This Terms of Service (“Agreement”) sets out the terms on which Hunch Manifest Inc d/b/a (“Schema App”) will make its services available to the person or entity identified in the applicable Order Form referencing this Agreement or signing up through www.schemaapp.com (the “Website”) to use the Services (as defined below) (the “Client”).  Client, by executing an applicable Order Form or creating an account on the Website, hereby agrees to the following terms and conditions which contain important limitations on representations, warranties, remedies and liabilities.

1.0 DEFINITIONS

“Business Day” means any day, other than Saturday, Sunday or any statutory holiday in the Province of Ontario.

“Confidential Information” means any business, marketing, technical, scientific, trade secret, intellectual property, pricing or other information disclosed by either Party which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties, exercising reasonable business judgment, to be confidential.

“Client Data” means any electronic data, information or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the Schema App Service by Client being registration information, Client website content and analytics provided by Client to Schema App.

“Deliverables” means Work Product and any other items to be provided under Services as set out in a statement of work.

“Documentation” means the user and reference manuals, in whatever form recorded, provided by Schema App for access to the Schema App Service.

“Fees” means the amounts paid or payable by Client to Schema App for use of the Services.

“Order Form” means, if applicable, the document(s), regardless of actual name, executed by the parties which incorporates by reference the terms of this Agreement and describes order-specific information such as subscription term, specific services and fees and payment terms.

“Professional Services” means any data conversion, configuration, implementation, training, consulting, or custom software development services to be performed by Schema App under this Agreement pursuant to the terms in Schedule A and as further described in an Order Form and/or statement of work attached to the Order Form.

“Services” mean any and all services that Schema App provides to Client pursuant to this Agreement including access to the Schema App Service, Professional Services and any applicable Deliverables.

“Subcontractor” means any subcontractor engaged by Schema App to perform any of the Services;

“Support Services” means the general maintenance services and technical support provided in respect of Services set forth at www.schemaapp.com/SLA.

“System” means third party hosting facility and/or other systems used by Schema App to host the Schema App Service.

“Work Product” means the schema markup JSON-LD created from Client Data through use of the Schema App Service.

2.0 PURPOSE AND SCOPE

2.1 Incorporation of Order Forms. Client may purchase additional services or otherwise expand the scope of services by executing an Order Form with Schema App. For greater certainty, Professional Services ordered under an Order Form will be subject to the professional service terms in Schedule A below.

2.2 Order of Precedence. To the extent any terms and conditions of this Agreement conflict with the terms of an Order Form or any other document, the documents shall control in the following order: (i) Order Forms with the latest date(s), (ii) this Agreement and, (iii) any other documents expressly incorporated herein by reference.

3.0 SERVICES AND LICENSE

3.1 The Schema App Service. The Schema App Service enables registered users to use the Schema App Service’s software editor and tools for creating, validating, deploying and measuring schema markup structured data (the “Schema App Service”). The underlying hardware, software, network storage and related technology required to run the Schema App Service is provided by Schema App and its third-party vendors and hosting partners. Through the Schema App Service, Schema App may also make available third-party software products available through the Schema App Service subject to their own license terms.

3.2 License Grant. Subject to the terms and conditions of this Agreement and payment of the applicable fees, Schema App hereby grants to Client a non-exclusive, non-transferable limited purpose license to use the Schema App Service to create, validate, deploy and measure schema markup structured data during the Term. By accessing or using the Schema App Service you agree: (i) that this license grant shall expire upon the termination of this Agreement or termination of Client’s subscription to the Schema App Service, whichever comes first; (ii) the Schema App Service may only be used for internal business purposes and shall not be leased, licensed, sub-licensed, transferred, assigned, lent, or shared access allowed to others; (iii) Schema App owns and controls the Schema App Service, and the Client will not copy, reproduce, modify or create derivative work of the Schema App Service or its underlying technology; (iv) the Client will not use the Schema App Service in a manner not contemplated by this Agreement; and (v) the Client will not decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Schema App by any means whatsoever. Client’s rights to the Schema App Service are strictly limited to those granted in this Agreement.

3.3 Client Responsibilities. Client is responsible for any and all Client Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data can be processed and transmitted via the Schema App Service. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Client Data; (ii) safeguard any login details provided for accessing the Schema App Service and prevent unauthorized access to or use of the Schema App Service and shall notify Schema App promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Schema App Service.

3.4 Service Use Guidelines. Client shall use the Schema App Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Schema App Service available to any third party. Client shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Schema App Service (or its underlying software) except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Schema App Service; (c) remove any proprietary notices, labels, or Marks from the Schema App Service; or (d) access the Schema App Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Schema App Service.

3.5 Support. Any support issues with the Schema App Service which Client cannot resolve should be notified to Schema App and will be addressed in accordance with the service levels found at www.schemaapp.com/SLAs. Schema App will use commercially reasonable efforts to make the Schema App Service available during the Term except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Schema App’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.

3.6 Professional Services. Schema App will perform any Professional Services in a professional and workmanlike manner and in accordance with the specifications and time frames agreed between the parties on an Order Form. Schema App and its personnel will have and maintain throughout the Term all skills, qualifications, seniority, knowledge of the Professional Services and experience necessary to perform the Professional Services. All Professional Services will be provided in accordance with the terms set out in Schedule A.

3.7 Reservation of Rights. The rights granted under this Agreement are only as expressly set forth herein. No other right is or shall be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either Party under this Agreement.

4.0 FEES AND PAYMENT TERMS

4.1 Fees. Pricing for use of the Schema App Service and any other Services will be set out in an Order Form (the “Fees”). Schema App may vary the Fees, subject to Schema App giving Client not less than 60 days’ notice of such increase prior to the end of the then-current Term. Upon notice of a price change, Client shall have the option to terminate this Agreement within 60 days of being notified of the price change by providing written notice to Schema App.

4.2 Credit Cards. A valid credit card is required for paying accounts. Client shall: (i) keep the billing, credit card and payment information provided to Schema App or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, email address and telephone number, accurate and up to date; (ii) promptly advise Schema App if Client’s credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for Client’s failure to pay any fees billed to Client by Schema App caused by Client’s failure to provide Schema App with up to date billing information.

4.3 Pre-authorized Payment. By providing a credit card to Schema App as part of account set-up for Client’s monthly or annual pre-authorized payments, Client authorizes Schema App to charge Client’s credit card for all outstanding fees, taxes and charges and outstanding account balances due under the Agreement, and this constitutes Schema App’s good and sufficient authority for so doing.

4.4 Payment Terms. All payments of Fees for use of the Schema App Service are due and payable on the 1st of the month. Payments for professional services must be made within 30 days of the date of the applicable invoice unless otherwise agreed in an Order Form or SOW. Any payment not received from Client by the due date will accrue late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher; from the date such payment was due until the date paid.

4.5 Overdue. If Client account is five (5) or more days overdue, in addition to any of its other rights or remedies, Schema App reserves the right to suspend use of the Schema App Service and/or Professional Services provided to Client, until such amounts are paid in full or terminate the Schema App Service and/or Professional Services and this Agreement. Suspension of Services shall not be deemed to be a termination of this Agreement by Schema App.

4.6 Taxes and Deductions. Each Party agrees to pay all taxes, fees, value-added surcharges, import and export duties, and other assessments levied by federal, state, provincial, local and other governments related to its payments to the other under this Agreement, except for any withholding taxes on amounts due to a Party, which shall be borne by that Party and which shall be deducted by the paying Party from any payment remitted to the other Party. Each Party shall remit these taxes on behalf of the payee Party and provide the payee with the evidence of remittance.

5.0 OBLIGATIONS OF SCHEMA APP AND CLIENT

5.1 Obligations of Schema App. Schema App shall: (i) make the Schema App Service available to Client and its authorized end users; and (ii) perform the Services as described in the applicable Order Form. Schema App will perform Professional Services in a good and workmanlike manner and in accordance with the specifications and time frames agreed between the parties.

5.2 Data Security and Privacy. Schema App acknowledges and agrees that it shall be responsible for establishing and maintaining an information security program that is designed to: (a) ensure the security and confidentiality of Client Data, including, without limitation, implementing and maintaining backup, security and business continuity measures and other technical and organizational measures; (b) protect against any anticipated threats or hazards to the security or integrity of Client Data; (c) protect against unauthorized access, accidental, or unlawful alteration, loss or destruction of or use of Client Data; (d) ensure the proper disposal of Client Data; and, (f) ensure that all Subcontractors, if any, comply with all of the foregoing, all in accordance with best industry practices. Client Data shall be and remain the sole and exclusive property of Client.

5.3 Obligations of Client. Client shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Schema App, to allow Schema App to perform the Professional Services; (ii) carry out reviews and respond to requests for approval and information on a timely basis; (iii) ensure that Schema App has available to them personnel familiar with Client’s requirements and with the expertise necessary to permit Schema App to undertake and complete the Professional Services; and (iv) Client shall make available to Schema App all material, information, data, network access that Schema App may reasonably require to carry out its obligations.

5.4 GDPR. Schema App handles personal information in accordance with the data practices set out in the Schema App Privacy Policy located at www.schemaapp.com/privacy-policy. Client agrees that if Client, or any data submitted by Client to the Schema App Service, is subject to the General Data Protection Regulation (“GDPR”), or related laws including related laws of European Union member states: (i) Client is the data controller of such data and Schema App is a data processor of such data; and (ii) Client further represents that Client has undertaken all requirements to comply with all privacy and data protection laws including but not limited to GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities.

5.5 Legitimate purpose/consent. Client agrees and represents to Schema App that all personal information Client collects, provides, or otherwise uses in any way in relation to the Schema App Service is necessary for Client’s legitimate interest and is not overridden by fundamental rights of the subject individual, and otherwise that Client has all rights and obtained all necessary consents to collect, provide, manage, all personal information Client provides to Schema App for any purpose. Client further represents and warrants that Client will not collect, provide or otherwise use in any way in relation to the Schema App Service any special category of personal data as described in GDPR.

5.6 Insurance. During the Term, Schema App will maintain at its own expense, the following types of insurance coverage, on standard policy forms and with insurance companies authorized to do business in the jurisdiction where the Services will be performed: Commercial General Liability Insurance (equivalent to public and product liability insurance) including contractual liability coverage, with coverage for products liability, completed operations, property damage and bodily injury, including death, with an aggregate limit of no less than $1,000,000.

6.0 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

6.1 Title. Schema App owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights, together “Intellectual Property Rights”), in and to Schema App’s trademarks and branding, materials and the Schema App including any and all modifications, derivatives, improvements and enhancements to the same. Client acknowledges and agrees that it has no right, license or authorization with respect to any of the technology underlying the Schema App Service (including any Intellectual Property Rights therein) except as expressly set forth in this Agreement. All other rights in and to the Schema App Service and Schema App are expressly reserved by Schema App and its licensors.

6.2 Feedback: Schema App may freely use any suggestions, feedback or ideas Client may provide. By providing any feedback to Schema App, Client grants Schema App a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, royalty free, license to use the feedback that Client provides. Schema App may put Client’s provided feedback in various uses that may include but not limited to modifying and improving the Schema App Service, Schema App’s other current and future services/products, services advertising or marketing materials.

6.3 Client Data. Client shall exclusively own all Client Data. Client hereby grants Schema App a non-exclusive, non-transferable, sublicensable, royalty-free, worldwide right to handle Client Data to: (i) provide Client any service or Work Product set out in this Agreement and applicable SOW; (ii) generate Aggregate Data (as defined in Section 6.5 below); (iii) sublicense the right referred to in subsection (i) to any Subcontractor solely to the extent necessary to enable such Subcontractor to fulfill its obligations to Schema App.

6.4 Work Product. So long as all Fees owing to Schema App under this Agreement have been paid in full, Client shall own the Work Product subject to Schema App retaining a non-exclusive, perpetual, irrevocable license to access and use the Work Product to generate Aggregate Data to improve the Schema App Service and to provide data-driven recommendations; provided that notwithstanding the foregoing or anything else in this Agreement, Schema App shall retain sole right, title and interest in all of Schema App’s intellectual property rights, know-how, copyrights, techniques, tools, applications, technology, information, ideas, methods, and any other property or proprietary rights which were incorporated in or were necessary to the use or creation of the Work Product or any portion thereof.

6.5 Aggregate Data. In using the Schema App Service, Client hereby grants Schema App full rights to anonymize data and information collected so that it does not identify Client as a user, identify specific Client service usage, or contain any other confidential Client information (“Anonymous Data”). Client agrees that Schema App: (i) has full ownership over Anonymous Data regardless of any Intellectual Property Rights in Data or work derived from Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data (hereafter “Aggregate Data”); (iv) has the right to use the Aggregate Data on an Aggregate Basis (as defined below) only in the furtherance of Schema App’s business; and (v) may disclose, sell and publish Aggregate Data on an Aggregate Basis to any party through any means. Schema App does not claim any ownership interest in the Client Data, but Schema App does retain the right to create, use, store, disclose, sell and publish Anonymous Data. Client Intellectual Property Rights in any Content, if any, do not confer any rights of access to the Site, the Services or any rights to data stored by or on behalf of Schema App. Schema App will not disclose User information or Client Data other than on an Aggregate Basis (as defined below), except with Client’s express consent.

“Aggregate Basis” refers to the combination of parts of information collected or processed from the user, not containing the Client’s name, with other information from any or all other Clients of the Services. Schema App asserts that user information used on an Aggregate Basis will not be used in a manner that discloses any individually identifiable information about the user or any specific transactions in which the user has engaged.

6.6 Confidentiality. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement herein, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other Party. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information. Confidential Information shall not include information which (i) becomes a part of the public domain through no act or omission of recipient; (ii) was in recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by recipient’s files existing at the time of disclosure; (iii) is independently developed by recipient’s employees or independent contractors who have not had access to the Confidential Information; or (iv) is lawfully disclosed hereafter to recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser. Client and Schema App agree that the Confidential Information provided by Schema App shall be used by Client solely to receive services set forth in this Agreement and for no other purpose. Notwithstanding the foregoing, the recipient may disclose Confidential Information of the discloser to the extent it is required by a valid order of a court or other governmental body having jurisdiction, provided that the recipient provides the discloser with reasonable prior written notice and makes a reasonable effort to obtain, or to assist the discloser in obtaining, a protective order.

6.7 Linked Third Party Services. Schema App uses authorized data from YouTube and Google, and other platform (“Social Platforms”) APIs to collect authorized data. Such data is collected and stored to power Schema App features. You can request your authorized data be deleted from Schema App by contacting support@schemaapp.com. You can learn more about each respective Social Platform’s terms of service and privacy policies via the links below:

Social Platforms Terms of Service:

Social Platforms Privacy Policies:

7.0 TERM AND TERMINATION

7.1 Agreement Term. This Agreement shall commence on either: (i) Client signing up for an account on www.schemaapp.com; or (ii) the execution of the Order Form referencing this Agreement. The Agreement and will continue in full force and effect until the expiration or termination of all such Order Forms, unless otherwise terminated earlier as provided herein.

7.2 Service Term. Unless otherwise agreed in an Order Form, the subscription term of the Schema App Service is a monthly term which auto-renews unless or until terminated by a party giving at least 30 days written notice of termination. All other Services shall be provided for the term specified in the applicable Order Form.

7.3 Termination. Either Party (the “Terminating Party”) may terminate this Agreement by written notice to the other Party (the “Defaulting Party”) of any material breach by the Defaulting Party of any material provision of this Agreement and if the Defaulting Party does not cure such breach to the reasonable satisfaction of the Terminating Party within thirty (30) days from the date of its receipt of such written notice, this Agreement shall be terminated effective as of such date without any further action required on the part of the Terminating Party. In addition, either party may terminate this Agreement by giving a written notice to the other party if the other Party applies for or consents to the appointment of a receiver, trustee, or liquidator for substantially all of its assets or such a receiver, trustee, or liquidator is appointed or such Party has filed against it an involuntary petition of bankruptcy that has not been dismissed within sixty (60) days thereof, or files a voluntary petition of bankruptcy, or files a petition or answer seeking reorganization and such matter has not been completed within sixty (60) days thereof, or an arrangement with creditors and such matter has not been completed within sixty (60) days thereof, or seeks to take advantage of any other law relating to relief of debtors.

7.4 Effect of Termination. The termination of this Agreement for any reason shall not limit any rights granted by Schema App or Client prior to the date hereof.

7.5 Suspension. Schema App will be entitled to suspend any or all Services upon ten (10) days written notice to Client in the event Client is in breach of this Agreement. However, Schema App may suspend Client’s access and use of the Schema App Services immediately, with notice to Client following promptly thereafter, if, and so long as, in Schema App sole judgment, there is a security or legal risk created by Client that may interfere with the proper continued provision of the Schema App Services or the operation of Schema App’s network or Systems. Schema App may impose an additional charge to reinstate service following such suspension.

7.6 Retrieval of Work Product. Upon written request by Client made prior to any expiration or termination of this Agreement, Schema App will make Work Product available to Client through the Service on a limited basis solely for purpose of Client retrieving Work Product for a period of up to thirty (30) days after such request is received by Schema App. After such period, Schema App will have no obligation to maintain or provide any Work Product and will thereafter, unless legally prohibited, delete all Work Product; provided however, Schema App or its Subcontractors will not be required to remove copies of Client Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Schema App will continue to protect the Client Data in accordance with this Agreement.

7.7 Survival. The provisions of Sections 5, 6, 7.7, 8.3, 9 and 10 shall survive the termination of this Agreement for any reason; provided, however, that termination for material breach pursuant to Section 6.2 above shall, as of the effective date of the termination, relieve the Terminating Party from any and all obligations of continued performance under this Agreement.

8.0 WARRANTY AND INDEMNITIES

8.1 Warranty Schema App represents, warrants and covenants to Client that during the Term: (a) it has the full power and authority to license the rights to Client contemplated hereunder on the terms and conditions in this Agreement; and (b) the Services will be provided in a professional and workmanlike manner in accordance with the terms of this Agreement and any applicable SOW.

8.2 Disclaimers. Schema App makes no representations, warranties or conditions, express, statutory or implied, with respect to the Schema App, the Services or any deliverables or services to be provided by Schema App hereunder (all of the foregoing collectively referred to as “Schema App Products and Services”). Schema App expressly disclaims all other representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose. Schema App does not warrant that the Schema App Products and Services will meet the Client’s requirements or that they will function uninterrupted, error free or that all defects in the Schema App Products and Services will be corrected. Schema App complies with all applicable laws relating to data protection, privacy, internal communication and the transmission of technical or personal data, but otherwise makes no representation or warranty and cannot make guarantees regarding accessibility to, or the privacy or security of, any of the Client’s information, files or data. The Client assumes the entire risk as to the results and performance of the Schema App Products and Services. The Client acknowledges that it has or will have independently determined that all Schema App Products and Services meet its business requirements and that it has not relied on any representation by Schema App as to the suitability of any item for any particular purpose. Schema App does not represent or warrant that the Schema App Products and Services will be capable of achieving any particular result or results in the Client’s business or operations. Schema App Products and Services are provided and licensed on an “as is” basis without warranty or representation of any kind. Schema App does not guarantee top placement on the search engines through search engine optimization.

8.3 Mutual Indemnity. Each party (the “Indemnifying Party”) shall defend the other party and its directors, officers and employees (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party to the extent arising as a result of: (i) any representations, warranties or other commitments (including any breach thereof) made by the Indemnifying Party on behalf of the Indemnified Party to any third party (in respect of that party’s services or technology); (ii) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy or personal information protection law or regulation); or (iii) real or tangible property damage or bodily injury or death caused by the negligent or wilful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with this Agreement (collectively any actions, suits, or proceedings falling within (i), (ii) or (iii) hereinafter referred to as a “Claim”) and shall indemnify and hold the Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys’ fees) awarded in to such third party against the Indemnified Parties by a court of competent jurisdiction in respect to any such Claim, subject to the conditions that the Indemnified Parties: (a) promptly give written notice of each Claim to the Indemnifying Party; (b) give the Indemnifying Party sole control of the defense and settlement of each Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability); and (c) provide to the Indemnifying Party, at the Indemnifying Party’s cost, all reasonable assistance and co-operation in respect to each Claim.

8.2 Schema App Intellectual Property Indemnification.
a) Schema App shall defend Client, its directors, officers and employees (collectively the “IP Indemnified Parties”) from and against any actions, suits, or proceedings brought against the IP Indemnified Party by a third party alleging that the Schema App Service software infringes or misappropriates the intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the IP Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys’ fees) awarded to such third party against the IP Indemnified Parties by a court of competent jurisdiction in respect to any such IP Claim, subject to the conditions that the IP Indemnified Parties: (a) promptly give written notice of each IP Claim to Schema App; (b) give Schema App sole control of the defense and settlement of each IP Claim; and (c) provide to Schema App all reasonable assistance and co-operation in respect to each IP Claim.

b) Mitigation. If (a) Schema App becomes aware of an actual or potential IP Claim, or (b) provides Client with notice of an actual or potential IP Claim, Schema App may, at its sole option and determination: (I) procure the necessary rights to continue to offer the Schema App Service; or (II) replace or modify the affected portion of the Schema App Service software with equivalent or better functionality so that use of the Schema App Service is no longer infringing or misappropriating; or (III) if (I) or (II) are not commercially reasonable, terminate this Agreement.

c) Exclusions. The indemnity in Section 8.2(a) does not include any IP Claim made against the IP Indemnified Parties as a result of the use of the Schema App Software outside the scope of the rights or as a result of any unauthorized modification or breach of the license terms of this Agreement.

9.0 LIMITATION OF LIABILITY

Notwithstanding anything to the contrary contained in this Agreement, any Order Form, SOW, or other exhibits and attachments, Schema App’s total liability for any and all damages may not exceed: (i) with respect to the Schema App Service and its use, the fees (excluding implementation or other Professional Services fees) paid by Client for the twelve (12) month period preceding the action or event giving rise to the liability or (ii) with respect to the Professional Services, the total fees received by Schema App from Client for the Professional Services under the SOW giving rise to the liability.

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SCHEMA APP AND ITS LICENSORS AND SUPPLIERS WILL NOT BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION, INACCURATE INFORMATION OR LOSS OF INFORMATION OR COST OF COVER) THAT THE CLIENT MAY INCUR OR EXPERIENCE IN CONNECTION WITH THE AGREEMENT OR THE SCHEMA APPSCHEMA APP SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.0 GENERAL PROVISIONS

10.1 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

10.2 Force Majeure. If either Schema App or Client is unable to perform any of its obligations in this contract by reason of fire or other casualty, strike, order of a public authority, Act of God, or other cause beyond the reasonable control of such Party, then such Party shall be excused from such performance of the contract for the duration of such cause.

10.3 Governing Law. This Agreement, and all rights and obligations arising out of the parties’ relationship hereunder, including but not limited to matters of construction, validity, and performance, shall be governed by, and be interpreted under, the laws of the Province of Ontario without giving effect to its conflict of law principles, and the courts of Ontario shall have exclusive jurisdiction in the event of any dispute or litigation between the parties arising out of the terms of this Agreement (except for injunctive relief which may be sought by Schema App in any jurisdiction). Court orders and judgments may be enforced in other jurisdictions as required. In the event Client breaches, or threatens to breach this Agreement, Schema App may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling Schema App from any other relief in either law or equity.

10.4 Expenses and Legal Fees. In the event of breach of this Agreement by Client, Schema App shall be entitled to reimbursement of all of its costs and expenses incurred in connection therewith, including, without limitation, reasonable legal fees on a full indemnity basis.

10.5 Waiver and Severability. Neither this Agreement nor any terms hereof may be modified, amended, waived, or terminated except by an instrument in writing signed by the Party against whom enforcement thereof is sought. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement without affecting any remaining terms hereof.

10.6 Entire Agreement. This Agreement (including any executed Order Form(s)), Privacy Policy and any other documents referenced herein or in any executed Order Form) embodies the entire Agreement and understanding between the Parties hereto and supersedes all prior agreements and understanding relating to the subject matter hereof. Neither Party has entered into this Agreement in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in this Agreement.

10.7 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other party. Notwithstanding the foregoing, Schema App may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of Client. Subject to the foregoing limits on assignment, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

10.8 No Third-party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

10.9 Notices. Except as may otherwise be provided for in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under the Agreement other than routine operational communications will be in writing through: (i) hand delivery; (ii) express overnight courier with a reliable system for tracking delivery; (iii) electronic mail transmission or (iv) confirmed facsimile to the addresses of the Parties indicated on the Order Form or to such other address as a party may specify by notice and shall be deemed to have been received, if delivered, on the date of delivery if it is a Business Day and otherwise on the next succeeding Business Day and if by courier or facsimile, upon delivery by overnight delivery services (with confirmation of delivery) or upon confirmation of successful transmission via a facsimile machine.

10.10 Jurisdictional Matters. The Services are controlled, operated and administered by Schema App (or its licensees) from its offices within Canada and is not intended to subject Schema App to the laws or jurisdiction of any state, country or territory other than those of Canada. Those who choose to access the Services do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. Client is also subject to Canadian export controls and are responsible for any violations of such controls, including without limitation any Canadian embargoes or other federal rules and regulations restricting exports. Additional charges such as customs, fees, taxes, and import duties are the responsibility of the Client. Without limiting the foregoing, Schema App may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

10.11 Publicity. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other Party’s trade-marks, trade dress, brand names, logos, corporate names and domain names or other similar designations of source, sponsorship, association or origin, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Schema App may, without Client’s consent, include Client’s name and/or other indicia in its lists of Schema App’s current or former Clients of Schema App in promotional and marketing materials and Client may, without Schema App’s consent, include Schema App’s name and/or other indicia in its lists of Client’s current or former suppliers in internal material.

10.12 Interpretation. The headings of the Sections of this Agreement have been included for the convenience of the parties and are not part of the Agreement, nor are the headings to be used to alter or interpret the terms hereof.

PROFESSIONAL SERVICE TERMS

The following terms and conditions are incorporated into the Master Services Agreement if Client orders Professional Services from Schema App through execution of an Order Form. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.

Schema App is willing to provide Professional Services (including the development of tangible work product arising from Professional Services “Deliverables”) on a time and materials or fixed price basis according to the terms and conditions set forth in this Schedule. Such Professional Services may include: instruction and training on the use of Schema App products and services; evaluation, design and implementation of system architectures; custom development; and Service deployment consultations.

1.0 General. All Professional Services to be performed and deliverables to be developed by Schema App at Client’s request shall be described in a Statement of Work, in the form attached as Exhibit A or such other form as may be mutually agreed by the parties. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule. In the event of a conflict between a Statement of Work and this Schedule or the Agreement, this Schedule or the Agreement, as the case may be, shall prevail unless the terms of the Statement of Work expressly vary the terms of the Agreement and the Statement of Work is signed by authorized signatories of both parties.

2.0 Schema App’s Obligations. Schema App shall perform Professional Services and develop deliverables for Client as described in any Statements of Work agreed to in writing by the parties. Schema App shall perform such Professional Services and develop deliverables in a reasonable and workmanlike manner in keeping with industry standards and practices. Schema App shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing deliverables. Client acknowledges and agrees that Schema App may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Schema App in performing, Professional Services and developing deliverables under this Schedule or a Statement of Work. Schema App personnel and/or Subcontractors shall remain under the direction and control of Schema App. If Schema App is performing any Professional Services or developing any deliverables at a Client facility, then Schema App shall comply with all Client facility policies, procedures and rules that have been communicated to Schema App in writing.

3.0 Client Obligations. Client shall provide timely performance of its obligations under this Schedule or any Statement of Work as required for Schema App to perform its obligations under this Schedule or any Statement of Work. In support of such obligations, Client shall provide sufficiently qualified personnel who are capable of completing Client’s duties and tasks pursuant to this Schedule or any Statement of Work. Client acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on Schema App’s performance of the Professional Services and development of the Deliverables. More specifically, If Client fails to provide any instructions or perform any obligations under any applicable Statement of Work, then:

a) any Schema App obligation, identified in the applicable project plan as one that is dependent on the Client Dependency, will be extended by same the number of Business Days as the number of days after the Client Dependency Target Date taken by Client to complete the Client Dependency;

b) upon an extension of more than 20 days of a Schema App obligation, Schema App may deliver to Client a proposed increase in Fees which are solely and directly attributable to Client’s delay, calculated in accordance with Article 4 (Fees), and the terms and conditions of an applicable SOW.

Schema App may provide Professional Services or may develop deliverables at Client’s facilities or at Schema App’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided or deliverables are to be developed at Client’s facilities, Client shall provide Schema App with access to Client’s facilities during normal business hours and at such other times as may be reasonably requested by Schema App to facilitate the timely performance of the Professional Services and development of the Deliverables. Client shall also provide Schema App personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services or developing Deliverables at Client’s facilities.
Client shall designate a project management contact for the purposes of communication with Schema App and for creating templates or providing data for us with Schema App. The project management contact shall also be the primary point of contact for Client with Schema App for matters relating to the provision of Professional Services and development of deliverables.

4.0 Price and Payment. Client shall pay Schema App the fees set forth in the Statement of Work either on a time and materials basis at Schema App’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Client shall reimburse Schema App for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Schema App in the performance of any Professional Services or development of any deliverables, provided that such expenses are approved in advance in writing by Client. The fees for Professional Services and development of deliverables shall exclude all applicable taxes. Unless otherwise specified in the Statement of Work, Schema App shall invoice Client for fees for Professional Services and development of deliverables provided pursuant to this Agreement or a Statement of Work on a monthly basis. All such fees shall be paid within thirty (30) days of the date of the invoice.

5.0 Term and Termination. This Schedule shall remain in effect only during the Term. Client may terminate a Statement of Work without cause upon thirty (30) days prior written notice to Schema App. If Client terminates a Statement of Work for convenience, Client shall pay Schema App the full fee for any Professional Services performed or in the case of the development of Deliverables a pro rata portion of the full fee to reflect the amount of development effort (including all other costs for which Schema App has the right to reimbursement) up to the effective date of termination of such Statement of Work.

Each party shall be entitled to immediately terminate this Schedule or a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate this Schedule and any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.

6.0 Intellectual Property Rights. Schema App shall own all right, title and interest and all intellectual property rights to any Deliverables created by Schema App pursuant to this Schedule or any Statement of Work hereunder and the deliverables shall not be considered “works made for hire”. Schema App and its licensors shall retain all right, title and interest and all intellectual property rights to any and all Schema App proprietary information and the intellectual property and technology underlying the Schema App Service. Subject to payment of the fees set forth in the applicable Order Form or Statement of Work, Schema App grants to Client a non-exclusive, non-transferable license to use the deliverables solely in connection with Client’s permitted use of the Schema App Service in accordance with the terms of the Agreement.

7.0 Acceptance. Upon Client’s receipt of each specific deliverable or notification of completion of any Professional Services, Client will have one (1) week (unless another period is specified in the applicable Statement of Work) to test and review such deliverable to confirm that the deliverables and/or Professional Services have been duly delivered and are in material compliance with the specifications set out in the relevant Statement of Work (“Acceptance Tests”). The parties may agree on an Acceptance Test plan in the applicable Statement of Work, which will specify the test criteria and nature of the Acceptance Tests to be conducted. In the absence of an agreed-upon Acceptance Test plan, Client will perform the Acceptance Tests in a commercially reasonable manner. Schema App will, at no additional cost to Client, provide any support, assistance and consultation as may be reasonably necessary to facilitate Client’s testing and review. The Acceptance Tests shall be conducted to meet any timeframe indicated in the Statement of Work. In the event that Client shall, without good cause fail to test the Deliverables within the timeframe set forth in the Statement of Work (if any), or otherwise within a reasonable time, Schema App may provide one week’s written notice to Client of its intent to conduct such Acceptance Tests without the presence of Client and if Client has not yet begun such Acceptance Tests after receipt of such notice from Schema App, Client will be deemed to have accepted the results of such Acceptance Tests. The Acceptance Tests will consist in running the tests described in the Acceptance Test plan (if any) on the deliverables or confirming that the Professional Services meet the specifications set out in the relevant Statement of Work. If, in Client’s reasonable discretion, a Deliverable or service does not comply with the applicable specifications as set forth in the Statement of Work, Client shall notify Schema App promptly of its rejection of such deliverable or service by written notice. Such notice will specify the reasons the Deliverable or service fails to meet the relevant specifications. Schema App will, at no cost to Client, use commercially reasonable efforts to correct any deficiencies and provide Client with a revised Deliverable or reperform the defective service as soon as reasonably practicable. Client will have the right to re-test the revised Deliverable or re-review the reperformed service in accordance with this Section. If Client does not provide feedback within the 1 week allocated for review or re-review of a Deliverable or service, Client will be deemed to have accepted the Deliverable or service.

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Updated October 23, 2019

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