proNX SLA Portal Services Agreement

The Services (defined below) are offered by BTI Systems Inc., an Ontario, Canada corporation with an office at 200-1000 Innovation Drive, Kanata, Ontario, Canada K2K 3E7 ("BTI") for your use in accordance with the terms and conditions of this proNX™ SLA Portal Services Agreement (the "Agreement").

By purchasing and using or accessing the Services, you confirm that you have accepted BTI's offer to use the Services on the terms and conditions contained in this Agreement, and such acceptance results in a legally binding contract between you and BTI. If you are accepting on behalf of a corporation, company, partnership or other legal entity, you represent and warrant to BTI that you have full authority to bind such entity to this Agreement. BTI reserves the right to amend these terms and conditions at any time and without notice. Your continued use of the Services indicates your continued agreement to be bound by this Agreement, as amended from time to time.

1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Customer" (or "you") means the individual or entity that has accepted and agreed to be bound by the terms and conditions of this Agreement.
"Customer Data" means any files, databases and related information relating to Customer that is provided by Customer, its Affiliates, and or its service providers to BTI or otherwise obtained by BTI in connection with the performance of BTI's obligations hereunder, including, without limitation, information, regardless of form, relating to any of Customer's subscribers that is generated, managed, modified, maintained or updated through or in connection with the Services.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Customer and BTI from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that Customer or Customer's Affiliates purchase under an Order Form, as distinguished from those provided pursuant to any applicable trial period.
"Services" means the online, proNX™ SLA Portal and other Web-based applications and platform provided via BTI's secure portal and/or other designated websites.
"Users" means individuals who are authorized by Customer to use the Services, for whom subscriptions have been purchased, and who have been supplied user identifications and passwords by Customer (or by BTI at Customer's request). Users may include but are not limited to Customer employees, consultants, contractors and agents, customers or third parties with which Customer transacts business.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

2. PURCHASED SERVICES

2.1. Provision of Purchased Services. BTI shall make the Purchased Services available to Customer pursuant to this Agreement and the relevant Order Forms during the subscription term set forth in the applicable Order Form. Customer agrees that Customer's purchases hereunder are not contingent on the delivery of any future functionality.
2.2. Service Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as circuit subscriptions and (ii) additional subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions.

3. USE OF THE SERVICES

3.1. Right to Use the Services. Subject to the terms of this Agreement, BTI hereby grants to Customer and its Affiliates a nonexclusive, worldwide right and license to access and use the Services for Customers and its Affiliates' business purposes.
3.2. BTI Responsibilities. BTI shall: (i) provide to Customer and its Affiliates basic support for the Purchased Services at no additional charge and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which BTI shall give at least 72 hours prior written notice and which BTI shall schedule during the maintenance hours from 11:00 p.m. Central time to 6:00 a.m. Central time, provided that planned downtime will not exceed 8 hours per month in the aggregate and will not exceed 4 hours in any single instance (unless approved by Customer), or (b) any unavailability caused by circumstances beyond BTI's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving BTI employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.3. Customer Responsibilities. Customer shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify BTI promptly after becoming aware of any such unauthorized access or use, and (iv) use the Services only in accordance with any applicable laws and government regulations. Customer shall not knowingly (a) make the Services available to anyone other than Users, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (c) use the Services to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. Customer shall ensure that Customer complies with all necessary technical requirements for deployment of the Services as stated on the applicable Order Form.
3.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on storage space, on the number of calls Customer and its Affiliates are permitted to make against BTI's application programming interface (API), and, for Services that enable Customer and its Affiliates to provide public websites, on the number of page views by visitors to those websites. Any such limitations will be specified in the applicable Order Form. The Services provide real-time information to enable Customer and its Affiliates to monitor Customer circuits with such limitations.

4. THIRD-PARTY PROVIDERS

4.1. Acquisition of Third-Party Products and Services. BTI may offer third-party applications for sale under Order Forms. Any other acquisition by Customer of third-party products or services, including but not limited to third-party applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. BTI does not warrant or support third-party products or services, whether or not they are designated by BTI as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
4.2. Third-Party Applications and Customer Data. If Customer or a Customer Affiliate installs or enables third-party applications for use with Services, Customer acknowledges that BTI may allow providers of those third-party applications to access Customer Data as required for the interoperation of such third-party applications with the Services. BTI shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by third-party application providers except to the extent caused by BTI's fault or negligence. The Services shall allow Customer to restrict such access by restricting Users from installing or enabling such third-party applications for use with the Services.

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7. PROPRIETARY RIGHTS

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, BTI reserves for itself and its licensees all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer or its Affiliates hereunder other than as expressly set forth herein.
7.2. Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer's and its Affiliates' own intranets or otherwise for Customer own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Customer Data. As between BTI and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.
7.4. Suggestions. BTI shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.

8. CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all non-public information disclosed by a Party (" Disclosing Party") to the other Party (" Receiving Party"), whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the generality of the foregoing, Customer Confidential Information shall include Customer Data; BTI's Confidential Information shall include the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. During the Term and for two (2) years thereafter, each Party agrees that it will not disclose to any third party or use any Confidential Information disclosed to it by the other Party except as expressly permitted in this Agreement; provided, however, that BTI's confidentiality obligations hereunder with respect to Customer Data will remain in effect in perpetuity. Each Party agrees that (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, agents, attorneys, financial advisors and other representatives who have a need such access for purposes consistent with this Agreement and who are obligated to keep such information confidential.
8.3. Protection of Customer Data. Without limiting the above, BTI shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. BTI shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with (and subject to) Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Customer's request in connection with customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by a court of competent jurisdiction or other governmental authority or otherwise required by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8.5. Return of Confidential Information. Upon termination or expiration of this Agreement, or at the request of the Disclosing Party, the Receiving Party shall (at its option) return the Confidential Information to the Disclosing Party, or destroy it and, upon the Disclosing Party's request, certify that it has taken such action.

9. WARRANTIES AND DISCLAIMERS

9.1. BTI Warranties. BTI warrants that (i) the Services shall perform in all material respects in accordance with the service description on all Order Forms, (ii) the functionality of the Services will not be materially decreased during a subscription term, and (iii) the Services will not contain viruses or any other contaminants, or disabling devices including, but not limited to, codes, commands or instructions that may be used to access, alter, delete, damage or disable the network or software of Customer, its Affiliates or their respective subscribers.
9.2. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other Party any Malicious Code.
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. MUTUAL INDEMNIFICATION

10.1. Indemnification by BTI. BTI shall defend Customer, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (including, without limitation, any patent, copyright, trademark or trade secret rights) or violates applicable law, and shall indemnify Customer for any losses, damages, or other liabilities, including reasonable attorney's fees, incurred by Customer in connection with any such Claim; provided, that Customer (a) promptly gives BTI written notice of the Claim (provided, however, that failure to give prompt notice will not relieve BTI of any liability hereunder, except to the extent BTI has suffered actual material prejudice by such failure; (b) gives BTI sole control of the defense and settlement of the Claim (provided that BTI may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to BTI all reasonable assistance in the defense of the Claim, at BTI's expense.
10.2. Indemnification by Customer. Customer shall defend BTI, its Affiliates, successors and assigns, and all of their respective officers, directors, employees and agents from and against any Claim made or brought against BTI by a third party alleging that Customer Data, or Customer's use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party (including, without limitation, any patent, copyright, trademark or trade secret rights) or violates applicable law, and shall indemnify BTI for any losses, damages or other liabilities, including reasonable attorney's fees, incurred by BTI in connection with any such Claim; provided, that BTI (a) promptly gives Customer written notice of the Claim (provided, however, that failure to give prompt notice will not relieve Customer of any liability hereunder, except to the extent Customer has suffered actual material prejudice by such failure); (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release BTI of all liability); and (c) provides to Customer all reasonable assistance in the defense of the Claim, at Customer expense.
10.3 Infringement. Without limiting Section 10.1, if the Services (or any portion thereof) are held, or in BTI's reasonable, good faith judgment, are likely to be held to violate or infringe the rights of a third party, then BTI may, in its sole discretion and at its sole expense, either: (i) procure for Customer the right or license to continue to use the affected item free of the infringement claim; (ii) modify the affected item (without materially adversely affecting the functions or features of such item) to make it non-infringing, or (iii) replace the affected item with a substantially equivalent non-infringing version. If these remedies are not reasonably available to BTI despite its diligent efforts, then Customer may, at its option, terminate this Agreement, in which case BTI will return any fees paid by Customer for the affected item.
10.4. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying Party's sole liability to, and the indemnified Party's exclusive remedies against, the other Party for any type of Claim described in this Section.

11. LIMITATION OF LIABILITY

11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES), AND SHALL NOT APPLY TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR TO DAMAGES ARISING OUT OF BREACHES OF SECTION 8 (CONFIDENTIALITY).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND SHALL NOT APPLY TO EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 NOR TO DAMAGES ARISING OUT OF BREACHES OF SECTION 8 (CONFIDENTIALITY).

12. TERM AND TERMINATION

12.1. Term of Agreement. This Agreement commences on the Effective Date and, unless earlier terminated as set forth herein, continues until all circuit subscriptions granted in accordance with this Agreement have expired or been terminated.
12.2. Term of Purchased Circuit Subscriptions. Circuit Subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Circuit Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless BTI has given Customer written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause. Either Party may terminate this Agreement for cause: (i) in the event of a material breach by the other Party if such breach remains uncured for a period of thirty (30) days following receipt of written notice of such breach from the non-breaching Party at the expiration of such period, or (ii) immediately upon written notice to the other Party if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by BTI pursuant to Section 12.3, Customer shall pay any undisputed unpaid fees that accrued prior to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to BTI for the period prior to the effective date of termination. Upon any termination for cause by Customer pursuant to Section 12.3, BTI will refund to Customer any prepaid amounts paid by Customer for the period of time that Customer is not using the Services as a result of such termination.
12.5. Return of Customer Data. Upon request by Customer made within 30 days after the effective date of termination of a Purchased Services subscription, BTI will make available to Customer for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, BTI shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in BTI's systems or otherwise in BTI's possession or under its control.
12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Customer Data), 12.6 (Surviving Provisions),13 (Notices; Governing Law) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

13. NOTICES; GOVERNING LAW

13.1. General.Notices should be addressed to:
If to BTI:
BTI Systems Inc.,
200-1000 Innovation Drive
Kanata, Ontario, Canada K2K 3E7

Attention: Legal Department
legal@btisystems.com

613-287-1700
If to Customer at such address as Customer provides to BTI on its initial order forms or purchase orders for the purchase of the Services.
13.2. Manner of Giving Notice. Except as otherwise expressly specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) receipt, if delivered by personal delivery, (ii) the fifth business day after deposit in the U.S. Certified Mail, postage prepaid and return receipt requested, (iii) upon confirmation of receipt of a facsimile, (iv) by email, if the email is acknowledged by "read receipt" or (v) on receipt if sent by recognized overnight courier. Either Party may change its address or its designated addressee by giving written notice to the other Party in accordance with the terms of this Section 13.2.
13.3. Governing Law and Jurisdiction. . This Agreement and the Parties' performance hereunder will be governed by the laws of the State of New York, without regard to its conflicts of laws rules.

14. GENERAL PROVISIONS

14.1. Export Compliance. Each Party shall comply with the export laws and regulations of the United States, Canada and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. or Canadian export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Nothing in this Agreement shall be construed to grant to either Party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of any further right hereunder. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
14.6. Attorney Fees. Customer shall pay all of BTI's reasonable attorney fees and other costs incurred by BTI to collect any fees or charges due BTI under this Agreement if Customer fails to pay any undisputed amounts due hereunder within thirty (30) days of the due date.
14.7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms), without consent of the other Party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed by both Parties. In the event of any conflict or inconsistency between the provisions in the body of this Agreement and the provisions in any exhibit or addendum hereto or any Order Form, the terms set forth in the body of this Agreement shall prevail unless the conflicting term specifically references the inconsistent term in the body of this Agreement, in which case the conflicting term will control only for the limited purposes set forth in the document containing such term. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.9. No Publicity. Except as permitted by law, neither Party may use the other Party's name, or any trademark, service mark, trade name, logo or other commercial or product designations for any purpose without the prior written consent of the other Party in each instance. Without limiting the generality of the foregoing, unless required by law, neither Party will, without the prior written approval of the other Party, make any public statement, press release, presentation, or other announcement relating to the existence or terms of this Agreement.
14.10. Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.
14.11. Contract Interpretation. Ambiguities, inconsistencies or conflicts in this Agreement will not be strictly construed against either Party, but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the Parties' intentions at the time this Agreement is entered into and common practice in the industry.

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