Master Services Agreement


    THIS AGREEMENT made as of between (“Customer”) and 1909347 ONTARIO INC. o/a APII (“Provider”).

    WHEREAS the Customer wishes to procure the services of the Provider and the Provider wishes to provide such services on the terms and conditions set out in this Agreement.

    NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, and other goods and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

    Article 1


    1.1 APPLICABLE LAW means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services or Deliverables.

    1.2 CONFIDENTIAL INFORMATION has the meaning set out in Section 7.1.

    1.3 CUSTOMER MATERIALS means: (a) all materials, including all Customer logos, product descriptions, images, audio or video recordings, documentation, reports, specifications, technical information, and technologies, recorded in any form and on any media, that are proprietary to Customer and provided to Provider to enable Provider to perform the Services; and (b) all materials described in a Schedule as licensed by the Customer or remaining the property of Customer.

    1.4 DELIVERABLES means all Work Product and Provider Tools that Provider is required under any Schedule to deliver to Customer as part of the Services.

    1.5 DELIVERY SCHEDULE means the date(s) specified in a Schedule for performance of the Services, completion of Deliverables and/or other milestones.

    1.6 DOCUMENTATION means the documentation described in a Schedule that is to be prepared by Provider, as part of a Deliverable, to aid Customer in the use of the Deliverable.

    1.7 EFFECTIVE DATE has the meaning set out in Section 2.5.

    1.8 FEES means the fees to be paid by Customer pursuant to this Agreement.

    1.9 INTELLECTUAL PROPERTY RIGHTS means any intellectual or industrial property rights protected or protectable under the laws of Canada or any foreign country, whether by including any intellectual property rights protected by legislation (such as legislation governing copyrights, industrial designs, integrated circuit topographies, patents or trademarks) or by common law (such as confidential information and trade secrets).

    1.10 PARTY means a Party to this Agreement.

    1.11 PROVIDER TOOLS means software (including object and source code), computer system designs, web applications, documentation, inventions, developments or like material that the Provider owns and makes available to the Customer in the course of providing the Services.

    1.12 SCHEDULE means a schedule, statement of work (SOW) or purchase order which is attached to this Agreement, or which may be added hereafter by written agreement of the parties.

    1.13 SERVICES means the services to be provided by Provider to Customer as described in this Agreement or any Schedule and any additional services authorized by Customer that Provider agrees to perform or is required to perform hereunder.

    1.14 WORK PRODUCT means all software (including object and source code), computer system designs, web designs and applications, documentation, inventions (whether or not patentable or reduced to practice), developments or like materials, trade secrets, print material, data, processes, methods, improvements or enhancements that Provider makes, conceives, or devises, either solely or jointly with Customer, in the course of Services performed under any Schedule. Work Product includes the related Documentation and any specifications set out in the applicable Schedule. WORK PRODUCT SPECIFICALLY EXCLUDES PROVIDER TOOLS OR ANY PRE-EXISTING, THIRD PARTY OR OPEN SOURCE MATERIAL OR SOFTWARE.

    Article 2


    2.1 General Procurement Agreement. This Agreement is a general procurement agreement that contemplates that Provider and Customer will sign one (1) or more Schedules with respect to any Services to be supplied by Provider and acquired by Customer.

    2.2 Schedules. Each Schedule shall contain a statement of the Services and/or Deliverables to be provided pursuant to the Schedule, the applicable Fees, and a project plan setting forth the expectations of the parties as to the timing of the various stages of performance of the Services and/or delivery of the Services and Deliverables pursuant to such Schedule.

    2.3 Conflicts. Each Schedule is automatically deemed to include all the terms and conditions of this Agreement; provided that whenever the provisions of a Schedule expressly conflict with these terms and conditions, the conflicting provisions of the Schedule control and take precedence over the conflicting provisions of these terms and conditions, but only for purposes of the Schedule. Where possible (excluding all circumstances where the provisions in a Schedule are expressly stated to over-ride such terms and conditions), any inconsistency between the provisions of a Schedule and these terms and conditions shall be interpreted as the provision in the Schedule providing for greater detail rather than intending to over-ride the provisions of these terms and conditions.

    2.4 Change Request. If the Customer wishes at any time to request a change in the Services under a particular Schedule, or if the Customer requests the Provider to provide professional services outside the scope of the Services that are specifically specified in the Schedule, the Customer will, unless otherwise specified in the Schedule, prepare a written change request. The Provider will evaluate and respond to any change request promptly and will advise the Customer in writing of any impact on the cost and delivery schedule for any Services as a result of the proposed change. Upon written confirmation from the Customer, the Provider will proceed with the change, at the price and upon the terms of which the Customer was advised, and the Schedule shall be deemed to have been amended accordingly. The Provider reserves the right to charge the Customer, at its standard time and materials rates, outlined in the applicable Schedule or another Schedule, for any time spent evaluating and responding to a change request which the Customer elects not to implement.

    2.5 Effective Date. This Agreement is effective from the date first written above and continues in full force and effect until terminated in accordance with the provisions of this Agreement. Each Schedule is effective from the effective date of the Schedule (the “Effective Date”) and continues in full force and effect unless earlier terminated in accordance with the provisions of this Agreement or such Schedule.

    Article 3


    3.1 Services. Provider shall in all material respects perform the Services in accordance with this Agreement and the applicable Schedule(s), and in a timely, diligent and professional manner. All software Deliverables will be designed and developed in accordance with the specifications listed in the applicable Schedule.

    3.2 Work Schedule.

    1. Timeframes are Estimates Unless Stated to be Firm Deadlines. Unless they are expressly described as firm deadlines, in which case Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a Schedule represent estimates that Provider shall use its reasonable commercial efforts to achieve.
    2. Co-operation; Obligations of Customer. The timely and effective completion of the Services requires the successful co-operation of the Parties and the timely performance by each of them of their obligations hereunder, including delivery by Customer to Provider of information and materials and the timely performance by Customer of the various activities, in each case either expressly or implicitly described in a Schedule. The achievement of any schedules, deadlines or timeframes set forth in any Schedule is dependent upon such delivery and performance by Customer, and Provider shall not be liable for any delay or cost or expense caused as a result thereof.

    3.3 Customer Materials. Customer hereby grants to Provider a non-exclusive, royalty-free, non-transferable, limited right to use (during the term of the applicable Schedule) any Customer Materials provided to Provider solely to perform Services pursuant to this Agreement. The parties agree that this grant of rights is expressly made subject to Provider’s confidentiality obligations set forth herein, any other restrictions specified in the applicable Schedule.

    3.4 Project Management. Each Party will designate a primary contact for each Schedule to have responsibilities including, but not limited to, coordinating meetings and information exchanges, reviewing and accepting deliverables and approving change requests. Each Party shall advise the other promptly upon discovery of any problem that will materially delay the performance of the Services.

    3.5 Acceptance. Where a Schedule contemplates the development of Deliverables, Customer shall have a period of time to review and accept the completed Deliverables (or such other period specified in the applicable Schedule), and Provider shall have a period to remedy any deficiencies identified by Customer (such period to be as specified in the applicable Schedule, or a reasonable period if no period is specified). Customer shall provide Provider prompt notice of any deficiencies identified by Customer. If Customer does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.

    3.6 Publicity and Promotion. Upon execution of this Agreement, the Provider shall be permitted to disclose that the Customer is a client of the Provider, but the specific terms of this Agreement shall remain confidential. The Provider shall be entitled to use the Customer’s business name and logo on the Provider’s website to identify the Customer as a customer of the Provider.

    Article 4


    4.1 Invoices and Payments. Provider shall invoice Customer for the Services to be provided under a Schedule in accordance with the applicable Schedule, and Customer shall pay monthly invoices on receipt and consulting or project-based invoices within thirty (30) days of receipt (or such other time as is specified in a Schedule). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts and interest thereon.

    4.2 Expenses. In the event that a Schedule provides for the payment by Customer of any travel, accommodation, transportation and other incidental expenses which are incurred by Provider while performing its obligations with respect to that Schedule, Customer shall pay such expenses after Customer receives an invoice therefor.

    4.3 Taxes. Customer is responsible for all sales, use, consumption, value added, goods and services and similar taxes which are based upon its acquisition or use of the Services to be provided under this Agreement.

    Article 5


    5.1 Provider Ownership of Work Product and Intellectual Property. Unless otherwise provided in the applicable Schedule, (a) Provider shall own all Work Product, Provider Tools and all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest, therein; and (b) the Provider shall license the Deliverables in accordance with Section 5.3 below. Customer shall execute and deliver such instruments and take such other steps as may be requested by Provider from time to time in order to give effect to the provisions of this Article.

    5.2 Intellectual Property Owned by Customer. If a Schedule expressly provides that the Work Product and the associated Intellectual Property Rights are to be owned by the Customer, then notwithstanding the provisions of Section 5.1 above, the provisions of this Section shall apply:

    1. all Work Product provided to the Customer by the Provider, and all other intellectual property which the Schedule describes as being transferred to the Customer, will become, upon delivery of the Services and full payment of the Customer of all fees and charges to be paid hereunder, the sole and exclusive property of the Customer, and the Provider agrees to execute such instruments and do such deeds as may be reasonably necessary to vest in the Customer all Intellectual Property Rights in and to such Work Product and other intellectual property;
    2. if the Customer is to receive managed services under a Schedule, the Provider hereby grants to the Customer a worldwide, non-exclusive, royalty-free license during the term of such Schedule to use the Provider Tools for the purposes of receiving the Services provided pursuant to such Schedule; and
    3. the Customer hereby grants to the Provider a worldwide, perpetual, non-exclusive, royalty-free license to use all such Work Product and other intellectual property so transferred for the purposes of providing the Services hereunder and for the Provider’s internal business and product development purposes.

    5.3 License to Deliverables. Subject to Sections 5.1 and 5.2, and to the provisions of and to any further limitations or restrictions contained in the applicable Schedule, and to payment by Customer for the respective Services, Provider hereby grants to Customer a non-exclusive, royalty-free license to use the respective Deliverables (that are owned by the Provider) for the purpose specified in the Schedule (and if no purpose is specified, then for any purpose).

    5.4 Limitations and Restrictions. Customer shall not perform any act, nor permit any act to be performed by a third party, that would harm, or in any way negatively affect or diminish the Provider’s Intellectual Property Rights or other proprietary rights in or to the Deliverables or any other rights in law or equity of the Provider.

    5.5 Pre-Existing, Third Party or Open Source Material or Software. If applicable, a Schedule shall include a sufficient description of (a) any pre-existing, third party or open source material, software or intellectual property that is to be included in the Work Product or Deliverables; (b) any applicable license terms to such pre-existing, third party or open source material, software or intellectual property; and (c) the responsibility for payment of such licenses as between the Parties.

    5.6 All Other Rights Reserved. Except as expressly set forth herein or in a Schedule, all rights to any Work Product and Deliverables are expressly reserved by Provider.

    Article 6


    6.1 Representations and Warranties of Customer. The Customer represents and warrants that its use of the Services (including the provision of any licensed Customer Materials to the Provider) will be consistent with this Agreement, any licenses provided and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any Applicable Law.

    Article 7


    7.1 Definition. As used in this Agreement, “Confidential Information” of a Party means secret or confidential information which is not generally known to the public and may include, but is not limited to:

    1. Work Product, computer software (including any source code of a Deliverable, which is Confidential Information of Provider), know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the customers, of such Party or of its representatives;
    2. information which due to its nature, or the circumstances surrounding its communication, would be reasonably interpreted as constituting confidential information, including the terms and conditions of this Agreement;
    3. any other information of any nature, and in any form, received from or belonging to such Party which is marked or identified as confidential; and
    4. proprietary or confidential information of a third party or supplied in confidence by a third party, including that of third party suppliers, in the possession of such Party; which is acquired by a Party in its performance or receipt of Services under this Agreement.

    7.2 Exclusions. Confidential Information does not include the following information: (a) information that is known to the recipient at the time of disclosure as evidenced by any written documents in the possession of the recipient; (b) information that is available to the general public at the time of disclosure to the recipient or is subsequently made available to the general public, without restrictions as to its use or disclosure, without fault of the recipient; (c) information that is disclosed to the recipient by reason by another person or entity having the right to disclose or publicize it; (d) information that is intentionally distributed without restrictions as to confidentiality by the disclosing Party; and (e) Aggregate/Anonymous Data (defined below). In addition, each Party may disclose Confidential Information to the extent that the recipient is compelled, pursuant to Canadian law, to disclose it, provided that a Party being compelled to disclose shall provide the other Party with prompt notice (to the extent permitted by law) in order to allow such Party to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and shall co-operate with such Party and its legal counsel to the fullest extent. If such protective orders or other remedies are not obtained, the Party being compelled to disclose will only disclose that portion of the Confidential Information it is legally compelled to disclose, only to such person or persons to which such Party is legally compelled to disclose, and shall provide notice to each such recipient that such Confidential Information is confidential and subject to non-disclosure on terms and conditions substantially similar to and not materially less protective than those in this Agreement, and, if possible, shall obtain each recipient’s written agreement to receive and use such Confidential Information subject to such terms and conditions.

    7.3 Aggregate/Anonymous Data. The Customer hereby agrees that the Provider shall have the right to aggregate and/or anonymize certain Customer data together with the anonymized and/or aggregated data of the Provider’s other customers. Such aggregated and/or anonymized data (“Aggregate/Anonymous Data”) shall not be considered Confidential Information for the purposes of Section 7.1. The Customer further agrees that the Provider may use such Aggregate/Anonymous Data for any business purpose during and after the Term (including but not limited to developing and improving the Provider’s products and services and to distribute reports and other materials).

    7.4 Non-disclosure. Each Party agrees to use the Confidential Information of the other Party solely for the purpose of performing its obligations or exercising its rights under this Agreement, and will disclose such Confidential Information only to those of its own employees, representatives, agents and contractors who have a need to know the information in connection therewith, and who are under an enforceable legal obligation to keep same confidential and subject to comparable restrictions as apply to the receiving Party under this Agreement, and shall take appropriate action to ensure their compliance with such obligation. Each Party's efforts to maintain the confidentiality of information under this Agreement, including the measures taken, will not be less than those which the Party takes to prevent disclosure of its own proprietary information of like significance and in no event less than a reasonable standard of care. With the exception of any disclosure permitted by the foregoing, each Party agrees not to sell, license, transfer, publish, disclose, display, make available to others, the Confidential Information of the other Party. In the event of a loss of any item containing Confidential Information of the disclosing Party, or other instance as a result of which the unauthorized disclosure of Confidential Information is suspected (or ought reasonably to be suspected) to have occurred, the receiving Party agrees to promptly notify the disclosing Party in writing upon discovery of such loss.

    7.5 Equitable Relief. Each Party acknowledges that it would be damaging to the other Party if Confidential Information of the disclosing Party which the receiving Party has or will come into its possession or knowledge in connection with the Agreement or the performance of the Agreement is used other than is authorized under this Agreement or is disclosed to third parties. It is understood that such damages may be difficult to calculate, that monetary damages alone may not be a sufficient remedy for any breach of the confidentiality obligations contained in this Article and that such breach will cause irreparable damage to a Party. It is hereby agreed that upon any such breach, or threatened breach, by the other Party, the non-breaching Party wishing to protect its confidential information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.

    7.6 Destruction. Each Party, upon request of the other Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives, agents and contractors to return, all copies of Confidential Information belonging to or provided by the other Party or destroy such copies as directed by that Party and certify their destruction.

    7.7 Indemnity. Each Party agrees to indemnify and hold the other Party harmless from and against all loss or damage or any kind and nature suffered by the other Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Article.

    Article 8


    8.1 Intellectual Property Indemnity.

    1. Indemnity. Subject to the limitations and disclaimers set forth in this Agreement, Provider shall indemnify Customer against any direct damages and reasonable legal fees and expenses arising from any third party claim (a “claim”) that has been adjudicated by a court and held to be valid, following the exhaustion of all appeals, that any Deliverables infringe any registered U.S. or Canadian patent, or U.S. or Canadian copyright, provided that (a) Customer notifies Provider in writing within 10 days of becoming aware of a claim; (b) Customer gives Provider the right to assume sole control over the defense, settlement or compromise of any such claim; and (c) Customer provides Provider with the information, assistance and authority to enable Provider to perform its obligations under this Section and co-operates fully in Provider’s defense or settlement of such claim.
    2. Exceptions. Provider will have no indemnity obligation to Customer if a claim described in Section 8.1(a) resulted from (i) a modification of the Deliverables not provided by Provider; (ii) the failure by Customer to promptly install an upgrade or any enhancement made available by Provider that would have eliminated the actual or alleged infringement; (iii) the failure by Customer to use the latest version of the Deliverables or any component of the latest version of the Deliverables where the use of the latest version would eliminate the actual or alleged infringement; or (iv) the combination by Customer of the Deliverables with other items (including Customer customizations) not provided by Provider, but only if the claim would not have arisen from use of the Deliverables alone.
    3. Replacement, etc. Should the use of any Deliverable be enjoined, or if in Provider’s opinion any Deliverable may become the subject of a suit or action for infringement, Provider may (i) obtain, at no expense to Customer, the right to continue to use such Deliverable; or (ii) at no expense to Customer, provide Customer promptly with a substitute, modified or replacement Deliverable that is functionally equivalent to such Deliverable and with comparable or better performance and quality characteristics; or (iii) terminate the applicable license(s) and refund to Customer any amounts paid by Customer for use of the applicable intellectual property, pro-rated based on a five-year life from the Effective Date.
    4. Sole Liability. This Article states Provider’s sole liability with respect to claims of infringement of third party intellectual property rights of any kind.
    5. Article 9


      9.1 Limited Warranty. During the period of time identified in the applicable Schedule as the “Warranty Period”, which is to begin from the date on which the Provider certifies that the Deliverables are operational, the Deliverables will perform in substantial accordance with the specifications outlined in such Schedule (“Limited Warranty”).

      9.2 Exclusive Remedies. Notwithstanding anything herein to the contrary, the Provider’s entire liability, and the Customer’s sole and exclusive remedy, for a breach of the Limited Warranty shall be, at the Provider’s sole option, for the Provider to: (a) return the fees paid by the Customer to the Provider hereunder; (b) provide a fix, patch or work-around for the problem; (c) replace the Deliverables with software or products that have similar functionality; or (d) use all commercially reasonable efforts and provide reasonable additional Services to promptly correct the breach.

      9.3 Disclaimer. Except as expressly set out in Section 9.1, the Services and any software Deliverables are provided to the Customer on an “as is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Provider does not represent or warrant that the Services or any Work Product will be accurate, complete, reliable, current or error-free, and expressly disclaims any warranty or representation as to the accuracy or proprietary character of the Services or any Work Product. Further the Provider expressly disclaims that the operation of the Deliverables will not be interrupted by reason of defect therein or by reason of the fault of the Provider hereunder or that the Deliverables will meet the requirements of the Customer or any end-user. The Customer shall be solely and exclusively responsible for the control, operation and security of the transactions and communications made through access to or use of the Deliverables. The Customer also acknowledges that the Internet is not a secure medium, may inherently be unreliable and subject to interruption or disruption and may be subject to inadvertent or deliberate breaches of the Customer’s security.

      9.4 No Indirect, Etc. Damages. Under no circumstances shall Provider be liable to Customer for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or other economic loss of Customer, (iii) exemplary, aggravated or punitive damages howsoever incurred, (iv) contribution or set-off in respect of any claims against Customer, (v) any damages whatsoever relating to third party products or services or Customer Materials, (vi) any damages whatsoever relating to interruption, delays, errors or omissions or (vii) any loss or disclosure of data or funds contained in, dispensed by or associated with any Deliverable; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or Deliverables or any Services, even if advised of the possibility thereof.

      9.5 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, Provider’s liability to Customer for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the amount of Fees paid by the Customer to the Provider in the twelve (12) months prior to the Customer advising the Provider of its claim. This limitation of liability shall not apply to Provider's liability under Article 7 (Confidentiality) or Article 8 (Intellectual Property Infringement Indemnity).

      9.6 Limitations Reasonable. Customer agrees that the limitations of liability set out in this Article are fair and reasonable in the commercial circumstances of this Agreement and that Provider would not have entered into this Agreement but for Customer’s agreement to limit Provider’s liability in the manner, and to the extent, provided for herein. This Article shall apply even in the event of a breach of condition, a breach of an essential or fundamental term, or an essential or fundamental breach of this Agreement.

      Article 10


      10.1 Insolvency. Either Party may immediately upon written notice terminate this Agreement in the event the other Party (i) suspends or ceases conducting business in the normal course, (ii) becomes insolvent, (iii) makes a general assignment for the benefit of creditors, (iv) suffers or permits the appointment of a receiver, receiver and manager, or interim receiver, for its business or assets, (v) avails itself of, or becomes subject to, any proceedings under any other statute of any federal government, province or state relating to bankruptcy, insolvency, reorganization, moratorium, arrangement of debt or the protection of rights of creditors, or (vi) makes any proposal, arrangement or compromise with its creditors under applicable bankruptcy or insolvency legislation.

      10.2 Breach. Either Party may immediately upon written notice terminate this Agreement in the event the other Party fails in any material respect to perform its obligations under this Agreement and the failure continues for a period of ten (10) days after the other Party receives written notice of the failure. If the breach is corrected within the applicable notice period, this Agreement continues in full force and effect, without limitation of any right to damages resulting from the breach.

      10.3 Termination Obligations. Upon termination of this Agreement or any Schedule for any reason, the Customer shall pay any fees for Services that are outstanding. If necessary, the Provider, in its sole discretion, shall pro rate the value of the Services and invoice the Customer on the basis of the percentage of the Services outlined in the applicable Schedule(s) that have been completed. In addition, each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party’s Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so.


      11.1 Unforeseen Circumstances. No party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such party.

      11.2 Assignment. Customer may not assign or transfer its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity, without the prior written consent of Provider, which consent shall not be unreasonably withheld, provided that Customer may assign its rights and obligations to the purchaser in connection with a sale of all or substantially all of its assets. Any attempted assignment in contravention of this Article shall be null and void. Provider may subcontract any Services to be performed hereunder without the consent of Customer in each instance.

      11.3 Notices. Any formal notice, request, demand, consent or other communication required or permitted hereunder, excluding routine communications, is to be given by personal delivery, in writing, transmitted by e-mail, facsimile transmission or sent by registered or certified mail, during normal postal conditions, postage prepaid, written receipt requested, addressed to the Party for which it is intended and addressed as follows:


      1909347 Ontario Inc. o/a APII
      250 Yonge Street, Suite 2201
      Toronto, Ontario
      Canada M5B 2M6

      James Braunstein
      Ph: (416) 639-1441


      and provided, however, that any Party may change its address for purposes of receipt of communications by giving not less than ten business days’ prior written notice of the change to the other Party in the manner prescribed above. Any notice so given is deemed to have been received on the next Business Day following the date it was hand delivered or transmitted by telegram or facsimile machine, or if mailed on the fifth business day next following the mailing of the notice during normal postal conditions. In the event of a postal disruption, any notice mailed will be deemed received on the fifth business day following the resumption of regular postal service. Where notice is given by facsimile then the hardcopy of the original notice shall be sent by prepaid regular mail on the next business day after the original notice was sent.

      11.4 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the Party claiming to have waived or consented. Any consent by any Party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.

      11.5 Governing Law. This Agreement is governed by and construed in accordance with the applicable laws of the Province of Ontario and the federal laws applicable therein. The parties irrevocably and unconditionally consent, submit and attorn to the non-exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from them for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement or a Schedule.

      11.6 Entire Agreement. This Agreement includes all Schedules. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written, unless they are expressly incorporated by additional reference in the Agreement.

      11.7 Amendments. No modification, amendment, supplement to or waiver of this Agreement or any Schedule hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties. If any consents of a Party are required pursuant to this Agreement, such consents shall not be unreasonably withheld or unduly delayed.

      11.8 Benefits. This Agreement is binding upon and endures to the benefit of the parties and their respective successors and permitted assigns, if any, of the parties hereto, except that nothing contained in this provision shall be construed to permit any attempted assignment which would be unauthorized or void pursuant to any other provision of this Agreement.

      11.9 Survival. Any terms and conditions of this Agreement which by their nature extend beyond the termination of this Agreement shall survive such termination. This includes, without limitation Article 5 (Ownership; License), Article 7 (Confidentiality), Article 8 (Intellectual Property Infringement Indemnity), Article 9 (Disclaimer Of Warranties And Damages And Limitation Of Liability), Section 11.5 (Governing Law) and Section 11.12 (Non-Solicitation of Personnel).

      11.10 Independent Contractors. Each Party’s relationship with the other Party will be that of an independent contractor. Nothing in this Agreement is to be construed as designating either Party as an agent, employee, joint venture or partner of the other Party. Provider shall not permit its personnel or agents to hold themselves out to be, or claim to be officers or employees of Customer, or make claims, demands or applications with respect to any right or privileges available to any officer or employee of Customer. Neither Party shall have the authority to serve as agent for the other Party, to make any statement, representation or commitment of any kind on behalf of the other Party not to take any action which may be binding on the other Party. Provider shall at all times during the term of this Agreement maintain such supervision, direction and control over its personnel and agents as is consistent with and necessary to preserve its independent contractor status.

      11.11 Additional Provisions. The Parties acknowledge that they may from time to time agree to additional rights and obligations that shall apply solely to particular Services or Deliverables, and that the Schedules applicable thereto may contain additional rights and obligations of the Parties.

      11.12 Non-Solicitation of Personnel. Neither Party shall without the other Party’s prior written consent solicit for hire any of the other Party’s employees or contractors who are directly involved in the provision or receipt of the Services during the time such personnel are involved providing or receiving the Services and for six (6) months thereafter. This provision shall not restrict the right of either Party (1) to solicit the employment of the personnel of the other Party after such personnel have separated or have been separated from the service of such Party, provided that the hiring Party did not induce such separation, (2) to solicit or recruit generally in the media, and (3) to hire, without the prior written consent of the other Party, any personnel of the other Party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party.

      11.13 Non-Solicitation of Clients and Suppliers. During the Term and for twelve (12) months after termination of this Agreement, neither party shall, directly or indirectly (i) request, induce or attempt to influence any supplier of goods or services of the other Party to curtail any business it transacts with such Party; (ii) request, induce or attempt to influence any customers of the other Party which have done business with, or potential customers which may, to the knowledge of such Party, have been in contact with, the other Party during this period, to curtail or cancel any business they may transact with such Party.

      11.14 Counterparts. This Agreement and any Schedule may be executed in counterparts, each of which is deemed to be an original and all of which together are deemed to be one and the same instrument. The delivery of a facsimile or electronic copy of an executed counterpart of this Agreement shall be deemed to be valid execution and delivery of this Agreement, but the Party delivering a facsimile or electronic copy shall deliver an original copy of this Agreement as soon as possible after delivery of the facsimile or electronic copy.

      11.5 Language. The parties have requested that this Agreement and all documents contemplated thereby or relating thereto be drawn up in the English language. Les parties ont requis que cette Convention ainsi que tous les documents qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.

      IN WITNESS WHEREOF this Agreement has been executed by the parties as of the date first written above.

      1909347 ONTARIO INC. o/a APII

      I agree to the above terms and conditions.