RFAM - Terms & Agreement

1. DEFINITIONS

(a) "MARMAK" means MARMAK INFORMATION SERVICES and its licensors or affiliates, if any. (b) "Software" means only the RFAM software program(s) and third party software programs, in each case, supplied by MARMAK herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation. (c) “Software Edition” means the specific version of the Software Subscription that you have purchased including the specified number of concurrent user licenses. (d) "Hosting" means the service provided by MARMAK to install and host the Software on a shared Microsoft Windows® Web Server and Microsoft SQL Server® Database Server that is publicly accessible to you over the Internet. (e) “Subscription” means the combination of Software and Hosting provided by MARMAK to you during the specified Subscription Period. (f) "Subscription Period" means the period(s) during which a specified number of Users are licensed to use the Subscription pursuant to the purchased Software Edition. (g) “Client” means the legal entity purchasing the Subscription. In the case of local, provincial, territory or federal governments, CLIENT will be limited to the specific department or statutory agency of Government purchasing the license. (h) "User(s)" means employees, representatives, consultants, contractors, agents or customers of the CLIENT who are authorized to use the Subscription and have been supplied user identifications and passwords by the CLEINT (or by MARMAK at the CLIENTS's request). (i) "User Data" means all text, pictures, and other data provided by users of the Software. (j) “Trial Subscription” means a time-limited evaluation Subscription provided at no cost to CLIENT for the purposes of evaluating the functionality of the Software. (k) “Commercial Subscription” means a Subscription that is not a “Trial Subscription”

2. HOSTING.

Hosting Services: MARMAK will provide the following Software hosting services as part of a Commercial Subscription. Such services will be performed in a professional, workmanlike manner with a high grade of services, so that the Software is accessible to third parties as can be reasonably be required by the CLIENT. (a) Data Backup. MARMAK will maintain a Weekly copy of the User Data stored in the Software as part of the Subscription. (b) Data Downloads. the CLIENT may download data using the excel export function of the software. The CLIENT may request a copy of any and all User Data at any time. MARMAK will make requested User Data available on its secure web site for the CLIENT to download. The charge to the CLIENT, payable to MARMAK, will be $150 per hour. This fee is subject to change with one-month advance written notice from MARMAK to the CLIENT. (c) Standards/Service Level Guarantees. MARMAK’S hosting standards will conform to the standards, service level guarantees. (d) Security. MARMAK will exercise industry-standard measure to prevent unauthorized access to the backup server sites, restricted areas of the Software and any databases or other sensitive material generated from or used in conjunction with the Software; and MARMAK will notify the CLIENT of any known security breaches or holes. (e) Support. MARMAK shall maintain an organization and be prepared with suitably qualified and competent personnel during its normal business hours to provide knowledgeable and timely support service in accordance with this Agreement. Under the terms of this Agreement, MARMAK will provide to the CLIENT the following support services: i. Telephone Support: MARMAK will provide telephone support to the CLIENT during Normal Business Hours. Normal Business Hours are between 9 a.m. to 5 p.m. (EST/EDT), Monday through Friday, excluding CANADIAN public holidays. iii. Email Support: the CLIENT may log requests for support via email by directing its query to an email account or website provided by MARMAK. iv. Turnaround Time: MARMAK will make reasonable efforts for a TSE to respond to emails and phone messages within one (1) Business Day.

3. LICENSE GRANTS & RESTRICTIONS

(a) MARMAK hereby grants The CLIENT a non-exclusive, non-transferable right to use the Subscription, subject to the terms and conditions of this Agreement. All rights not expressly granted to the CLIENT are reserved by MARMAK and its licensors. (b) The CLIENT may use the Subscription only for CLIENT’s business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Subscription or the data contained therein; or (v) attempt to gain unauthorized access to the Hosting service or its related systems or networks. (c) The parties agree that as between them, all rights, including all Intellectual Property Rights, in and to CLIENT shall remain the exclusive property of CLIENT, and MARMAK has a limited, nonexclusive license to access and use these Data as provided in this Agreement solely for the purpose of performing its obligations hereunder. (d) All CLIENT Data created and/or processed by the Services is and shall remain the property of the CLIENT and shall in no way become attached to the Services, no shall MARMAK have any rights in or to the Data of the CLIENT, except as expressly stated in the Agreement. (e) This Agreement does not give a party any rights, implied or otherwise, to the other’s Data, content, or intellectual property, except as expressly stated in the Agreement.

4. CLIENT RESPONSIBILITIES

The CLIENT is responsible for all activity occurring on MARMAK’S servers and shall abide by all applicable local, provincial, national and foreign laws, treaties and regulations in connection with its use of the Subscription, including those related to data privacy, international communications and the transmission of technical or personal data. The CLIENT is responsible for backing up its data utilizing the export function built within RFAM.

5. ACCOUNT INFORMATION AND DATA

MARMAK does not own or license any data, information or material that the CLIENT submits to the Software in the course of using the Subscription (“User Data”). The CLIENT, not MARMAK, shall have sole responsibility for backing up their data, the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and MARMAK shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data, except as specifically required by this Agreement. In the event this Agreement is terminated (other than by reason of CLIENT’s breach).

6. DATA RETENTION

In the event this Agreement is terminated (other than by reason of CLIENT’s breach), MARMAK will make available to the CLIENT a file of the Data within thirty (30) days of termination if the CLIENT so requests at the time of termination and has paid MARMAK, in full, for all services to that point. The Fee for this service is $150.00 per hour. The CLIENT agrees and acknowledges that MARMAK has no obligation to retain the User Data, and may delete such User Data, more than sixty (60) days after any termination or expiration of this Agreement

7. SERVICE LEVELS

MARMAK represents and warrants that the Services will be operational at least 95% of the time in any given month during the term of this Agreement, meaning that the outage or Downtime percentage will be not more than 5%.

8. HOSTING SERVICES

MARMAK shall host the RFAMV2.1 Software in a secure data centre ensuring appropriate redundancies are in place to guarantee the performance and security of the software and data. MARMAK shall back up the Website and CLIENT’s data WEEKLY and retain those back-ups. In the event that CLIENT’S data is lost from MARMAK’s servers, MARMAK at an hourly rate of $150.00 shall restore the back- up data.

9. HOSTING FEES

(a) In consideration for the Hosting Services to be provided hereunder to CLIENT shall pay to MARMAK the applicable subscription fee. The CLIENT shall pay to MARMAK such fees within 30 days of receipt of an invoice. (b) All dollar amounts referred to in this Agreement are stated in Canadian Dollars, and are exclusive of applicable taxes. (c) Services acquired during the initial purchase shall be provided by Supplier to CLIENT for an initial one (1) year term (the “Initial Services Term”) commencing on the “Services Commencement Date” (as hereafter defined). The Initial Services Term shall be renewable for successive one (1) year terms (“Extension Terms”, and collectively with the Initial Services Term, the “Services Term”) upon written notice from CLIENT to MARMAK.

10. TERMINATION OF SERVICES

(a) Either Party may terminate any or all Services by providing at least ninety (90) days prior notice to the other Party. (b) MARMAK may suspend or terminate any or all Services in the event that CLIENT: (i) fails to make any payment when due in accordance with this Agreement; (ii) otherwise breaches this Agreement; (iii) becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations; or (iv) ceases to conduct business in the ordinary course. (c) The termination or expiration of any Service shall not prejudice or affect MARMAK’s rights hereunder, including in respect of any breach of this Agreement by the CLIENT or in respect of any monies payable to MARMAK hereunder for any period prior to such termination or expiration or for any other Services that have not been terminated.

11. INDEMNIFICATION

The CLIENT shall indemnify, defend and hold harmless MARMAK and MARMAK’s directors, officers, employees, agents, consultants, advisors and other representatives from and against any and all claims, actions and proceedings (including any damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising therefrom) arising from or relating to: (i) MARMAK’s performance of the Services, except to the extent such claims are directly caused by MARMAK’s breach of this Agreement or negligence or willful misconduct in performing the Services; or (ii) any breach or non-fulfilment of any covenant, responsibility, obligation, representation, warranty, or agreement on the part of The CLIENT contained in this Agreement.

12. LIMITATION OF LIABILITY

IN NO EVENT WILL MARMAK BE LIABLE FOR DAMAGES FOR FAILURE TO MANUFACTURE OR MAKE COMMERCIALLY AVAILABLE EXTENSIONS, RELEASES, ANCILLARY PRODUCTS OR ANCILLARY SERVICES DURING THE TERM OF YOUR SUBSCRIPTIONS. IN NO EVENT SHALL MARMAK BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT WILL MARMAK BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES. MARMAK’S LIABILITY ARISING FROM YOUR SUBSCRIPTIONS OR THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE ANNUAL SUBSCRIPTION FEES PAID BY YOU. THESE LIMITATIONS WILL APPLY EVEN IF MARMAK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE ANNUAL SUBSCRIPTION FEE REFLECTS THIS ALLOCATION OF RISK. MARMAK SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER ARISING FROM LOSS OR THEFT OF ANY EXTENSION, RELEASE OR ANCILLARY PRODUCT. YOU ARE SOLELY RESPONSIBLE FOR SAFEGUARDING EXTENSIONS, RELEASES AND ANCILLARY PRODUCTS FROM LOSS OR THEFT AND FOR PROTECTING YOUR INVESTMENT THROUGH INSURANCE OR OTHER APPROPRIATE MEANS.

13. LIMITED WARRANTIES

MARMAK warrants that the Software will provide the facilities and functions generally described in the Documentation and that the media on which the Software is furnished, the Documentation accompanying the Software, or other copy protection device accompanying the Software will be free from defects in materials and workmanship under normal use. EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, THE SOFTWARE, DATA, AND RELATED MATERIALS CONTAINED THEREIN ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MARMAK DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE, DATA, AND RELATED MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE. MARMAK’s entire liability and your exclusive remedy under the warranties made in this Agreement will be, at MARMAK’s option, to attempt to correct or work around errors, to replace the defective media; documentation or copy protection device, or to refund the license fee and terminate this Agreement.

14. DISPUTE RESOLUTION

If a dispute arises and these representatives are unable to resolve the dispute within ten (10) business days, then the dispute will be escalated to an executive level representative of each party with the authority to resolve such matters.

15. NOTICES