services that have been altered or modified by anyone other than BlackBox Connections or its licensors; (ii) Services used other than in accordance with the User Guide; (iii) discrepancies that do not significantly impair or affect the operation of the Service; (iv) errors or malfunction caused by your or your Client’s failure to comply with the minimum system requirement documentation as provided by us or by your or your Client’s use of non-conforming data, or (vi) errors and malfunction caused by any systems or programs not supplied by us. With respect to Third Party Products, our Support obligations are limited to using commercially reasonable efforts to obtain Support from the third party provider.

1.8 Support Incident. BlackBox Connections defines a support incident as a specific and documented request for assistance regarding the proper operation of the Service submitted to Product Support. An incident may be submitted via phone, Client Access Portal, or e-mail. BlackBox Connections provides unlimited support incidents for all customers for a minimum 45 days from the start of the Initial Term of the Service. Some Support packages allow for greater periods of access to unlimited support incidents and are described on the applicable Order Form. After this initial period of unlimited support incidents, your account is allotted a pre-determined amount of support incidents annually, based on your package. These incidents are decremented as you utilize our Support services. If it is determined that your support incident is related to a bug in our software, your bank of incidents will not be decremented. BlackBox Connections Support has the sole discretion of what constitutes a support incident.

2.0 Using the Service

2.1 Order process. You shall use the Services solely for your internal business purposes and shall not: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store any material which is infringing, obscene, threatening, libelous, unlawful, tortious, harmful to children, violative of third party rights, or which we otherwise reasonably deem objectionable; (c) send or store material with any virus, worm, or other harmful computer code; (d) interfere with or disrupt the integrity or performance of the Service in whole or in part; or (e) attempt to gain unauthorized access to the Service or any other system or network. You may not use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, and may not disclose any information related to such prohibited activities.

2.2 Authorized Use. Without prejudice to the provisions of Section 5.3, your right to use the Services is limited to managing and monitoring your own internal business operations and devices, and/or, if expressly authorized under the Order Form, providing services to your Clients with respect to their managed devices.

2.3 License Metrics. Use of the Service and applicable fees are subject to License Metrics, as set forth in the Order Form. Additional License Metrics must be purchased in the event actual use exceed the licensed quantity. Additional License Metrics, if any, are prorated for the remainder of the then-current Term of the applicable Order Form. You may not decrease the number of License Metrics during the Initial Term or any Renewal Term.

2.4 Application Guidelines. You shall not and you shall cause your Users and Clients to not: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store any material which is infringing, obscene, threatening, libelous, unlawful, tortious, harmful, violates third party rights, or which we otherwise reasonably deem objectionable; (c) send or store material with any virus, worm, or other harmful computer code; (d) interfere with or disrupt the integrity or performance of the Service in whole or in part; (e) attempt to gain unauthorized access to the Service or any other system or network; or (f) take any steps to avoid or defeat the purpose of security measures associated with the Service, such as sharing of login and password information, or attempt to circumvent any use restrictions. You may not use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, and may not disclose any information related to such prohibited activities.

2.5 Third-Party Providers. Certain third-party providers, some of which may be listed on our website, offer products and services related to the Service, including implementation, customization, and other consulting services and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality. We are not responsible for any exchange of data or other interaction or transaction between you and a third-party provider, including purchase of any product or service, all of which is solely between you and the third-party provider. Further, the Service may include Third Party Products. You understand that we have no control over the Third Party Products and that your ability to access and use the Third Party Products may be suspended or terminated at any time, for any reason, at the third party service provider’s discretion. Your use and access to Third Party Products may be subject to terms of use that you will need to agree to prior to use. You are responsible for reviewing and complying with such terms of use.

2.6 Links. The Service may contain links to other websites or resources. You acknowledge and agree that BlackBox Connections is not responsible or liable for (a) the availability or accuracy of such sites or resources; or (b) the content, advertising, or products on or available from such website or resources. The inclusion of any link on the Service does not imply that BlackBox Connections endorses the linked website. You use the links at your own risk.

2.7 Advertising. BlackBox Connections reserves the right to advertise (through banner advertisements, merchandizing, search listings, executable programs, and the like) BlackBox Connections and third party products and services within the Service (including the Web Application and Storefronts) – which shall not unreasonably interfere with the use of the Service and its features. Any and all advertising revenue generated by BlackBox Connections through the Service will be retained by BlackBox Connections. Any advertising and merchandizing that appears on your Storefronts will be based on your preferences.

2.8 Content. BlackBox Connections is a distributor (and not a publisher) of Content supplied by third parties and users of the Service. BlackBox Connections has no editorial control over such Content. Any opinions, advice, statements, services, offers, or other information or Content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of BlackBox Connections. BlackBox Connections neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Service by anyone other than authorized BlackBox Connections employees acting in their official capacities. You understand and acknowledge that BlackBox Connections does not monitor Content for accuracy or reliability. We reserve the right to update, replace or remove Content in our discretion.

3.0 Your Responsibilities

3.1 Cooperation. You shall provide us with all reasonable cooperation and necessary access to such information as may be required by us in order to render the Services, including without limitation Customer Data, security access information and configuration services.

3.2 Customer Data. You have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

3.3 Your Equipment and Infrastructure. You are solely responsible for procuring and maintaining network connections and telecommunications links from your systems to our data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your or your Clients network connections or telecommunications links or caused by the internet.

3.4 Other Security. You are solely responsible for (a) issuing appropriate passwords for Users or asking us to do so on your behalf;: (b) using commercially reasonable efforts to prevent unauthorized access to or use of the Service or any Content in whole or in part; (c) notifying us promptly of any actual or suspected unauthorized access/use; (d) not impersonating another User or providing false identity information for any purpose.

3.5 End-Users violations. You shall ensure that your Users and your Clients use the Services in accordance with this Master Services Agreement and be responsible for any breach of the Agreement by such User or Client and all activities that occur under User and Clients accounts. If you become aware of any violation of your obligations under the Agreement by a User, you will immediately terminate such User access to the Customer Data and/or the Services.

3.6 Your Clients Support. You are responsible for providing customer service (if any) to your Clients. We do not provide any support or services to your Clients unless we have a separate agreement with you or a Client obligating us to provide support

3.7 Other obligations. In addition to your other obligations, you are solely responsible for: (a) determining whether the Service shall meet your needs; (b) abiding by all applicable local, provincial or state, national, and foreign laws, treaties and regulations, including those related to data privacy, communications, and the transmission of technical or personal data; (c) your Champions and Users completing all required training; (d) complying with your responsibilities under the Service Level Agreement.

4.0 Financial Terms

4.1 Fees and Charges. You will pay us the applicable fees and charges as described on the Order Form using one of the payment methods we support. All amounts payable under the Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Except as otherwise expressly specified in the Order Form, all recurring fees payment obligations start from the execution of the Order Form. All fees are payable in the currency specified in the Order Form, are due upon receipt of invoice and are non-refundable and non-cancelable. With at least 90 days’ notice to you, we reserve the right to increase prices no more than once per every twelve months, provided that any such annual increase shall not exceed the highest of 5% or the Consumer Price Index increase. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

4.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including sales tax, VAT, GST, and other applicable sales tax, other than tax on BlackBox Connections income. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.

5.0 Proprietary Rights

5.1 Limited License. Your right to use the Services is non-exclusive, revocable, personal and non-transferable. For the avoidance of doubt, your Clients obtain no right to use the Service, only the services you provide.

5.2 Reservation of Rights. We and our licensors own all right, title, and interest, including all related IPRs, in and to the BlackBox Connections Technology, the Content, the Services, and any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by you or anyone else relating to any of the foregoing; except Customer Data. Except for the express license granted herein, we grant no license or other right to you or any User or Client; all such other rights are expressly reserved to us. The BlackBox Connections name and logo are registered trademarks of ours. The product names associated with the Service are trademarks of ours or our licensors, and you have no right or license to use them without our written permission. You shall not challenge any ownership or other right with respect to the Service or any IPR.

5.3 Restrictions. Other than as expressly set forth herein, you shall not:

(a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way;

(b) modify, alter, tamper with, copy or create derivative works based on the Service or BlackBox Connections Technology in whole or in part;

(c) create Internet “links” to or from the Service, or “frame” or “mirror” any Content, other than on your own intranets or otherwise for your own internal business purposes;

(d) obliterate, alter, or remove any proprietary or intellectual property notices from the Service or Content;

(e) disassemble, reverse engineer, or decompile the Service, Third Party Products or any BlackBox Connections Technology, or

(f) access the Service or Content or BlackBox Connections Technology to: (i) build a competitive product or service, (ii) build a product or service using any similar idea, feature, function, or graphic of the Service or Third Party Products, or (iii) copy any idea, feature, function, or graphic of the Service or Third Party Products.

You should assume that everything you see or read on the Service that was not furnished by you (such as images, photographs, illustrations, text and other materials) is copyrighted unless otherwise noted. You may not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any of the Content in any way for any public or commercial purpose unless you have the necessary rights to do so as specified herein or you have obtained the prior written consent of BlackBox Connections. You may not use the Content on any other website or in a networked computer environment for any purpose except as permitted in writing by BlackBox Connections.

5.4 Customer Data. You own all Customer Data. However, you agree that we and our suppliers may access User accounts, including Customer Data, to respond to service or technical problems or at your request and we and our suppliers may compile, use and disclose without restrictions user statistics and Customer Data in aggregate and anonymous form only. You further understand and agree that your use of certain Third Party Products may require the storage and processing of your Customer Data by the third party supplier. You, not us, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.

5.5 Suggestions. You grant BlackBox Connections a paid-up, worldwide, irrevocable license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or your Users during the term of this Agreement relating to the operation of the Service (“Feedback”). Without limiting the generality of the foregoing, if you would like to provide Feedback about the Services, you can use the BlackBox Connections Community component of the Service for this purpose. You acknowledge and agree that Feedback is not your Confidential Information.

6.0 Confidentiality

6.1 Confidentiality. Without Discloser’s prior written consent or as set forth in this Agreement, Receiver shall not disclose or use any Confidential Information of Discloser except on a “need to know” basis to use the Service. Receiver shall use all reasonable security measures to protect the confidentiality of Discloser’s Confidential Information.

6.2 Return. If requested in writing, the Recipient shall return (to the extent technically feasible without undue cost or expense) all of the Discloser’s Confidential Information then in the Recipient’s possession or control. Notwithstanding the foregoing, the return of Customer Data shall be governed by the terms of the Order Form.

7.0 Warranties and Disclaimer

7.1 Warranties.

  1. Each party represents and warrants that it has the legal power to enter into the Agreement.
  2. You represent and warrant that all information you provide us is and shall be true and correct and that you have the right to use and share with us and our suppliers the Customer Data.
  3. We warrant that the Service, as updated by us and used in accordance with the User Guide, shall perform substantially in accordance with our User Guide under normal use and circumstances and that the Support services shall be performed in a manner consistent with general industry standards reasonably applicable to the provision thereof.

7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, WE MAKE NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE SERVICE, CONTENT AND ANY RELATED INSTALLATION, CONFIGURATION, MAINTENANCE OR OTHER SUPPORT SERVICES, EXPRESS OR IMPLIED, AT LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING WE MAKE NO PROMISE: (A) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT, ALL OF WHICH ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) AS TO ANY THIRD-PARTY PROVIDER OR ANY OF ITS PRODUCTS OR SERVICES, WHETHER OR NOT WE MAY HAVE DESIGNATED IT OR ITS PRODUCTS OR SERVICES AS “CERTIFIED,” “VALIDATED,” OR OTHERWISE; (C) THAT THE USE OF THE SERVICE SHALL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (D) THAT THE SERVICE SHALL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (E) THAT ANY CUSTOMER DATA SHALL BE ACCURATELY OR RELIABLY STORED, (F) THAT ERRORS OR DEFECTS SHALL BE CORRECTED, OR (G) THAT THE SERVICE SHALL BE FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT, ALTHOUGH WE SHALL NOT KNOWINGLY INSERT ANY SUCH HARMFUL CODE.

8.0 Indemnification

8.1 Indemnification by Us. We shall defend, indemnify, and hold you, your affiliates, and each of their officers, directors, employees, and agents (collectively, “Customer Indemnitees”) harmless from and against all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs, whether incurred as the result of a third party claim or a claim to enforce this provision) (collectively, “Losses”) made or brought against a Customer Indemnitee by a third party alleging that the Service, as updated by us from time to time and used in accordance with the terms of the Agreement infringes a CANADIAN patent, copyright or trademark, except that we shall have no such obligation for any infringement claim to the extent caused by (i) any modification or alteration of the Service not performed by us, (ii) any combination of the Service with any product, service, hardware, or business process not supplied by us; (iii) Content or (iv) third party providers products and services, including without limitation any information, design, specification, instruction, software, data, or material not furnished by us, or any material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party Web page accessed via a hyperlink). Our indemnification obligations are subject to the following: (a) you and any applicable Customer Indemnitee give us prompt written notice of such third party claim; (b) we have sole control of the defense and settlement of such third party claim; (c) you and any applicable Customer Indemnitee provide us, at our expense, all reasonable information and assistance in connection with such third party claim; and (d) we may not settle such third party claim unless such third party unconditionally releases any applicable Customer Indemnitee from all liability. This Section 8.1 shall be Customer Indemnitees exclusive remedy and our sole liability if there is any claim that the Service infringes or violates any IPR.

8.2 Indemnification by You. You shall defend, indemnify and hold us, our licensors, and our and their respective parents, subsidiaries, affiliates, officers, directors, employees, and agents (collectively, “BlackBox Connections Indemnitees”) harmless from and against any and all Losses arising out of or in connection with a third party claim concerning (a) the Customer Data or the combination of the Customer Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by the Customer Data or by the use, development, design, production, advertising or marketing of the Customer Data; (b) any and all losses, including without limitation, data loss or damage to hardware, software and other property arising from your acts and omissions in your use of the Service; (c) your use of the Services in violation of the terms of this Agreement or applicable law; (d) a dispute between you and any of your Users or Clients or (e) Independent Customer Activity. Your indemnification obligations are subject to the following (a) we give written notice of the claim promptly to you; (b) we give you sole control of the defense and settlement of such third party claim; (c) we provide you, at your expense, all reasonable information and assistance in connection with such third party claim; and (d) you may not settle such third party claim unless such third party unconditionally releases any applicable BlackBox Connections Indemnitees from all liability.

9.0 Limitation of Liability

9.1 Limitation of Liability. OTHER THAN FOR OUR INDEMNIFICATION OBLIGATION UNDER SECTION 8.1, IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, COST OF COVER, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES, CONTENT, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE BASIS OF ANY CLAIM, E.G., WARRANTY, TORT, CONTRACT, OR STRICT LIABILITY.

9.2 Acknowledgement. You acknowledge that: (a) this Section 9 is reasonable given the cost of the Service; (b) this Section 9 applies even if a remedy fails of its essential purpose; (c) all your claims are subject to the damages limitation in this Section 9; and (d) the 12-month calculation shall be made only once regardless of the number of claims arising out of or related to the Agreement and regardless whether they exceed the amounts actually paid by and due from you hereunder in the 12 months preceding your first claim.

9.3 Limitation of Action. Except for actions for non-payment or breach of a party’s IPRs, no action (regardless of form) arising out of the Agreement may be commenced by a party more than 2 years after the facts giving rise to the cause of action have occurred.

10.0 Term and Termination

10.1 Term of the Master Services Agreement. The term of this Master Services Agreement shall commence on the date it is executed by both parties and shall continue in full force and effect until the expiration or termination of all Order Forms, unless otherwise terminated earlier as provided hereunder.

10.2 Term of Services. The initial term of each of the Service is specified in the Order Form (“Initial Term”) and shall automatically renew for the same length as the Initial Term unless either party gives written notice 45 days prior to the end of the Initial Term or any renewal Term of its intention to terminate the Services described in the applicable Order Form. The Initial Term and renewal Terms are referred to as the “Term.” Other than as expressly set forth herein, you may not cancel the Service without our written consent.

10.3 Termination for Cause.

10.3.1A party may terminate this Agreement: (a) upon 45 days’ written notice of a material breach by the other party if the breach remains uncured at the expiration of such period, except for breach of payment obligations which shall have a ten (10) day cure period; and (b) if the other party becomes insolvent or the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3.2 If we terminate for your payment default, you agree to pay to us, in addition to fees accrued through the date of termination, the remaining value of the then-current initial or renewal term (that you acknowledge as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the recurring fees (as set forth in the Order Form) that will become due during the canceled portion of such Initial or renewal term.

10.4 Partial Termination. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable Order Form. Order Forms that are not terminated shall continue in full force and effect under the terms of this Master Services Agreement.

10.5 Suspension. We shall be entitled to suspend any or all performance upon 10 days written notice to you in the event you are in breach of this Agreement (and not cured within 5 business days of initial breach), including without limitation breach of the payment terms set forth in the Order Form. Further, we may suspend your access and use of the Service if, and so long as, in our sole judgment, there is a security risk created by you that may interfere with the proper continued provision of the Service or the operation of our network or systems. We may impose an additional charge to reinstate Service following such suspension.

10.6 Return of Customer Data. Within 30 days following your written request and payment of all amounts you owe to us, so long as you are not in breach of this Agreement, we shall provide you, to the extent technically feasible without undue cost or expense, a file, in a standard format, containing Customer Data in our possession or under our control, in such form as it exists on the date of termination or expiration of this Agreement. Notwithstanding anything in this Agreement or otherwise, we shall have no obligation to maintain or provide any Customer Data more than 30 days after termination or expiration of this Agreement for any reason. Thereafter, we may delete all Customer Data in our possession or under our control, provided, however, we may retain a copy for archival purposes. We reserve the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and we shall have no obligation to maintain or forward any Customer Data.

10.7 Survival. The following provisions shall survive termination of this Agreement: Sections 2.5, 2.8, 3.2, 3.5, 4, 5.2, 5.4, 5.5, 6, 7.2, 8, 9, 10, 11 and 12 of this Agreement.

11.0 General Provisions

11.1 Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

11.2 Assignment/No Benefit to Others. You may not assign or sublicense any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior express written consent. Any assignment not in accordance with this Section shall be void and shall entitle us to immediately terminate the Service. This Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. There are no third party beneficiaries to this Agreement. All representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns.

11.3 Notice. We may notify you by a general notice on the Service, by electronic mail to one of your Champion’s e-mail address we have on record or by pre-paid first class mail or overnight courier to your address on our records. Notice shall be deemed to have been given within 3 business days after mailing or 12 hours after sending an email or posting a change on the Service. You shall notify us (and such notice shall be deemed given when received) of any matter regarding this Agreement only by a written letter (a) sent by confirmed facsimile to us at the following fax number: 1-403-451-0312, (b) delivered by prepaid nationally recognized overnight delivery courier or by first class mail to us at the following address: BlackBox Connections Corporation, 382 Discovery Ridge Blvd. SW Calgary, AB T3H 5T6 Canada addressed to the attention of the President, or to such other address that we may designate to you in writing for notices, or (c) by e-mail to [email protected]. Notices by phone shall not be accepted.

11.4 No Waiver/Cumulative Remedies. No failure or delay in exercising a right shall constitute a waiver of that right. Except as expressly provided herein, a party’s rights and remedies shall be cumulative, and none of them shall be in limitation of any other right or remedy in law or equity.

11.5 Governing Law. This Agreement shall be governed by laws of Alberta, without regard to the choice of law provisions of any jurisdiction. You hereby unconditionally and irrevocably consent to the exclusive personal jurisdiction of the provincial and federal courts located in Alberta, if there is any dispute between you and us which cannot be amicably settled. You hereby waive any right to trial in connection with any dispute pursuant to this Agreement.

11.6 Entire Agreement. Our provision of the Services is expressly conditioned upon your assent to the terms of this Agreement. Accordingly, no text or other information set forth on any of your purchase orders, preprinted forms, or other documents shall add to or vary any term of this Agreement and we expressly reject any such additional or different terms. If any term of this Agreement is held to be invalid or unenforceable, such term shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable term, with all other terms remaining in full force and effect. This Agreement comprise the entire agreement between you and us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between your and us regarding the Service and this Agreement. Should there be a difference between the Terms of Use and the Order Form, the Terms of Use shall take precedence; provided that the parties may agree in writing that a provision of the Order Form shall supersede a provision of the Terms of Use by expressly referencing in the Order Form, the provision in the Terms of Use to be so superseded.

11.7 Export Control Laws. You shall comply with all Canadian and foreign export control laws and regulations applicable to the exercise of your rights under this Agreement.

11.8 Government Rights. The Services are provided to the Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service. If you are using the Service Offerings on behalf of the Government and these terms fail to meet the Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

11.9 No Contingencies. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.

Definitions

“BlackBox Connections Technology” means: (a) the BlackBox Connections and its suppliers’ name, logo, and domain name; the product and service names associated with the Service, including without limitation, Third Party Products; and other related trademarks and service marks; (b) the Content; and (c) other technology, software, APIs, integration solutions and work flows, hardware, websites and infrastructure, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information owned by BlackBox Connections or its suppliers.

“your Clients” means your third party customers or clients to whom you provide services in accordance with this Master Services Agreement and the Order Form.

“Confidential Information” means all information of a party (“Discloser”) disclosed to the other party (“Receiver”), whether orally or in writing, that is designated as confidential. For the avoidance of doubt the terms and conditions of the Order Form, the Service and its components, the BlackBox Connections Technology and technology and technical information, product designs, and business processes of BlackBox Connections or its licensors are our Confidential Information and the Customer Data is your Confidential Information. However, Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation by Receiver; (b) was known to Receiver prior to its disclosure by Discloser; (c) was independently developed by Receiver without reliance on any Confidential Information of the Discloser; (d) is received from a third party without a known duty of non-disclosure to Discloser; or (e) is required to be disclosed by law or a governmental body or court, but in such case Receiver shall reasonably cooperate with Discloser, at Discloser’s expense, to limit such disclosure.

“Content” means the audio and visual information, documents, software, products, and services contained or made available by us to you through the Service.

“Customer Data” means any data, information, or material you or any User or Client provides or submits through the Service.

“Including,” “include,” and their variants means including without limitation.

“Independent Customer Activity” means: (i) use of equipment by you not provided or previously approved by us; or (ii) negligent acts or omissions or willful misconduct by you, your Users, or your Clients.

“Internet Unavailability” means your inability to access, or our inability to provide, the Service through the Internet due to causes outside of our direct control, including, but not limited to: (i) failure or unavailability of Internet access; (ii) unauthorized use, theft or operator errors relating to your telephone, cable or Internet service provider; (iii) bugs, errors, configuration problems or incompatibility of equipment or services relating to your computer or network; or (iv) failure of communications networks or data transmission facilities.

“IPRs” means ideas and inventions (patentable or not), patent applications, patents, rights in inventions, design rights, database rights, copyrights, trademarks, service marks, trade names, domain names, know-how, show how, trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“License Metrics” means the limitation on the usage of Services as designated and/or defined in the applicable Order Form by a term such as the number of named users, managed devices and the like.

“Order Form(s)” means the form executed by the parties under this Master Services Agreement, specifying, among other things, the Service purchased, License Metrics, number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties.

“Service(s)” means the online, Web-based application(s), including Third Party Products if any, and Content accessible via BlackBox Connections website, and/or other websites designated by BlackBox Connections, that are ordered by you under an Order Form, including associated offline components.

“Service Level Agreement” means all service level agreements that we offer with respect to the Service and associated Support and post on our website, as they may be updated by us from time to time. The service level agreements we currently offer with respect to the Service are located on our Client Site.

“Support Services” means (i) the technical support and workarounds so that the Service operate in material conformance with the User Guide, and (ii) the provision of updates thereto, if and when available, all of which are provided under BlackBox Connections Support policies (as may be amended by us from time to time) in effect at the time the Support services are provided). For the avoidance of doubt, updates include bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules or functionality for which BlackBox Connections generally charges a separate fee.

“Third Party Products” means extensions of and add-ons to the Service which you purchase from us but that are not hosted by us, such as integrations to third party applications and web-based integration platforms.

“User Guide” means the online documentation for the Service, as we provide and update it from time to time.

“Users” means a natural person that is authorized by you to use the Service who has been supplied User IDs and passwords by you (or by us at your request) and who is (a) your employee, or (b) your individual contractor.

“Wireless Network Interruption Factors” means any wireless network outages or constraints that may occur due to the availability of the wireless network being temporarily refused, interrupted, curtailed or otherwise limited by factors including but not limited to atmospheric, environmental or topographical conditions, physical features such as buildings, tunnels or landmass features, satellite or transponder failure, coverage limitations, outages, gaps or other service interruptions attributable to the wireless network carrier or its network, including the wireless network carrier’s scheduled maintenance, capacity constraints, hostile network attacks by a third party that are directly attributable to the network’s vulnerabilities or wireless network provider facilities changes, modifications, updates, relocations, repairs, maintenance or other similar activities necessary for the proper or improved operation of the wireless network.

Last Updated: February 22, 2016

 

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