The Platform Services Agreement

RECITALS

1. Webware has developed, owns, maintains, hosts, and operates a software platform that provides tools and support for the development of digital marketing solutions for businesses (“Webware Platform”) and offers digital marketing services and support for businesses, including website design, e-commerce support, training, invoicing and social media services.

2. Business Partner wishes to access and use the Webware Platform through a Branded Interface developed by Webware for the Business Partner and obtain certain Services from Webware as described under Schedule A of the Agreement. 

3. Business Partner may purchase a subscription to and resell certain Webware Subscription Services (defined below) to its customers pursuant to Subscription Forms (defined below) entered into between Webware and Business Partner from time to time. 

NOW THEREFORE the parties agree as follows:

1. Interpretation

   1. Definitions

In addition to the words and phrases defined within this Agreement, the following capitalized words and phrases shall have the following meanings:

“Agreement” means this Platform Services Agreement and the schedules attached hereto, and each additional SOW and Subscription Form (if any). 

“Breach” means the unauthorized access, use, disclosure, or loss of Customer Personal Information.

“Branded Interface” means those user interface elements of the Webware Platform that have been configured by Webware pursuant to the SOW with Business Partner Marks and Business Partner Content for the use by Business Partner and its Customers pursuant to Section 4.1.

“Business Day” means a day other than a Saturday, Sunday or bank or other public holiday in Toronto, Canada.

“Confidential Information” means any and all information relating to or disclosed in the course of this Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party. Confidential Information does not include any information that the receiving party can demonstrate: (i) was publicly available at the time of disclosure to it; (ii) was published or otherwise became publicly available after disclosure to the receiving party, through no fault of its own; (iii) was in the possession of the receiving party at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of duty owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to Confidential Information of the disclosing party, as proven by dated written records. Confidential Information does not include User Data or Personal Information.

“Content” means all informational text, data, software documentation, photographs, graphics, audio, video, graphics, messages, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.

“Effective Date” means the date this Agreement is signed by both Parties.

“Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (a) patent rights and rights under patent applications; (b) rights associated with works of authorship including copyrights and moral rights, and any applications therefor; (c) rights relating to the protection of trade secrets; (d) rights in trademarks, service marks, logos, trade dress, trade names, and design patent rights, and any applications therefor, and (e) any right analogous or related to the foregoing and any other proprietary rights relating to intangible property.

“Materials” mean any material provided or made available to the Business Partner in connection with the provision of the Services, including any user guides and other related user documentation or technical specification documentation made available by Webware from time in connection with the provision of the Services. 

“Business Partner Content” means Content, excluding User Data, which the Business Partner or Customers submit, upload, or transmit through or on the Webware Platform, or provide to Webware for the purpose of enabling Webware to provide the Services. 

“Business Partner Marks” means the trade-marks, service marks, trade dress, business and trade names, brand names, logos, corporate names and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, owned or licensed by the Business Partner.

“Customer Marks” means the trade-marks, service marks, trade dress, business and trade names, brand names, logos, corporate names and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, owned or licensed by the Customer. 

“Customer” means each of the Business Partner’s customers identified by relevant Subscription Form  for the purchase of selected Webware subscription services. “Business Partner Vendor” means any third party providing goods or services to the Business Partner.

“Governmental Authority” means:

• any domestic or foreign government, whether national, federal, provincial, state, territorial, municipal or local (whether administrative, legislative, executive or otherwise); 
• any agency, authority, ministry, department, regulatory body, court, central bank, bureau, board or other instrumentality having legislative, judicial, taxing, regulatory, prosecutorial or administrative powers or functions of, or pertaining to, government
• any court, commission, individual, arbitrator, arbitration panel or other body having adjudicative, regulatory, judicial, quasi-judicial, administrative or similar functions; and 
• any other body or entity created under the authority of or otherwise subject to the jurisdiction of any of the foregoing, including any stock or other securities exchange or professional association,

in each case having jurisdiction over a Party, any aspect of the performance of this Agreement and the Services provided herein.

“Webware Platform” means the Webware proprietary cloud-based platform  (including mobile applications and the Branded Interface) and all problem resolutions, corrections, fixes, upgrades, updates, modifications, enhancements, improvements, versions, and releases of the same, to the extent made available to the Business Partner.

“Webware Subscription Services” means the digital marketing services packages and related professional services which Webware may make available on a subscription basis as specified in the applicable SOW or Subscription Form.

“Personal Information” means information that can be linked to an identifiable individual.

“Sales Tax” means all applicable sales, use, goods and services, value added, service, transfer, excise or similar taxes, duties or charges.

“Services” means all services contemplated in Section 4 provided by Webware. 

“Service Levels” means the service levels for the Platform as set out in the SLA.

“SLA” means the service level agreement attached as Schedule C. 

“SOW” means  statement(s) of work signed by both Parties for the

1) implementation, integration, testing, configuration, hosting and training services relating to the Business Partner’s access and use of the Webware Platform,
2) development of the Branded Interface,

3) delivery of additional Services pursuant to Section 4.5 or third party services pursuant to Section 4.6, and
4) such other services as are mutually agreed, which is signed by authorized representatives of the Business Partner and Webware and which forms part of this Agreement. 

“Subscription” means a subscription for Webware Subscription Services pursuant to a SOW or Subscription Form. 

“Subscription Form” means a standard order document for the use of purchasing a subscription to one or more Webware Subscription Services (and any subsequent modifications to the Subscription agreed to between the parties in writing) by the Business Partner for the benefit of its Customer, which is subject to and incorporated into this Agreement. 

“Subscription Term” means the duration of a Subscription set forth on a SOW or Subscription Form. 

“Support Services” means the support services set out in the SLA.

“Term” has the meaning set out in Section 2.1.

“Third-Party Components” has the meaning set out in Section 4.6.

“Third-Party Provider” has the meaning set out in Section 4.6.

“User Account” has the meaning set out in Section 3.4. 

“User Data” means electronic data (exclude Business Partner Content and Customer Content) that are submitted, posted, stored, displayed, uploaded or transmitted into the Webware Platform or to Webware, and include data and information related to Business Partner and Customer's use of the Webware Platform and Services.   

Schedules 

• Schedule A -  SOW/ Business Partner’s Subscription 

• Schedule B – Support Services 

• Schedule C – Service Level Agreement 

2. Principles of Interpretation 

A provision in a SOW or Subscription Form shall override a provision in this Agreement with which it is in conflict, if and only if the provision in the SOW or Subscription Form expressly refers to, and states its intention to override, the provisions in this Agreement.  

2. TERM

   1. Term.  The term of this Agreement shall commence on the Effective Date and will continue, unless terminated earlier in accordance with this Agreement, until the later of: (i) the anniversary of the Effective Date, after which the Agreement will automatically renew for further consecutive terms of one (1) year unless either party provides written notice to the other of its intent not to renew this Agreement not less than ninety (90) Business Days prior to the end of the initial one-year period or subsequent one-year periods, as applicable; (ii) the termination by expiry of all Subscription Terms (collectively, the “Term”). 

3. LICENCE; ACCESS TO PLATFORM

   1. Licence to Webware Platform and Branded Interface. Subject to and conditional on the Business Partner’s compliance with the terms and conditions of this Agreement, Webware grants the Business Partner a limited, non-assignable, non-sublicensable (except for the sole purpose of providing services to the Customer provided that the sublicense shall be subject to the terms and conditions of this Agreement), and non-exclusive licence during the Term, or if specified, during the relevant Subscription Term, for the Business Partner and Customers to access and use the Webware Platform through the Branded Interface to which the Business Partner subscribes for the sole purpose of the Business Partner’s internal business operation in the manner permitted by this Agreement and as made available by Webware, and not for resale or otherwise to be used to provide services to any person except Customers.

   2. Restrictions. The Business Partner shall not, and shall not permit any of its Customers to access or use the Webware Platform and Services except as expressly permitted by this Agreement and applicable Subscription Form. For purpose of clarity and without limiting the generality of the foregoing, Business Partner shall not, and shall not permit any of its Customers to (i) copy, modify or create derivative works or improvements of the Webware Platform; (ii) decompile or reverse engineer the Webware Platform or otherwise attempt to obtain the source code for the Webware Platform; (iii) allow any other person to use, or make available to any other person, the Webware Platform except for by Customers in accordance with the terms of this Agreement or as otherwise agreed upon by the Parties; (iv) use the Webware Platform for any purpose other than a) providing digital marketing solutions to its Customer in the case of Business Partner; b) interacting with Business Partner regarding the digital marketing solutions provided, in the case of Customer; or c) for the purposes specifically set out in the SOW or Subscription Form;  (v) access or use the Webware Platform and Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any third party, or that violates any applicable law; or, (v) use the Webware Platform beyond the scope of the authorization granted under this Agreement or in a manner that interferes with the use of the Webware Platform by Webware or other customers and users of Webware.

   3. Suspension. In addition to its other rights under this Agreement, Webware may suspend or terminate access to the Webware Platform and use of some or all of the Services by the Business Partner or any Customer, without incurring any resulting obligation or liability, if Webware believes the suspension is reasonably needed: (a) to prevent damage to or degradation of the Webware Platform; (b) to comply with any applicable law, court order, or other governmental request or order; (c) to respond to any non-payment of payments due by the Business Partner as set out herein upon prior written notice by Webware, or (d) as a result of the Business Partner’s failure to comply with the terms of this Agreement, or access or use by the Business Partner of Services beyond the scope of the rights granted hereunder or for a purpose not authorized under this Agreement or that does not comply with any material instruction or requirement provided in a SOW or Subscription Form. If suspended, Webware will promptly restore use of the Webware Platform to the Business Partner as soon as the event giving rise to the suspension has been resolved to the reasonable satisfaction of Webware. Where the event giving rise to the suspension has not been resolved to the reasonable satisfaction of Webware within thirty (10) Business Days of the effective date of such suspension, Webware may terminate this Agreement without prior written notice. 

   4. User Account. The Business Partner and its Customers shall access the Webware Platform through the Branded Interface by means of user accounts created and assigned to each user using the Webware Platform (each, a “User Account”). The Business Partner is responsible for all activity occurring under such User Accounts. The Business Partner shall, and shall cause the Customers, to notify Webware immediately of any unauthorized use of any password or User Account or any other known or suspected breach of security. Without limitation, Webware may immediately remove or suspend any User Account affected by the activities described in the foregoing.

   5. Terms of Service with Customer. Without limiting the generality of the foregoing, Business Partner shall be responsible for all acts and omissions of its Customers, and any act or omission by a Customer that would constitute a breach of this Agreement if such act or omission were committed by the Business Partner shall be deemed a breach of this Agreement by Business Partner. Prior to use of the Services by a Customer, Business Partner shall have each Customer review and agree to a written terms of services that shall: (a) contain, at a minimum, terms and conditions that are substantially similar to the terms of this Agreement, to the extent applicable, and that do not derogate, impede or hinder any protections afforded and rights granted to Webware hereunder, including all provisions relating to use and access to the Service, restrictions on use, suspension of Services, confidentiality, privacy, and ownership of intellectual property; and (b) name Webware as a third party beneficiary to these written terms of service.

4. PROVISION OF SERVICES BY WEBWARE

   1. Branded Interface. Webware shall configure the Branded Interface of the Webware Platform using the Business Partner Marks, branding guidelines of the Business Partner (if appliable), and other Content provided by the Business Partner as set out in the SOW. For clarity, such configuration shall not include the addition of features, functionality or modification to the Webware Platform except as otherwise agreed by the Parties in the applicable SOW.

   2. Webware Subscription Services. Webware shall provide to Business Partner the Webware Subscription Services set out in the applicable SOW, Subscription Form and in accordance with the terms and conditions of this Agreement. 

   3. Support Services. Webware shall provide standard customer support services (“Support Services”) to the Business Partner in accordance with Webware’s SLA then in effect, a current copy of which is attached hereto as Schedule C. 

   4. Payment Services. 

The Business Partner shall use Webware’s payment services (“Webware Invoice”)  to accept payments from Customer through the Webware Platform and comply with the following terms:

1. Stripe Payments Canada, Ltd . and its affiliates (collectively, “Stripe”) provide certain services (the “Stripe Services”) to Webware and to Business Partner that support payments made by Customers to the Business Partner through Webware Invoice. To obtain these payment services, the Business Partner must open a separate account with Stripe (the “Stripe Account”) and must enter into certain agreements with Stripe (as amended by Stripe from time to time, the “Stripe Agreements”). The Business Partner hereby agrees with Webware and with Stripe, that it will perform all of its obligations under the Stripe Agreements. The Business Partner agrees that it will not use the Stripe Services in any manner that is fraudulent, unlawful, deceptive or abusive, and that it will not use the Stripe Services for any activity that is expressly prohibited by Stripe.  The Business Partner hereby authorizes Webware to use the Stripe Services and its Stripe Account as necessary to effect payments by Customer to the Business Partner using Webware Invoice. The Business Partner acknowledges and agrees that it is responsible and liable to Stripe for all activity on its Stripe Account, whether initiated by it or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the Services in a manner prohibited under this Agreement or the Stripe Agreements).

2. The Business Partner hereby consents to Webware providing all such data to Stripe as may be necessary to effect payments by Customers to the Business Partner using Webware Invoice and for related purposes, and the Business Partner hereby authorizes Stripe to collect information from Webware for such purposes. For more information regarding Stripe’s collection and use of data, see Stripe’s Privacy Policy at www.stripe.com.

3. Certain fees are payable by the Business Partner for the use of the Services which are set out in the appliable SOW or Subscription Form (“Webware Payment Service Fees”), and the Stripe Services which are set out in the appliable Stripe Agreement between the Business Partner and Stripe (“Stripe Services Fees”), to effect payments by Customer to the Business Partner using Webware Invoice, and those fees are subject to change from time to time. 

4. The Business Partner will indemnify and hold Webware and its directors, officers, employees, affiliates, agents, contractors, suppliers and licensors harmless with respect to any suits or claims by Stripe or any third party (and any related costs, including legal fees) arising directly or indirectly out of any activity on the Stripe Account, whether initiated by the Business Partner or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the Services in a manner prohibited under this Agreement or the Stripe Agreements), and without limitation including (a) any failure by the Business Partner to pay any amount owning by the Business Partner to Stripe or any other person in any way related to the Stripe Account, or (b) any claim made against Webware by Stripe or any other person as a result of any inaccurate or incomplete information provided by the Business Partner to Stripe (or provided by the Business Partner to Webware, and which Webware provided to Stripe).

5. Webware does not make any representation, warranty or guarantee about the time it will take for the Business Partner to receive payment for any transaction, or that payment will ultimately be received by the Business Partner.

6. From time to time, Webware may change the service provider it uses to support payments by Customer to the Business Partner through Webware Invoice or through the Webware Platform, or Webware may offer the option of using other service providers to support payments by Customer to the Business Partner through the Webware Platform, or Webware may elect to itself perform some or all of the services that were previously provided by the service provider. If Webware does so, then, in order to continue to use the Webware Invoice, the Business Partner may be required to agree to additional terms then imposed by Webware or any such new service provider. 

7. The Business Partner will be solely responsible for invoicing its Customer and directing the Customer to make payments through Webware Invoice based on the payment terms agreed to between the Business Partner and Customer.  

5. Additional Services. Additional Services may be requested by the Business Partner in writing to Webware. Webware will advise the Business Partner if the proposed services are feasible and provide a written estimate to the Business Partner of the estimated fees and delivery timelines for the requested services. Webware will only provide additional services pursuant to a SOW or Subscription Form (as applicable) signed by both Parties which shall provide detailed description and set out the fees for such additional Services.

6. Third-Party Components or Services. If the Business Partner or its Customer requires that Webware use, or integrate the Webware Platform with, any software, services, or products, provided by a third-party, (“Third-Party Providers”) then the Business Partner shall 1) first discuss such request with Webware and, to the extent that Webware determines the request require additional Services, enter into a SOW signed by both Parties; and 2) prior to such use, integration or performance of additional Services, provide documentation to Webware confirming that the Business Partner has the necessary [sublicensable] rights to allow Webware to use the applicable third-party software, services, and products (“Third-Party Components”). Webware does not provide any warranty in connection with Third-Party Components. The Business Partner irrevocably waives any claim against Webware with respect to any Third-Party Component or Third-Party Provider, unless such claim is the direct result of a breach of this Agreement by Webware.   

7. Security. Webware shall use appropriate administrative, physical, and technical safeguards, as reasonably determined by Webware, to protect against the destruction, loss, alteration or unauthorized access, use, or disclosure of User Data.

8. Platform Updates. Webware may make commercially reasonable updates to the Webware Platform from time to time. If Webware makes a material change to the Webware Platform, Webware will notify the Business Partner. The Business Partner shall be responsible to notify its Customer regarding changes and updates to the Webware Platform from time to time. 

5. INTELLECTUAL PROPERTY

   1. Ownership in the Webware Platform. Notwithstanding anything to the contrary contained in this Agreement, Webware and its licensors have and will retain all rights, title and, interest, including any and all ownership rights and Intellectual Property Rights, in and to the Webware Platform (including the Materials), and all software, systems and processes used in the delivery of the Webware Platform, the Services, and the Branded Interface (except for the Business Partner Content and the Business Partner Marks) including any derivative, enhancement, or modification thereof, are the exclusive property of Webware. 

   2. Ownership in the Work Product. Unless specifically set forth in a SOW or applicable Subscription Form (the “Excluded Work Product”), Webware shall be the sole and exclusive owner of all work products delivered as part of the Services, including, for greater certainty, the Branded Interface and the Materials (the “Work Product”), including all Intellectual Property Rights therein. Upon payment of Fees payable by the Business Partner under the SOW or Subscription Form (as applicable), Webware shall assign to the Business Partner, all right, title and interest in and to any Excluded Work Product including all Intellectual Property Rights therein. 

   3. Rights in the Business Partner Content. Webware acknowledges that the Business Partner retains all Intellectual Property Rights the Business Partner already holds in the Business Partner Content. 

   4. Responsibility for the Business Partner Content. the Business Partner shall: 

      1. ensure that the Business Partner Content (including the Business Partner's storage or transmission of such the Business Partner Content) and any other data regarding the Business Partner's use of the Webware Platform and Work Product, complies with the terms of this Agreement and any and all applicable laws; and,

      2. promptly handle and resolve any claims relating to the Business Partner Content, including any notice sent to the Business Partner claiming that any the Business Partner Content violates any person's rights.

   5. Business Partner Licence. During the Term, the Business Partner hereby grants, Webware a limited, worldwide, royalty-free, non-transferable (other than in connection with the assignment of this Agreement), non-sublicensable, and non-exclusive license for Webware (and on behalf of Webware, its subcontractors, solely to the extent that such subcontractors have agreed in writing to be bound by confidentiality, data security and privacy obligations substantially similar to those applicable to Webware hereunder), to use, reproduce, adapt, modify, translate, publish, perform, display and distribute:

      1. the Business Partner Content, solely for the purpose of enabling Webware to provide the Webware Platform, the Branded Interface and the Services, and for Webware to perform its obligations under this Agreement, for the benefit of the Business Partner and Customers; and,

      2. the Business Partner Marks in connection with the Webware Platform and the promotion of the Webware Platform as set out in Section 5.6. 

In the case of Customer Marks, the Business Partner shall be responsible to obtain appropriate license(s) from its Customer for Webware (and on behalf of Webware, its subcontractors, solely to the extent that such subcontractors have agreed in writing to be bound by confidentiality, data security and privacy obligations substantially similar to those applicable to Webware hereunder), to use, reproduce, adapt, modify, translate, publish, perform, display and distribute:

3. the Customer Marks in connection with the delivery of the Services as set out in Section 4.2 and in accordance with the appliable Subscription Form. 

(the above, the “the Business Partner License”)

6. Promotion of the Platform. The Business Partner hereby grants Webware a licence to use the Business Partner Marks , and shall obtain appropriate right from its Customer for the use of Customer Marks by Webware, or cause its Customer to grant Webware a license to use the Customer Marks, in connection with the marketing of the Webware Platform. 

7. Feedback.  The Business Partner acknowledges and agrees that any suggestions, questions, comments, ideas, enhancement requests, recommendations or other feedback provided by the Business Partner relating to any aspect of the Webware Platform, Services, any product or services of Webware or any aspect of Webware’s business (“Feedback”), or in association with any related products, services or business of Webware is the exclusive property of Webware, and may be used or exploited by Webware without restriction, condition or compensation of any kind to the Business Partner.  The Business Partner hereby will and does irrevocably assign and waive its rights in any Feedback, and to the extent not assignable grants an unconditional, exclusive, perpetual, irrevocable, royalty-free license to use such Feedback in its business or otherwise for any purpose.

6. USER DATA

   1. Ownership of User Data. Webware acknowledges that, as between the Parties, the Business Partner shall own all rights, title, and interest in and to User Data. 

   2. Webware use of User Data. The Business Partner hereby grants Webware a limited, worldwide, royalty-free, non-transferable (other than in connection with the assignment of this Agreement), non-sublicensable and non-exclusive license for Webware (and on behalf of Webware, its subcontractors, solely to the extent that such subcontractors have agreed in writing to be bound by confidentiality, data security and privacy obligations substantially similar to those applicable to Webware hereunder), to use and copy the User Data solely for the purpose of enabling Webware to provide the Webware Platform and the Services, and for Webware to perform its obligations under this Agreement, for the benefit of the Business Partner.  

   3. Aggregated Data. the Business Partner also acknowledges and agrees that Webware may freely use User Data on a generic, aggregate basis along with Webware's use of similar data from all of its customers, such that there is no way to identify any data as that of the Business Partner, its Customers or any individual (the "Aggregated Data"): (i) to improve and analyze the performance of the Webware Platform and Branded Interface, including optimizing the Webware Platform or Branded Interface by improving performance and usability; (ii) to develop marketing and sales collateral; and (iii) for general industry analysis. 

   4. Responsibility for User Data. the Business Partner shall: 

      1. ensure that the User Data complies with the terms of this Agreement and any and all applicable laws, including privacy laws; and,

      2. promptly handle and resolve any claims relating to the User Data, including any notice sent to the Business Partner claiming that any User Data violates any person's rights.

   5. Violation of Laws. Webware may delete any User Data, or part thereof, that, in Webware’s reasonable opinion, violates any laws or the rights of any third party and may suspend any Customer that is responsible for same, in each case without incurring any liability to the Business Partner. 

7. PERSONAL INFORMATION

   1. Use of Personal Information. Webware will not use Personal Information in the Business Partner Content or User Data except: (i) as necessary to perform its obligations under this Agreement and (ii) as permitted or required by applicable laws. The Business Partner represents and warrants that it has the authority or had obtained all necessary consents from the subject individuals as required by applicable laws to allow Webware to use and disclose Personal Information in accordance with this Agreement.  

   2. Compliance with laws relating to Personal Information. The Business Partner, in collecting and using Personal Information, including through Webware Platform and the Branded Interface, shall comply with all applicable laws with respect to Personal Information, including by obtaining the consent of Customers to collect, use, and disclose the Personal Information of Customers in connection with the Webware Platform and Branded Interface.

   3. Breach notification. On becoming aware of a Breach, Webware shall:

      1. without undue delay, notify the Business Partner by telephone or otherwise (and shall promptly follow such immediate notice by written notice), with such notification to include any information required for the Business Partner to comply with notification obligations under applicable laws, to the extent Webware has such information; and,

      2. take such steps as may be reasonably necessary to minimize the possible adverse effects of the Breach.

8. FEES

   1. Fees. the Business Partner shall pay to Webware the fees, including any Payment Service Fees set out in the appliable SOW, and in each additional Subscription Form and SOW (together, the “Fees”). All Fees are non-refundable upon payment. Payments will be made without right of set-off or chargeback in favour of the Business Partner. Except to the extent subject to a good-faith dispute, any late payments shall be subject to a service charge equal to one and a half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less, and may result in Webware suspending the provision of the Webware Platform and/or Services, pursuant to Section 3.3, until such payments, including any applicable service charge, are received by Webware. 

   2. Payment of Fees. the Business Partner shall pay all Fees and other amounts payable under this Agreement by electronic funds transfer through Webware Invoice. The Fees shall be paid in advance of the delivery of the Services.  In the case of an upfront set-up Fee, it shall be paid before or on the effective date of the applicable SOW and Subscription Form. In the case of a monthly subscription Fee, it shall be paid before or on the first day of the month the Services will be delivered. 

   3. Taxes. All amounts payable by the Business Partner to Webware pursuant to this Agreement shall be exclusive of all Sales Taxes.  the Business Partner shall bear all amounts payable for Sales Taxes and shall pay such Sales Taxes to Webware concurrently with the Fees upon which such Sales Taxes are calculated.

   4. Set off. Webware may set off against or withhold, any and all amounts otherwise become refundable to Business Partner under Section 9.4(v), any and all amounts owed by Business Partner to Webware, including amounts claimed by Webware under Section 11.3 or as a result of the Business Partner’s failure to perform its obligation under this Agreement. 

9. EARLY TERMINATION; EFFECT OF TERMINATION

   1. Termination for Convenience. Either party may terminate this Agreement at any time upon providing the following written notice to the other party: by the Business Partner upon providing Webware with not less than sixty (60) Business Days written notice, or by Webware upon providing the Business Partner with not less than sixty (60) Business Days written notice.

   2. Termination for Cause. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) Business Days after written notice of such breach; or, (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within thirty (30) Business Days thereafter).   

   3. Termination for Cause by Webware- Non-Payment.  If after having been given ten (10) Business Days written notice by Webware of non-payment of any Fees due under this Agreement, the Business Partner has not paid such undisputed non-paid amounts, Webware may terminate this Agreement.

   4. Effects of Termination

              Upon termination (including termination by expiration) of this Agreement for any reason:

1. notwithstanding anything to the contrary in this Agreement, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will be immediately due and payable; and the Business Partner shall pay such Fees, together with all together with all previously accrued but not yet paid Fees on receipt of Webware’s invoice therefor;

2.  all rights, licenses and authorizations granted to the Business Partner under Section 3 shall terminate, and the Business Partner shall immediately cease any and all use of the Webware Platform, and destroy all copies of Materials and so certify to Webware in writing; 

3. each party will return to the other party the Confidential Information, in whatever form it may exist, and all copies thereof,  of the other party that it obtained during the course of this Agreement, or, as directed by the other Party, destroy such Confidential Information; and if so requested, must certify in writing to the other party that it has done so, except Webware may retain User Data in its then current state and solely to the extend and for so long as required by appliable law; 

4. all Subscription Terms shall expire on the same date of the termination of this Agreement and Webware may disable all access to the Webware Platform, Services and Materials;

5. if this Agreement is terminated by the Business Partner underSection 9.2, or by Webware under Section 9.1, then Webware will, within 30 Business Days after the effective date of termination, refund the Business Partner any prepaid Fees covering the remainder of the Term. In no event will termination relieve the Business Partner of its obligation to pay any Fees for the period prior to the effect date of termination.

6. If this Agreement is terminated by the Business Partner under Section 9.1 or by Webware under Sections 9.2 and 9.3, Webware may directly approach, contact, communicate, and solicit the Customers, or enter into business arrangement with Customers regarding the provision of Webware services upon such termination. The Business Partner acknowledges and agrees that it will obtain the required consent under appliable law (including Canada’s Anti-Spam legislation) from its Customer to enable the communication between Webware and Customer.

5. Upon request by the Business Partner made before, or within sixty (60) Business Days after, the effective date of such expiration or termination, Webware shall make available to the Business Partner a complete download of all the Business Partner Content and User Data in its then-current file or database format, or as such other format as the parties may agree in writing. For clarity, any Services provided by Webware to the Business Partner, including the downloading set out above, and any assistance in exporting the Business Partner Content, shall be billable at Webware’s standard rates then in effect. For greater certainty, the Business Partner agrees that Webware shall not be liable to the Business Partner,  any Customer or any other third party for any cessation of access to the Webware Platform following such termination, including for any damages arising out of any party’s reliance on the continued availability of the Webware Platform. 

6. Survival. The following Sections of this Agreement shall survive the termination of this Agreement: Section 9.4, Section 10 (Confidential Information), Section 11 (Indemnities), Sections 12.2 and 12.3 (Warranties), and Section 13 (Limitation of Liability). Any other provision that, in order to give proper effect to its intent, should survive such termination, shall survive the termination of this Agreement.

10. CONFIDENTIAL INFORMATION

    1. Protection of Confidential Information. During the Term, each receiving party shall use the same care to prevent disclosing to third parties the Confidential Information of the disclosing party as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care

    2. Use and Return of Confidential Information. Except as contemplated by this Agreement (including for the purpose of providing the Webware Platform, Branded Interface and the Services) no receiving party shall make any use of the disclosing party’s Confidential Information or refuse to promptly return, provide a copy of, or destroy the other party’s Confidential Information upon request of the other party (provided that Webware shall be excused from its performance hereunder to the extent that such Confidential Information was required for such performance). 

    3. Disclosure of Confidential Information. Each receiving party will shall only share the disclosing party’s Confidential Information with its employees on a “need to know” basis in connection with performance of the party’s obligations under this Agreement. If the receiving party is served with a court order compelling disclosure of any Confidential Information of the disclosing party, it will, to the extent allowed under law, provide the disclosing party with immediate notice thereof, provide the disclosing party with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with the disclosing party in the event the disclosing party opposes disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Webware Platform shall not be a breach of this Section 10.

11. INDEMNITIES

    1. Webware Indemnity.  Subject to Section 11.4, Webware shall indemnify, defend and/or settle and hold harmless at its own cost, the Business Partner and its affiliates and each of their employees, officers, directors, shareholders, and agents from any third party claims, causes of action, proceeding or suits (each, a “Claim”), arising out of or related to:

       1. any breach of Section 10 by Webware; or

       2. any fraud, gross negligence or wilful misconduct of Webware; and Webware shall pay any damages finally awarded, or settlement amounts entered into, based upon such a Claim.

2. Business Partner Remedies for Infringement. If the Webware Platform is, or in Webware’s opinion is likely to be, held to infringe any person’s Intellectual Property Rights, Webware may at its expense and option either:  (A) procure the right for the Business Partner to continue using it, (B) replace it with a non-infringing equivalent, (C) modify it to make it non-infringing, or (D) where applicable, direct the return of any software components of the Webware Platform and refund to the Business Partner any fees which have been prepaid for such software where the use of such software for which the fees were prepaid has not occurred.  The foregoing remedies in this Section  11.2 constitute the sole and exclusive remedies for the Business Partner and the entire liability and obligation of Webware with respect to infringement.

3. Business Partner Indemnity

Subject to Section 11.4, the Business Partner shall indemnify, defend, and/or settle and hold harmless at its own cost, Webware, its affiliates and each of their employees, officers, directors, shareholders, subcontractors and agents from any Claims arising out of or related to: 

1. any allegation that the use, in accordance with the terms of this Agreement, of the Business Partner Licence, infringes any third party copyright or trademark in the Territory, in each case to the extent  that the alleged infringement was not caused by (i) Webware  acting other than in accordance with this Agreement; (ii) the combination, operation or use of the Business Partner Licence other than as contemplated by this Agreement; (iii) the failure by Webware to use corrections made available by the Business Partner; (iv) the distribution, marketing or use of the Business Partner Content by Webware for the benefit of third parties; or (v) information, direction, specification or materials provided by Webware or any third party; 

2. any legal or administrative action, investigation or inquiry commenced by, or claim made or notice from any third party, including any Governmental Authority, to or against Webware, arising directly or indirectly out of the Business Partner and Customer’s use of Webware Invoice, Webware payment services or any activities on the Webware Platform involving the Business Partner or its Customer;   

3. the use of the Business Partner Licence, User Data, or Personal Information as permitted by this Agreement;

4. a use of the Webware Platform other than a use contemplated in the applicable specifications,  documentation, or in this Agreement; 

5. the failure of the Business Partner or its Customer to comply with applicable law or the failure of Webware to comply with applicable law caused, directly or indirectly, by the Business Partner breach of this Agreement; 

6. any claim by a Customer other than to the extent caused by a breach of this Agreement by Webware;

7. any breach of Section 10 by the Business Partner; or

8. any fraud, gross negligence or wilful misconduct of the Business Partner;

and the Business Partner shall pay any damages finally awarded, or settlement amounts entered into, based upon such a Claim.

4. Conditions of Indemnity

In each case the indemnified party shall (i) promptly notify the indemnifying party in writing of any such Claim, (ii) provide the indemnifying party sole and complete control of such defence (including appeals thereof) and all negotiations for any settlement or compromise (provided that such settlement or compromise does not contain any admission or acknowledge of any liability or wrongdoing on the part of, or impose any obligations on, the indemnified party), and (iii) provide the indemnifying party full information and reasonable cooperation in connection with such a Claim. Without limiting (ii) above, the indemnified party shall have the right to be represented by counsel of its choice and to participate in the defence of the Claim; provided, however, that the expense of such counsel and such participation shall be borne by the indemnified party and the indemnified party shall not settle any such Claim without the prior written consent of the indemnifying party.

12. WARRANTIES

    1. Limited Performance Warranty.  Webware warrants that the Webware Platform will be free of material errors or defects, and that all Services provided by Webware will be performed in a good and workmanlike manner. In the event the Business Partner believes that Webware is in violation of this limited warranty, the Business Partner shall notify Webware in writing (a “Warranty Claim”) and Webware shall use reasonable commercial efforts to correct any error or defect, which shall be the Business Partner’s sole and exclusive remedy for any Warranty Claim.

    2. the Business Partner Data. the Business Partner represents and warrants that it has complied with all applicable laws, including applicable data protection and privacy laws, and obtained all required consents for with respect to the Business Partner Content, User Data, and Personal Information of Customers.

    3. Disclaimer. Except as expressly provided in Sections 12.1, Webware makes no, and actively disclaims any, condition, representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Webware Platform, and the content found on same, or the Services. All other conditions, representations, and warranties regarding the Webware Platform, or the Services whether express, implied, statutory or otherwise, including, without limitation, any implied warranty or condition of merchantability, fitness for a particular purpose, or non-infringement of third party rights, or those arising from a course of dealing or usage of trade, are hereby expressly disclaimed by Webware to the maximum extent permitted by applicable law. Without limiting the foregoing, Webware makes no warranty that the Webware Platform, , or the Services will be error free, will function without interruption, or will meet any requirements or the Business Partner’s expectations. To the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the statutorily required warranty period.  Without limiting the foregoing, the Business Partner acknowledges that the Webware Platform is not intended for use in connection with any high risk or strict liability activity and that Webware makes no, and actively disclaims any, condition, representation, warranty, or guarantee, and shall have no liability, in connection with any use of the Webware Platform and Branded Interface in such situations.

13. LIMITATION OF LIABILITY.

    1. Disclaimer of Liability. Webware shall not be liable for (i) any cost of cover or analogous costs related to the procurement of replacement services; or (ii) any loss of use, lost data, interruption of business, or any indirect, special, incidental, exemplary, punitive or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance, provided that the foregoing shall not apply in the case of gross negligence or wilful misconduct.  

    2. Maximum Liability for Direct Damages. The liability of Webware for any claim under this Agreement or otherwise in connection with this Agreement shall in no event exceed the Fees paid by the Business Partner to Webware under this Agreement during the three (3) months immediately preceding the event giving rise to such claim. Such direct damages shall  be the  full  extent  of monetary  liability  of Webware under or in connection with this Agreement, regardless of the  form in which  any such  legal or equitable  claim or action  may be asserted against  Webware,  and shall constitute  the  Business Partner’s sole  monetary  remedy.  

    3. Survival. The limitations, exclusions, and disclaimers in this Agreement shall survive any fundamental breach or breaches or the failure of the essential purpose of this Agreement or of any limited remedy contained herein. The Business Partner acknowledges and agrees that in the absence of these limitations of liability, the economic terms of this Agreement would be substantially different. Not all jurisdictions permit such limitations of liability. If the Business Partner's jurisdiction does not permit these limitations, they will not apply.   

    4. Exclusions to Liability Limits. Notwithstanding the foregoing, (i) the liability or obligations of Webware in Section  10 of this Agreement, (ii) and losses arising from Webware’s fraud, gross negligence or willful misconduct shall be excluded from the limitation of liability stated in this Section 13.

14. GENERAL

    1. Governing Law. This Agreement and all disputes pertaining to or arising from this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without reference to its choice of laws principles. 

    2. Dispute Resolution. The parties will settle any controversy or dispute arising out of this Agreement by binding arbitration in accordance with the provisions contained herein and in accordance with the ADRIC Arbitration Rules of the ADR Institute of Canada, in effect at the time of the arbitration. The place of arbitration shall be Toronto, Ontario.  Notwithstanding the determination by the parties to utilize the dispute resolution process as specified in this Section 14.2 for resolution of disputes arising out of or in connection with this Agreement, nothing herein shall preclude either party from seeking and obtaining from a court of competent jurisdiction appropriate equitable relief, including a temporary restraining order or other injunctive relief, to prevent a breach of this Agreement relating to Intellectual Property Rights or Confidential Information.

    3. Entire Agreement.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.  It supersedes any other agreement, oral or written, express or implied.  No provision of this Agreement may be changed or waived except by a written amendment signed by signing officers of Webware and Customer respectively. 

    4. Independent Advice.  the Business Partner acknowledges that it has read, understands and agrees to be bound by the this Agreement, and that Webware has provided a reasonable opportunity for the Business Partner to seek independent legal advice prior to executing this Agreement.

    5. Force Majeure. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement: (i) if and to the extent such delay or failure arises, with respect to a party, from any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party; and (ii) provided the non-performing party is without fault and the delay or failure could not have been prevented by reasonable precautions or reasonable efforts (a “Force Majeure Event”). On or during a Force Majeure Event, the non-performing party is excused from further performance for as long as the Force Majeure Event persists and the party continues to use its best efforts to recommence performance and mitigate the impact of its non-performance. Upon the occurrence of a Force Majeure Event, the nonperforming party shall promptly notify the other party of the occurrence of that Force Majeure Event, its effect on performance, and how long that party expects it to last. During a Force Majeure Event, the nonperforming party shall use reasonable efforts to limit damages to the performing party and to resume its performance under this Agreement. If a Force Majeure Event substantially prevents or delays performance of a party for more than 90 days, the other performing party may terminate this Agreement.

    6. Assignment. Neither Party may assign or transfer this Agreement without the other Party’s prior written consent; provided, however, Webware may assign or transfer this Agreement, without obtaining the Business Partner’s consent so long as such assignment or transfer is to Webware’s affiliate or pursuant to a merger or amalgamation of Webware, or a purchase of all or substantially all of the shares in the capital of Webware or all or substantially all of the Webware’s assets.  This Agreement shall enure to the benefit of and be binding upon each party and their respective successors and permitted assigns and transfers.

    7. Headings. The descriptive headings of the Sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provision of the Agreement.

    8. Obligations and Covenants. Each obligation in this Agreement, even though not expressed as a covenant, is considered for all purposes to be a covenant.

    9. Invalidity. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.

    10. Non-Waiver. No provision of this Agreement shall be amended, altered or waived except by a further written agreement between the parties or as otherwise set out in this Agreement.  No waiver of a provision of this Agreement shall operate as a waiver of any other provision or as a waiver of the same provision on another occasion.

    11. Remedies Cumulative. The rights and remedies under this Agreement or cumulative and in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise. No single or partial exercise by a party of any right or remedy precluded or otherwise affects the exercise of any other right or remedy to which that party may be entitled.

    12. Notice. Any demand, notice, request or other communication to be made or given under this Agreement, except as otherwise specifically stated, shall be in writing and may be delivered by Federal Express or similar overnight courier service or personally, or sent by email with the recipient confirming receipt, or by prepaid mail, to the respective parties as follows:

        • to PowerStores eCommerce Ltd. (o/a Webware.io):
          64 Vaughan Road
          Toronto, Ontario M6G 2N4
          Attention: Grant Whitely, Vice President of Revenue
        • Email: to the Business Partner at:
          Attention: [Grant Whitely]
          Email: [grant.whitely@webware.io]

Any such notice shall be deemed to have been given when received and, if received before 5:00 pm on a Business Day, shall be deemed to have been received on that day, and if received after 5:00 pm on a Business Day, shall be deemed to have been received on the Business Day next following the date of receipt.

13. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed to be a fully-executed original. An original signature transmitted by facsimile or email shall be deemed to be original for purposes of this Agreement.

IN WITNESS OF WHICH, the parties have executed this Agreement in the City of Toronto on the  day of[●], 2023.

SCHEDULE “A”
SOW / Business partner subscription

WEBSITE SETUP 

For your website setup, Webware will: 

1. Build and personalize your website on a custom design

2. Create banner images for your homepage (up to 2 main banners). The number and size of smaller banners depend on the design requirements of your website. Webware can use images provided by the customer or selected by Webware. 

3. Create up to 10 content pages, with content provided by Webware based on your input. A maximum of 5 Galleries with 10 images each will be added at launch. 

4. An unlimited number of pages can be created post-launch either by you or by us for an additional charge; and 

5. Redirect the website to your domain 

Additional setup work and add-ons are available and can be provided by Webware for additional fees.

Setup requirements and process: 

• You must complete the requirement gathering phase in order for Webware to build your website and kick-start digital services. Significant delays in providing the requirements will impact the launch timeline. The collection of monthly fees will not be postponed due to client delays in requirements. 

• Product data must be provided to Webware in our required spreadsheet format and images must be provided by you in digital format. Webware will seek your written approval at every step of the setup process. 

• First, a draft/mock of your home page will be created with design specs that will require your approval. Once approval is received, the team will continue to create remaining inner pages. Any design specs changes to the home or inner pages requested after draft/mock approval may be subject to additional charges. 

• As we build your website, we will require your approval at various stages of development. You must authorize your approval before we can continue work and push your website live for public view. 

• Your website will be completed no later than 45 days from today’s date. A complete website means that the home and inner pages are built as per the draft/mock design and that the home and inner pages are built and working on desktop and mobile devices.

  • Timeline will only be met if you follow strict deadlines. Expect delays if you fail to respond promptly and do not provide requirements and approvals within suggested timelines. 

  • If additional custom setup work is requested during the website set up phase this may impact the time taken to build and launch your site. 

MONTHLY DIGITAL SERVICES
Your Digital Services differ depending on your ‘Package Type’ outlines in your terms of agreement. Services are listed in the chart below.

• Monthly Digital Services will commence immediately. 

• At every phase of delivery, we will engage with you to seek your inputs and approvals. Your approval is required before we can continue any work at our end. Delay in inputs and approvals will affect service delivery. This is extremely crucial when we commence Content Design & Writing. 

• We will need authorized access to your existing social media accounts. If you do not have any active accounts, we will create them for you as part of our service. 

Digital Services Disclaimers: 

• We base all of our Search Engine Optimization (SEO) and marketing on the guidelines, practices, and procedures as per the industry standards. We focus on creating and publishing high-quality content for your website as well as Google Webmaster design, content, and quality guidelines. Please note that we do not practice “black hat” tactics or unethical SEO methods, such as keyword stuffing, invisible text, hidden links, duplicate content or blog spam. 

• The search engine algorithms are ever-evolving and hence the process of ranking can take anywhere from a few months to a year before showing any significant results. Through our SEO services, we help clients increase targeted traffic to their website over a period of time using services such as, but are not limited to: sitemap creation and publishing, keyword research, metadata

optimization, social media marketing, link optimization - inbound links and limited outbound link creation, submitting website to general and vertical directories, etc. 

• We follow guidelines and practices that we believe are in the best interest of our clients' branding and online marketing presence.  We cannot guarantee any specific search engine rankings, listings on search engines or directories listings. We do not manipulate or control search engine results. 

• Please note that it is possible that your website traffic may slightly drop after a website relaunch, and it may take some time for traffic to rise again. While we take as many measures as we can to help your site avoid a drop in traffic, we are not responsible for any traffic reduction that may occur. 

• Social media platforms may change their functionality, terms of service and/or policies from time to time, which in turn may impact on our ability to provide some of the digital services. While we seek to work with social media platforms to ensure continuity of service, we are not responsible for changes made by social media platforms and you acknowledge and agree that we may need to change some of the digital services from time to time as a consequence of changes made by social media platforms.  

WEBWARE PLATFORM 

All Webware websites are hosted on the Webware Platform. This includes access to Webware Workspace - an easy-to-use web-based dashboard, designed for anyone to easily manage their website, such as making changes to their content, add/edit/removing products, managing orders, adding blog posts, and more – as well as the following: 

• Unlimited bandwidth and unlimited storage 

• Unlimited products and pages 

• Fully integrated content management system 

• Blog platform 

• Mobile responsive design 

• Social media integration 

• SEO-friendly 

For training on our platform, visit our online Help Center at webware.io, which provides detailed instructions on how to access  your Workspace and how to manage your website. 

SCHEDULE “B”
SUPPORT SERVICES

1. INTRODUCTION

This schedule describes the Support Services that Webware will provide to the Business Partner. 

2. DEFINITIONS

“Business Day” means any day of the year, other than a Saturday, Sunday or any statutory holiday in Toronto, Canada.

“Business Hours” means 9:00 a.m. to 5:00 p.m. (Toronto Time) during Business Days.

“Designated Contacts” are Admin Users identified by the Business Partner as the primary liaisons between the Business Partner and Webware for Support Services.

“Incident” means a failure of the Services to perform materially in accordance with the applicable Documentation.  Multiple support tickets for a single unique underlying issue are considered, in aggregate, to be one Incident.

3. SUPPORT SERVICES

Support Services.  Webware will provide The Business Partner with Support Services to address Incidents.  The Business Partner may report Incidents by using the Webware app or by using live chat through the Admin Web Portal.  Webware will use commercially reasonable efforts to promptly respond to each reported Incident, and will use commercially reasonable efforts to promptly resolve each reported Incident.  Actual resolution time will depend on the nature of the Incident and the nature of the resolution.  A resolution may consist of a fix, workaround or other solution.  Support is available only in English. 

Designated Contacts.  The Business Partner will identify between one and four Designated Contacts.  The Business Partner will notify Webware if Designated Contact responsibilities are transferred to another individual.  The Business Partner’s Designated Contacts will be responsible for overseeing The Business Partner’s support case activity, developing and deploying troubleshooting processes within The Business Partner’s organization, and resolving password reset, username and lockout issues for Admin Users and End Users.  The Business Partner will ensure that Designated Contacts (a) have completed, at a minimum, the administration courses offered by Webware, (b) are knowledgeable about the Services in order to help analyze and resolve Incidents, and (c) have a basic understanding of any problem that is the subject of an Incident, and the ability to reproduce the problem in order to assist Webware in diagnosing and triaging it.

Hours of Support.  Except as may be set forth in the Order Form, Webware will provide Support Services during Business Hours.

Cooperation.  Webware must be able to reproduce errors in order to resolve them.  The Business Partner agrees to cooperate and work closely with Webware to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate.  Subject to The Business Partner’s approval on a case-by-case basis, The Business Partner may be asked to provide remote access to its systems for troubleshooting purposes.

Incident Priority Levels.  The Priority Level of each reported Incident will be determined by Webware, acting reasonably.  Webware will use commercially reasonable efforts to respond to each reported Incident within the times indicated below, and to provide subsequent status updates for each reported Incident within the times indicated below. 

4. GENERAL

Excluded Items.  Other than as set forth in an applicable Order Form, Support Services do not include (a) implementation, development, configuration or training services, (b) assistance with usernames, password resets, or Admin User or End User lockouts, (c) assistance for Third Party Services or other products or services not provided by Webware, or (d) support of custom code, unless otherwise agreed in writing. 

Charges for Certain Services.  If (a) Webware provides excluded items at The Business Partner’s request, or (b) Webware determines that a reported Incident was not caused by an error in the Services or is otherwise outside of the work contemplated in an applicable Order Form, then The Business Partner will pay for the work performed by Webware at the Consulting Services Rates.

SCHEDULE “C”
SERVICE LEVEL AGREEMENT

1. SERVICE COMMITMENT

Webware will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage (defined below) of at least 99.5% during each calendar month (the “Service Commitment”). If Webware does not meet the Service Commitment, then The Business Partner will be eligible to receive a Service Credit as described below. 

2. DEFINITIONS

“Available” means that the Services are available for use by The Business Partner, as determined by Webware acting reasonably.

“Monthly Uptime Percentage” means the percentage of time during a calendar month that the Services are Available, as calculated by Webware acting reasonably, using the following formula:

MUP = ((TCM - UM - EM)/(TCM - EM))*100

where (a) MUP is the Monthly Uptime Percentage, (b) TCM is the total number of minutes in the calendar month, (c) UM is the total number of minutes in the calendar month during which the Services are Unavailable other than as a result of an SLA Exclusion event, and (d) EM is the total number of minutes in the calendar month during which the Services are Unavailable as a result of an SLA Exclusion event.

“Scheduled Maintenance” means scheduled Unavailability of the Webware Platform for maintenance, repairs, upgrades or other services to the Webware Platform, as announced by Webware prior to the Webware Platform becoming Unavailable.

“Service Credit” is a dollar credit, calculated as set forth below, that Webware may credit back to The Business Partner.

“Unavailable” means that the Services are unavailable for use by The Business Partner, as determined by Webware, acting reasonably.

3. SLA EXCLUSIONS

The Service Commitment does not apply to any Unavailability during a period of Scheduled Maintenance, or any Unavailability or any other performance issues for the Services that result from (a) factors outside of Webware’s reasonable control, including any Force Majeure Event or Internet access or related problems beyond the demarcation point of the Services, or denial of service attack, (b) any actions or inactions of The Business Partner, Admin Users, The Business Partner personnel, or any third party, (c) The Business Partner’s equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Webware’s direct control), (d) Webware’s suspension or termination of The Business Partner’s right to use the Services in accordance with this Agreement, (e) actions taken by Webware in response to real or perceived threats to the security of the systems of Webware or The Business Partner, or (f) The Business Partner’s breaches of this Agreement (collectively, the “SLA Exclusions”).