Master License and Services Agreement

PLEASE READ THESE SOFTWARE LICENCE TERMS AND CONDITIONS (THE “TERMS”) BEFORE USING THE SOFTWARE.

These Terms apply to the access to and use of the software and the provision of related services, as set out in the order, quote or contract to which these Terms are linked (the “Contract”).

BY USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, IT MUST NOT INSTALL AND/OR USE THE SOFTWARE AND, IF PRESENTED WITH THE OPTION TO “AGREE” OR “DISAGREE” TO THESE TERMS, CLICK “DISAGREE”.

BY DOWNLOADING, INSTALLING, ACCESSING OR OTHERWISE USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND THAT IT UNDERSTANDS AND AGREES TO BE LEGALLY BOUND BY THEM. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THESE TERMS, CUSTOMER IS NOT PERMITTED TO DOWNLOAD, INSTALL, ACCESS OR OTHERWISE USE THE SOFTWARE.

1. Definitions. In these Terms, the following terms have the following meanings:

(a) “Agreement” means, collectively, these Terms, the Contract, the Policies, and any schedules attached to any of the foregoing;

(b) “Confidential Information” means any information identified by TransPlus or its Representatives as confidential or proprietary, or which, under the circumstances, ought to be treated as confidential or proprietary, including all personal information and all non-public information related to TransPlus’ business operations and strategies, customers, pricing, marketing, assets, employees, equipment, financial statements, financial performance, intellectual property, inventory, pricing, products, suppliers, data, technology, know-how, devices, materials, samples, software programs (including the Software and all related source and compiled code, associated documentation, and files), documents, graphics, specifications and trade secrets, whether disclosed in written form, orally, visually, demonstratively, technically, or by any other form or media, or committed to memory. Confidential Information does not include information that: (i) entered the public domain without Customer’s or its Representatives’ breach of any obligation owed to TransPlus; (ii) became known to Customer from a source other than TransPlus, other than by the breach of an obligation of confidentiality owed to TransPlus; or (iii) was independently developed by Customer without reference to the Confidential Information of TransPlus and such independent development is adequately documented;

(d) “Licence” means, as applicable, the Perpetual Software Licence (as defined in Section 3.1), the Subscription Software Licence (as defined in Section 4.1), and/or the Modules Licence (as defined in Section 5);

(e) “Parties” means collectively, Customer and TransPlus, and “Party” means any one of them;

(f) “Policies” means the Privacy Policy and such other policies as TransPlus may identify from time to time;

(g) “Privacy Policy” means the TransPlus privacy policy, available at https://www.transplus.io/privacy-policy-rt, as updated from time to time;

(h) “Representatives” means a Party’s directors, officers, employees, agents, contractors and other representatives;

(i) “Services” means, as applicable, the TIP Services (as defined in Section 3.4), the Subscription Support Services (as defined in Section 4.3), and/or the Module Support Services (as defined in Section 5.3), as identified in the Contract;

(j) “Software” means, as applicable, the Perpetual Software (as defined in Section 3.1), the Subscription Software (as defined in Section 4.1), and/or the Modules (as defined in Section 5), as identified in the Contract;

(k) “TransPlus” means Trans + Plus Systems Corp.;

(l) “Users” means the individual users subscribed by Customer to use the applicable Software; and

(m) “User Licences” means the number of concurrent User sessions for the applicable Software, as set out in the Contract.

2. Renewal and Licence Adjustments. The Agreement will commence on the signature date of the Contract and continue for the period specified therein, unless terminated earlier in accordance with the terms of the Agreement (the “Initial Term”). Except as otherwise specified in the Contract, the Agreement shall automatically renew for additional one (1) year terms (each, a “Renewal Term”, together with the Initial Term, the “Term”), unless notice of non-renewal is provided by either Party to the other at least thirty (30) days before the expiry of the then-current Term or unless otherwise terminated in accordance with the terms hereof. In addition, any material reduction in User Licences, Modules, or Services that would result in a decrease to the Fees payable under this Agreement must be communicated by Customer in writing no less than thirty (30) days prior to the expiry of the then-current Term. Failing such timely written notice, the Agreement, including all User Licences, Modules, Services, and corresponding Fees, shall automatically renew without modification.

3. Perpetual Software Licence and Support Services.

3.1 Perpetual Software Licence. To the extent set out in the Contract, and subject to the terms of the Agreement, during the Term, TransPlus grants to Customer a perpetual, non-exclusive, non-sublicensable, non-transferable licence to download, install and use the TransPlus on-premises software package and any related modules identified in the Contract (the “Perpetual Software”), solely for Customer’s internal business use (the “Perpetual Software Licence”). Any and all copies of the Perpetual Software made by Customer are the exclusive property of TransPlus. TransPlus authorizes Customer to make a single working copy of the Perpetual Software for the purposes of installation on up to three (3) servers and/or server instances. Any additional server installations shall require prior written approval from TransPlus and may be subject to additional licensing fees.

3.2 Perpetual Software User Licences. The number of Users accessing all combined servers and/or server instances of the Perpetual Software cannot exceed the User Licences. Notwithstanding the foregoing, if Customer’s maximum number of concurrent sessions exceeds the number of User Licences, Customer will be charged the difference and, to the extent such amount remains unpaid by Customer for a period of thirty (30) days, TransPlus may terminate the Agreement in accordance with Section 17.1.

3.3 TransPlus Innovation Partnership Program. Subject to the terms of the Agreement, to the extent Customer has elected and paid to participate in the TransPlus innovation partnership program in connection with the Perpetual Software (“TIP Program”), as set out in the Contract, Customer shall, subject to the support conditions described in Section 3.5, be entitled to receive the TIP Services (as defined in Section 3.4) for the period set out in the Contract (“Maintenance Period”). For clarity, any fees paid in connection with the TIP Program are non-refundable.

3.4 TIP Services. During the Maintenance Period, subject to the terms of the Agreement, TransPlus will provide, in a timely manner and without additional charge, the following maintenance and support services to Customer for the Perpetual Software:

(a) technical support and assistance available through TransPlus customer support between 7:00am and 6:00pm (Eastern Time), Monday through Friday, excluding Canadian statutory holidays (“Support Hours”);

(b) commercially reasonable issue resolution assistance, in accordance with TransPlus’ standard commercial practices, including providing Customer with a bypass, work-around, patch or hot-fix (i.e., a Customer-specific release for a production stopping problem with no work-around) to correct or alleviate reproducible errors in the Perpetual Software reported by Customer to TransPlus. Any service request from Customer with respect to such an error shall include a detailed description of the nature of the issue, the conditions under which it occurs and any other relevant data sufficient to enable TransPlus to verify the existence of such error and to diagnose its cause;

(c) modifications, updates and enhancements to the Perpetual Software that are generally released to commercial participants in the TIP Program, along with any instructions and/or documentation that TransPlus considers reasonably necessary to assist with the implementation and use of such modification, update or enhancement. Upon the delivery of a Perpetual Software modification, update or enhancement to Customer, it shall be considered part of the Perpetual Software for all purposes of the Agreement. For clarity, such modifications, updates and enhancements may exclude any new features, modules and/or enhancements to the Perpetual Software that TransPlus generally markets and licences for additional fees; and

(d) the information that TransPlus routinely provides or generally makes accessible to all TIP Program participating customers, including product release notes, application notes, user manuals, product descriptions, and webinars discussing new features,

(collectively, the “TIP Services”)

3.5 Support Conditions.

(a) In order to facilitate TransPlus’ provision of the TIP Services, Customer shall provide TransPlus with: (i) reasonable access to Customer’s systems to enable TransPlus to provide the TIP Services, including, without limitation, by way of telecommunications, Internet or other remote access to the server in which the Perpetual Software resides or such other method reasonably acceptable to TransPlus; (ii) sufficient support and test time on Customer’s systems to allow TransPlus to duplicate an error and verify if it is due to the Perpetual Software; and (iii) sufficient data to enable TransPlus to replicate a reported error on its own computers.

(b) Notwithstanding any other provision of the Agreement, TransPlus shall not provide any TIP Services arising in connection with or resulting from: (i) any abuse, misuse, accident, neglect, repair, alteration, and/or modification which is not permitted under the Agreement; (ii) services which are performed by a party other than TransPlus or its Representatives; (iii) changes due to Customer’s reconfiguration of the Perpetual Software or the system or network upon which it is installed; (iv) maintenance, malfunction, or modification of Customer’s systems; (v) third-party software, hardware, data or other materials not supplied by TransPlus; or (vi) use of a version of the Perpetual Software, other than the most current or last prior release thereof.

(c) The price payable by Customer for the TIP Services, as identified in the Contract, shall be for the applicable number of User Licences. To the extent Customer’s maximum number of concurrent sessions exceeds the number of User Licences, the price payable by Customer for the TIP Services shall increase proportionally to the number of additional concurrent sessions.

3.6 Additional Services. If TransPlus agrees to perform services requested by Customer which are not included as part of the Agreement, such services shall be billed to Customer at such prices and on such terms as may be agreed by the Parties in writing.

4. Subscription Software Licence and Support Services.

4.1 Subscription Software Licence. To the extent set out in the Contract, and subject to the terms of the Agreement, during the Term, TransPlus grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to use the TransPlus subscription software package identified in the Contract (the “Subscription Software”) solely for Customer’s internal business use (the “Subscription Software Licence”). Any and all copies of the Subscription Software made by Customer are the exclusive property of TransPlus. From time to time during Term, TransPlus may make available to Customer such updates and enhancements to, and new releases of, the Subscription Software as TransPlus determines in its sole discretion (collectively, “Subscription Software Updates”). Upon the delivery of a Subscription Software Update to Customer, it shall be considered part of the Subscription Software for all purposes of the Agreement.

4.2 Subscription Software User Licences. The number of Users accessing all combined servers and/or server instances of the Subscription Software cannot exceed the User Licences. Notwithstanding the foregoing, if Customer’s maximum number of concurrent sessions exceeds the number of User Licences, Customer will be charged the difference and, to the extent such amount remains unpaid by Customer for a period of thirty (30) days, TransPlus may terminate the Agreement in accordance with Section 17.1.

4.3 Subscription Software Support Services. During the Term, with respect to the Subscription Software, TransPlus or its authorized Representatives shall: (a) provide Customer with access (via the Internet, telephone, or other means established by TransPlus) to the TransPlus support helpline, which will be available during the Support Hours; and (b) provide Customer with the information that TransPlus routinely provides or generally makes accessible to all its customers of the Subscription Software (collectively, “Subscription Support Services”).

4.4 Subscription Software User Accounts. Customer is responsible for maintaining its User IDs and passwords, which can be managed through the Subscription Software interface. Customer shall, and shall ensure its Users, maintain the confidentiality of its User IDs and passwords. Customer is responsible for all uses of, and activities undertaken with, the User IDs registered on Customer’s account. Customer agrees to immediately notify TransPlus of any unauthorized use of Customer’s User IDs of which it becomes aware.

4.5 Hosting of Subscription Software. TransPlus or its authorized partners may, to the extent set out in the Contract, provide the application hosting environment for the Subscription Software, including the hardware, equipment, and systems software configuration on which TransPlus or its authorized partners supports use of the Subscription Software, on servers located at a facility selected by TransPlus.

5. Modules Licence and Support Services.

5.1 Modules Licence. To the extent set out in the Contract, and subject to the terms of the Agreement, during the Term, TransPlus grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to use the TransPlus software modules identified in the Contract (the “Modules”) solely for Customer’s internal business use (the “Modules Licence”). Any and all copies of the Modules made by Customer are the exclusive property of TransPlus. From time to time during Term, TransPlus may make available to Customer such updates and enhancements to, and new releases of, the Modules as TransPlus determines in its sole discretion (collectively, “Module Updates”). Upon the delivery of a Module Update to Customer, it shall be considered part of the Modules for all purposes of the Agreement.

5.2 Module User Licences. The number of Users accessing all combined servers and/or server instances of the Modules cannot exceed the User Licences. Notwithstanding the foregoing, if Customer’s maximum number of concurrent sessions exceeds the number of User Licences, Customer will be charged the difference and, to the extent such amount remains unpaid by Customer for a period of thirty (30) days, TransPlus may terminate the Agreement in accordance with Section 17.1.

5.3 Module Support Services. During the Term, with respect to the Modules, TransPlus or its authorized Representatives shall: (a) provide Customer with access (via the Internet, telephone, or other means established by TransPlus) to the TransPlus support helpline, which will be available during the Support Hours; and (b) provide Customer with the information that TransPlus routinely provides or generally makes accessible to all its customers of the applicable Module(s) (collectively, “Module Support Services”).

6. Licence Restrictions. Customer shall not, at any time, directly or indirectly: (a) decompile or disassemble the Software, separate the Software into its component parts, or in any way reverse engineer or attempt to discover any source code or algorithms of the Software by any means whatsoever; (b) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the Software; (c) modify or create any derivative works from the Software or any part thereof; (d) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or any component thereof to a third-party; (e) permit the Software to be used for third-party use or in relation to the provision of services to any third-party; (f) otherwise copy or use the Software for any purpose or in any manner not expressly permitted in the Agreement; (g) permit any third-party to do any of the foregoing; (h) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (i) transmit or store material that may infringe the intellectual property or other proprietary rights of a third-party or that is illegal, tortious, defamatory, libelous, or invasive of another’s privacy; (j) transmit any material that contains software viruses or other harmful computer code, files or programs such as trojan horses, worms or time bombs; (k) assault, interfere, deny service in any way or form to any other network, computer or node through the Software; (l) attempt to gain unauthorized access to any aspect of the Software, or the accounts of other users, or computer systems or networks connected to the Software or bypass any measures TransPlus may use to prevent or restrict access to the Software; or (m) interfere with or disrupt servers or networks connected to any Software.

7. Equipment for Use of Software. Except as otherwise agreed by the Parties in writing, Customer is solely responsible for the installation of the Software and the purchase and/or licensing of all equipment and other software necessary to operate and use the Software. TransPlus is not liable for any issues arising from Customer installing, running and/or otherwise using the Software improperly or with inadequate resources.

8. Text Messaging Service. TransPlus does not charge a fee for the text messaging service associated with the Software (“Texting”). Customer acknowledges that TransPlus is not responsible for any charges from a User’s service provider that may result from Texting. It is Customer’s responsibility to obtain approval from each recipient prior to using Texting services. Customer acknowledges that text messages are distributed via third-party mobile network providers and, therefore, TransPlus cannot control, and hereby disclaims, any warranties relating to message delivery. Customer acknowledges that, depending on the recipient’s mobile provider service, it may not be possible to transmit the text message to the recipient successfully. The use of a cellular device for phone calls or text messages while driving is dangerous and, in most jurisdictions, illegal. Customer is advised to notify recipients that they should refrain from texting or otherwise using a cellular device while operating a motor vehicle.

9. Fees and Payment.

9.1 Fees. In consideration for, as applicable, the Licence and/or the Services, as identified in the Contract, Customer shall pay to TransPlus: (a) the fees set out in the Contract for the Initial Term; (b) TransPlus’ then-current applicable pricing for any Renewal Term, as identified by TransPlus from time to time; and (c) any fees due and owing for additional User Licences pursuant to Sections 3.2 and/or 4.2, if any (collectively, the “Fees”). The Fees are exclusive of all applicable sales, use, value-added, property and other taxes, and Customer shall be responsible for payment of all such taxes (other than taxes based on TransPlus’ net income). If, for whatever reason, Customer is required by law to withhold any taxes from the Fees, Customer shall gross up its payments to TransPlus, so that TransPlus receives the Fees in full, free of any deductions. All Fees shall be payable in accordance with the payment terms set out in the Contract.

9.2 Disputed Fees. Customer must notify TransPlus of any disputed Fees within fifteen (15) days of the applicable invoice date, after which, such invoice shall be deemed accepted by Customer and will be due and payable in full. If Customer initiates a dispute with regard to an invoice, any undisputed amounts charged on such invoice will remain due and payable.

9.3 Late Payment. If Customer fails to pay to TransPlus any amounts payable hereunder on the date on which such amounts are due, then TransPlus may: (a) charge interest on such amounts, at a rate of five (5.0%) percent per year, from the due date until all outstanding amounts owing are paid in full; (b) suspend access to the Software and/or provision of the Services until all amounts are paid in full; and/or (c) terminate the Agreement if payment is not made, in full, within thirty (30) days of the date when payment was due. Customer will pay all costs, including reasonable legal fees, incurred by TransPlus in collecting overdue amounts.

9.4 Records and Inspection. Customer shall, upon written request, during normal business hours, provide access to data and records relating to Customer’s compliance with the terms of the Agreement to TransPlus, its auditors and any other representatives reasonably designated by TransPlus. Customer shall provide TransPlus, its auditors and other representatives such assistance as they reasonably require in connection with any audit of Customer’s compliance with the terms of the Agreement. All audit rights contained in this Section shall exist during the Term and for a period of three (3) years following expiry or termination of the Agreement.

10. Ownership. TransPlus and its licensors own and shall retain all rights, title and interest, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Software and any and all corrections, enhancements, updates or other modifications thereto. Customer acknowledges that the Licence does not provide Customer with any title to or ownership of the Software of any kind, but only a limited right of use under the terms and conditions of the Agreement.

11. Third Party Components. Customer acknowledges and agrees that: (a) the Software may include third-party components, libraries, and/or integrations (collectively, “Third-Party Components”); and (b) the unavailability, malfunction, and/or discontinuation of any Third-Party Components, whether temporary or permanent, shall not constitute a breach of the Agreement by TransPlus. For purposes of the Agreement, such Third-Party Components are subject to their own license terms and applicable flow through provisions. If Customer does not agree to abide by the applicable terms for such Third-Party Components, then Customer should not install or use such Third-Party Components.

12. Feedback. Customer agrees that TransPlus may use any suggestion, recommendation or feedback provided to TransPlus by Customer for new features, new functionalities or improvements to enhance or modify the Software and/or Services, or any part thereof (collectively, “Feedback”), and that such new features, new functionalities or improvements (including the design, implementation, further improvement and development of same) will be the sole exclusive property of TransPlus and any and all claims of Customer to same, in any capacity, are hereby waived and released. For clarity, TransPlus shall have no obligation to incorporate the Feedback into the Software and/or Services and Customer shall have no obligation to provide Feedback.

13. Confidentiality. Customer agrees: (a) not to use the Confidential Information for any purpose, except as permitted by the Agreement or by way of prior written consent; (b) to disclose such Confidential Information only to its Representatives who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the terms set forth herein; (c) to protect such Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own similar confidential information, but in no event with less care than a reasonably prudent business would exercise; and (d) to promptly notify TransPlus of any actual or potential unauthorized access to or use of the Confidential Information. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer provides TransPlus with written notice of such disclosure and makes a reasonable effort to obtain a protective order.

14. Customer Data, Personal Information and Privacy.

14.1 Collection and Use of Personal Information. Customer acknowledges and agrees that: (a) TransPlus may collect and process personal information from Users, including when such Users interact with TransPlus’ website, communicate with TransPlus, or otherwise use the Software or receive Services, including, without limitation, through Texting; and (b) any such collection, use and disclosure of User personal information by TransPlus shall be in accordance with the terms of and for the purposes set out in the Privacy Policy and these Terms.

14.2 Types of Personal Information Collected. Without limiting the generality of Section 14.1, Customer acknowledges and agrees that the types of personal information that may be collected and processed in connection with the Agreement include a User’s: (a) name and contact information, which have been provided on a voluntary basis; (b) usage data; (c) preferences and settings; and (d) any other information voluntarily provided by a User during the use of the Software and/or receipt of the Services.

14.3 Customer Data. Customer will retain all right, title and interest in and to the data submitted by Customer or its Users to the Software or collected and processed by or for Customer in connection with the Agreement, which may include the data and/or personal information of Users and/or Customer’s other employees, contractors or customers (collectively, “Customer Data”).

14.4 Licence to Customer Data. Customer grants TransPlus a worldwide, non-exclusive, royalty-free and paid-up licence to use and reproduce the Customer Data made available to TransPlus by Customer for the sole purpose of fulfilling its obligations set out herein. Notwithstanding the foregoing, Customer acknowledges that TransPlus reserves the right to monitor User behaviour and activity through logging, monitoring, and User analytics tools. Subject to this Section 14, Customer explicitly permits such monitoring by TransPlus and acknowledges that TransPlus may use such data, for its internal business purposes, to monitor the performance and stability of the Software and/or for any purpose related to the ongoing improvement and modification of its products and services.

14.5 Consent. Customer shall ensure that prior to using the Software or otherwise interacting with TransPlus, each User consents to the collection, processing, and use of their personal information as described in the Agreement, including, for clarity, the Privacy Policy. For greater certainty, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and Customer shall make any disclosures in its privacy notices, or as otherwise required under law, regarding Customer’s use of the Services to collect and process Customer Data.

15. Disclaimer. Except as expressly set out in the Agreement, to the maximum extent permitted by applicable law, the Software (including, without limitation, any Third Party-Component thereof) is provided entirely “as is” and “as available”, without warranty of any kind, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, quality, title, non-infringement and fitness for a particular purpose. Without limiting the generality of the foregoing, TransPlus does not warrant or represent that the Software (including, without limitation, any Third Party-Component thereof) will be free from bugs or that its use will be uninterrupted or error-free, or make any other representations regarding the use, or the results of the use, of Software (including, without limitation, any Third Party-Component thereof) with respect to correctness, accuracy, reliability, security or otherwise. Customer acknowledges that TransPlus is not responsible for, and will have no liability with respect to, any hardware, software or other items or services provided by any person or entity other than TransPlus or its authorized Representatives, including for network failure. Each Party acknowledges that it has not entered into the Agreement in reliance upon any warranty or representation except those specifically set forth therein.

16. Customer Obligations.

16.1 Reporting. During the Term, Customer shall promptly report to TransPlus any significant malfunctions, errors or interruptions in the operation of the Software and provide regular feedback as requested by TransPlus with respect to the performance and utility of the Software.

16.2 Compliance. Customer shall ensure that its Representatives comply with all applicable terms and conditions set out in the Agreement.

17. Termination.

17.1 Termination for Convenience. Either Party may terminate the Agreement, without limiting any other remedy available to it under the Agreement or otherwise, by giving thirty (30) days prior written notice to the other Party.

17.2 Termination for Cause. Either Party may terminate the Agreement, upon written notice to the other Party, if the other Party: (a) materially breaches of any of its obligations under the Agreement, and fails to cure such breach within fifteen (15) days after receipt of written notice thereof (for clarity, a Party’s failure to make payment when due shall constitute a material breach); or (b) becomes insolvent, makes an assignment for the benefit of creditors, a receiver is appointed, or is the subject of any proceeding under any bankruptcy and/or insolvency law.

17.3 Obligations on Termination. Upon expiration or termination of the Agreement:

(a) the Subscription Software Licence shall immediately terminate and TransPlus may block Customer’s access to the Subscription Software;

(b) Customer shall erase all copies of the Subscription Software from its computers and, as applicable, deliver to TransPlus all copies of such Subscription Software on tangible media in Customer’s possession or under its control, and certify in writing to TransPlus that it has fully complied with these requirements;

(d) Customer shall return or destroy all the TransPlus Confidential Information in its possession or under its control, including all originals, copies, reproductions, and summaries, provided, however, that Customer may retain copies of the TransPlus Confidential Information for legal or archival purposes, or if they are stored on Customer’s information technology backup and disaster recovery systems until their ordinary course deletion, and any such retention shall continue to be governed by the terms of the Agreement.;

(e) TransPlus shall return, at Customer’s request, any Customer Data, provided that such request is made within thirty (30) days of such expiration or termination. For clarity, Customer acknowledges that TransPlus has no obligation to maintain the Customer Data after sixty (60) days from the effective date of such expiration or termination;

(f) Customer shall pay all amounts owing to TransPlus hereunder, within thirty (30) days following the date of such expiration or termination, including any termination fees in accordance with Section 17.4; and

(g) if applicable, TransPlus shall pay all amounts owing to Customer hereunder, within thirty (30) days following the date of such expiration or termination.

17.4 Termination Fee. In addition to the obligations set out in Section 17.3, if the Agreement is terminated by Customer pursuant to Section 17.1 or by TransPlus pursuant to Section 17.2, Customer shall pay a termination fee equal to the balance of the remaining Fees due and owing for the remainder of the then-current Term, immediately on the effective date of termination. For clarity, the then-current Term shall mean the Initial Term or the then-current Renewal Term, as applicable.

17.5 Reimbursement. In addition to the obligations set out in Section 17.3, if the Agreement is terminated by TransPlus pursuant to Section 17.1, TransPlus shall provide Customer with a pro-rated refund of any applicable prepaid and unused Fees.

17.6 Survival. Upon expiration or termination of the Agreement, all provisions of the Agreement, which, by their nature and surrounding circumstances, reasonably should survive expiration or termination, will survive such expiration or termination.

18. Suspension. Notwithstanding any other provision of the Agreement, TransPlus may, at its discretion, suspend Customer’s or any User’s access to or use of the Software and/or TransPlus’ provision of the Services: (a) for scheduled maintenance; (b) to address any actual or threatened security concerns or harm to TransPlus, Customer Data, the Services, or TransPlus’ other customers; (c) if Customer or any User violates any provision of the Agreement (each, a “ Service Suspension”). TransPlus will have no liability for any loss, damage, or other liability that Customer or any User may incur as a result of a Service Suspension. Customer is required to accept all patches, bug fixes and updates made by or on behalf of TransPlus to the Services.

19. Customer Indemnification. Customer will indemnify, defend (at TransPlus’ option) and hold harmless TransPlus and its Representatives from and against any and all losses, liabilities, claims, damages, costs, expenses (including reasonable legal fees) (collectively, “Claims”), including any third-party Claims, arising out of or in connection with: (a) Customer’s breach of any of the terms of the Agreement; (b) Customer’s violation of any applicable laws; (c) the negligence, willful misconduct or fraudulent actions of Customer or its Representatives; and (d) any loss, corruption, mishandling, or damage of any Customer Data and/or other data submitted by Customer, its Users and/or Representatives via the Software.

20. TransPlus Indemnification. TransPlus will indemnify, defend and hold harmless Customer and its Representatives from and against any and all third-party Claims that Software infringes the intellectual property rights of a third-party, but specifically excluding third-party Claims relating to or arising out of: (a) any Third-Party Components; (b) any edits, modifications or alterations Customer makes to the Software (provided that such allegation would not have occurred but for such edits, modifications or alterations made by Customer); (c) Customer’s combination of the Software with other content or material (provided that such allegation would not have occurred but for such combination); and (d) Customer’s use of the Software in a manner not expressly authorized by the Agreement. Customer shall give TransPlus prompt notice of any such Claim and TransPlus is permitted to have full control of any defence. If all or any part of the Software becomes, or in TransPlus’ opinion is likely to become, the subject of such a Claim, TransPlus may either modify the Software to make it non-infringing or terminate the Agreement as it relates to the infringing portion of the Software and refund any amount prepaid by Customer for services that have not yet been used. This Section 20 sets out TransPlus’ entire liability concerning intellectual property infringement.

21. Limitation of Liability. In no event shall TransPlus be liable for any special, indirect, consequential, incidental, exemplary or punitive damages or any damages for loss of profits, loss of goodwill, loss of revenue, loss of data, interruption of operations or business, loss of business information, arising from or relating to the Agreement, whether based on warranty, contract, tort (including negligence), strict product liability or other legal theory, and whether or not TransPlus was advised of the possibility of such damages. If circumstances arise where Customer is entitled to recover damages relating to the Agreement, the aggregate liability of TransPlus, if any, shall in no event exceed the total Fees payable by Customer to TransPlus for the specific Software and/or Services in the twelve (12) months preceding the event giving rise to such damages.

22. Dispute Resolution.

22.1 Good Faith Negotiations. Without limiting the termination rights set out in Section 17, if any dispute arises between the Parties relating to the application, interpretation, implementation, or validity of the Agreement or any provision thereof (each, a “Dispute”), the Parties shall make reasonable efforts to resolve the Dispute through good faith negotiations within thirty (30) days of a written request by either Party.

22.2 Arbitration and Legal Proceedings.

(a) Without limiting the termination rights set out in Section 17, if a Dispute remains unresolved after such negotiation, Customer shall only be entitled to resolve the Dispute through arbitration. TransPlus, however, may choose, in its sole and unfettered discretion, to resolve the Dispute either through arbitration or through legal proceedings in court. If TransPlus seeks to resolve a Dispute through legal proceedings in court, the Parties expressly attorn to the exclusive jurisdiction of the courts located in Toronto, Ontario.

(b) If either Party seeks to resolve a Dispute through arbitration:

(i) the arbitration shall be conducted by ADR Chambers using the Expedited Arbitration Rules of the Canadian Arbitration Association (the “Expedited Rules”). However, the Expedited Rules, including, but not limited to, Rule 19 thereof, shall be amended to provide that the prevailing Party shall be entitled to recover in the arbitration its legal costs of the arbitration;

(ii) the Parties agree that the Expedited Rules give the Parties a fair opportunity to present their case and respond to the case of the other side;

(iii) the arbitration shall be held in Toronto, Ontario, shall proceed in accordance with the provisions of the Arbitration Act, 1991 (Ontario) (to the extent that it is not inconsistent with the Expedited Rules, which shall govern in the event of an inconsistency), and shall be conducted in English;

(iv) the arbitration shall be conducted by way of an In Writing Only arbitration (as defined in the Expedited Rules);

(v) no oral hearing shall occur; and

(vi) judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction.

(c) Nothing in this Section shall preclude either Party from seeking injunctive relief in the courts located in the Province of Ontario.

23. Miscellaneous.

23.1 Entire Agreement. The Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency concerning the Agreement, the following, in order of precedence, shall control and supersede any such conflict of inconsistency: (a) the Contract (if there is more than one active Contract, then whichever is most recently signed followed by any earlier Contracts) (b) these Terms; (c) the Policies; then (d) any other documents incorporated herein by reference.

23.2 Amendment. TransPlus may amend the terms of the Agreement, other than with respect to the Fees, by providing written notice to Customer and by posting updated Terms on the TransPlus website. Any updates to these Terms will come into effect upon notice to Customer.

23.3 Independent Contractor. The relationship of the Parties established by the Agreement is that of independent contractors. The Agreement does not constitute either Party as an agent, franchisee, partner, employee, servant or joint venturer for any purpose of the other Party. Neither Party will have any authority to make any statements, representations, or commitments of any kind, or to take any action or incur any liability, which will be binding on the other Party.

23.4 Notice. Any notice or other communication to be made by one Party to the other under the Agreement shall be in writing and made by email addressed to the other Party at the address set forth on the Contract. Such notice or communication shall be deemed to have been received on the date it was sent. Either Party may change its address for the purpose of this Section by giving written notice of such change to the other Party in the manner set out above.

23.5 Publicity. Except as may be required by applicable law, neither Party shall disclose the terms of the Agreement (including but not limited to all fee structures, pricing, and financial terms) or issue a press release in connection with the subject matter of the Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, TransPlus shall be permitted to name Customer as a customer of TransPlus on its website and in other marketing and promotional materials, and each Party shall have the limited right to disclose the terms of the Agreement to its bona fide accounting, tax and legal advisors.

23.6 Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to any conflicts of law principles.

23.7 Force Majeure. Other than with respect to any payment obligations hereunder, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight, including, without limitation, to acts of war, acts of God, epidemics, pandemics, public health emergencies, earthquakes, floods, embargoes, riots, sabotage, terrorism, delays in transportation, network failures, unavailability of equipment or materials, or governmental acts (not resulting from the actions or inactions of the Party relying on such failure or delay), provided that the Party affected by such failure or delay gives the other Party prompt notice of such cause and uses reasonable efforts to promptly correct such failure or delay in performance. If an event of force majeure occurs and continues for a period of at least thirty (30) days, TransPlus reserves the right to cancel the affected Contract, upon written notice to Customer, without liability.

23.8 Language of Agreement. Le Client a eu accès à une version française du présent Contrat. Si, néanmoins, le Client choisit d’accepter uniquement la version anglaise du présent Contrat, il sera réputé avoir exigé que le présent Contrat et tous les documents associés soient rédigés uniquement en anglais. En cas de conflit ou d'incohérence entre les versions française et anglaise du Contrat, la version anglaise prévaudra. Customer has been provided access to a French version of the Agreement. If, notwithstanding, Customer chooses to accept only the English version of the Agreement, it will be deemed to have required that the Agreement and all related documents be drafted in English only. In the event of any conflict or inconsistency between the French and English versions of the Agreement, the English version shall prevail.

23.9 No Waiver. Any waiver of any provision of the Agreement will only be effective if in writing and signed by each Party. The failure of either Party to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.

23.10 Severability. If any provision of the Agreement, or any part thereof, is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision, or part thereof, shall be deemed not to affect or impair the validity or enforceability of any other provision of the Agreement, or part thereof, which remaining provisions or parts thereof shall remain in full force and effect.

23.11 Assignment. The Agreement is binding upon Customer and its successors and permitted assigns. Customer shall not assign, sublicence or otherwise transfer the Agreement to any other party without the prior written consent of TransPlus, which may be withheld by TransPlus in its sole discretion. For clarity, any change in control of Customer shall be deemed an assignment requiring TransPlus’ prior written consent.

23.12 Survival. Upon expiration or termination of the Agreement, all provisions of the Agreement which, by their nature and surrounding circumstances, reasonably should survive expiration or termination, will survive expiration or termination of the Agreement.

23.13 Paramountcy. In the event of any conflict or inconsistency concerning these Terms and any other terms of the Agreement, these Terms shall control and supersede any such conflict or inconsistency.