The customer identified below (the “Customer”) desires ManagePoint Technologies Inc. (“ManagePoint”) to provide certain services.

  1. Services: Services (“Service(s)”) will be composed of the services and for the fees described on the Managed Service Agreement signed by the parties.  Services may be added or changed from time to time by the parties entering into a change agreement or another Managed Service Agreement.  Nothing in such an agreement may amend this Agreement unless it explicitly states that it is amending this Agreement, and refers to the section being amended.  Any specifications, work requests, statements of work, budgets or other documents that are signed by the parties or explicitly incorporated by reference within other signed documents from time to time form part of this Agreement and the applicable Managed Service Agreement under which they are prepared.
  2. Fees: Customer will pay ManagePoint the one-time and recurring monthly fees specified in the applicable Managed Service Agreement.  All amounts are subject to the payment of all applicable taxes.  ManagePoint may change any fees payable under this Agreement by giving at least 90 days written notice in advance, which shall not commence prior to the end of any then current Term.

Pricing contained in a Managed Service Agreement may be based on certain assumptions and exclusions.  If any assumptions and exclusions set out on a Managed Service Agreement turn out to be incorrect, ManagePoint may treat any additional work required as a change request from the Customer under the terms of Section 5 herein.

One-time fees are payable in advance or at the time the service is provided, as outlined in the applicable Managed Service Agreement.  Recurring monthly fees and fees for other Services are payable monthly in arrears within 15 days of the date of invoice.

Any payments, or any deposits paid for any Services, are not refundable absent default by ManagePoint.

Any payment not made when due will be subject to interest of two percent (2%) per month compounded monthly (equivalent to a yearly interest rate of 26.86%).  Failure by the Customer to pay the invoiced amount within 15 days of the date of invoice may result in immediate termination of services without notice.

  1. Service Details: Customer shall nominate one individual as a contact for ManagePoint to perform the Services. Communications regarding the Services will only be between that contact and the ManagePoint contact specified on the applicable Managed Service Agreement.  Either party may change that contact by giving written notice.

The Customer will be required to provide external internet access to ManagePoint for full, timely Services.  The Customer will allow ManagePoint to install software on the Customer’s systems that allows ManagePoint to view status, diagnose, and repair.  Any costs of such access and software shall be that of the Customer.

Customer shall restrict ManagePoint from accessing Customer’s systems outside the system being supported, if applicable.  Without limiting the generality of other sections of this Agreement, ManagePoint shall not be responsible for any effects its actions cause to any of the Customer’s systems or data resulting from its ability to access systems other than that being supported.

The Customer will provide ManagePoint with any authorizations reasonably required for ManagePoint to contact the Customer’s service providers for the purpose of providing the Services.

If any Services are provided at the Customer’s location, the Customer must provide safe working conditions and access reasonably required to perform the Services.

  1. Term: This Agreement will commence upon execution. The term (“Term”) of the Services shall begin on the date contained in the Managed Service Agreement. Unless otherwise specified in the Managed Service Agreement, Services will be provided for a Term of 12 months.

The Term will automatically extend for a subsequent period of the same length as the immediately prior Term, unless either party gives notice to the other at least 60 days prior to the end of the then current Term that the Term will not be extended.

  1. Change Control: If the Customer desires to make changes to the Services, it shall make a written request to ManagePoint.  ManagePoint shall provide the Customer with a written response within ten (10) business days; or such longer period as the parties may agree, detailing:  (i) how the proposed change will be implemented; (ii) any effect it will have on the schedule for the performance of Services; (iii) any effect it will have on the performance of the Services; and (iv) any additional costs required.  If the Customer desires to proceed with the change it must provide written authorization to proceed, in which case the change shall be deemed to be part of this Agreement.
  2. Third Party Software: Any third party software required for the Services to operate must be purchased separately by the Customer unless provided by ManagePoint as part of or in addition to the Services. Third party software is provided by ManagePoint only if it is identified on a Managed Service Agreement and is subject to the license terms of the relevant software vendor,
  3. Default: This Agreement and each Managed Service Agreement is effective until terminated.

ManagePoint may terminate this Agreement (or one or more Managed Service Agreements at its discretion – leaving this Agreement and other Managed Service Agreements in force) or suspend the provision of Services, if not cured within 15 days following receipt of notice of default, upon the occurrence of any of the following events: (a) Customer fails to comply with any provision of this Agreement, or fails to pay when due; (b) Customer attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of ManagePoint; or (c) Customer files an assignment in bankruptcy or is or becomes bankrupt and/or insolvent, upon the appointment of a receiver for all or substantially all of the property or assets of the Customer, upon the making of any assignment or attempted assignment for the benefit of creditors or on the institution by Customer of any act or proceeding for the winding up of its business.

Upon termination, Customer shall not be entitled to further Services, however ManagePoint may retain any pre-paid fees as liquidated damages.

  1. Customer Responsibility: The Customer must respond to requests by ManagePoint for information or approvals in a timely manner – failure to do so may result in delays for which ManagePoint is not responsible.

The Customer must advise ManagePoint of the details of all legislative and regulatory requirements that the Services must comply with that are unique to the Customer’s industry.  If the Customer must take compliance measures not contemplated in a Managed Service Agreement, ManagePoint may treat any additional work required as a change request from the Customer under the terms of Section 5 herein.  Any time spent by ManagePoint to assist the Customer with third party compliance or audit requests will be billed at ManagePoint’s standard rates.

  1. Service Levels: ManagePoint will use commercially reasonable efforts to provide the Services to the Service Levels contained in the Managed Services Agreement.

ManagePoint reserves the right to manage all updates, upgrades, and patches to any software or hardware the Customer uses in conjunction with the Services.  The Customer shall not apply any updates, patches, or upgrades to any of the software or hardware provided as part of the Service unless permission is expressly granted to the Customer by ManagePoint in writing.

  1. Warranty: ManagePoint will use reasonable efforts to enforce any service level and warranty obligations of its suppliers.

ManagePoint does not warrant that the Services are error free, or that they will satisfy the Customer’s expectations.

This warranty and the Service Levels do not apply if the Customer alters, installs, operates, repairs, or maintains the systems that the Services apply to other than in accordance with instructions supplied by ManagePoint.

The Customer acknowledges that ManagePoint may provide Services using services and software provided by third parties.  Notwithstanding anything else contained in this Agreement, ManagePoint’s, and such third parties, warranties and liabilities for any matters arising from such services and software shall not exceed those provided to ManagePoint from such third parties.

  1. Limitations: All promises made by ManagePoint are contained in this Agreement.  No promises implied by law (whether described as warranties, conditions, representations, or otherwise, and whether relating to merchantability, fitness, non-infringement, or otherwise) apply.

The Customer cannot collect any damages from ManagePoint for any reason (whether under legal theories of contract, tort, negligence, strict liability, operation of law or otherwise) that are not direct damages or that exceed the fees paid by the Customer to ManagePoint for 6 months prior to the claim arising.

ManagePoint relies on these limitations when entering this Agreement and setting its fees.  They are a fundamental and essential part of our arrangement, and apply even if this Agreement has failed in its fundamental or essential purpose or been fundamentally breached

  1. Governing Law: This Agreement shall be interpreted in accordance with and governed by the laws of the Province of Ontario, Canada, excluding conflicts of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods.  The parties hereby submit to the non-exclusive jurisdiction of the courts of Ontario, and the Federal Court of Canada. Any actions against ManagePoint must be commenced in the courts of Ontario or the Federal Court of Canada.
  2. Confidential Information: Confidential Information is all information of either party that is not generally known to the public, whether of a technical, business or other nature (including, without limitation, trade secrets, know-how and information relating to technology, business plans, assets, Customer data, liabilities, prospects, finances, source and object code, product capabilities or lack thereof, identity and number of a party’s employees or contractors and their backgrounds or knowledge, identity of customers or business partners), that is disclosed by a party to the other or that is otherwise learned by the other in the course of its discussions or business dealings with the other, and that has been identified as being proprietary and/or confidential or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as proprietary and/or confidential.

Confidential Information shall not include (except for any personally identifiable information about an individual that relevant privacy legislation or policies do not allow to be disclosed):  (a) any Confidential Information that is in the public domain at the time of its disclosure or which thereafter enters the public domain through no action of the receiving party, direct or indirect, intentional or unintentional; (b) any Confidential Information which the receiving party can demonstrate was in its possession or known to it prior to its receipt, directly or indirectly, from the other party; (c) any Confidential Information that is disclosed to the receiving party by another party not in violation of the rights of the other party or any other person or entity; and (d) any Confidential Information which is either compelled by law or by the order of a court of competent jurisdiction to be disclosed.

The parties shall (i) not use Confidential Information for any purpose other than that contemplated by this Agreement; (ii) not disclose Confidential Information to anyone without the prior written authorization of the disclosing party, during the term of this Agreement or at any time thereafter; (iii) handle, preserve and protect Confidential Information with at least the same degree of care that it affords or would afford to its own Confidential Information, including taking all reasonable efforts to avoid disclosure of such Confidential Information to any third party, at any time; (iv) disclose Confidential Information only to its employees or subcontractors who require such information in order to perform the party’s obligations with the other, and are under confidentiality obligations.

Notwithstanding the above, ManagePoint may for promotional purposes (i) identify the Customer as a customer by using its logo and name; and (ii) mention the solution ManagePoint provided the Customer and the value it provided.  When doing so ManagePoint will not imply anything negative regarding the Customer prior to the solution or as a whole.

  1. Privacy: The parties will treat any personal information in the possession of the other party that they may have access to under this Agreement as required under applicable privacy legislation and each party’s own privacy policy as it exists from time-to-time.  Neither party shall use or disclose such personal information in any way except pursuant to the other party’s instructions or to the extent necessary to perform this Agreement.  ManagePoint will use security measures adequate to the sensitivity of the personal information to protect personal information.  If ManagePoint subcontracts any part of its obligations hereunder it will obtain contractual obligations similar to this section from the subcontractor.
  2. Non-Solicitation: During the term of this Agreement, and for a period of 12 months thereafter, the Customer will not (directly or indirectly) recruit, hire as an independent contractor, or offer employment to any individual or entity that is then, or has been within the previous 12 months, an employee or subcontractor of ManagePoint.  If the Customer breaches this section, the Customer shall pay to ManagePoint as liquidated damages and not as a penalty (the customer acknowledging that the cost and time to ManagePoint to train and bring a new employee or subcontractor to an efficient level can be significant) an amount equal to the employee’s base annual salary as at the date of termination of employment with ManagePoint, or the annual fees paid by ManagePoint to the subcontractor as at the date the subcontractor’s services with the Customer commence.
  3. Prior Agreement: This Agreement contains the complete and exclusive statement of the agreement between the parties and supersedes all prior and contemporaneous agreements, purchase orders, understandings, proposals, negotiations, representations or warranties of any kind whether written or oral.  No oral or written representation that is not expressly contained in this Agreement is binding on either party.  This Agreement cannot be amended or modified, other than by a change made in writing, dated and executed by the parties.  If there is both an executed and a click-wrap version of this Agreement, the executed version shall govern if the terms differ.
  4. Survival: The provisions of this Agreement pertaining to Confidential Information, privacy, license rights and restrictions, and non-solicitation shall survive the termination of this Agreement.  Other sections pertaining to rights and obligations which by their nature should survive termination are hereby confirmed to so survive.
  5. Force Majeure: ManagePoint is not liable for an omission or delay in the execution of its obligations hereunder caused by an event beyond its reasonable control. The time for the performance of the obligation that is so delayed shall be extended by a reasonable time, provided that payments shall not be delayed.
  6. Notice: All required notices, or notices which may be provided in accordance with this Agreement, shall be in writing and shall be duly provided for if the notice is remitted to its addressee by courier, mail, or e-mail (provided that notices sent by e-mail are only effective if the recipient confirms receipt by reply email) to the address set out on the Managed Service Agreement, or such other address as the party which is to receive the notice indicates to the party providing the notice, in the manner provided for in this section.  Every notice delivered in the manner provided for herein shall be deemed to have been received: when delivered or by e-mail the first business day after the date received; or the fifth business day following the date of mailing, if sent by mail.

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