Streamline IT Terms of Service

Effective Date: 7/8/2024

Please read this Agreement carefully as it contains important information about your legal rights, remedies and obligations. By using any of Service Provider’s services hereunder, you agree to comply with and be bound by this Agreement.

Please note: Section 16 of this Agreement contains an arbitration clause that applies to all Customers. It affects how disputes with Service Provider are resolved. By accepting this Agreement, you agree to be bound by this arbitration clause. Please read it carefully.

THIS TERMS OF SERVICE is entered into as of Effective Date between you (“Customer”), and Streamline Information Management Inc., a service provider having its principal place of business at 4789 Yonge St, Unit 1119, Toronto, Ontario M2N 0G3 (Service Provider”).

RECITALS:

Service Provider possesses the requisite technical skill and expertise to perform the Services and deliver the Deliverables as described in an SoW attached hereto from time to time.
From time to time, Customer desires to retain Service Provider as an independent contractor on a per project basis to perform the Services and deliver the Deliverables as described in an SoW.

NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by the Parties), the Parties hereto hereby covenant and agree as follows:

INTERPRETATION
1. Definitions. In this Agreement and the schedules annexed hereto, the following terms shall have the respective meanings indicated below:
  1. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of assessment, notice of reassessment, proceeding, litigation, summons, subpoena or investigation of any nature, civil, criminal, administrative, investigative, regulatory or otherwise, whether at law or in equity.
  2. “Agreement” means this terms of service and all Schedules and Exhibits attached hereto, as amended, amended and restated, extended, supplemented, replaced or otherwise modified and superseded from time to time.
  3. “Applicable Laws” means any and all (i) laws, statutes, rules, regulations, by-laws, codes, treaties, constitutions and ordinances, including Privacy Legislation (“Laws”); (ii) order, directive, judgment, decree, award or writ of any court (including a court of equity), arbitrator or arbitration panel, or any Governmental Authority or other body exercising adjudicative, regulatory, judicial or quasi-judicial powers, including any stock exchange (“Orders”); and (iii) policies, guidelines, standards, requirements, notices and protocols of any Governmental Authority (“Policies”), which are applicable to or govern Customer, Service Provider or the transactions contemplated by this Agreement.
  4. “Background Intellectual Property” means any pre-existing Intellectual Property owned by Service Provider.
  5. “Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in the Province of Ontario.
  6. “Change” means additions, deletions or amendments in respect of the development of the Deliverables or the provision of the Services (“Change”).
  7. “Change Request Procedure” means the procedure to effect a Change as set out in para. 5.(b) and Exhibit “1”.
  8. “Confidential Information” means this Agreement; the Deliverables; Software, including its Source Materials and any information and data included therein or derived therefrom and the form, format, mode or method of compilation, selection, configuration, presentation or expression of the Software; and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished and to be furnished or made available by Customer to Service Provider, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Customer’s actual and potential customers and other Intellectual Property Rights of Customer, provided, however, that Confidential Information shall not include any data or information:
    1. that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of Service Provider, whether through breach of this Agreement or otherwise;
    2. that, prior to disclosure by Customer, was already in the possession of Service Provider, as evidenced by written records kept by Service Provider in the ordinary course of its business, or as evidenced by proof of actual prior use by Service Provider;
    3. independently developed by Service Provider, by Persons having no direct or indirect access to the Customer’s Confidential Information, provided that Service Provider provides clear and convincing evidence of such independent development;
    4. which, subsequent to disclosure, is obtained from a third Person who (I) is lawfully in possession of the such information; (II) is not in violation of any contractual, legal, or fiduciary obligation to Customer with respect to such information; and (III) does not prohibit Service Provider from disclosing such information to others; or
    5. is further disclosed with the prior written consent of Customer, but only to the extent of such consent.
  9. “Deliverables” means the work Service Provider is to perform, supply or make available to Customer as contemplated by this Agreement and as explicitly set out and described in an SoW; this may include the performance of a task, provision of advice and counsel, assistance or access to a resource (such as access to an information database), procurement and installation of Equipment, computer support, consulting services, maintenance, installation, acquisition, help desk support, training, coding, research and development, any added resource support required by Customer, the provision and/or delivery of any Software and/or Documentation.
  10. “Documentation” means, in respect of a Deliverable, the following items which may be relevant to such Deliverable: documents, reports, system and user manuals and guides with respect to the operation, use, maintenance, functions and performance of the Deliverable, and detailed design, functional, operational and technical documentation including system flow charts, program flow charts, file layouts, report layouts, screen layouts, working papers, all designs such as those contained in any word processing documents or databases and bitmaps of user interface designs and any other notes and memoranda in electronic or written format, which were made or obtained in relation to the design and development of such Deliverable.
  11. “Effective Date” means the date upon which Customer has agreed to this Agreement.
  12. “Equipment” means any and all computers, laptops, servers, computer hardware and other peripherals, wired or mobile telephones, on-site process control and automation systems, telecommunication assets, office products such as printers and scanners, racks, and other information technology-related equipment, including all associated Software.
  13. “Out Of Scope Services” means any time expended by Service Provider to provide Services and Deliverables in excess of such SoW total estimated hours or outside of Service Provider’s normal Hours of Operation.
  14. “Governmental Authority” means any domestic, foreign or supranational government, whether federal, provincial, state, territorial or municipal, and any governmental agency, ministry, department, tribunal, commission, bureau, board or other instrumentality, including international institutions exercising or purporting to exercise legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
  15. “IT Infrastructure” means any Software, Equipment, network systems, facilities and frameworks that enable the delivery of IT services between Customer’s business units and staff, which term includes, but is not limited to, firewalls, switches, servers, power redundancy systems (UPS), cabling, access points, cooling systems, cloud servers, cloud networking, security and access policies.
  16. “Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its Source Materials), tools, products knowledge, know-how, including without limitation, trade secrets and other materials or things.
  17. “Intellectual Property Rights” means (A) any and all proprietary rights anywhere in the world provided under (I) patent law; (II) copyright law; (III) trademark law; (IV) design patent or industrial design law; (V) semiconductor chip or mask work law; (VI) trade secret law; (VII) privacy law; or (VIII) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either (AA) Intellectual Property; or (BB) the expression or use of Intellectual Property; and (B) any and all applications, registrations, licences, sub-licences, franchises, agreements or any other evidence of a right in any of the foregoing.
  18. “Losses” means any and all losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses, in each case of whatever kind, including the full amount of all reasonable legal fees and other professional fees, the cost of enforcing any right to indemnification hereunder, the cost of enforcing any injunction hereunder, and the cost of pursuing any providers as well as any incidental, consequential, special or indirect damages (and any loss of revenue, diminution in value or any damages based on any type of multiple).
  19. “Material Defect” means a defect that is not a Minor Defect.
  20. “Minor Defect” means a defect that is cosmetic in nature and does not impair the usability of the Deliverable.
  21. “Party” means either Customer or Service Provider.
  22. “Parties” means both Customer and Service Provider.
  23. “Person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, Governmental Authority or other entity or organization, and includes any successor to any of the foregoing.
  24. “Personal Information” means any information, including any information identifiable to an individual, that is protected under applicable Privacy Legislation.
  25. “Privacy Legislation” means the Personal Information and Protection of Electronic Documents Act (Canada), S.C. 2000, c. 5, the Personal Health Information Protection Act, 2004 (Ontario), S.O. 2004, c. 3, and any other Canadian federal or provincial, or other Governmental Authority personal information protection legislation, as from time to time enacted or amended.
  26. “Services” means the services to be performed by Service Provider as explicitly set out and described in an SoW and that are inherent and necessary to deliver the Services and/or Deliverables under such SoW.
  27. “Hours of Operation” means the hours of operation as defined in the Statement of Work or, where no such hours of operation are set out in the applicable SoW, Monday to Friday from 8:00 AM to 5:00 PM (Eastern Standard Time), excluding public holidays in Canada, or as amended otherwise by mutual agreement in writing between the Parties.
  28. “Specifications” means the functional requirements which the Deliverables are to meet.
  29. “Software” means any software that Service Provider is contracted to provide, whether directly or indirectly by or through a third-party, as part of its Services hereunder.
  30. “Source Code” means the human-readable form of a computer instruction, including, but not limited to, related system documentation, all comments and any procedural code.
  31. “Source Materials” means, in relation to the Software, all materials that would enable a reasonably skilled programmer to compile, debug and make improvements to such Software in a commercially reasonable manner, including (A) all Source Code related thereto, reasonably annotated; (B) all technical and system documentation, including detailed design, functional, operational and technical documentation, flow charts, diagrams, file layouts, report layouts, screen layouts, business rules, data and database models and structures, working papers and any other notes and memoranda in electronic or written format, which were made or obtained in relation to the design and development of such Software and compilation instructions related to such Software; (C) listings by name, version and developer of all third Persons’ compilers, utilities and other software that are necessary to operate the Software, including sufficient information to procure a licence from such developers; (D) a listing of all relevant equipment necessary to operate the Software; and (E) copies in Source Code and object code form, of all compilers, utilities and other software, that are proprietary to Service Provider and which are necessary in relation to the Software.
  32. “Statement of Work” or “SoW” means a statement of work mutually agreed to and signed by the Parties from time to time per project, which describe the Services and the details and the specifications of the Deliverables to be provided by Service Provider.
2. Headings. The division of this Agreement into Articles and Paragraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article, Paragraph or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Paragraphs are to Articles and Paragraphs of this Agreement.
3. Currency. Unless otherwise specified, all references to money amounts, including the symbol “$”, are to Canadian currency.
4. Schedules and Exhibits. The following Schedules and Exhibits are a part of and are integral to this Agreement:
  - Exhibit “1” – Change Request Procedures
  - Exhibit “2” – Acceptance Procedures
5. Entire Agreement. This Agreement, together with any agreements and other documents to be delivered pursuant hereto, including any SoWs, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties; provided, however, that if this Agreement has been amended or modified pursuant to Para. 17.(b), then all active Statements of Work between Customer and Service Provider at the time of entering into this Agreement shall remain in full force and effect and shall thereafter be governed and interpreted pursuant to this Agreement and not any previous master agreement between Customer and Service Provider. Except as expressly provided in this Agreement or in an SoW, there are no representations, warranties, conditions, other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect this Agreement. The execution of this Agreement has not been induced by, nor do either of the Parties rely upon or regard as material, any representations, warranties, conditions, other agreements or acknowledgements not expressly made in this Agreement or in the agreements and other documents to be delivered pursuant hereto.
6. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario (excluding any conflict of laws rules or principles which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.
7. Severability. In the event that any provision (or any portion of a provision) of this Agreement or in an SoW shall for any reason be held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement and/or SoW shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.
8. United Nations Convention. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto.
SCOPE OF THE AGREEMENT
1. Agreement. This Agreement is a master agreement that contemplates that Service Provider and Customer may enter into one or more Statements of Work for the provision of Services and/or delivery of Deliverables as set out therein. When Customer and Service Provider have agreed upon the nature and timing of a project for the provision of Services and/or delivery of Deliverables, the Parties shall complete and execute a SoW, which shall contain the agreement of the Parties in relation to the specific project.
2. Statement of Work. Each Statement of Work is automatically deemed to include all the terms and provisions of this Agreement and of each Exhibit and Schedule attached hereto. Each Statement of Work shall constitute a separate distinct and independent agreement and contractual obligation of the Parties hereto. Each Statement of Work will be effective only when signed by Customer and Service Provider. Any timelines or deadlines under any SoW shall only be used for the purpose of estimation and shall not bind the Service Provider. The Service Provider does not provide any guarantee and shall not be liable for any failure or delay to provide any such Services or deliver such Deliverables by the stated timelines (if any) in any SoW.
3. Precedence. In the event of a conflict between the provisions of this Agreement and a Statement of Work, the following shall be the order of precedence: (i) this Agreement, including the Exhibits and Schedules attached hereto; (ii) the applicable Statement of Work for the provision of the Service or delivery of the Deliverable; ; provided that whenever the provisions of this Agreement conflict with the provisions of a Statement of Work, the provisions of this Agreement take precedence over the provisions of any Statement of Work only for the purposes of the conflict between that Statement of Work and this Agreement and the terms and provisions of this Agreement and each Exhibit and Schedule attached hereto are not otherwise amended, modified, cancelled, waived or released.
RELATIONSHIP OF THE PARTIES
1. Status. Service Provider is retained by Customer only for the purposes and to the extent set forth in this Agreement and the applicable SoW. The relationship of Service Provider to Customer shall be that of independent contractor. Neither Service Provider, nor its officers, directors, agents, independent contractors, subcontractors or employees shall be (i) considered employees of Customer; or (ii) be entitled to participate in any pension, stock bonus, profit sharing or other benefits provided to employees of Customer. Service Provider is solely responsible for all obligations relating to its personnel and their compensation, including compliance with laws governing workers’ compensation, withholding and payment of any and all taxes, disability insurance, employment insurance contributions, government pension plan contributions, any related employer assessment, contribution or obligation required by law, and the payment of all salary, vacation, pension and other employee benefits.
2. Non-Exclusive. Nothing contained in this Agreement shall be construed to create an exclusive relationship between Customer and Service Provider. Service Provider retains the right to perform work for others during the term of this Agreement. Customer retains the right to cause work of the same or a different kind to be performed by its own personnel or other providers during the term of this Agreement.
SCOPE OF SERVICES
1. Appointment. Subject to the provisions set forth below, Customer hereby appoints Service Provider, and Service Provider hereby accepts the appointment, as a non-exclusive independent contractor of Customer to perform the Services and deliver the Deliverables as Customer may from time to time request, in its sole discretion, and as set out in a mutually agreeable SoW.
2. SoW and Performance of Services. All services to be performed by Service Provider for Customer will be pursuant to an SoW. The SoW shall provide some or all of the following details depending on the type of engagement: the type of Engagement between Managed IT Services, Professional Services and Procurement Services, a description and the specifications of the required results of the Deliverables to be performed, the commencement date, the time schedule and anticipated duration for the project. For Professional Services, the Customer may not postpone the commencement date or extend the duration of any Professional Services as set out in the applicable SoW without the prior written consent of Service Provider.
3. Types of Service Engagements. Throughout the term of this Agreement, Customer may from time to time engage Service Provider for one or more of the engagements described below (each, an “Engagement”). Each Engagement shall only include the services, tasks, duties, functions and responsibilities that are explicitly described in the SoW and that are inherent and necessary to deliver the Services and/or Deliverables for such Engagement. Each Engagement and its applicable SoW shall, subject to any agreed upon Change, be governed by the terms and conditions of this Agreement and any Schedules to this Agreement. Notwithstanding anything in this Agreement to the contrary, Service Provider shall determine the method, details and means of performing the Services and delivering the Deliverables; provided that all such Services and Deliverables shall meet the Specifications described in the SoW.
  1. Engagement: Managed IT Services. Under an Engagement for recurring Managed IT Services (the “Managed IT Services”), Service Provider will cooperate with Customer to provide certain Services and Deliverables on a monthly basis and to generally manage the Customer’s IT infrastructure, as further described under the monthly service plans attached to each SoW [A1] (as amended, amended and restated, extended, supplemented, replaced or otherwise modified and superseded from time to time), which may include, subject to certain conditions described below, some or all of the following: an unlimited amount of remote and on-site network and technical support, periodic IT consultation, procurement of Equipment and related Software, monitoring and maintenance of Customer’s IT Infrastructure and management of licenses and subscriptions. The specific Services and/or Deliverable that Customer will receive on a monthly basis will depend on the monthly plan that Customer selects under the applicable SoW. Upon entering into a Managed IT Services Engagement and until the earlier termination of the Managed IT Services Engagement or this Agreement, Service Provider shall provide all Services and/or Deliverables as described under the plan purchased by Customer in exchange for payment of a monthly Fixed Fee.
  2. Engagement: Professional Services. Under an Engagement for any information technology project (each, a “Professional Services”), Service Provider shall provide Customer with certain Services and/or Deliverables as described in the applicable SoW in exchange for the Fixed Fees set out therein. All Professional Services are time-limited whereby the applicable SoW shall terminate immediately upon delivery of all Services and Deliverables described in the Professional Services’ SoW and expiration of any applicable acceptance period thereof. The SoW for the Professional Services shall state whether or not an acceptance test shall be applicable to the Professional Services upon delivery or completion.
  3. Engagement: Procurement. Where Customer enters into an Engagement for the procurement of Software and/or Equipment (“Procurement Services”), Service Provider shall: (A) obtain, procure and deliver to Customer any Equipment and Software that Customer has requested under the applicable SoW; and (B) provide any requested Services in relation to such Equipment and Software, including any setup, installation, configuration and support services required thereof. Service Provider shall invoice the Customer in advance for the price of the Equipment and/or Software requested as well as an estimation of the Time Fees for Service Provider’s Services thereof. All invoices must be paid in advance of Customer receiving any Procurement Services.
4. Excluded Services. The Customer hereby acknowledges that the Service Provider does not sell, transfer, produce, develop or distribute: (i) Intellectual Property and Source Code in any Equipment or Software in the provision of the Services hereunder, as the Parties acknowledge that all Equipment and Software may be subject to third-party Intellectual Property Rights; (ii) any pre-existing Intellectual Property Rights of the Service Provider prior to the date hereof; (iii) any information about Service Provider’s business affairs, products, services, software, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”; and (iv) legal or insurance advice in relation to any Services and Deliverables. Customer agrees to take full responsibility for installation, storage, back-up, maintenance, and other aspects of its files, software, programs, data, information and other content. Customer is at all times solely responsible for preventing and ensuring that their IT Infrastructure is secured and safe from compromise at all time, and Supplier is not responsible nor liable for any breach of security of safety of Customer’s IT Infrastructure.
5. Out of Scope Services. Any Services and Deliverables that are not explicitly described in Customer’s Engagement under the applicable SoW shall be subject to additional fees and will only be provided by Service Provider: (i) with its prior written consent; (ii) by the Parties entering into a Change Agreement; or (iii) by the Parties entering into a new Engagement under a new SoW. Should Customer wish to have Service Provider provide any Out Of Scope Services, Customer shall submit details of the Services and/or Deliverables requested to Service Provider in writing in accordance with the change request procedure pursuant to Section 5. All Out Of Scope Services shall be billed to the Customer at the Service Provider’s then-current Out Of Scope rates, as amended from time to time by Service Provider by notice in writing to the Customer.
6. Security Protocols. Customer acknowledges that Service Provider and any of its personnel, including permitted subcontractors, require access to Customer’s computer systems or network, whether such access is remote or on premises. Service Provider or any of its personnel shall not externally distribute any of data or information to any unauthorized third-party, including any Confidential Information or Personal Information, that may be on Customer’s systems without Customer’s express written consent and then only to the extent and scope of such consent and as necessary to perform the Services.
7. Subcontracting. Service Provider may subcontract the performance of any part of the Services or delivery of any Deliverables or portion thereof to any Person.
CONTRACT ADMINISTRATION
1. Meetings. The Statement of Work shall stipulate the type and frequency of meetings to be held in relation to the performance of the Services and delivery of the Deliverables. Such meetings may be in person, by telephone or video conference, as determined by Service Provider in its sole discretion.
2. Change Request Procedure. Either Party may request additions, deletions or amendments in respect of the provision of Services or Deliverables under any Statement of Work (“Change”) by following the procedures set out in Exhibit “1” attached hereto. Service Provider shall have no obligation to perform, and Customer shall have no obligation to pay for, services related to any proposed Change unless both Parties have agreed to the Changes in writing in accordance with the procedures set forth in Exhibit “1”. In no event shall the Services or the Deliverables be deemed altered, amended, enhanced, or otherwise modified except in accordance with the processes specified in Exhibit “1”. Upon agreement of the Parties to the Change, the Parties shall enter into a Change Order, which shall form a part of and amend the applicable Statement of Work. No Change shall be effective unless and until approved by Service Provider in writing.
3. Acceptance of Deliverables. In the event that acceptance criteria for the Deliverables are stipulated, or are contemplated and are to be developed as part of an Engagement, in the applicable SoW, then the procedures contained in Exhibit “2”, and as may be supplemented by the applicable SoW, shall apply. Where no such acceptance criteria is provided for in the applicable SoW, then the procedure contained in Exhibit “2” shall not apply and the Deliverables shall be deemed accepted upon delivery.
CUSTOMER OBLIGATIONS
1. Customer Dependencies. Customer shall assist Service Provider in its performance of any Services and delivery of any Deliverables by providing any input, instructions, documents, information, reports, pictures and any other information, including schedules, specifications, diagrams, network details, information system plans, equipment requirements and drawings (“Dependencies”) required by Service Provider to sufficiently enable Service Provider to provide the Services and deliver the Deliverables under this Agreement and any applicable SoW. Service Provider will be entitled to rely on all Dependencies, whether provided by the Customer or obtained by Service Provider in consultation with the Customer or any of its personnel, in its provision of any Services or Deliverables under this Agreement. Customer is solely responsible for the accuracy of any Dependencies and Service Provider will not be liable if any Services or Deliverables do not meet Customer’s Specifications or have a Material Defect because of incorrect or incomplete Dependencies. If Customer fails to complete or provide any Dependencies reasonably required by Service Provider, then any deadline of the Service Provider which is dependent on such Dependencies will be extended by a reasonable number of days, which delay may also be affected by third party schedules and other consequential scheduling conflicts; provided that Customer shall at all times make payment in full on all invoices notwithstanding such delay occasioned by Customer.
2. Equipment Policies. The Customer shall at all times be responsible to Service Provider for all Losses occasioned by Customer’s negligence or intentional misconduct to Equipment owned by Service Provider and loaned to Customer, except where directly caused by the negligence of Service Provider. Until paid in full by Customer, Equipment shall not be encumbered, loaned, leased or sold by the Customer and Customer shall not modify the equipment setup and wiring or use the Equipment for any purpose that has not been approved by Service Provider in writing and in advance. If, in the reasonable opinion of the Service Provider, any Services and/or Deliverables requested by Customer are due to, resulting from, or in any way related to, Customer’s negligence which causes damage to Equipment, misuse or abuse of any Equipment or failure by Customer to implement commercially reasonable practices to prevent the foregoing, then those Services and Deliverables shall be deemed Out Of Scope Services and shall be invoiced to the Customer accordingly.
3. Compliance with Applicable Laws. Customer shall comply with all Applicable Laws of any Governmental Authority and the terms of any third-party Software licensing terms, and shall hold and fully comply with all required licences, permits, consents and approvals required for its business operations. If Service Provider becomes aware or reasonably believes that Customer is engaging in any illegal or unlawful activities, including the breach of any material terms of any Software being licensed by Customer, Service Provider may, upon notice in writing to Customer and after providing Customer with five (5) days to cure the same, immediately terminate this Agreement and any Statements of Work without any liability to Customer. Upon termination hereunder, Service Provider shall cease providing all Services and Deliverables and may cancel any outstanding Procurement Services which have not yet been delivered to Customer.
4. Insurance. Customer will have in force and will maintain in force during the term of this Agreement the following insurance coverages:
  1. commercial general liability insurance (including products and completed operations coverage), as applicable to the Customer, covering all amounts that Customer may be legally obligated to pay as damaged for any of its commercial activity, any injury to persons (including death) and damage to property;
  2. for the handling, moving, storage and installation of all Equipment and any related Services and/or Deliverables under this Agreement or any SoW;
  3. professional liability (errors and omissions) insurance; and
  4. cybersecurity insurance.
5. Customer accepts full responsibility for identifying and determining the type(s) and extent of insurance necessary to provide reasonable financial protection for the Customer and Service Provider under this Agreement. Customer will indemnify and hold harmless Service Provider for any failure by Customer to obtain adequate insurance coverage under this Agreement to protect Service Provider from any Losses. Promptly on Service Provider’s request, Customer will provide certificates of insurance or other evidence reasonably satisfactory to Service Provider that all required insurance is in effect. The Customer will not allow Service Provider and any of its employees or subcontractors to provide any Services and Deliverables until the insurance required of the Customer and such third-party has been obtained.
6. Access to IT Infrastructure. Under any Managed IT Services Engagement, Customer shall, and shall ensure that its personnel and third-party vendors shall, not cause any additions, deletions, modification or other changes to any IT Infrastructure under management by the Service Provider without first providing notice to the Service Provider as described in this paragraph. Should Customer wish for any Person to access, modify or change any IT Infrastructure, Customer must contact Service Provider in writing in advance and provide a brief description of the following: the type of access needed, the modification or change being contemplated, and the Person that requires such access or would like to effect such modification or change. Upon receipt of Customer’s notice, Service Provider shall first assess whether the access, modification or change may cause any issues with Customer’s IT Infrastructure and, following such assessment, will advise Customer on best next steps to avoid harm to Customer’s IT Infrastructure. If Customer fails to follow the procedure described in this paragraph and, as a result, Service Provider is required to provide any remedial Services to Customer’s IT Infrastructure as a result of any third-party actions, then, in addition to any other remedies available to Service Provider in this Agreement, all such remedial Services shall be deemed Out of Scope Services and will be billed to Customer accordingly and Customer shall indemnify Service Provider from any and all Losses occasioned by Customer’s failure to abide by the procedure described herein.
INTELLECTUAL PROPERTY AND OWNERSHIP OF DELIVERABLES
1. Grant of License.
  1. Customer License. As of the Effective Date, to assist in providing Services for the Term and any Transition Assistance period, Customer hereby grants to Service Provider, during the Term and any Transition Assistance Period, a non-exclusive, non-transferable, royalty-free, fully paid-up, worldwide license, under all of Customer’s Intellectual Property, to use, disclose, execute, copy, reproduce, modify, display, perform, link, combine with other Software or Equipment and prepare or have prepared derivative works (with respect to which Service Provider shall have the same such rights) of, the Software owned by Customer, and any updates and enhancements thereto; in each case, to the extent necessary for Service Provider to provide the Services, the Deliverables or the Transition Assistance, as applicable, in accordance with this Agreement and any SoW. As between the parties, Customer’s Intellectual Property is and shall remain the exclusive property of Customer. Service Provider shall not be permitted to use Customer’s Intellectual Property for the benefit of any Person other than Customer without the prior written consent of Customer, which may be withheld at Customer’s sole discretion.
  2. Service Provider License. Subject to and conditioned on Customer’s full payment of Fees hereunder and compliance with all other terms and conditions of this Agreement, as of the Effective Date, to assist in providing Services for the Term and any Transition Assistance period, Service Provider hereby grants to Customer, during the Term and any Transition Assistance period, a non-exclusive, non-transferable, royalty-free, fully paid-up, worldwide license to access, use, copy, support, maintain, modify, sublicense, assign, distribute, or otherwise exploit any Background Intellectual Property that is integrated with, embedded in, or otherwise forms part of any Customer Intellectual Property; in each case, to the extent necessary for Customer to receive the Services or the Transition Assistance, as applicable, in accordance with the Agreement. As between the parties, all Background Intellectual Property is and shall remain the exclusive property of Service Provider. Customer shall not be permitted to use any Background Intellectual Property for the benefit of any Person other than Customer without the prior written consent of Service Provider, which may be withheld at Service Provider’s sole discretion.
  3. Third Party Licenses. As to any third party Software necessary for Service Provider to provide the Services and/or Deliverables to Customer, each of Service Provider and Customer hereby grant to the other party sublicense rights to any such third party Software that is licensable by the granting party, for the purposes of, and to the extent necessary for, providing or receiving, as applicable, the Services or the Transition Assistance, as applicable, in accordance with the Agreement. If any third party Software is not licensable, Customer, with Service Provider’s reasonable cooperation, shall be responsible for obtaining all required consents necessary to enable Service Provider to use such third party Software for the purposes of providing the Services to Customer. Customer shall not introduce any third party Software to Service Provider which it does not have the legal right to grant a sublicense to the Service Provider.
2. The ownership and license rights granted in this Agreement are subject to any Intellectual Property rights held by, and the terms of any license agreements with, applicable third party software providers.
3. Sublicensing. The license granted to each Party under Para. 7.(a)(i) and (ii) includes the right to grant sublicenses of similar or lesser scope to any and all of such Party’s agents, provided that such sublicense shall be subject to a written agreement, which imposes on the sublicensee the same confidentiality and other obligations imposed on such Party hereunder, and which shall terminate on the date of termination of the license granted hereunder.
4. Further Restrictions. Each Party shall not use, distribute, sell, assign, transfer, copy, sublicense or otherwise make available to any Person, the other party’s Intellectual Party except as expressly permitted in this Agreement. Any decompiling, disassembly, reverse-engineering or modification of the other Party’s Intellectual Property (except as mutually agreed upon by the Parties) is strictly prohibited. Each Party shall not remove, alter or otherwise render illegible any copyright or similar proprietary notices placed on any full or partial copy, modified or unmodified, of the other Party’s Intellectual Property. Except as otherwise requested or approved by the other Party, each Party shall cease all use of the other Party’s Intellectual Property upon expiration or termination of this Agreement (or after any applicable Transition Assistance period).
5. Ownership of Deliverables. Customer acknowledges and agrees that all worldwide right, title and interest, including, without limitation, all Intellectual Property Rights in and to any and all Deliverables developed by Service Provider under this Agreement and any SoW, will be the sole property of Customer; provided that Customer shall have no rights to any Background Intellectual Property. Service Provider will submit copies of all Deliverables to Customer, with the understanding that Service Provider will retain copies of all Deliverables for internal compliance purposes.
6. Title to Equipment. Title to equipment delivered by Service Provider to Customer hereunder shall be held by Service Provider until paid in full by Customer.
7. Further Assurances. To the extent that Customer may, under Applicable Law, be entitled to claim any ownership interest in any Background Intellectual Property, and to give effect to the foregoing sentence, Customer agrees to assign, and does under this Agreement assign, to Service Provider all Intellectual Property Rights in and to all Background Intellectual Property incorporated into the Deliverables as soon as they are created. Submission or distribution of any Deliverables to Customer under this Agreement will not be taken to reduce or take away from Service Provider’s reserved Intellectual Property Rights in its Background Intellectual Property.
8. Warranties. Service Provider represents and warrants to Customer that:
  1. the Services will be performed by in a professional and workmanlike manner in accordance with generally applicable industry standards and to the standard that professional services of such character in the industry would reasonably expect;
  2. Service Provider has the full unencumbered right and entitlement to assign all Intellectual Property Rights transferred and assigned in this Agreement, and the ownership and exploitation by Customer of the Deliverables, as contemplated by this Agreement, will not violate or infringe any Intellectual Property Rights of any other Person;
  3. title to the Deliverables and all media, materials and supplies housing the Deliverables delivered hereunder shall pass to Customer in accordance with the terms hereof free and clear of all liens and encumbrances;
  4. Service Provider has made no Intellectual Property Rights registrations of any nature in any jurisdiction in the world in respect of the Deliverables including copyright, patent and trademark registrations;
  5. none of the Services and Deliverables shall constitute an infringement or induce an infringement of any third party Intellectual Property Rights, unless Service Provider has identified such third party Intellectual Property Rights to Customer and Customer has provided express consent prior to the delivery of any Deliverables which incorporate such third party rights;
  6. to the extent that Service Provider, its personnel or contractors collects, uses or discloses Personal Information in the performance of its obligations under this Agreement or any SOW, Service Provider shall maintain the confidentiality of such Personal Information, and at all times ensure compliance with, and shall ensure that its personnel and contractors comply with, all laws applicable to information privacy;
FEES
1. Fees. In consideration of Service Provider performing the Services and delivering the Deliverables described in the applicable SoW, Customer will pay Service Provider any fees due pursuant to any SoW (the “Fees”). Customer shall make payment of any Fees due either: (i) as directed in the applicable SoW or invoice thereunder; or (ii) if no such payment date is specified in the SoW, then all Fees accrued to date shall be payable within 7 days of receipt of an invoice from Service Provider. The SoW will provide: (i) whether the fees for the Deliverables will be determined on a fixed price basis or on a time basis; (ii) any on-going support, maintenance or consulting fees that Customer must pay to the Service Provider, as provided in the applicable SoW; (iii) the invoice address of Customer to which the invoices should be sent; and (iv) the payment terms.
2. Fixed Fees. When the Fees payable by Customer are determined on a fixed price basis (the “Fixed Fees”), Service Provider will invoice Customer for the Fixed Fees and the expenses incurred by Service Provider as set out in the applicable Statement of Work, or if not set out therein, when the Deliverables have been delivered in accordance with the SoW. For Monthly Plans, the Fixed Fees are determined by such factors as the number of employees with the Customer, the number of devices under management and/or the number of business locations being services (the “Determinants”); provided that if a Determinant increases in any given month under a Monthly Plan Engagement, then the Fixed Fees will automatically be adjusted for the additional Determinant and billed to Customer in the next invoice.
3. Time Fees. When the Fees payable by Customer are on a time basis (the “Time Fees”), Service Provider will provide an estimate of the anticipated time required to perform the Services and deliver the Deliverables described herein and Customer shall be invoiced for the time worked by Service Provider and the costs incurred therein. The rate(s) and invoicing schedule applicable to the Time Fees shall be set out in the applicable SoW or, where no such rate or schedule is listed in the SoW, the Service Provider’s then-current rates, as amended from time to time by notice in writing to Customer.
4. Expenses. Unless otherwise agreed by the Parties as set out in the applicable SoW, Service Provider agrees that it will not incur any expenses for Customer’s account, without Customer’s prior written approval.
5. Pricing Adjustment. Upon 30 days advance written notice to Customer, Service Provider may increase the Fees applicable to Managed IT Services or its then-current rates applicable to any other services provided hereunder or under any SoW. Should Customer wish to terminate Monthly Service prior to a Fee adjustment, Customer may terminate on 30 days advance notice to Service Provider pursuant to Para. 14.(c).(ii).
6. Taxes. Customer shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement, consisting of federal, provincial and local, excise, sales, use, goods and services, harmonized and any taxes or other amounts in lieu thereof. Customer shall not be responsible for any taxes based on Service Provider’s income, capital or any property used by Service Provider in the performance of the Services. Any applicable withholding taxes shall be deducted from payments to Service Provider and Customer shall remit same to the appropriate Governmental Authorities, unless Service Provider provides Customer with appropriate documentation and/or exemption certificates.
CONFIDENTIALITY
1. Confidential Information. During the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, services, software, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information will not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Affiliates, employees, officers, directors, partners, shareholders, agents, lawyers, third-party advisors, successors, and permitted assigns (collectively “Representatives”) or (ii) was known by or in the possession of the Receiving Party or its Representatives before being disclosed by or on behalf of the Disclosing Party.
2. Confidentiality Obligation. The Receiving Party will: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any Person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
3. Obligations Upon Termination. The Receiving Party will be responsible for any breach of this Section 9 caused by any of its Representatives. On the termination of the Agreement, the Receiving Party will promptly return, and will require its Representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, including all documentation, Customer Dependencies and passwords, and destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Upon receipt from Streamline of the final package of Confidential Information, Customer shall have 30 days to review and request any other information that may be held by Streamline and which Customer desires a copy. Once Streamline has delivered all Confidential Information to Customer as described herein and upon expiration of the 30 day review period, Streamline’s obligations to maintain such Confidential Information or copies thereof shall be terminated and Streamline may delete all other Confidential Information held by it. In addition to all other remedies available at law, the Disclosing Party may seek equitable relief (including injunctive relief) against the Receiving Party and its Representatives to prevent the breach or threatened breach of this Section 9 and to secure its enforcement.
4. Unauthorized Disclosure. To the extent any unauthorized disclosure or access to Confidential Information or Personal Information is attributable to a breach by Service Provider or Service Provider’s personnel (even if outside the scope of their employment or consulting duties) of Service Provider’s obligations under the Agreement, or in relation to an SoW made pursuant to it, Service Provider shall not be responsible for any Losses incurred by Customer as a result of such breach.
DISCLAIMER.
1. Services Disclaimer. Service Provider will make every effort to ensure that the Services and Deliverables fit with the Customer’s requirements, intended use, space and budget. Customer will have the opportunity to approve Deliverables throughout the process in accordance with the Acceptance Procedure at Para. 5.(c). The Service Provider does not make any guarantees about the performance of any Services, Deliverables and Equipment, including but not limited to their outputs, usability, accuracy and suitability for any purpose, and whether or not the Deliverables will guarantee uptime or prevent compromise of Customer’s systems. Customer is at all times solely responsible for preventing and ensuring that their systems are secured and safe from compromise at all time, and Service Provider is not responsible nor liable for any breach of security of safety of Customer’s systems. Once Customer agrees to the Statement of Work, it will be at the discretion of Service Provider to approve a Change to any Deliverable. Once work on any the Statement of Work begins, Customer understands that the Customer is responsible for compensating Service Provider for that work regardless of Customer’s final decision to execute any Deliverable. Customer understands that all recommendations, including those provided by Service Provider, may represent the opinion andtastes of Service Provider as Service Provider interprets the Customer’s goals and wishes.
2. Equipment Disclaimer. Service Provider cannot be held responsible for Equipment that may later be unavailable, appear inconsistent with vendor samples and display images, has been damaged or fails after installation, that requires warranty, repair or exchange, or which has experienced a change in price prior to procurement by Service Provider. Service Provider is also not responsible for Customer’s indecisions or changes of mind after approving any Engagement for Procurement Services, or the Customer’s inability to take action before the expiry of any time period (such as if Customer wants to exchange any Equipment but failed to notify Service Provider well in advance of the applicable return or exchange period).
INDEMNIFICATION.
1. The Customer shall defend, indemnify and hold harmless the Service Provider, its affiliates and their respective shareholders, directors, officers, agents, contractors and employees (the “Related Parties”) from and against all Losses, arising from or relating to:
  1. any act, commission or omission of the Customer or its personnel, including, but not limited to, business practices, operations, conduct and improper or illegal use of any Services, Deliverables or Equipment;
  2. any Dependency provided by Customer in furtherance of any of the Services or the Deliverables hereunder or any portion thereof;
  3. any failure by Customer to obtain adequate insurance coverage as required by this Agreement;
  4. infringement of any Intellectual Property, including third party Intellectual Property, or rights of privacy in connection with the Services or Deliverables or otherwise; and
  5. any breach of Applicable Law or the rights of any third-party; and
  6. any breach of this Agreement or any SoW.
2. The Customer shall promptly notify the Service Provider in writing of any potential third-party claim or suit against the Service. The Service Provider shall have the right to fully control the defense and any settlement of such claim or suit.
LIMITATION ON LIABILITY
1. Exclusion of Certain Types of Damages. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF ANY SERVICES, DELIVERABLES AND EQUIPMENT HEREUNDER REMAINS WITH YOU. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER INDIVIDUAL OR ENTITY FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND OR NATURE, HOWSOEVER CAUSED, OR ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS MASTER AGREEMENT AND ANY STATEMENT OF WORK, INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUE, LOST PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS, LOSS OF CUSTOMER, DAMAGED DATA, COMPUTER DAMAGE, SYSTEM FAILURE, COST OF SUBSTITUTE PRODUCTS OR SERVICES, INTERRUPTION TO, LOSS OF OR INABILITY TO USE ANY SERVICE, EQUIPMENT, SOFTWARE, SYSTEM, FACILITY OR FILES, FAILURE TO ACHIEVE COST SAVINGS, FAILURE OR INCREASED EXPENSE OF OPERATIONS, PERSONAL OR BODILY INJURY, EMOTIONAL DISTRESS, DAMAGE TO PROPERTY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY WHICH SHALL NOT BE ASSUMED BY THE SERVICE PROVIDER. SERVICE PROVIDER SHALL NOT BE LIABLE FOR ISSUES OUTSIDE THE DIRECT CONTROL OF SERVICE PROVIDER (SUCH AS THE NON-AVAILABILITY OF THE INTERNET, ACCESS TO THIRD PARTY RESOURCES, REPLACEMENT SOFTWARE/HARDWARE OR NECESSARY INFORMATION).
2. Limitation of Direct Damages. IN RESPECT OF ANY CLAIM, DEMAND OR ACTION BY CUSTOMER AGAINST SERVICE PROVIDER OR ANY OF SERVICE PROVIDERS RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING A BREACH BY SERVICE PROVIDER OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT (WHETHER OR NOT A FUNDAMENTAL BREACH), THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE FROM SERVICE PROVIDER PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO SERVICE PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE EVENT.
3. Further Limitations. EXCEPT AS REQUIRED BY LAW, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SERVICES OR DELIVERABLES OR THE USE OR OTHER DEALINGS IN SUCH SERVICES OR DELIVERABLES.
4. Exceptions to Limitation. The limitations on liability set forth in Section 12(b) above shall not apply to: any Losses resulting from personal injury or property damage, amounts owed to Service Provider by Customer, tax obligations, Losses resulting from third-party infringement claims, willful misconduct, gross negligence and intentional breaches of obligations under the Agreement and any Losses resulting from a breach of Section 9, Section 6 (Customer Obligations), violations of Applicable Law or as otherwise covered by insurance.
MUTUAL NON-SOLICITATION.
1. Except with the prior written consent of the other Party, each of the Parties hereby agrees that it shall not, for the term of this Agreement, on its behalf or on behalf of any other person, alone or jointly with any other Person, corporation, association, entity or in any other way or manner, as an owner, shareholder, agent, consultant, principal, director, manager, employee or in any other manner whether directly or indirectly, in any capacity whatsoever:
  1. solicit, apply, bid or contract with, or undertake any employment, independent contractor work or consulting work with, any Person who was a customer or client of the other Party for the purpose of selling to those customers or clients any products or services in Canada that are the same as, substantially similar to, or in any way competitive with the business or the products and services of the other Party as presently carried on or provided by such Party as of the date hereof.
  2. solicit, interfere with or otherwise contract for the services of any supplier, employee, contractor, customer or client of or to the other Party or any Shareholder away from the other Party other than in the case of an employee through a general solicitation by newspaper, internet or similar advertisements of a general nature; provided that nothing in this Section 13 shall prohibit either Party from continuing to engage professionals (such as lawyers, professional accountants or investment or financial advisors), bankers, utilities and telecommunications service providers that were suppliers to such Party before the termination of this Agreement; or
  3. engage the services of any Person that was an employee, agent or sales representative of the other Party or any of its subsidiaries and affiliates at any time during the Term.
2. For the avoidance of doubt, this Section 13 is not intended to: (i) prohibit Customer from conducting its business, including but not limited to selling products and services and providing customer service to its customers or (ii) prevent Service Provider from conducting its business with any other person or persons, firm, association, business, syndicate or corporation.
TERM AND TERMINATION
1. Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall remain in effect unless and until terminated in accordance with the provision set out in this para. 14. (the “Agreement Term”).
2. Termination of Agreement. Provided that there is no Statement of Work outstanding and in effect, and, except for any obligations stated to survive termination or expiration of the Statement of Work, all obligations of the Parties pursuant to all Statements of Work have been satisfied, either Party may terminate this Agreement upon written notice to the other, subject to para. 14.(g).
3. Customer’s Right to Terminate a Statement of Work. Subject to paras. 14.(f) and 14.(g), Customer may terminate one or more or all Statements of Work and this Agreement and the rights granted thereunder and hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if:
  1. Service Provider breaches any of its obligations under a Statement of Work and such breach continues for a period of ten (10) Business Days after delivery of a written notice by Customer requiring Service Provider to correct such failure; or
  2. Customer provides thirty (30) days advance written notice of termination of a Statement of Work or this Agreement; or
  3. Service Provider becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Service Provider applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer is appointed without the consent of Service Provider; or Service Provider institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment or debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against Service Provider and is not dismissed within ninety (90) calendar days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of Service Provider’s property and remains unsatisfied for ninety (90) calendar days.
4. Service Provider’s Right to Terminate a Statement of Work. Subject to paras. 14.(f) and 14.(g), Service Provider may terminate a Statement of Work and the rights granted thereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination, if Customer:
  1. breaches any material provision of this Agreement or the applicable Statement of Work and such breach continues for a period of five (5) calendar days (or such other period provided thereof) after delivery of a written notice by Service Provider requiring Customer to correct such failure; or
  2. Service Provider provides thirty (30) days advance written notice of termination of a Statement of Work or this Agreement;
  3. becomes or is adjudicated insolvent or bankrupt, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Customer applies for or consents to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer is appointed without the consent of Customer; or Customer institutes any bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment or debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding is instituted against Customer and is not dismissed within ninety (90) calendar days; or any judgment, writ, warrant or attachment or execution of similar process is issued or levied against a substantial part of Customer’s property and remains unsatisfied for ninety (90) calendar days.
5. Waiver. The waiver by either Party of a breach or default of any provision of this Agreement or a Statement of Work by the other Party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by such Party constitute a waiver.
6. Effect of Termination of a Statement of Work.
  1. Upon the early termination of this Agreement or any SoW pursuant to para. 14.(c) or 14.(d), Service Provider shall, subject to para. 14.(g), cease performing all Services and delivering all Deliverables contemplated thereunder and:
    1. each Party shall comply with Section 9(c) with respect to returning or destroying any Confidential Information;
    2. Customer shall immediately return any Equipment that has not been purchased by Customer and paid in full in the same condition in which they were furnished to the Customer, reasonable wear and tear excepted;
    3. Any unpaid Equipment under Subpara. (B) above which has not returned within seven (7) days of the expiration or termination of this Agreement (or after the expiration of any applicable Transition Assistance Period) must be paid in full to Service Provider and Service Provider shall invoice Customer accordingly; and
    4. If Streamline has prepaid for any software licensing fees on behalf of Customer (i.e. if Streamline purchased an annual subscription and Customer terminates this Agreement prior to the annual renewal of such subscription), Streamline shall prepare a final invoice reflecting the remaining software licensing fees up to the end of the software license term due and Customer shall promptly pay such invoice.
  2. Transition Assistance. If Customer has paid all outstanding Fees to Service Provider upon termination of this Agreement, then:
    1. To the extent requested by Customer in writing within 7 days after the termination of this Agreement or any SoW hereunder, Service Provider may agree to provide any assistance reasonable requested by the Customer to transition Service Provider’s services to the Customer’s internal team or to an alternative service provider (the “Transition Assistance”); provided that Service Provider shall not be obligated to provide any Transition Assistance beyond 60 days after the date of termination. All services provided by Service Provider in relation to any Transition Assistance requested shall be billed to Customer as Out Of Scope Services at the applicable rate thereof; and
    2. During the Transition Assistance period, Customer shall continue to receive any Services which they have paid in advance up to the date of termination. During the Transition Assistance period, the terms of this Agreement shall remain intact and shall apply fully to Customer and Customer hereby agrees to continue to comply with all of the terms of this Agreement and any applicable SoW; provided that if Customer breaches Section 6(e) with respect to the notification procedure thereunder, this Agreement shall be immediately terminated without notice, Service Provider shall thereafter have no further liability to Customer and Customer shall indemnify and hold Service Provider harmless from any and all Losses incurred by Customer in any way related to such breach.
7. Survival of Covenants. Notwithstanding the termination or expiration of this Agreement for any reason, the covenants set out in this para. 14.(g) and in paras. 1., 6., 7., 9., 10., 11., 12., 13. And 14.(f) of this Agreement shall survive any such termination or expiration.
FORCE MAJEURE.
1. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay:
  1. is caused by any of the following: (i) acts of war, terrorism, civil riots or rebellions; (ii) quarantines, pandemics and related illnesses, embargoes and other similar unusual governmental action; or (iii) extraordinary elements of nature or acts of God (other than localized fire, hurricane, tornado or flood); and
  2. could not have been prevented by the non-performing Party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing Party through the use of substitute services, alternate sources, workaround plans or other means by which the requirements of a buyer of services substantively similar to the Services hereunder would be satisfied.
2. Events meeting both of the criteria set forth in paras. 15.(a) and 15.(b) above are referred to individually and collectively as “Force Majeure Events”. The Parties expressly acknowledge that Force Majeure Events do not include vandalism, the regulatory acts of Governmental Authorities, labour strikes, or the non-performance of third Persons or subcontractors relied on for the delivery of the Services, unless such failure or non-performance by a third Person or subcontractor is itself caused by a Force Majeure Event, as defined above. Upon the occurrence of a Force Majeure Event, the non-performing Party shall be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail, and such party continues to attempt to recommence performance or observance to the greatest extent possible without delay.
DISPUTE RESOLUTION
1. Negotiation: Any controversy, dispute, disagreement or claim arising out of, relating to or in connection with this Agreement or any breach thereof, whether arising during the term of this Agreement or at any time after the expiration or termination of this Agreement, including any question regarding its existence, validity, construction, meaning, performance, termination or effect of this Agreement or any SoW or the rights and liabilities of the Parties or any matter arising out of or connected with this Agreement or any SoW (the “Dispute”), shall be resolved expeditiously and in an amicable and good faith manner by negotiations between the Parties within fifteen (15) days of either party receiving notice of dispute from the other party (the “Negotiation Period”).
2. Arbitration. Subject to para. 16.(c), should the Parties fail to resolve any Dispute within the Negotiation Period the Dispute shall be finally and conclusively resolved by arbitration. The following provisions shall govern any arbitration hereunder: (a) The legal seat of arbitration shall be in Ontario; (b) The place of the arbitration shall be in Toronto, Ontario; (c) There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the ADR Institute of Canada, Inc. in accordance with its Arbitration Rules of the ADR Institute of Canada, Inc.; (d) The language of the arbitration and award shall be English; (e) The parties shall equally share the fees of the arbitrator and the facility fees; (f) The parties shall each bear their own legal costs and expenses of the arbitration; (g) Any decision of the arbitrator shall be final and binding on the parties and their respective successors and assigns and there shall be no right to appeal such decision, whether on a question of law, a question of fact, or a mixed question of fact and law; (h) The prevailing party shall be entitled to recover its legal fees and costs in any dispute resolved by binding arbitration.
3. Exceptions to Arbitration. The following matters shall be excluded from arbitration under this Agreement:
  1. any disputes involving third Persons;
  2. intellectual property claims by the Service Provider; and
  3. any disputes regarding a failure by Customer to pay any amounts to Service Provider as contemplated under this Agreement or pursuant to any SoW.
4. Changes. Notwithstanding the provisions of Para. 17.(b) (“Modification”), if Service Provider amends or modifies this Para. 16. (“Dispute Resolution and Arbitration Agreement”) after the date Customer last accepted this Agreement (or accepted any subsequent amendments or modifications to this Agreement), Customer may reject any change to this Para. 16. by sending Service Provider written notice (including by email) within thirty (30) days of the date such change to this Dispute Resolution and Arbitration Agreement became effective. Rejecting a new change to this Para. 16., however, does not revoke or alter Customer’s prior consent to any earlier agreements to arbitrate any Dispute between Customer and Service Provider (or Customer’s prior consent to any subsequent changes thereto), which will remain in effect and enforceable as to any Dispute between Customer and Service Provider. In the event that Customer rejects a change or modification to this Dispute Resolution and Arbitration Agreement but wishes to accept all other changes and modifications and continue to receive services from the Service Provider, Service Provider shall have the option to: (i) terminate this Agreement effective immediately or (ii) proceed with all other modifications and changes to the Agreement being agreed upon except for the modifications to this Para. 16.
MISCELLANEOUS
1. Notice. All notices or other communications hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by a national courier service, or if sent by fax (receipt of which is confirmed, with a copy delivered by certified mail), to the Person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such Person:
  - If to the Service Provider:
    - Address: At Company’s address listed above.
    - Email: legal@streamlineit.ca
    - Attention: Streamline IT Legal
  - If to the Customer:
    - Address: At the Customer’s address held on file.
    - Email: At the Customer’s email address held on file.
  - Any such notification shall be deemed delivered (i) upon receipt, if delivered personally; or (ii) If sent by national coureur service then upon the fifth Business Day after delivery.
2. Modifications. Service Provider reserves the right to modify this Agreement at any time in accordance with this provision. If Service Provider makes changes to this Agreement, Service Provider will post the revised Agreement on Service Provider’s website and provide notice in writing to Customer that the Agreement has been modified. Changes to this Agreement shall be effective within 7 days of posting, and Customer understands and agrees that if Customer continues to use Service Provider’s services after the date on which the Agreement has changed, Service Provider will treat Customer’s continued use of Service Provider’s services as acceptance of the revised Agreement. If Customer disagree with the revised Agreement, Customer may terminate this Agreement with immediate effect upon notice in writing to Service Provider and subject to the termination provisions in Section 14. If Customer does not terminate your Agreement, Customers continued use of Service Providers services will constitute acceptance of the revised Agreement.
3. Further Assurances. The Parties hereto agree to do, execute and deliver, or cause to be done, executed and delivered, all such further assignments, documents, instruments, transfers, acts, deeds, matters, assurances and things as, from time to time, may be reasonably necessary or desirable to give effect to this Agreement and the obligations of the Parties hereunder.
4. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either Party without the prior written consent of the other Party, except to a wholly-owned subsidiary of a Party or an entity which acquires all or substantially all of the assets and business of the assigning Party by merger, sale of assets or otherwise, and such Party agrees in writing to be bound by the terms of this Agreement.
5. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement, and delivery of such counterparts may be effected by means of facsimile or other electronic transmission.

EXHIBIT “1”

CHANGE PROCESS

Change Request Procedure.
1. Customer may request a Change, including changing the scope or adding new services or requesting Out of Scope Services from time to time, in relation to Services or Deliverables under a SoW by completing and delivering to the Service Provider a written change request (“Change Request”).
2. Each Change Request will contain information reasonably necessary for the Service Provider to evaluate the Change Request. Customer will promptly make such further information available to the Service Provider as the Service Provider may reasonably request to enable proper evaluation of the Change Request.
3. Service Provider will use reasonable efforts to respond to a Change Request within 14 days after receipt (or such other period as the parties may mutually agree) (the “Validity Date”) by delivering to the Customer its acceptance or rejection of the change request in writing along with a proposal in the form of a new SoW (a “Change Proposal”) setting out the Services and/or Deliverables requested, an estimated timeline (if any) to execute the Change Request, a brief description of the impact of the Change (if any) and any applicable fees or charges thereof.
4. In determining any fees or charges in response to a Change Request, the Change Proposal shall indicate whether the Change Request will require any additional fees to be charged for the Services or Deliverables requested thereunder. Any fees or charges quoted under a Change Proposal shall take precedence over the terms of this Agreement with respect to Fees.
5. If Service Provider does not submit a Change Proposal to Customer prior to the Validity Date, then the Parties will treat the Change Request as withdrawn.
6. Service Provider shall determine in its sole discretion whether to accept or reject any Change Request or portions thereof, and how, if any, such Change Request may impact the timelines, Specifications, fees and expenses.
When the Parties agree to a Change Proposal pursuant to a Change Request, the Parties shall negotiate and agree in writing on the terms of such change under a new SoW (“Change Order”). Service Provider shall have no obligation to perform, and Customer shall have no obligation to pay for, services related to any proposed Change unless both Parties have agreed to the Changes in writing under a Change Order. In no event shall the Services or the Deliverables be deemed altered, amended, enhanced, or otherwise modified except in accordance with this Exhibit.

EXHIBIT “2”

ACCEPTANCE PROCEDURE

Service Provider Quality Assurance. Customer shall have the right to test each Deliverable and the final solution during the Acceptance Period. Service Provider shall notify Customer when Service Provider has successfully completed all appropriate internal quality assessments and testing procedures in accordance with its standard quality assurance program and that the Deliverables are ready. During the Acceptance Period, Service Provider shall provide such reasonable information, familiarization services and assistance in performing acceptance tests as Customer may reasonably require.
Testing by Customer. Customer will start its acceptance test process upon delivery by Service Provider of any Deliverable. Customer shall have 30 days after the date that the Deliverable was delivered to Customer (the “Acceptance Period”) to evaluate and test such Deliverable to determine whether it conforms to the applicable Specifications without Material Defects. If the Deliverable does not conform to the applicable SoW or has Material Defects, Customer shall provide written notice to the Service Provider within the Acceptance Period with an adequate description of the Material Defects and the Service Provider shall correct such Material Defect(s) within a reasonable period of time. The Acceptance Period shall begin again upon such delivery. Service Provider acknowledges and agrees that there is no charge to Customer for correcting any Material Defects.
Notification of Acceptance. Upon the expiration of the Acceptance Period, Customer shall be deemed to have accepted that the Deliverable conforms to the applicable Specifications without Material Defects. If the Deliverables meet the Specifications without any Material Defects, the Deliverable shall be considered to have passed and have been accepted. Upon Acceptance of any Deliverables, the Service Provider shall have no further liability under this Agreement to correct any defects.
Minor Defects. Customer acknowledges and agrees that the existence of Minor Defects in the Deliverable will not delay its acceptance of the Deliverable. If there are Minor Defects in a Deliverable, the Customer and Service Provider shall mutually agree in writing to a course of action to correct such Minor Defect(s), which may include additional fees.

Terms of Service

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