Master Services Agreement

SCHEDULE A

This Master Services Agreement (the “MSA”), together with any order forms (including the order form in the cover pages of this Agreement, quote, or other written or online ordering document, issued by VantEdge or a Reseller (defined below), which has been agreed to by Customer by means of signature, issuance of a purchase order, or, if applicable, online acceptance (i.e., a cloud marketplace private offer)(each an “Order Form”), SOWs (defined below), addenda, attachments and exhibits (including Hardware Terms and EULA) (collectively, the “Agreement”), is entered into as of the Effective Date (set forth in the Order Form in the cover pages hereof), and is agreed between the customer named in the Order Form in the cover pages hereof (“Customer”, “you” or “your”) and VantEdge Logistics Inc. (“VantEdge”, “we”, “us” or “our”).

This Agreement governs the provision of the following products and services (“Products and Services”): (i) equipment, components and parts (each a “Hardware”), (ii) Software (as defined in the EULA annexed to this MSA), (iii) support services for the applicable Software (“Support Services” or “TERMINALCARE”) and service levels in accordance with VantEdge’s support services and service level terms currently at [Insert URL] and incorporated herein by reference (“Support Terms”); and (iv) installation, implementation and other professional Services (the “Professional Services”). Customer’s use of any Products or Services procured through an authorized reseller of the Products or Services (“Reseller”) will if so required by VantEdge be subject to the terms of this Agreement. The definitions in the preamble apply to this Agreement. All terms in quotation marks in the body of this Agreement and its exhibits and attachments hereto are also defined terms:

1. Provisioning of the Products and Services.

(a) If purchased by Customer pursuant to an Order Form, VantEdge (or its agents or subcontractors) will sell Hardware to Customer to be installed at the facilities of Customer (each a “Facility” or “Site”) as set forth in such Order Form and subject to the additional terms and conditions set out in Exhibit D annexed to this MSA.

(b) If purchased by Customer pursuant to an Order Form, subject to Customer’s and its Users’ compliance with the terms and conditions of this Agreement, VantEdge will License (as defined in the EULA), the Software to Customer on the terms and conditions set out in this Agreement (and the applicable Order Form) during the Subscription Term.

(c) If purchased by Customer pursuant to an Order Form, subject to payment of Fees, VantEdge (or its agents or subcontractors), during the Subscription Term (as defined in Exhibit B), will perform Support Services for the applicable Software as set forth in such Order Form and subject to the additional terms and conditions set out in Exhibit B. For clarity, where applicable, the Fees paid by Customer for subscription for Wheelhouse includes Support Services at no additional cost to Customer.

(d) If purchased by Customer pursuant to an Order Form or Statement of Work, VantEdge (or its agents or subcontractors) will perform Professional Services as set forth in such Order Form, Statement of Work and subject to the additional terms and conditions set out in Exhibit C. For clarity, VantEdge is not responsible for Reseller branded support or professional services that Customer may procure from a Reseller directly.

2. Fees and Payment.

(a) If Customer is purchasing Hardware and applicable Software via a Reseller, then except as otherwise required by VantEdge, all pricing and payment terms will be determined by and between Customer and such Reseller. If Customer is purchasing the Hardware and applicable Software directly from VantEdge or if VantEdge otherwise requires for Customer purchasing from a Reseller, Customer will pay the fees for the Products and Services as stated in the addendum, Order Form and Statement of Work (“Fees”). If no Fee is included in the addendum, Order Form and Statement of Work, the Fee will be based on prices set out in VantEdge’s published price list in force as of the date of the addendum, Order Form and Statement of Work.

(b) Unless otherwise noted on an addendum, Order Form and Statement of Work: (i) all Fees are in the currency set out in the applicable Order Form or applicable Statement of Work; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. VantEdge will prepare and send to Customer, at the then-current contact information on file with VantEdge, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Order Form or Statement of Work, Customer will pay all invoiced amounts within 60 calendar days of the invoice date.

(c) Unless otherwise specified in the addendum, Order Form and Statement of Work, Fees are exclusive of all applicable packaging, transportation costs of the Products and Services to the Delivery Location (as defined in Exhibit D), insurance, customs duties and fees, applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of VantEdge.

(d) Subject to Section 2(e) of this MSA, VantEdge reserves the right to change the Fees and institute new charges for each Renewal Subscription Term, upon providing not less than 30 days prior written notice to Customer, provided that no such Fees increase will exceed the lesser of: (i) 5% of the prior year Fees; and (ii) the annual increase in the CPI for the preceding twelve (12) month period. As used herein, “CPI” means the table in the consumer price index published by or under the direction of the applicable Governmental or Regulatory Authority in the country in which the Customer is tax resident.

(e) Customer’s access to and use of the Products and Services is limited to the specific features and modules (each a “Module”), Software and Facilities expressly identified in an Order Form or Statement of Work. If Customer wishes to access, use or purchase additional or new Modules, Software and Facilities during the Term and then current Subscription Term, Customer may be required by VantEdge to execute an Order Form or Statement of Work for additional or new Modules, Software and Facilities promptly upon VantEdge’s request and Customer will pay any additional Fees due for such additional or new Modules, Software and Facilities in accordance with this Section.

(f) Customer may not withhold or setoff any amounts due under this Agreement. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. If Customer has not paid all due Fees within 60 days of the date that such Fees become due, VantEdge reserves the right without limiting any of its other rights or remedies under this Agreement, or at law or in equity, to: (A) suspend Customer’s access to the Product and Services and any delivery until all due amounts are paid in full; or (B) terminate this Agreement.

(g) Any suspension of the Products and Services by VantEdge pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

(h) For any Order Forms placed through a Reseller, Customer acknowledges and agrees that: (i) VantEdge may share information with such Reseller related to Customer’s use and consumption of the Hardware and applicable Software for account management and billing purposes; and (ii) Reseller is not authorized to make any changes to this Agreement or to make any commitments of any kind on behalf of VantEdge.

3. Customer Warranty; Disclaimers.

(a) Customer Warranty. Customer represents, warrants, and covenants to VantEdge that Customer has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and will continue to have all necessary authority in and relating to the Customer Property (including Customer Personal Information (as defined in the EULA) for VantEdge to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Law, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and will inform VantEdge immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon.

(b) DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS MSA, ALL PRODUCTS AND SERVICES, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY VANTEDGE ARE PROVIDED “AS IS” AND VANTEDGE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND VANTEDGE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES OR CONDITIONS ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ALL THIRD PARTY PRODUCTS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY PRODUCTS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR SUPPLIER OF THE THIRD PARTY PRODUCTS.

4. Intellectual Property Rights.

(a) VantEdge or its licensors will retain all right, title and interest, including all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (collectively, “Intellectual Property Rights”) in and to: (A) any Intellectual Property Rights used in the manufacture, used to create, embodied in, used in and otherwise relating to the Hardware and other Products and Services; (B) VantEdge’s Confidential Information; (C) Software (including all Updates and upgrades); (D) data models, including filters, criteria, search parameters, results; (E) Usage Data (as defined in the EULA); (F) metadata and Anonymous Data (as defined in the EULA); (G) Deliverables, Documentation (as defined in the EULA); (H) reports (including any reports provided within the applicable Software for the use of Customer, including point in time reports and reports provided in exportable format as allowed for by the applicable Software); and (I) any Modifications to the foregoing (collectively “VantEdge Property”). Customer will not acquire any ownership interest in any of VantEdge’s Intellectual Property Rights under the Agreement.

(b) Customer has a limited right and License to use Software and to receive Support Services as provided in the EULA, applicable Order Forms and Statements of Work. All rights not expressly granted by VantEdge to Customer under this Agreement are hereby reserved.

(c) VantEdge has a license and right to use Customer Property as provided in the EULA, applicable Order Forms and Statements of Work. All rights not expressly granted by Customer to VantEdge under this Agreement are hereby reserved.

(d) To the extent that Customer or any User submits ideas, suggestions, or proposals regarding the Product and Services (“Feedback”), Customer acknowledges and agrees that:

(i) the Feedback does not contain confidential or proprietary information and VantEdge is not under any obligation of confidentiality with respect to the Feedback; and

(ii) VantEdge will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use, provided that Feedback will not contain any Customer’s Confidential Information and VantEdge will not identify Customer or any of its Users as the source of such Feedback without Customer’s prior written consent.

5. Indemnification.

(a) VantEdge Indemnity. VantEdge will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by a Customer Indemnitee arising out of or relating to any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand (“Claims”) by a third party (other than an affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Software infringes any third-party Intellectual Property Right. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (i) incorporation of any Products into, or any combination, operation, or use of any Products and Services with, any products or services not provided or authorized by VantEdge if such Claim would not have arisen but for such incorporation, combination, operation or use; (ii) Modification of any Products and Services other than by VantEdge or with VantEdge’s express written approval, if such Claim would not have arisen but for such Modification; (iii) unauthorized use of the Products and Services; (iv) Third Party Products or Outputs or (v) Losses covered by the Customer’s indemnity obligations in Section 6(b). THIS SECTION 6(a) IS VANTEDGE’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM DESCRIBED IN THIS SECTION 6(a).

(b) Customer Indemnity. Customer will defend, indemnify and hold harmless VantEdge, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “VantEdge Indemnitee”) from and against any and all Losses incurred by a VantEdge Indemnitee arising out of or relating to any Claim by a third party (other than an affiliate of a VantEdge Indemnitee) that arise from or relate to: (A) Customer Property (as defined in the EULA); (B) Customer’s business operations; (C) death, sickness, disease or injury of any kind to any person, or any damage, loss or destruction of any tangible, real, personal or intangible property, caused by Customer’s or its personnel’s use of the Products and Services; (D) Customer’s breach of Sections 3(a) and 12 of this MSA and Sections 4, 6, or 12 of the EULA annexed hereto; or (E) use of the Products and Services in breach of this Agreement or any Applicable Laws.

(c) Indemnification Procedure. Each party will promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section 5(c). The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 5(c) will not relieve the Indemnitor of its indemnity obligations under this Section 5 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

6. Limitation of Liability.

The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) Amount. Subject to section 6(c), in no event will the total aggregate liability (including any previously paid losses) of either party in connection with or under this Agreement, whether in contract, tort (including negligence or gross negligence), or otherwise, exceed the amount of Fees paid or payable by Customer for the applicable Product in the 12 month period immediately preceding the event giving rise to the Claim. For greater certainty, the existence of one or more claims under this Agreement will not increase this maximum liability amount. In no event will VantEdge’s third party suppliers have any liability arising out of or in any way connected to this Agreement.

(b) Type. Subject to section 6(c), to the maximum extent permitted under Applicable Law, in no event will either party be liable to the other party for any: (a) special, exemplary, punitive, indirect, incidental or consequential damages; (b) lost or loss of (i) savings, (ii) profit, (iii) data, (iv) use, or (v) goodwill; (c) business interruption; (d) costs for the procurement of substitute products or services; (e) personal injury or death; or (f) personal or property damage, arising out of or in any way connected to this Agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence or gross negligence), or otherwise, even if notified in advance of the possibilities of such damages.

(c) Exceptions. Sections 6(a) and 6(b) do not apply to limit:

(i) either party’s indemnity liability obligations under Sections 5(a) (VantEdge Indemnity) and 5(b) (Customer Indemnity);

(ii) Losses arising out of or relating to Customer’s breach of Sections 3(a) and 12 of this MSA and Sections 4, 6, or 12 of the EULA annexed hereto;

(iii) Customer’s payment obligations;

(iv) either party’s breach of Section 9 (Confidential Information) (provided that VantEdge’s total aggregate liability for a breach of Section 9 (Confidentiality) resulting in unauthorized access, use or disclosure of Customer Data will be limited to the total aggregate liability cap in Section 6(a) above); or

(v) any Claims or Losses which cannot be limited under Applicable Law.

7. Term; Order Form Term; Subscription Term; SOW Term.

This Agreement will commence on the Order Form Effective Date of the Order Form in the cover pages hereof (“Effective Date”) and continue to be in effect for a period of one year (the “Initial Term”), unless terminated earlier in accordance with this Agreement. This Agreement will automatically renew for successive periods of one year (each a “Renewal Term”), unless either party provides the other party with written notice of its intention not to renew not less than 60 days prior to the end of the then current Term. “Term” means Initial Term and Renewal Terms. The term of each Order Form will commence on the date described on the Order Form and will continue for the term set out in the Order Form. Order Forms for subscriptions to Support Services are conterminous with the applicable Subscription Term for such Support Services. Any Order Forms in effect as of the date of such termination of this MSA will remain in effect for the term of such Order Form and remain governed by this Agreement. Each SOW will set out its term and renewal provisions for such SOW.

8. Termination.

(a) In addition to any remedies that may be provided under the Agreement:

(i) Either party may terminate this Agreement or any Addendum or Order Form (in each case in whole or in part) by giving to the other party written notice of termination upon the occurrence of any of the following events:

(A) the other party breaches or defaults on any of the material terms or conditions of this Agreement and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately;

(B) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or

(C) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution.

(ii) VantEdge may immediately terminate this Agreement by giving to Customer written notice of termination (to the extent permitted by Applicable Law) upon the occurrence of any of the following events: (i) if VantEdge’s relationship with a Third Party Product provider that provides servers, software or other technology that it uses to provide the Products and Services terminates or requires VantEdge to change the way it provides the Products and Services; (ii) if VantEdge reasonably believes that: (A) continued provision of any Product and Services used by Customer would violate Applicable Laws; or (B) Customer has violated or caused VantEdge to violate any Applicable Laws; or (iii) as otherwise permitted in this Agreement.

(iii) If this Agreement is terminated by Customer due to VantEdge’s material breach pursuant to Section 8(a)(i) of the MSA, VantEdge will provide Customer with a pro rata refund of any unused Fees prepaid by Customer for the Products and Services applicable to the period following the effective date of termination of the Agreement or Order Form.

(iv) If this Agreement is terminated by VantEdge pursuant to Sections 8(a)(i) or 8(a)(ii) Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement and Customer will pay all remaining Fees for the rest of the then-current Term, as applicable. VantEdge will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Term, had it not been terminated.

(b) Effect of Termination. Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement (the “Termination Effective Date”):

(i) Customer must immediately (and ensure that all Users immediately cease) cease accessing or using the Products and Services and if instructed in writing by VantEdge or allow VantEdge access to premises where such Software is installed including Hardware, uninstall the Software from Hardware;

(ii) Each party will return or destroy, at the option of the owning party, any property of the other party (i.e., VantEdge Property or Customer Property, as applicable) in its possession and, upon written request from the other party, will confirm in writing to the other party that such applicable property has been returned or destroyed;

(iii) no new addenda, or Order Forms may be agreed to or entered into by the parties;

(iv) all undisputed Fees due and payable and any amounts due to VantEdge are immediately due and are to be immediately paid by Customer to VantEdge. Except as expressly set forth in this MSA, no expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund except as provided in this Agreement; and

(v) as it relates to Software, notwithstanding anything set forth in this MSA, if Customer requests in writing at least 30 days prior to the Termination Effective Date and provided that Customer has paid all Fees due and payable as at the Termination Effective Date, VantEdge will make all Customer Data available to Customer for electronic retrieval in a platform standard format (CSV/JSON) for no less than sixty (60) days from such request. Following such sixty (60) day period, VantEdge will delete any Customer Data that remains in the hardware or systems used by VantEdge to provide the Software. Notwithstanding anything to the contrary in this Agreement, VantEdge may retain Customer Data to the extent and so long as required by Applicable Law and VantEdge may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course, provided that all such Customer Data will remain subject to all confidentiality requirements of this Agreement.

9. Confidential Information.

9.1 Definitions. For the purposes of this Agreement, a party or any of its affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its affiliates. Where VantEdge is the Discloser, VantEdge’s Confidential Information includes information of any of its service providers, subcontractors, sub-processors, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, VantEdge Property, any other security reports including penetration testing summaries from VantEdge and this Agreement (including all SOWs and Order Forms). Where Discloser is Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.

9.2 Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will:

(a) not disclose Confidential Information of Discloser to any Person without the express written consent of Discloser, except to its own employees and Users (if Recipient is Customer), or its and its affiliate’s employees, contractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is VantEdge), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Products and Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement;

(b) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement and with respect to VantEdge as permitted in this Agreement including in the EULA;

(c) not alter or remove from any Confidential Information of Discloser any proprietary legend; and

(d) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.

9.3 Exceptions to Confidentiality. Notwithstanding Section 9.2, Recipient may disclose Discloser’s Confidential Information:

(a) only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (i) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (ii) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure;

(b) to its legal counsel and other professional advisors if and to the extent such Persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or

(c) in the case of VantEdge to: (x) potential assignees, acquirers or successors of VantEdge if and to the extent such Persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of VantEdge; (y) subcontractors and sub-processors for the purpose of providing the Products and Services; and (z) as otherwise permitted in this Agreement, provided that such Persons in (c)(x) and (c)(y) are subject to a reasonable written obligation of confidentiality and such disclosed Confidential Information remains subject to the confidentiality protections in this Agreement.

9.4 Injunction and other equitable relief. Each of the parties acknowledges that disclosure of Discloser’s Confidential Information or any other breach of this Section 9 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 9 and to the specific enforcement of the terms of this Section 9, in addition to any other remedy to which Discloser would be entitled.

9.5 Return of Confidential Information. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each party will promptly return to the other party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 8(b)) of the other party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Recipient may retain any electronically archived Discloser’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 9. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 9.

10. Customer Lists.

With the Customer’s prior written consent (email is sufficient), VantEdge may identify Customer by name and logo as a VantEdge customer on VantEdge’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

11. Waiver.

A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

12. Compliance with Law.

The parties will comply with all Applicable Laws in their performance under the Agreement. Customer will use the Products and Services in compliance with all Applicable Laws.

13. Force Majeure.

Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Products and Services or which would make the provision of the Products and Services economically unviable (“Force Majeure Event”). This Section does not apply to any of Customer’s payment obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

14. Assignment.

This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement in connection with a change of control, merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers or receives the Products and Services, so long as: (A) in the case of assignment by Customer, the assignee is not a competitor of VantEdge; (B) the assignee is bound by the terms of this Agreement; and (C) all undisputed past due Fees or any refunds or credits owed are paid in full (a “Permitted Assignment”). As used in this Section, a competitor of VantEdge is any entity that may be reasonably construed as offering competitive functionality or services.

15. Relationship of the Parties.

VantEdge’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

16. Governing Law.

This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Alberta and the applicable federal laws of Canada, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Calgary, Alberta, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, VantEdge may: (a) seek remedies to collect unpaid Fees from Customer; and (b) seek remedies with respect to a violation of VantEdge’s Intellectual Property Rights or Section 8(a)(i) (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

17. Entire Agreement.

This Agreement (including addenda, SOWs and Order Forms) constitutes the entire agreement between the parties and sets out all the covenants, promises, warranties, representations, conditions, and agreements between the parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (a) do not apply to the Products and Services; and (b) do not override or form a part of this Agreement (including any addenda, SOWs or Order Forms). If any terms and conditions contained in an Order Form conflict with any terms and conditions contained or incorporated by reference in this MSA, the terms and conditions contained in or incorporated by reference in this MSA will take precedence to the extent of such conflict. If any terms and conditions contained in an Exhibit attached hereto conflict with any terms and conditions contained or incorporated by reference in this MSA, the terms and conditions contained in or incorporated by reference in this MSA will take precedence to the extent of such conflict (unless otherwise set out expressly in such Exhibit annexed hereto).

18. Amendments.

No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.

19. Notices.

All notices sent to either party will be in writing and addressed to the receiving party at the addresses set forth on the Order Form. Each party may change its contact information for notice by giving notice thereof to the other party. Notices sent will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid.

20. Informal Dispute Resolution.

The parties will use reasonable efforts to resolve any dispute regarding this Agreement (including any breaches of the Agreement or the interpretation of this Agreement) (each a “Dispute”) through the informal escalation process agreed by the parties. A knowledgeable representative from each party will meet no less than once per calendar quarter to: (A) review and discuss the Products and Services, including any issues related to VantEdge’s or Customer’s performance of its respective obligations under this Agreement or any applicable SOW, or Order Form; and (B) endeavor to resolve any Disputes that have been escalated to the executive level. Provided that this Section 20 will not prevent the parties from obtaining specific performance and injunctive or other equitable relief or initiating proceedings pursuant to Section 16.

21. Construction.

Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation”. The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a party in this Agreement, mean the right of such party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other party. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

22. Further Assurances.

Each party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

23. Severability.

Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

24. No Third Party Beneficiaries.

Nothing contained in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto (other than VantEdge’s licensors and the Indemnitees identified in Section 5 or their respective successors and permitted assigns) any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement.

25. Survival.

Provisions of the Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following Sections: 1, 2, 3, 4, 7, 9, 11, and 16 through 27.

26. Counterparts.

This Agreement may be executed and delivered by electronic means, and may be validly executed in any number of counterparts, all of which taken together will constitute one and the same agreement and each of which will constitute an original.

27. English Language.

The parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.

2. Limited License.

Subject to and conditional on Customer’s compliance with all terms and conditions set forth in the Agreement, VantEdge hereby grants to Customer a limited, revocable (as permitted in the MSA), non-exclusive, non-transferable, and non-sublicensable license to: (a) access and use the Documentation and tangible reports provided within the applicable Software for the use of Customer, including point in time reports and reports provided in exportable format as allowed for by the applicable Software, in connection with the Software; and (b) (i) if and to the extent Customer purchases a license to TerminalBOSS in the applicable Order Form, execute one copy of TerminalBOSS and firmware, in executable object code form only as installed on the Hardware as located on the Customer’s Facilities set out in the Order Form or Statement of Work and solely for use with the Hardware; and (ii) if and to the extent Customer purchases a license to TerminalBOSS in the applicable Order Form, a license to access and use Wheelhouse solely via a dashboard provided by VantEdge, in each instance solely: (w) during the Subscription Term (as provided in Section 3(b) of this EULA); (x) for the Modules set out in the Order Form or SOW; and (y) for Customer’s internal business use only (the licenses in subsections 2(a) and 2(b) hereof collectively, the “License”). Customer is responsible for all actions and omissions with respect to the Software and Hardware by any person (“User”) to whom Customer may provide access to or use of the Software, whether such access or use is permitted by or in violation of this EULA. Customer is responsible for identifying and authenticating all Users and for Users’ compliance with this EULA.

3. Support Services.

(a) Subject to Section 3(b) of this EULA, if and to the extent set out in the Order Form, VantEdge will provide Support Services and comply with service levels, each as set forth in the Order Form.

(b) If during the Term, Customer does not renew or cancel its subscription to the Support Services for TerminalBOSS then the License to use TerminalBOSS forthwith terminates and Customer will comply with the obligations under Section 8(b)(i).

4. Suspension of Access; Modifications.

VantEdge may from time to time and in its discretion, without limiting any of its other rights or remedies under this Agreement, or at law or in equity:

(a) suspend Customer’s access to or use of the Products and Services or any component of it:

(i) for scheduled maintenance;

(ii) due to a Force Majeure Event;

(iii) if VantEdge believes in good faith that Customer or any of its Users has violated any provision of this Agreement;

(iv) to address any emergency security concerns;

(v) if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law; or

(vi) for any other reason as provided in this Agreement;

(b) without limiting Section 11 of this EULA: (A) make any Modifications to the Products and Services, provided that such Modifications do not reduce the material functionality of the Products and Services; and (B) update the terms of the Support Terms from time to time to reflect process improvements or changing technology, practices, or applicable laws, but for any such updates during an applicable Subscription Term: (i) such change shall not diminish VantEdge’s obligations, nor increase Customer’s obligations, (ii) VantEdge will comply with the terms of such Support Terms in effect as of the effective date of the applicable Order Form; and (iii) VantEdge will provide not less than 60 days’ prior written notice of such changes.

5. Customer Responsibilities.

Customer will: (a) only use the Hardware and Software in accordance with any instruction manuals or guidelines made available by VantEdge from time to time; (b) ensure that each location where Customer intends to use the Hardware and Software: (i) has internet connectivity available through a wired, Wi-Fi, or cellular connection on a continuous basis, with all costs for such connectivity to be borne by Customer; and (ii) permits Customer’s use of the Hardware and Software; and (c) promptly report to VantEdge any technical issues with respect to the Hardware and Software, and work with a VantEdge to perform basic troubleshooting to resolve the issue. For greater certainty, Customer is responsible for obtaining any required zoning or other approvals, permissions or consents in order to use the Hardware and Software at Customer’s desired location. Without limiting the foregoing, as between Customer and VantEdge, Customer has and will retain sole responsibility for: (A) all Customer Property, including Customer Data, its content and use; (B) all information, instructions, and materials provided by or on behalf of the Customer or the Users in connection with the Products and Services; (C) all Customer’s systems; (D) the security and use of access credentials of the Customer and the Users; (E) all access to and use of the Product and Services and VantEdge’s materials directly or indirectly by or through the Customer’s systems or the Customer’s Users’ access credentials with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use; and (F) employing all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all access credentials and protect against any unauthorized access or use of the Services; and control the content and use of Customer Data and other Customer Property, including the uploading or other provision of Customer Data for processing by the Software and Hardware.

6. Restrictions.

Customer will not (and will not permit its Users or any third party to): (a) sell, rent, assign, sublicense, or distribute the Software, other VantEdge Property or Hardware, or provide the Software, other VantEdge Property or Hardware as a commercial hosted service, to any third party; (b) provide access to, or otherwise make available, the Software, other VantEdge Property or Hardware to any third party (except for permitted use by Users); (c) modify, copy, translate, or create derivative works of, the Software, other VantEdge Property or Hardware; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain or derive the source code or non-public APIs or algorithms of the Software, other VantEdge Property or Hardware, except to the extent expressly permitted by Applicable Law (and then only upon advance written notice to VantEdge); (e) use the Software to create, collect, transmit, store, use or Process any Customer Data: (A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (B) that Customer does not have the lawful right to create, collect, transmit, store, use or Process; (C) that contains any Prohibited Data; or (D) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (f) remove or obscure any copyright or proprietary notices contained in the Software, other VantEdge Property or Hardware; (h) use the Software, other VantEdge Property or Hardware in violation of applicable law or the applicable acceptable use policy; or (i) use the Software, other VantEdge Property or Hardware to benchmark the Software, other VantEdge Property or Hardware, to perform competitive analyses, to copy features or functions of the Software, other VantEdge Property or Hardware, or to build similar or competitive products or services.

7. Customer Data.

Subject to the rights granted in this Section 7 of this EULA, Order Forms and Statements of Work, Customer retains all right, title or interest including any Intellectual Property Rights in or to Customer Property. Customer grants to VantEdge: (A) a non-exclusive, worldwide, royalty-free, irrevocable (subject to termination rights in this Agreement), sublicensable, transferable, and fully paid-up right and license to Process Customer Property during the Term to: (a) provide the Products and Services; and (b) improve and enhance the Products and Services its other offerings; and (B) a non-exclusive, perpetual, worldwide, royalty-free, irrevocable, sublicensable, transferable, and fully paid-up right and license to Process Customer Property to produce or generate Usage Data, metadata and Anonymous Data. VantEdge may use, Process, store, disclose and transmit the Usage Data, metadata and Anonymous Data for any purpose and without restriction or obligation to Customer of any kind. Usage Data, metadata and Anonymous Data are not Customer’s Confidential Information. Third Party Products. If Customer uses or accesses Third Party Products including in connection with its use of the Products and Services, Customer acknowledges and agrees that: (a) Customer’s use of Third Party Products is subject to separate terms and conditions; and (b) any terms, conditions, warranties or representations associated with such Third Party Products are solely between Customer and the applicable Third Party Product provider. VantEdge will have no liability, obligation or responsibility for Customer’s use of or access to such Third Party Products.

8. [Reserved]

(Section 8 is intentionally omitted in the EULA numbering as the content provided proceeds from Section 7 to Section 9.)

9. Maintenance Services; Automatic Updates.

(a) VantEdge may, in its sole discretion, include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as VantEdge makes generally available to other licensees of the Software then entitled to maintenance services. All Updates will be deemed Software subject to all terms and conditions of the Agreement, including this EULA. Unless otherwise agreed to in writing, maintenance services do not include any new version or new release of the Software that VantEdge may issue as a separate or new product, and VantEdge may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.

(b) The Software may cause the Hardware to automatically communicate with VantEdge’s servers to permit the Hardware to perform to its specifications, to record and collect usage metrics and data (including Customer Data), and to receive Updates. The Updates may be automatically installed without providing any additional notice or receiving any additional consent. Customer consents to these automatic Updates. VantEdge requires the Software to contain Updates as a condition to providing any maintenance services. Customer accepts all patches, bug fixes and Updates made by or on behalf of VantEdge to the Products and Services.

Customer will provide VantEdge with adequate access and connectivity as required by VantEdge to provide maintenance and Updates to the Hardware and Software, as required.

10. Term and Termination.

This EULA and the license granted hereunder are effective on the date Customer first uses the Software or Hardware and will continue for as long as Customer uses the Software or Hardware, unless terminated earlier in accordance with the Agreement or this EULA. VantEdge may terminate this EULA and the license granted hereunder upon providing written notice to Customer if Customer fails to comply with the terms and conditions of the Agreement or this EULA. The provisions of Sections 1, 2, 3, 5, 6, 7, 12 and 13 will survive termination or expiration of this EULA together with such other provisions of this EULA which expressly or by their nature survive termination or expiration.

11. Disclaimers.

WITHOUT LIMITING SECTION 3(b) (DISCLAIMERS) OF THE MSA, VANTEDGE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING ARE RAPIDLY EVOLVING FIELDS OF STUDY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, USE OF ANY VANTEDGE PROPERTY MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT. CUSTOMER WILL EVALUATE THE ACCURACY OF ANY OUTPUTS, REPORTS, AND CONTENT, AS APPROPRIATE FOR ITS USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUTS, REPORTS AND CONTENT. VANTEDGE DISCLAIMS ALL LIABILITY ARISING FROM CUSTOMER’S OR END USERS’ USE OF THIRD PARTY PRODUCTS, OUTPUTS AND CUSTOMER PROPERTY. VANTEDGE’S INDEMNIFICATION OBLIGATIONS DO NOT APPLY TO ALLEGATIONS ARISING FROM THIRD PARTY PRODUCTS, OUTPUTS, CUSTOMER DATA, CUSTOMER FACILITIES OR ANY CUSTOMER’S PROPERTY. THE PRODUCTS AND SERVICES DO NOT REPLACE THE NEED FOR THE CUSTOMER TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. VANTEDGE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

12. Export Restrictions.

Neither Customer nor any of its Users are listed under any Canadian economic sanctions law or regulation or owned or controlled by any such person. Customer will not allow access to the Products and Services other than in accordance with the terms of this Agreement. Customer will comply with all economic sanctions and export control laws and regulations under Applicable Law that may apply to its access to or use of the Products and Services. VantEdge makes no representation or warranty that the Products and Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.

13. Subcontracting.

VantEdge may engage third parties to provide the Products and Services or any part of it. The delegating or subcontracting of all or any part of VantEdge’s obligations under this Agreement to any subcontractor will not relieve VantEdge from any obligation or liability under this Agreement. VantEdge will, subject to any confidentiality provisions under this Agreement or otherwise upon Customer’s request, make available to Customer a list of VantEdge’s sub-processors who Process Customer Data to provide the Products and Services, together with a description of the nature of services provided by each sub-processor.

written description of the estimated impact and the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the Statement of Work will be effective, and VantEdge will perform the Services in accordance with the original Statement of Work.

11. Limitation of Liability.

NOTWITHSTANDING SECTION 6 (LIMITATION OF LIABILITY) OF THE MSA, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF VANTEDGE IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM OR APPLICABLE ORDER FORM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE PROFESSIONAL SERVICES UNDER THE SPECIFIC ORDER FORM OUT OF WHICH THE LIABILITY AROSE. EACH PARTY’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE MSA.

12. Disclaimers.

Without limiting Section 3(b) (Disclaimer) of the MSA: (a) VantEdge will have no liability for loss or recovery of data or programs or for Customer’s failure to properly back-up any data or programs; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Resources.

13. Fees and Expenses.

In consideration for the Professional Services or Deliverables performed or provided to Customer under this Professional Services Addendum, Customer will pay to VantEdge the Fees set out in each applicable Statement of Work. Unless otherwise agreed to by the parties in writing, VantEdge must receive all prepayment amounts listed in a Statement of Work before the commencement of any Professional Services thereunder. Any suspension of the Professional Services by VantEdge pursuant to the terms of the MSA including Section 7(a) of this Professional Services Addendum will not excuse Customer from its obligation to make payments under this Addendum or any Statement of Work. Customer agrees to pay all reasonable, pre-approved in writing, out-of-pocket expenses incurred by VantEdge in connection with performing Professional Services or delivering any Deliverables, including all reasonable travel expenses. Except as otherwise provided in the MSA, all Fees are non-refundable.

14. Survival.

Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Addendum, including Sections 11, 12, 13 and this Section 14 of this Addendum, will survive.