Master Services Agreement


Last updated: June 14, 2017

This iTMethods Master Services Agreement for Amazon Web Services (the “Agreement”) is entered into between iTMethods Inc., a Canadian corporation (“iTMethods”, “we”, “us” or “our”) with its administrative offices at 36 York Mills Road, Suite 110, Toronto, ON M2P 2E9, and the customer (“you” or “your”), who signs and submits a Statement of Work that incorporates this Master Services Agreement. This Master Services Agreement is effective as of the Statement of Work Effective Date (the “Effective Date”). We and you may be referred to collectively as the “parties” and individually as a “party”.

This Agreement consists of (1) this cover page, (2) the Terms of Service, which are attached hereto, (3) the applicable Statements of Work that incorporate this Agreement (4) the applicable Acceptable Use Policy, (5) the applicable Business Associate Agreement, (6) the iTMethods Service Level Agreement For Amazon Web Services (“AWS”) (“Service Level Agreement”), (7) the AWS Customer License Terms, (8) the AWS Customer Agreement and (9) any other documents incorporated or referenced in any of the foregoing. In the event of any conflict or inconsistency between the various documents forming part of this MSA, the following order of precedence shall apply: (a) the Statement(s) of Work; (b) the Clauses to this MSA; (c) other exhibits or attachments incorporated or referenced in the Agreement.

This Agreement constitutes the complete and final agreement and understanding between the parties with respect to the subject matter hereof (i.e. our provision to you of certain services and deliverables with respect to the services or systems provided through Amazon Web Services, Inc.) and supersedes and merges all prior and contemporaneous agreements, negotiations, and understandings between the parties, both oral and written, with respect to the subject matter hereof. Accordingly, any terms and conditions on or attached to your purchase orders shall be of no force or effect.

THIS AGREEMENT CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.

TERMS OF SERVICE

1.              Defined Terms. The capitalized terms used in this Agreement shall, unless the context requires otherwise, have the meaning specified on Exhibit A, which is attached hereto and incorporated herein by reference.

2.     Services.   

2.1            Managed Services. Subject to the terms and conditions of this Agreement, and at your request, we agree to provide the services and deliverables, with respect to the services or systems provided through AWS, as set forth in each applicable Statement of Work (“SOW”) (the “Managed Services”).

2.2            Additional Services. Subject to the terms and conditions of this Agreement, we may from time to time perform services in addition to the Managed Services including without limitation, for example, certain system administration services, customization of the Managed Services, data storage, excess data transfer, and/or any other professional or technical services (collectively, the “Additional Services”) which will be charged on an hourly fee basis or on a per unit fee basis, depending on the particular service. Such Additional Services will be performed upon your request but only if agreed to by us in an applicable Statement of Work or through a support ticket. In addition, we may perform Additional Services without your request or consent as otherwise provided in this Agreement, if such Additional Services are necessitated by a breach of this Agreement, including, without limitation, a breach of AWS’ Acceptable Use Policy (“AUP”) by you.

2.3            Denial and Suspension of Service. Without limiting any other right or remedy we may have, you agree that we may suspend Services to you without notice and without liability: (a) immediately if payment for any Services is overdue, (b) immediately if the event of any other breach of this Agreement by you, (c) immediately if any violation by you of the AWS Customer License Terms or the AWS Customer Agreement gives AWS the right to terminate or suspend your access to or use of the AWS systems or services, (d) immediately if (i) we or AWS believe, acting reasonably, that the Services are being used in violation of the AUP or (ii) if you fail to cooperate with any reasonable request we or AWS make in connection with any investigation by us or AWS of any suspected violation of the AUP, (e) immediately if there is a denial of service attack on your servers or other event for which we believe that the suspension of Services is necessary to protect our network, AWS’ network or our or AWS’ other customers, and/or (f) as requested by a law enforcement or a Governmental Authority. Information on AWS’ servers will be unavailable during a suspension of Services. If we suspend Services to you, such suspension shall be limited to the extent that we deem necessary to prevent continuation of the event causing such suspension. You agree to pay our then current reinstatement fee following a suspension of service.

3.        Support Policies.

3.1       Technical Support. We will, for the duration of any applicable Statement of Work, take such action as is required of us so that you receive the services to be provided by AWS, except to the extent such failure to act is attributable to your failure to act or your violation of the terms of the AWS Customer License Terms or the AWS Customer Agreement. When you believe that some component of the Managed Services is experiencing a problem, you agree to complete an online service ticket as a first step prior to contacting our Technical Support whenever possible.

3.2            Support Not Provided. We do not offer 24/7 training nor end-user support for any Services, nor 24/7 support for any application specific issues such as application programming, application performance tuning, html or any other such issues, unless specifically contracted for by you and agreed to by us in writing via an applicable Statement of Work. We do not provide technical support for Your Parties.

4.       Your Obligations.

4.1            Agreement to Abide by AWS Terms. By entering into this Agreement, you acknowledge your use of the AWS services when you engage us in the capacity of an AWS Channel Reseller is subject to the AWS Customer License Terms, a separate agreement between you and Amazon Web Services, Inc., a current version of which is located at http://aws.amazon.com/solutions/solution-providers/program/reseller/customerterms/. You will confirm your agreeing to such agreements by providing evidence to us that you have either clicked on said site to accept or by providing us with a signed agreement, with the AWS Customer License Terms attached. You also agree to abide by the AWS Customer Agreement, a current version of which is located at http://aws.amazon.com/agreement/ . You will confirm your agreeing to such agreement by providing evidence to us that you have clicked on said site to accept.

4.2            Reasonable Security Precautions and Acceptable Actions. Except as provided in the Service Level Agreement, notwithstanding anything contained in this Agreement to the contrary we shall have no liability or responsibility for any damages incurred by you due to a breach of security except to the extent such damages were caused by our gross negligence, willful misconduct (which does not include the willful misconduct of AWS),fraud or violation of applicable Law. We have no liability or responsibility for any damages caused by the acts, omissions or willful misconduct of AWS. You agree to use reasonable security precautions in connection with your use of the Services. You shall not take any action or install any software which may preclude or impair our ability to access AWS’ servers or perform the requested Services.

4.3            Your Data Back Up. Depending on the specific Services purchased by you, we may provide either partial or full Data backup services for you, or you may choose not to have us provide any Data backup services, on any or all of our dedicated servers, cloud servers, or cloud storage used by you. You acknowledge that servers and storage systems can and do fail and the risk of Data loss is always present when any Data is stored on a computer system of any kind, even with the security and reliability protections that we or AWS provide. You also acknowledge that Data backups in general do not always allow for restoration of Data due to the many inherent limitations when performing Data backups, and that our Data backup services may not always allow you to restore any or all of your Data in the event of a failure of any kind. For purposes of this Section 4.3, “Data” includes any software, content, and any other information stored on AWS’ servers by you or otherwise provided to us by you. Notwithstanding anything contained in this Agreement to the contrary, you agree that we shall have no liability for loss of any Data stored on AWS servers by you or otherwise provided to us by you, even if we are providing any type of Data backup services to you, except to the extent caused by our gross negligence or willful misconduct.

4.4            Compliance with Applicable Laws. You shall comply with all applicable Laws applicable to, and/or affecting your use of, the Services, and we shall not have any responsibility relating to you therefor including, without limitation, any responsibility to advise you of your responsibilities in complying with any Laws affecting your use of the Services.

4.5            Taxes. You shall be responsible for and shall pay (or shall reimburse us on demand), for any and all Taxes that are based on or levied in connection with us furnishing or provided the Services or your use of the Services, provided however, that (i) each party shall bear sole responsibility for all Taxes on such party’s own employees, capital and net income, and (ii) each party shall pay any applicable personal property taxes on property owned by such party. We may charge and you will pay all applicable Taxes that we are legally obligated to charge. You may provide us with an exemption certificate acceptable to the relevant taxing authorities, in which case we will not collect the Taxes covered by such certificate. You shall provide any information reasonably requested by us to determine whether we are required to collect VAT (value added tax) from you, including your VAT identification number. If any deduction or withholding is required by Law, you will notify us and you will pay any additional amounts necessary to ensure that the net amounts that we receive, after any deduction and withholdings, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. Notwithstanding any other provisions of this Agreement to the contrary: (a) we shall not be responsible for determining if any Taxes apply to the provision of the Services by us or use of the Services by You (hereinafter the “Applicable Taxes”) and you shall be solely responsible for determining the applicability of such Applicable Taxes, and collecting, remitting and reporting such Applicable Taxes; and (b) the Taxes described in clause (i) and (ii) in this Section 4.5 above shall not be included in the Applicable Taxes for purposes of clause (a) above.

4.6            Your Applications & Website. You acknowledge and agree that (a) your application software and website may have certain software or hardware dependencies in order to run properly in a managed hosting environment using our Service(s), (b) you are solely responsible for ensuring that your applications and/or website will function properly on our Service(s) using the hardware and software supported by us, including that of AWS, prior to contracting with us, and (c) we have no obligation to assist or ensure that your applications or website functions properly on our Service(s), unless agreed to in writing by us in a Statement of Work or through a support ticket. You shall be solely responsible for any cost or effort to change or modify your applications or website to function properly on our Service(s), and your inability to have your applications or website function properly using our Service(s) shall not relieve you of any of your obligations under this Agreement, unless other arrangements have been made between you and us in a Statement of Work or through an applicable agreed upon support ticket.

4.7            Unauthorized Use of Service. While we may provide security services to you, except as set forth in the first sentence of Section 4.2 above, you are solely responsible for the security of the Services provided pursuant to this Agreement, and we agree only to perform the specific security services described in the Order Form or Statement of Work, and/or any other portion of the Agreement. You shall be responsible for any unauthorized use of the Services by any person, and shall pay all fees incurred for your account by any person using the Services, unless such unauthorized use was (a) because of a security breach that occurred when a component of our Security Environment that you had contracted for was unavailable which would have, under normal operating practices, protected you from said security breach, or (b) due to willful misconduct on our part.

4.8            Acceptable Use Policy (AUP). You acknowledge that you have read the AUP and have agreed to comply with the AUP, as it may be modified from time to time by AWS. We have no obligation to inform you of any changes in the AUP.

4.9            Notices, Restrictions and Third Party Terms. You agree not to remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software and/or Services provided by us. Subject to applicable Law, you may not reverse engineer, decompile, or disassemble any of our provided software. In addition to the terms and conditions imposed by AWS, you acknowledge that the Services may be subject to terms and conditions imposed by other third parties which are set forth on our web site or are otherwise provided to you. You agree to be bound by, and to comply with, any such third party terms and conditions, as such terms and conditions may be changed from time to time. Without limiting the foregoing, if the applicable Statement of Work or Order Form indicates that we use Microsoft software to provide the applicable Services, you agree to the applicable customer License Terms for Microsoft software published by Microsoft Corporation.

4.10         Third Party Products. As a convenience to you, we may from time to time arrange for your purchase or license of third party software, services, and other products not included as part of the Service, and/or may provide support to you in relation to those products. Your use of third party software, services, and other products is governed by the terms of any license or other agreement between you and the third party.

5.       Fees.

5.1            Managed Services. You shall pay to us the annual subscription fees and / or ongoing monthly fees and one-time set up fees due under each applicable Statement of Work.

5.2            Additional Services. You shall pay us any fees due for Additional Services (subject to the provisions of Section 2.2 above), reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees at, as applicable, our standard hourly rates or fixed fees in effect at the time the applicable service(s) is performed.

5.3            Other Fees; Change in Subscription Software. We may provide software to you on a monthly or other basis (the “Subscription Software”) such as Microsoft Windows Server 2012 from Microsoft among others (the “Subscription Software Vendors”). By utilizing any Subscription Software provided by us, you agree to utilize such Subscription Software according to such Subscription Software Vendor’s licensing terms and conditions. Should a Subscription Software Vendor change its Subscription Software products, business model, licensing terms, fees to us, you agree that (a) we may modify the Subscription Software we can provide to you and how we can provide it to you and (b) we may revise our Subscription Software offerings and our fees to you with 30 days notice to you. Should you not agree to our revised Subscription Software offerings, fees or costs, you may terminate your use of such Subscription Software according to the terms of this Agreement or the applicable SOW.

5.4            Invoicing and Payment. Unless otherwise stated in writing from us, you agree to be billed monthly for all fees and expenses, and we shall provide you with a monthly invoice for your fees and expenses incurred each month. Our first invoice shall include set up fees and a prorated portion of the monthly recurring fee from the Service Commencement Date to the last day of the calendar month. We require payment in full of the applicable first month’s fees and all setup fees before beginning any Service. Following the Service Commencement Date, monthly recurring fees will be invoiced at or near the end of each month, approximately 3-7 Business Days after the close of the monthly billing cycle by AWS, and said charges are due upon receipt. Invoices for Additional Services, reinstatement of service, switching and upgrade fees and other recurring and non-recurring fees, if any, are due upon receipt and shall be invoiced immediately following the month they were incurred. Payments must be made in the appropriate currency as detailed in each invoice. All AWS Resell (AWS services resold by iTMethods to “you”) are in United States dollars. Credits due under the Service Level Agreement may be given, at our option, against the invoice for the month in which the event(s) occurred or the invoice for the following month. Except as otherwise expressly provided in this Agreement, all fees and charges are non-refundable.

5.5            Collection. You will reimburse us for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts. You agree to pay our reasonable costs of collection of overdue amounts, including collection agency fees, attorney’s fees, arbitration fees, arbitration costs, and court costs. Disputes as to the accuracy of an invoice must be presented in writing to us by you within thirty (30) days of the date of the invoice, and invoices that are not so disputed within such thirty day time period are conclusively deemed accurate and accepted. You understand that AWS’ invoicing and billing methods are complicated and lengthy. You agree not to withhold payment to us as it relates to any charges billed by us for AWS’ services, and you agree to pay us the amounts billed by us to you for the AWS services that we resell to you. In the event you believe there is an error in AWS’ charges, you and us will work cooperatively with AWS to attempt to correct any billing errors, but you may not withhold any payments to us, including payments for AWS’ services, should such a scenario occur.

6.     Term and Termination.

6.1            Term. The term of this Agreement shall commence on the Effective Date and shall continue for the term specified in any applicable Order Form or Statement of Work; subject, however, to renewal or earlier termination as hereinafter provided. Upon the expiration of the initial term and each renewal term, the term of this Agreement shall be renewed for successive periods equal to the initial period set forth on the applicable Order Form or Statement of Work unless one party gives the other party notice of its intention that the term of this Agreement not renew at least thirty (30) days before the expiration of the then-current term.

6.2            Termination by You. You may terminate this Agreement by giving notice of termination to us if we fail in a material way to provide the Managed Services in accordance with the terms of this Agreement and do not cure the failure within thirty (30) days after your written notice describing the failure in reasonable detail. You may also terminate this Agreement immediately by giving written notice to us, (a) if we voluntarily file a petition for relief under the Bankruptcy and Insolvency Act, (b) if an order for relief under the Bankruptcy and Insolvency Act is entered against us following the filing of an involuntary petition for relief under the Bankruptcy and Insolvency Act against us, (c) if such an involuntary petition is filed against us and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if we make an assignment for the benefit of our creditors, (e) if a receiver is appointed for us or any of our assets, or (f) if any of our assets are attached or foreclosed.

6.3            Termination by Us. We may terminate this Agreement by giving notice to you if you fail to pay any amounts due hereunder, and such termination shall be effective on the date set forth in such notice. We may also terminate this Agreement by giving notice to you if you breach any other provision of this Agreement (a breach other than failing to pay any amounts due hereunder) and fail to cure such breach within thirty (30) days after notice thereof is given to you by us, and such termination shall be effective on the date set forth in such notice. We may also terminate this Agreement immediately if you violate the AWS Customer Service License or the AWS Customer Agreement, and such violation gives AWS the right to terminate your access to or use of the AWS systems or services. We may also terminate this Agreement immediately by giving notice to you (a) if you voluntarily file a petition for relief under the Bankruptcy and Insolvency Act, (b) if an order for relief under the Bankruptcy and Insolvency Act is entered against you following the filing of an involuntary petition for relief under the Bankruptcy and Insolvency Act against you, (c) if such an involuntary petition is filed against you and the proceeding initiated by such filing is not terminated within sixty (60) days after the day on which such an involuntary petition is filed, (d) if you make an assignment for the benefit of your creditors, (e) if a receiver is appointed for you or any of your assets, (f) if any of your assets are attached or foreclosed, (g) if we believe, acting reasonably, that you are in violation of, or have violated, the AUP and said violation is not cured within the timeframes to cure said violations contained or described in the AUP, and/or (h) if we reasonably believe that you are infringing the intellectual property rights of others or are aiding or threatening such infringement. In addition, if we are faced with a claim that the Services provided by us infringe on the intellectual property rights of a third party, and we are not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, we may terminate this Agreement by giving at least sixty (60) days prior notice to you, and will not have any liability on account of such termination, except to refund amounts paid for Services not used as of the time of termination. Our termination rights provided in this Section 6.3 are in addition to any other rights and remedies available at law or in equity.

6.4            Obligations Upon Termination. Upon the expiration or earlier termination of this Agreement for any reason, you agree (a) to immediately cease using all Services, (b) to promptly release any Internet protocol numbers, addresses or address blocks assigned to you in connection with the Service (but not any URL or top level domain or domain name), (c) for your owned AWS accounts where we provide Services, disable IAM access for all of our user(s)/group(s)/role(s) related to your account, disable federated or direct access to your systems and delete such access after 5 days and (d) that we may take steps to change or remove any such IP addresses. Subject to applicable Laws, we may delete and otherwise destroy all of your provided software and data at any time within three (3) days after the expiration or earlier termination of this Agreement. However, if you request the return of any of your provided data or software by giving notice thereof to us on or before the expiration or earlier termination of this Agreement or within two (2) days after the expiration or earlier termination of this Agreement, then, subject to your compliance with the provisions of this Section 6.4, we will use reasonable efforts to deliver to you any of your provided data and/or software then in our possession. You will be responsible for all costs incurred by us in connection therewith and for fees for any time spent by us related thereto, which fees will be billable system administration hours, shipping costs, and data storage media (computer disks or magnetic tapes, for example), if applicable, and you will prepay us for our estimated amount of such costs and fees upon our request.

7       Warranties, Disclaimer and Limitations of Liability.

7.1            General. Each party represents and warrants to the other party that (a) such party has all necessary corporate power, business licenses, authority and capacity to enter into this Agreement and to perform and fulfill each of such party’s obligations hereunder, (b) such party shall exercise its rights and perform its obligations under this Agreement in accordance with all applicable Laws, (c) there is no outstanding claim, litigation, proceeding, arbitration, investigation or material controversy to which such party is a party that would reasonably be expected to have a material adverse effect on such party’s ability to enter into this Agreement or perform any of its material obligations hereunder, (d) such party’s execution, delivery and performance of its obligations under this Agreement does not and will not violate any judgment, order or decree and does not and will not constitute a material default under any of its existing contracts, and (e) the execution, delivery and performance of this Agreement by such party have been duly authorized by all necessary corporate or limited liability company action, and this Agreement constitutes a legally valid and binding obligation of such party enforceable against it in accordance with its terms except as such enforcement may be limited by applicable Law.

7.2            Disclaimer. All Services and any third party products are provided to you on an “AS IS, AS AVAILABLE” basis. Notwithstanding anything contained in this Agreement to the contrary, except as set forth in the first sentence of Section 4.2 or the last sentence of Section 4.3, we make no representations or warranties relating to any Services or any third party products including, without limitation, any warranties that (a) the Services or third party products shall meet your requirements, (b) the operation of the Services or third party products will be uninterrupted, error free or secure, or (c) any or all defects in the Services or third party products will be corrected. We also make no representations, warranties or guarantees to you with respect to the specifications, features or capabilities of any services, products or systems provided by AWS, including but not limited to the Authorized AWS Services. Further, and notwithstanding anything contained in this Agreement to the contrary, you acknowledge that there are risks inherent in operating computer servers and Internet connectivity that could result in the loss of your privacy, confidential information, and property and that, to the extent permitted by applicable Law, such risks shall be borne solely by you.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE HEREBY DISCLAIM ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AVAILABILITY, SECURITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS. IN ADDITION AND UNLESS OTHERWISE PROVIDED FOR IN THE BUSINESS ASSOCIATE AGREEMENT (IF ANY), WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND THAT YOU WILL BE HIPAA COMPLIANT BY UTILIZING OUR SERVICES, AND IT IS YOUR SOLE RESPONSIBILITY TO ASSURE THAT YOU TAKE APPROPRIATE STEPS TO ACHIEVE COMPLIANCE WITH YOUR HIPAA OBLIGATIONS. WE FURTHER DISCLAIM ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT WITH RESPECT TO ANY AND ALL SERVICES AND ALL THIRD PARTY PRODUCTS. FOR THE AVOIDANCE OF DOUBT, NOTHING IN THIS SECTION 7.2 SHALL LIMIT OUR OBLIGATION TO CREDIT YOU ANY AMOUNTS THAT MAY BE DUE UNDER THE SERVICE LEVEL AGREEMENT.

7.3            Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE SOW(S), THE SERVICE LEVEL AGREEMENT, ANY BUSINESS ASSOCIATE AGREEMENT, THE AWS AGREEMENTS OR OTHERWISE (COLLECTIVELY THE “SECTION 7.3 AGREEMENTS”), THE PARTIES AGREE AS FOLLOWS:

1.     IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT AND/OR ANY SERVICES, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2.     EXCEPT ANY SERVICE LEVEL CREDITS GRANTED PURSUANT TO THE SERVICE LEVEL AGREEMENT, IN NO EVENT WILL WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES OR SUPPLIERS BE LIABLE FOR (A) THE COST OF COVER OF SUBSTITUTE SERVICES, (B) ANY DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, BUSINESS INTERRUPTION, A BREACH OF SECURITY IN RESPECT OF ANY OF THE SERVICES, AND/OR THE LOSS, DELAY OR INABILITY TO USE ANY SERVICES, AND/OR (C) THE LOSS OF ANY DATA, ANY INFORMATION, SOFTWARE, PRODUCTS, AND/OR SERVICES CAUSED BY THE SERVICES INCLUDING, WITHOUT LIMITATION, THE COST OF RECREATING LOST DATA.

3.     IN ALL EVENTS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR CLAIMS RELATING TO THE SECTION 7.3 AGREEMENTS AND ANY AND ALL SERVICES, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, IN TORT, STRICT LIABILITY, MISPREPRESENTATIONS, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO US HEREUNDER SPECIFICALLY FOR OUR MANAGED SERVICES, EXCLUDING ANY SERVICES PROVIDED BY AWS, DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM (WHETHER OR NOT SUCH FEE WAS PAID BY YOU). IN ANY JURISDICTION IN WHICH THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7.3 ARE RESTRICTED, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN THE EVENT OF A CONFLICT BETWEEN THE PROVISIONS OF THIS SECTION 7.3 AND THE PROVISIONS OF SECTION 8, THE PROVISIONS OF THIS SECTION 7.3 SHALL GOVERN AND CONTROL.

7.4            Risk Allocation. The provisions of this Section 7 represent a reasonable allocation of the risks under this Agreement. Our willingness to enter into this Agreement and provide the Services contemplated by this Agreement reflects this allocation of risk and the limitations of liability specified herein.

8.     Indemnification. Subject to the terms and conditions of this Agreement, we agree to indemnify and hold you and your officers, directors, attorneys, agents, and employees (each a “Section 8 Indemnified Party”) harmless from and against any and all Claims and Costs that any Section 8 Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to a breach of this Agreement by us. Subject to the terms and conditions of this Agreement including but not limited to Section 7.3, you agree to indemnify and hold us, our parents, subsidiaries, and affiliates and each of their respective officers, directors, attorneys, agents, and employees (each an “Indemnified Party”) harmless from and against any and all Claims and Costs that any Indemnified Party may incur or may be subject under any theory of legal liability to the extent arising out of or related to (a) the actual or alleged use of the Services in violation of, or by any allegation which, if true, would constitute a violation of, (i) the AUP, and/or (ii) any applicable Law, in each instance by any person regardless of whether such person has been authorized to use the Services by you, (b) any dispute regarding the control of your account with us, including but not limited to a dispute which may arise if you are split in two or more divisions, or a reorganization or spin off of you occurs, etc., and/or (c) a breach of this Agreement by you, or by any allegation which, if true, would constitute a breach of this Agreement by you and/or (d) a breach or violation of the AWS Customer License Terms and/or the AWS Customer Agreement by you, or by any allegation which, if true, would constitute a breach of the AWS Customer License Terms or the AWS Customer Agreement by you, and/or (d) your use of AWS services, systems or servers.

9.     Confidentiality.

9.1            Definition of Confidential Information. The term “Confidential Information” means, subject to the further provisions of this Section 9.1 and to Section 9.2 below, any and all nonpublic information, in any form or medium, tangible or intangible and whether communicated by or on behalf of one party (each a “Disclosing Party”) to the other party (each a “Receiving Party”) that (i) if disclosed in tangible form, is conspicuously marked or otherwise designated “confidential” to the Receiving Party, or (ii) if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure. In all events, Our Trade Secrets and all Feedback (as defined in Section 10.1 below) shall be considered our Confidential Information.

9.2            Exclusions. The term “Confidential Information” does not include information, however designated, that (a) is or subsequently becomes generally known or available by publication, commercial use or otherwise without the Receiving Party’s breach of any obligation owed to the Disclosing Party, (b) is known to the Receiving Party prior to the Disclosing Party’s disclosure of such information to the Receiving Party without any restriction on the Receiving Party’s further use or disclosure, (c) becomes known to the Receiving Party from a source other than the Disclosing Party without any restriction on the Receiving Party’s further use or disclosure and other than by the breach of an obligation of confidentiality owed to the Disclosing Party, and/or (d) is independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information.

9.3            General Obligations. Subject to the further provisions of this Section 9.3 and to Section 9.4 below, the Receiving Party agrees that during the term of this Agreement and for a period of three (3) years thereafter it will (a) refrain from disclosing any Confidential Information of the Disclosing Party, (b) take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party, and (c) refrain from using the Confidential Information of the Disclosing Party except in furtherance of its obligations under this Agreement or as necessary to exercise the rights granted to it under this Agreement; provided, however, that your obligations under this Section 9.3 shall continue indefinitely beyond such three (3) year period with respect to Our Trade Secrets until such time as Our Trade Secrets no longer constitute trade secrets under applicable Law. We may disclose your Confidential Information to our service providers, agents and representatives who are bound by confidentiality restrictions at least as restrictive as those stated in the Agreement. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information or other information regarding a party or a party’s customers or end users shall not be prohibited to the extent such disclosure: (a) is in response to a valid order of a Governmental Authority (i.e. a subpoena in a civil action), provided however, that the Receiving Party shall, if permitted by applicable Law, promptly give notice to the Disclosing Party of such order to allow the Disclosing Party the opportunity to obtain a protective order or other appropriate remedy, at the Disclosing Party’s expense and/or waive compliance with the provisions of Section 9 of this Agreement with respect to such disclosure, or (b) is otherwise required to be disclosed by applicable Law.

9.4            Requests for Your Information. Notwithstanding anything contained in this Agreement to the contrary, we may, upon notice to you (unless such notice is prohibited by applicable Law), (a) report to the appropriate authorities any conduct by you or any of your customers that we believe violates applicable Law, and (b) subject to the provisions of the last sentence of Section 9.3, provide any information, including Confidential Information, we have about you or any of your customers in response to a formal request from a law enforcement or Governmental Authority.

10.   Ownership.

10.1         General. Subject to the further provisions of this Section 10.1, each party acknowledges and agrees that: (i) nothing in this Agreement transfers ownership in any of such party’s Confidential Information, trade secrets, inventions, copyrights, and other intellectual property to the other party and (ii) each party owns their respective intellectual property. We acknowledge that you own, and shall continue to own, any and all data and content which you store with AWS, and nothing in this Agreement shall transfer ownership of your data or content to us or AWS. You acknowledge and agree that (a) we own, and shall continue to own any and all intellectual property (including, without limitation, all of Our Trade Secrets) that we may utilize or develop in the course of performing the Services, and (b) you do not acquire any ownership interest or rights to possess our property or AWS’ property, and you do not have any right of physical access to the facilities or computer equipment where your AWS services run. You agree not to contest any our copyright, patent, trademark of other intellectual property rights relating to the Services. To the extent that you provide any comments, instructions, suggestions, information, and/or other feedback to us respecting any Services and/or otherwise (collectively, “Feedback”), such Feedback shall be owned exclusively by us. To the extent you have or obtain any intellectual property rights in or to any Feedback, you shall be deemed to assign all right, title and interest therein, if any, to us as of the date such right first vests in you.

10.2         Our Trade Secrets. You acknowledge and agree that in the course of providing Managed Services to you, we may disclose (or you may otherwise learn) one or more of Our Trade Secrets. For example, in the course of providing Managed Services to you, we may give you, as applicable, full (a) “Root access” (for Linux), and/or (b) “Admin access” (for Windows), in each instance to our software and hardware. You further acknowledge and agree that in the course of such access, you may gain access to, and knowledge of, certain tools, methods and techniques used by us to deliver our uniquely high levels of performance, security, cost-effectiveness, and reliability with respect to the Managed Services and otherwise (all of such tools, methods and techniques shall be referred to collectively herein as “Our Managed Hosting Tools”). Without limiting the generality of Section 9 above, you further acknowledge and agree that Our Managed Hosting Tools and all other of Our Designated Trade Secrets (x) are not generally known to, and are not readily ascertainable by proper means by, you or by third parties, (y) derive independent economic value to us from not being generally known to, and not being readily ascertainable by proper means by, you or by third parties, and (z) are the subject substantial efforts by us to maintain their confidential nature. You further acknowledge and agree that third parties would obtain economic value from the disclosure of Our Designated Trade Secrets to them. You acknowledge and agree that all Our Designated Trade Secrets constitute our trade secrets under applicable Law and agree not to contest their status as trade secrets.

11.   Miscellaneous.

11.1         Our Use of Your Name. We may publicly disclose that we are providing services to you and may include your name and other identifying information in promotional materials, including press releases and on our web site.

11.2         Amendment. This Agreement may not be changed, modified, amended, rescinded, canceled or waived, in whole or in part, except pursuant to a writing signed by the parties. Accordingly, no course of conduct shall constitute an amendment hereto.

11.3         Governing Law/Arbitration. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the Province of Ontario and the federal laws of Canada, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. The parties will attempt in good faith to resolve any disputes under this Agreement. Each party will designate an officer with the responsibility and the authority to resolve the dispute. These officers will meet within fifteen (15) days after the request to identify the scope of the dispute and the information needed to discuss and attempt to resolve such dispute. These officers will then gather relevant information regarding the dispute and will meet to discuss the issues and to negotiate in good faith to resolve that issue. If the parties are unable to resolve the dispute within thirty (30) days after the specific meeting of the designated officers as specified above (or such longer time as the parties agree), then except as set forth herein, the dispute will be resolved by binding arbitration under the terms of this Section 11.3. Such arbitration will be conducted in Toronto, Ontario in accordance with the rules then in effect of the Canadian Arbitration Association by an arbitrator who (a) has substantial data processing and/or information technology experience and (b) is appointed in accordance with such rules (or is mutually agreed upon by the parties). The arbitration, while subject to the rules of the Canadian Arbitration Association, does not have to be administered by the Canadian Arbitration Association (unless both parties mutually agree to it). The award rendered by the arbitrator will be final and binding, and judgment may be entered upon it in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators. Additionally, except as provided in the last paragraph of this Section 11.3, if either party brings any action for judicial relief in the first instance without pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the other party’s costs and expenses (including, without limitation, court costs and attorneys’ fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder shall not operate as a waiver of any of those rights. This Agreement concerns transactions involving commerce among the several states. The arbitrators will not be empowered to award punitive damages. If this Agreement is found not to be subject to arbitration, the parties knowingly and willingly waive any right they have under applicable Law to a trial by jury in any dispute arising out of or in any way related to this Agreement or the issues raised by that dispute.

Notwithstanding anything contained in this Agreement to the contrary including the preceding provisions of Section 11.3, (i) we may bring any action against you with respect to the collection of outstanding payment obligations (the “Section 11.3 Matters”) in the provincial courts sitting in Toronto, Ontario without any requirement or obligation to utilize the provisions referenced in the first paragraph of Section 11.3 above and (ii) the parties consent to exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts). Each party irrevocably waives any and all rights to a trial by jury in any legal proceeding arising out of or related to the Section 11.3 Matters.

11.4         Survival. Each provision of this Agreement that would by its nature or terms survive any termination of this Agreement shall survive the expiration or earlier termination of this Agreement, regardless of the cause. Such provisions include, without limitation, Sections 4, 5, 6.4, 6.5, 7.3, 7.4, 8, 9, 10, and this Section 11. Any action of any kind arising out of or in any way connected with this Agreement, other than collection of outstanding payment obligations by us, shall be barred unless such action is commenced within two (2) years of the date upon which the cause of action accrues.

11.5         Notices and Your Contact. All notices given hereunder including, without limitation, notices of address change shall be given in English and in writing. Notices by you to us under the Agreement shall be entered into our Ticketing System. Notices by us to you shall be given via electronic mail to any one or more of the individuals who are listed on Page 1 of this Agreement, entered into our Supporting Ticketing System, or by other means reasonable under the circumstances, including an e-mail to a known contact. Any notices given in accordance with this Section 11.5 shall be deemed given on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered. Notices given by email to you shall be deemed delivered on the date they are sent, whether or not that day is a Business Day. Upon notice by a party to the other party in accordance with the provisions of this Section 11.5, such party may change its notice address.

11.6         Force Majeure. Neither party shall be responsible or liable for any damages, delays, or other failures to fulfill its obligations hereunder as a result of events or circumstances beyond its reasonable control including, without limitation, delays due to third party vendors, war, fire, strike, riot or insurrection, natural disaster, delay of carriers, governmental order or regulation, complete or partial shutdown of plant, unavailability of materials or equipment from suppliers, failures or blackouts, labor disputes, and/or other occurrences whether or not similar to those listed above.

11.7         Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by you (whether by operation of law or otherwise) without our prior written consent, whose consent shall not be unreasonably withheld. We may assign this Agreement without the consent of you, in whole or in part. For the avoidance of doubt, we may, in our sole discretion, delegate performance of all or any part of our obligations hereunder to subcontractors or independent consultants of our choosing. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

11.8         Construction. All captions contained in this Agreement are for convenience only and shall not be deemed to be part of this Agreement. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement. Each party has substantially participated in the drafting and negotiation of this Agreement, and no provision hereof shall be construed against either party by virtue of the fact that such provision was drafted by such party. All defined terms used in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. Use of the terms “hereunder”, “herein”, “hereby”, and similar terms refer to this Agreement.

11.9         Relationship of Parties. Each party is acting only as an independent contractor and assumes full responsibility for each of such party’s employees and shall be solely responsible for the payment of compensation to such party’s personnel. This Agreement does not constitute either party hereto as the agent or legal representative of the other party and does not create a partnership or joint venture between them. For the avoidance of doubt, this Agreement is non-exclusive. We may provide service to any person or entity, including any competitor of yours.

11.10       Severability. If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefore another provision that is legal and enforceable and achieves the same objective. If the remainder of this Agreement shall not be affected by such declaration or finding and is capable of substantial performance, then, each provision not so affected shall be enforced to the extent permitted by Law.

11.11       Waiver. A party’s failure to enforce any provision or provisions of this Agreement shall not in any way be construed as a “course of dealing” or a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. No waiver shall be binding upon a party unless it is in writing and signed by such party. Such waiver shall apply only to the specific default or the instance specified, and a waiver of any default shall not waive any other default, whether or not similar to the default waived. The rights granted the parties are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party’s right to assert all other legal remedies available to such party under the circumstances.

11.12       Cumulative Remedies. Except as expressly provided herein (including, without limitation, the Service Level Agreement), no right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.

11.13       Availability of Equitable Relief. The parties acknowledge and agree that noncompliance with the terms of this Agreement may cause irreparable injury to the other party for which the other party will have not an adequate remedy at law, and that the other party shall therefore be entitled to apply to a court for extraordinary relief, including but not limited to temporary restraining orders, preliminary injunctions, permanent injunctions, or decrees of specific performance. Subject to the provisions of this Agreement, nothing contained in this Section 11.13 shall prohibit either party from pursuing any other legal or equitable remedy available to it.

11.14       Non-solicitation. For the term of this Agreement and thereafter for a period of one (1) year, neither you nor us will directly or indirectly solicit to hire, employ, contract with or engage the services of any of the other’s employees performing duties related to this Agreement or with whom you or us have had direct contact. This provision shall not restrict in any way your or our right to solicit or recruit generally in the media or on the Internet, but shall prohibit you and us from hiring, employing or engaging the other’s employees who answers any advertisement or who would otherwise voluntary apply for hire without having been personally solicited or recruited by you or us. If you or we breach the provisions of this Section 11.14 (the “Breaching Party”), in addition to any other right the other party may have at law or in equity, the Breaching Party shall make a one-time payment to other party in the amount of fifty percent (50%) of the employee’s base salary for one year. If any court or arbitrator determines that the foregoing provisions are unenforceable because of its duration or scope, the court or arbitrator has the power to reduce the duration or scope of the provisions, as the case may be, so that in its reduced form the provisions are enforceable. Such power includes the authority to reform these provisions by rewriting them, if required, so that they conform with applicable Law and carry out your and our intentions under this Agreement.

11.15       Import and Export Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control Laws, including the Export and Import Controls, Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.

11.16       No Third Party Beneficiaries. Nothing in this Agreement shall confer upon any person or entity other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.

11.17       Data Encryption. If you or any of Your Parties transmit to, maintain or store on Applicable Servers any Protected Information, you acknowledge and agree that (i) our Services provided hereunder do not involve any use or disclosure of Protected Information to us and that we do not need access to, and agree not to access (except as may be required in order for us to perform the Services for you), Protected Information to provide the Services hereunder, (ii) upon commencement of this Agreement, you shall notify us in writing of the specific location(s) and application(s) on Your Protected Information Locations and throughout the term of this Agreement shall also immediately notify us in writing of any changes to Your Protected Information Locations, and (iii) at all times during the term of this Agreement, neither You nor any of Your Parties shall store or maintain any Protected Information on any Applicable Server without obtaining our prior written consent as to the specific Your Protected Information Location where such Protected Information will be stored or maintained.

You also agree that: (a) You shall, and shall ensure that Your Parties at all times shall, transmit to, maintain and store any Protected Information on Applicable Servers only in an encrypted format, which encryption shall at all times comply with applicable standards issued by the DHHS with respect to PHI, Payment Card Industry Data Security Standards with respect to Cardholder Data and all other applicable legal and any regulatory authority issued requirements and Laws regarding any data which constitutes Protected Information under this Agreement to render the foregoing Protected Information unusable, unreadable or indecipherable to unauthorized individuals, (b) You shall ensure that Your Parties maintain security of their account information, and that any Protected Information entered by any of Your Parties on Applicable Servers shall be encrypted in the manner described in subsection (a) of Section 11.17 above, it being agreed that you shall be liable for any failure of Your Parties to comply with such requirements as specified herein, (c) You shall at all times comply with the requirements of the HIPAA, Payment Card Industry Data Security Standards and any data privacy and security and other applicable Laws related to Protected Information and shall ensure that Your Parties shall at all times comply with such requirements and Laws, (d) You shall at all times utilize, at your cost, all appropriate security measures which are offered or recommended by us in order to safeguard Protected Information and shall ensure that Your Parties utilize such measures, (e) while you may request assistance from us to setup encryption for the Protected Information to be transmitted to, maintained or stored on Applicable Servers, you are solely responsible to ensure that said Protected Information is encrypted at all times consistent with the requirements set forth herein; and (f) You shall not and shall ensure that Your Parties shall not at any time (1) transmit to, maintain or store on Applicable Servers any Protected Information in unencrypted form, causing such Protected Information to be considered unsecured or otherwise usable, readable or decipherable to unauthorized individuals, (2) disclose or provide access to us any encryption key(s) or process that may be used to unencrypt the encrypted Protected Information, or (3) provide access to us to any application(s) residing on AWS which stores Protected Information except as required by us to provide the Services. Notwithstanding subsection (d) of this paragraph, you may choose not to implement certain security measures which are offered or recommended by us in order to safeguard Protected Information, all subject to your indemnification obligations to us set forth below in this Section 11.17.

Notwithstanding any other provision of this Agreement, you agree that if (i) you breach this Section 11.17 or are alleged to have breached this Section 11.17 (including, without limitation, any failure or alleged failure by you or Your Parties to encrypt any

Protected Information transmitted to or stored or maintained on Applicable Servers consistent with the standards specified in this Section 11.17) or if you choose not to implement certain security measures which are offered or recommended by us in order to safeguard Protected Information as provided above (collectively, “Breach”), and (ii) such Breach or alleged Breach by you or Your Parties subjects us to compliance with any Laws or to any Claims and Costs including, without limitation, claims related to any incident of such unencrypted Protected Information being or potentially being accessed or acquired by any unauthorized person, you shall be solely responsible for all Claims and Costs incurred by us resulting therefrom and shall hold harmless, defend and indemnify us for any and all Claims and Costs associated with or arising out of such Breach or alleged Breach. The provisions of this Section 11.17 only apply if you, yourself or through any of Your Parties, transmit to, maintain or store any Protected Information on Applicable Servers.

If you are planning to store with AWS and PHI, then we and you agree to sign a Business Associate Agreement (“BAA”) on mutually agreeable terms that is in compliance with applicable Laws if you and we have not previously signed a BAA; or if you and we have previously signed a BAA, then you and we agree to amend the BAA as necessary to be in compliance with applicable Laws, and you agree that you or we will sign a BAA with AWS as well.

If you are not planning to store PHI with AWS, then you hereby represent, warrant and covenant to us that prior to storing PHI with AWS or providing us with access to PHI in the future, you will (i) notify us of your desire to store PHI with AWS or provide us access to PHI and (ii) the parties shall sign a BAA on mutually agreeable terms and (iii) you or we will sign a BAA with AWS prior to you storing PHI with AWS or providing us with access to PHI


ITMETHODS SERVICE LEVEL AGREEMENT (SLA) FOR AMAZON WEB SERVICES (AWS)

iTMethods Inc. (“we”, “iTMethods”, “us” or “our”) offers a Service Level Credit (“SLC”) to you should we not meet our strict standards for reliability, security and support.

100% Secure Guarantee

Because we have created what we believe is the world’s most secure managed hosting services for AWS, we will guarantee that if an AWS EC2 Instance is protected by our Managed Services, (a) such instance will not get hacked or compromised, and (b) if such instance gets hacked or compromised, we will refund to you 5% of the monthly iTMethods Managed Services fees for the hacked or compromised instance for each 30 minutes of downtime associated with correcting the security issue (up to 100% of your monthly iTMethods Managed Services fees for the affected instance). Downtime shall be measured from the time you open a trouble ticket and such time as the security issue is contained, isolated, corrected or resolved. This guarantee shall only apply so long as you do not disrupt or disable any of our security features, nor take any action or allow any action to be taken which compromises the security of the instance.

100% Data Backup Guarantee

We will guarantee that if an instance of yours, and its EBS data, is protected by our Managed Services and being backed up by us, (a) any data backups we take will be restorable to the condition that it was backed up, and (b) if such instance’s data backup is not restorable to what was backed up, we will refund to you 100% of the monthly iTMethods Managed Services fees (for that month) for the instance whose data backup was not restorable to its backed up condition. This guarantee shall only apply so long as you do not disrupt or disable any of our data backup capabilities, nor take any action or allow any action to be taken which compromises our ability to perform data backups. Should iTMethods restore backed up data to its prior state, which happened to be corrupted or unusable prior to us backing it up, then this guarantee shall not apply.

AWS SLA Guarantees

As part of our services to you, we agree to pass on to you any service credits paid to us by AWS for your use of AWS’ services which fell below AWS’ service level guarantees.

To receive a SLC for this guarantee, you must open an iTMethods Support Ticket requesting a SLC within 45 days of the incident in question. WE AND YOU AGREE THAT ANY SLC IS OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY US TO MEET THE SERVICE LEVELS SET


EXHIBIT A – iTMethods Managed AWS – TERMS OF SERVICE

Each of the following terms shall have the respective meaning set forth below for purposes of the iTMethods Managed AWS -Terms of Service, whether employed in the singular or plural, unless the particular context in which a term is used clearly indicates otherwise:

“Affiliate” means, with respect to a party, any person or entity that now or hereafter, directly or indirectly controls, is controlled by, or is under common control with, such party. The term “control”, and its variations, for purposes of this definition, means the possession, direct or indirect, of the power to direct or cause the direction of the management of the subject entity, whether through the ownership of voting securities, by contract or otherwise.

“Applicable Servers” means any physical or virtual information systems housed remotely at your location, remotely at a third-party’s location(s), or within AWS’ facilities which may be used by you or Your Parties to transmit to, maintain, store, use or access Protected Information.

“AUP” means AWS’ Acceptable Use Policy, which is currently available at http://aws.amazon.com/aup, as it may be updated by AWS from time to time.

AWS” means Amazon Web Services, Inc., or its successors and assigns.

AWS Resell” means Amazon Web Services, Inc., or its successors and assigns that are resold by iTMethods to “you”.

“AWS Agreements” means the AWS Customer License Terms and the AWS Customer Agreement.

“Business Associate Agreement” means any Business Associate Agreement signed by both of the parties. For the avoidance of doubt, there may not be any Business Associate Agreement.

“Business Day” means Monday through Friday, 8:00 a.m. to 5:00 p.m., Eastern Canada time, excluding any day that banks in Canada are required or permitted to be closed.

“Cardholder Data” means, any payment card magnetic stripe data (track data), primary account number, cardholder name, expiration date, service code, pin number, pin blocks, card validation codes/values (CAV, CVC, CVV, CSC, CID, CAV2, CVC2, CVV2) or other authentication data (each term as defined or used by the Payment Card Industry Data Security Standard).

“Claims and Costs” mean claims, demands, liabilities, obligations, losses, damages, penalties, sanctions, causes of actions, expenses, losses, fines, amounts in interest, expenses and disbursements of any kind and nature whatsoever, including, without limitation, any and all reasonable attorneys’ and expert witness fees and court costs.

“DHHS” shall mean the United States Department of Health and Human Services.

Governmental Authority” means any Federal, provincial, state, municipal, local, territorial, or other governmental department, regulatory authority, or judicial or administrative body, whether domestic, foreign, or international.

“HIPAA” shall mean the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated by DHHS pursuant thereunder and the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated thereunder, as may be amended from time to time.

“Law” or “Laws” shall mean any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, requirement or other binding restriction of or by any Governmental Authority, including any modified or supplemented version of the foregoing and any newly adopted Law replacing a previous Law.

“Managed Services” means the provision of any managed services as described in any applicable Statement of Work, and/or Order Form and/or the Service Level Agreement.

“Order Form” means any one or more documents, each designated as an “Order Form”, that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Order Forms.

“Our” or “OUR” or “our” means iTMethods Inc..

Our Designated Trade Secrets” mean (a) our unpublished margin and pricing data, (b) our vendor pricing, terms and agreements, (c) our audit and security reports including, without limitation all content of such reports and the “look and feel” of such reports, (d) our server and network configuration designs, and (e) without limiting the generality of the foregoing, Our Managed Hosting Tools (as defined in Section 10.2 above).

“Our Trade Secrets” means, collectively, (a) Our Designated Trade Secrets, and (b) all other information that constitutes a trade secret of iTMethods Corporation under applicable Law.

“Personal Information” shall mean (i) any Cardholder Data, (ii) any personally identifiable information, (iii) any personal information as the term “personal information” may be defined under any applicable state data security or data breach Laws, or (iv) any “personal data” as defined in EU directive 95/46/EC.

“PHI” means Protected Health Information as this term is defined in HIPAA.

“Protected Information” shall mean Personal Information and PHI.

“Protected Information Locations” mean the Applicable Servers where You or any of Your Parties store or maintain Protected Information.

“Service Commencement Date” means the date we contact you and provide access codes and passwords for use in connection with the Managed Services.

Service” or “Services” means the Managed Services, any Additional Services (as defined in Section 2.2 above), and any other services provided by us to you hereunder.

“Statement of Work” any one or more documents, each designated as a “Statement of Work” that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Statements of Work.

“Taxes” means any and all present or future taxes or assessments of any kind or nature, however denominated, imposed or collected by any Governmental Authority, including but not limited to federal, state, provincial, or local net income, gross income, sales, use, transfer, registration, business and occupation, value added, excise, severance, stamp, premium, windfall profit, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing.

“Us” or “US” or “us” mean iTMethods Inc.

“We” or “WE” or “we” mean iTMethods Inc.

“Work Order” means any one or more documents, each designated as a “Work Order”, that incorporate this Agreement by reference. For the avoidance of doubt, there may not be any Work Orders.

“You” or “YOU” or “you” or “Your”, “your” or “YOUR” means the entity or company identified on Page 1 as the other party (besides iTMethods Inc.) to the Agreement.

“Your Parties” mean any party accessing, using, disclosing, transmitting to, maintaining or storing Protected Information on the Applicable Servers on behalf of you or with your permission.