Terms of Service - Voltelligent

Voltelligent Analytics – Terms & Conditions

LAST UPDATED: November 3, 2021

TERMS AND CONDITIONS

BEFORE YOU USE THE SERVICES, PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. BY SIGNING THE SOFTWARE AS A SUBSCRIPTION AGREEMENT WITH VOLTELLIGENT ANALYTICS INC. OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS IN ADDITION TO THE TERMS ON YOUR SOFTWARE AS A SUBSCRIPTION AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS OR USE THE SERVICES.

IF A CLIENT ENTERS INTO A NEW SOFTWARE AS A SUBSCRIPTION AGREEMENT OR RENEWS A SUBSCRIPTION, THE TERMS AND CONDITIONS IN EFFECT ON THE EFFECTIVE DATE WILL APPLY TO THAT NEW SOFTWARE AS A SUBSCRIPTION AGREEMENT AND/OR RENEWED SUBSCRIPTION TERM.

BY CREATING A VOLTELLIGENT ACCOUNT, YOU AGREE TO ACCEPT AND RECEIVE COMMUNICATIONS FROM VOLTELLIGENT ANALYTICS INC., AND ITS AFFILIATED COMPANIES, INCLUDING EMAILS AND CALLS, TO THE EMAIL ADDRESS AND/OR TELEPHONE NUMBER YOU PROVIDED. MESSAGE AND DATA RATES MAY APPLY. IF YOU DO NOT WISH TO RECEIVE SUCH COMMUNICATIONS, YOU MAY OPT OUT OF SUCH COMMUNICATIONS.

All references to “you” or “your”, as applicable, means the person who accesses, uses, and/or engages with the Services in any manner, and each of your heirs, assigns, and successors. If you use the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity, its directors, officers, employees, and agents.

DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

“Agreement” means the Software as a Subscription Agreement executed by Voltelligent Analytics Inc. and Client which incorporates these Terms and Conditions into them.

“Authorized User” means an individual who is authorized by Client to use the Services, and to whom Client (or, when applicable, Voltelligent at Client’s request) has supplied a user identification and password (for Services utilizing authentication). Authorized Users may include, for example, employees, consultants, contractors and agents of Client, and third parties with which Client transacts business.

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

“Client” means the client identified in the Agreement that incorporates these Terms and Conditions.

“Client Data” means data submitted by or for Client to the Services or provided by Voltelligent to Client in output files generated by the Services, excluding User Content, and Third Party Materials.

“Collective Content” means the User Content and Voltelligent Content together.

“Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to profile information, battery history, inspection history, and scheduling, and other information or materials available on or through the Services.

“Documentation” means any manuals, instructions or other documents or materials that Voltelligent provides or makes available to Client in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

“IP Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind.

“New Version” means any new version of the Services that Voltelligent may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Voltelligent’s designation of a new version number) and which Voltelligent may make available to Client at an additional cost under a separate written agreement.

“Non-Voltelligent Application” means a service or software application that is provided by a third party or by Client and that interoperates with the Services, including, without limitation, Microsoft Edge (formerly Internet Explorer) or Google Chrome.

“Open-Source Components” means any software component that is subject to any open-source copyright licence agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or licence agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

“Permitted Use” means use of the Services for the benefit of the Client in the ordinary course of Client’s business, providing information, products and services as contemplated by the Agreement.

“Platform” means all Voltelligent websites, mobile or other applications, Services, processes and any other services provided by or through Voltelligent.

“Services” means the products and services that are described in the Agreement and made available by Voltelligent, as described in the Documentation. Services do not include Non-Voltelligent Applications.

“Regular Support Hours” means 9:00 a.m. to 5:00 p.m. (Local Time) during Business Days.

“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, and subcontractors.

“Territory” means Canada.

“Third Party Materials” means materials and information, in any form or medium, that are not proprietary to Voltelligent, including any third-party: (a) documents, data, content or specifications; (b)Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

“Upgrade” means any update, upgrade, release or other adaptation or modification of the Services, that Voltelligent may provide to Client from time to time during the term of the Agreement, which may contain, among other things, error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Services, but does not include any New Version.

“User Content” means all Content submitted, posted, collected, uploaded, published, or transmitted on or through the Services, including but not limited to photographs, inspection worksheets, descriptions, measurements, cell voltages, requests, and messages made through the Services, but excluding Voltelligent Content and Feedback.

“Voltelligent” means Voltelligent Analytics Inc.

“Voltelligent Content” means all Content Voltelligent makes available on or through the Services, including any Content licensed from a third party, but excluding User Content.

PROVISION OF SERVICES BY VOLTELLIGENT.

Services. Provided there is compliance by Client with the Agreement, Voltelligent will:

make the Services available to Client pursuant to the Agreement;

use commercially reasonable efforts to make the online services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which Voltelligent will make best efforts to give advanced electronic notice of) and (ii) any unavailability caused by circumstances beyond Voltelligent’s reasonable control including a Force Majeure event.

USE OF SERVICES BY CLIENT.

Service Limits. Client’s use of the Services may be subject to service limits specified in the Agreement. Client will not exceed any such service limits.

Client Responsibilities. Client will:

Be responsible for Authorized User’s compliance with the Agreement and the Documentation;

use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Documentation, and notify Voltelligent promptly of any such unauthorized access or use;

use Services and Documentation only in accordance with the Agreement, the Documentation, and applicable Laws; and

comply with terms of service of any Third Party Materials with which Customer uses Services.

Client Restrictions. Client receives no title to or ownership of any copy or of the Services. Without limiting the generality of the foregoing, Client shall not: (a) copy, modify, correct, adapt, translate, enhance, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, decompile, disassemble, decode, or adapt the Services or otherwise attempt to derive or gain access to any of the Services’ source code, in whole or in part; (d) bypass or breach any security device or protection used for or contained in the Services or Documentation; (e) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or IP Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the Services or Documentation; (f) use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any IP Right, privacy right or other right of any person, or that violates any Applicable Law; (g) use the Services for purposes of: (I) benchmarking or competitive analysis of the Services; (II) developing, using or providing a competing software product or service; or (III) any other purpose that is to Voltelligent’s detriment or commercial disadvantage; or (h)use the Services or Documentation other than for the Permitted Use or in any manner or for any purpose not expressly permitted by this Agreement.

Removal of Non-Voltelligent Applications. If Voltelligent receives information that a Non- Voltelligent Application used with the Services by Client may violate applicable Laws or third-party rights, Voltelligent may so notify Client and in such event Client will promptly disable such Non- Voltelligent Application or modify the Non- Voltelligent Application to resolve the potential violation. If Client does not take required action in accordance with the above, Client may disable the applicable Service and/or Non-Voltelligent Application until the potential violation is resolved. If requested by Voltelligent, Client will confirm such deletion and discontinuance of use in writing and Voltelligent will be authorized to provide a copy of such confirmation to any third-party claimant or Governmental Authority, as applicable.

Non-Voltelligent Providers. Voltelligent or third parties may make available third-party products or services, including Non-Voltelligent Applications and implementation and other services. Any acquisition by Client of such products or services, and any exchange of data between Client and any non-Voltelligent provider, product or service is solely between Client and the applicable non- Voltelligent provider. Voltelligent does not warrant or support Non-Voltelligent Applications or other non-Voltelligent products or services, whether or not they are designated by Voltelligent as “certified” or otherwise, unless otherwise expressly provided in the Agreement. If Client chooses to use a Non-Voltelligent Application with the Services, Client grants Voltelligent permission to allow the Non-Voltelligent Application and its provider to access Client Data as required for the interoperation of that Non-Voltelligent Application with the Service. Voltelligent is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such non-Voltelligent Application or its provider. The Services may contain features designed to interoperate with Non- Voltelligent Applications. To use such features, Client may be required to obtain access to such Non- Voltelligent Applications from their providers, and may be required to grant Voltelligent access to Client’s accounts on such Non- Voltelligent Applications. Voltelligent cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Voltelligent Application ceases to make the Non-Voltelligent Application available for interoperation with the corresponding Service features in a manner acceptable to Voltelligent.

Changes to the Services. Voltelligent may make changes to the Services from time to time, in its discretion, including to add, change or remove features or functionality. Voltelligent will provide Client with not less than 60 days’ prior notice of any major change to the Services that might impact the systems of Client. For new or additional features, functionality or Services, Voltelligent may require Client to: (a) sign a new agreement or an amended agreement; (b) agree to pay additional fees; and (c) agree to additional contract terms specific to the feature, functionality or service.

Erasure. Voltelligent may permanently erase Client Data if Client’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Voltelligent’s other rights or remedies.

MAINTENANCE AND UPGRADES.

Provision of Maintenance. During the Term of the Agreement, Voltelligent shall exercise commercially reasonable efforts promptly to correct any failure of the Services to perform according to its specifications (“Maintenance”) during Regular Support Hours.

Upgrades. During the Term of the Agreement, Voltelligent will provide Client with all Upgrades (including updated Documentation) that Voltelligent may, in its sole discretion, make generally available to its subscribers at no additional charge. All Upgrades, on being provided by Voltelligent to Client hereunder, are deemed Services subject to all applicable terms and conditions of this Agreement. Client will install all Upgrades as soon as practicable after receipt. Client does not have any right hereunder to receive any New Versions of the Services that Voltelligent may, in its sole discretion, release from time to time.

FEES.

Fees and Payment. Client shall pay to Voltelligent all Fees set out in the Agreement. Except as otherwise specified in the Agreement: (a) Fees are calculated on a per-use basis as determined solely by Voltelligent, subscriptions purchased and not actual use, or credit bundles purchased; (b) payment obligations are non-cancellable and fees paid are non-refundable; and quantities or credit bundles purchased cannot be decreased.

Fee Changes. The Fees set out in this Agreement may be changed from time to time subject to 90 days written notice from Voltelligent.

Invoices. Payment against any and all invoices rendered by Voltelligent to Client will be due within 15 days thereof. Late payments shall be subject to a late payment charge of one per cent (1%) per month (12% per annum).

Taxes. Amounts due under this Agreement are payable without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Client shall separately pay Voltelligent the withheld or deducted amount.

Auditing Rights and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during and for a period of 3 years after the termination of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Voltelligent may, at its own expense, on reasonable prior notice, periodically inspect and audit such records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that the Client has underpaid Voltelligent with respect to any amounts due and payable under the Agreement, the Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.3. The Client shall pay for the costs of the audit if the audit determines that the Client’s underpayment equals or exceeds 10% for any quarter. Such inspection and auditing rights will extend throughout this Agreement and continue for a period of 3 years after the termination or expiration of this Agreement.

INTELLECTUAL PROPERTY & FEEDBACK.

IP Rights in the Services. Client acknowledges and agrees that (a) Client does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Services or Documentation, or in any related IP Rights; (b) Voltelligent is and will remain the sole and exclusive owner of all right, title and interest in and to the Services and Documentation, including all IP Rights relating thereto, and (c) Client hereby unconditionally and irrevocably assigns to Voltelligent (or Voltelligent’s designee), its entire right, title and interest in and to any IP Rights that Client may now or hereafter have in or relating to the Services or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

Client Co-Operation and Notice of Infringement. Client shall, during the Term of the Agreement (a) take all reasonable measures to safeguard the Services and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access, (b) at Voltelligent’s expense, take all such steps as Voltelligent may reasonably require to assist Voltelligent in maintaining the validity, enforceability and Voltelligent’s ownership of the IP Rights in the Services and Documentation, (c) promptly notify Voltelligent in writing if Client becomes aware of (i) any actual or suspected infringement, misappropriation, or other violation of Voltelligent’s IP Rights in or relating to the Services or Documentation, or (ii) any claim that the Services or Documentation, including any production, use, marketing, sale or other disposition of the Services or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the IP Rights or other rights of any person, and (d) fully co-operate with and assist Voltelligent in all reasonable ways in the conduct of any claim, action, proceeding or suit (each, an “Action“) by Voltelligent to prevent or abate any actual or threatened infringement, misappropriation or violation of Voltelligent’s rights in, and to attempt to resolve any claims relating to, the Services or Documentation, including having Client’s employees testify when requested and making available for Questioning or trial relevant records, papers, information, samples, specimens and the like.

No Implied Rights. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Client or any third party any IP Rights or other right, title or interest in or to any of the Services or Documentation.

Feedback. Nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Voltelligent’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback (as defined below), without compensating or crediting Client, except to the limited extent that Article 7 (Confidential Information) governs Feedback that constitutes Client’s Confidential Information. Notwithstanding the provisions of Article 7, Client may not designate Feedback as its Confidential Information to the extent that such Feedback relates to Voltelligent or its products or services. (“Feedback” refers to any suggestion, comments, questions, or ideas for improving or otherwise modifying any of Voltelligent’s products or services.) This Feedback section shall survive any termination of the Agreement or the Platform.

Data Collected. For absolute certainty, Client understands that any information collected, including Client Data, by Voltelligent from the usage of the Services is the property of Voltelligent and shall remain the property of Voltelligent upon termination of this Agreement.

CONFIDENTIAL INFORMATION.

Confidential Information Defined. “Confidential Information” refers to the following one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 3 Business Days; (c) any source code disclosed by Voltelligent and any names of actual or potential Requesting Users disclosed by Client, whether or not marked as confidential; (d) any technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing and information, and (e) any other non-public, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (f) is in Recipient’s possession at the time of disclosure; (g) is independently developed by Recipient without use of or reference to Confidential Information; (h) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (i) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.

Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent.

Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, (b) except as may be permitted under the terms and conditions of Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Article; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Article, (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and, in no event, less than a reasonable degree of care, (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure, and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Article. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Article with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

Compelled Disclosure. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and before such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek an injunction, protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking an injunction, protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other competent authority that such Confidential Information will be afforded confidential treatment.

Injunction. Recipient agrees that breach of this Article would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser shall be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

Termination & Return. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.

REPRESENTATIONS & WARRANTIES.

Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that: (a) if a corporation, it is incorporated and validly existing as a corporation under the Laws of the jurisdiction of its incorporation, (b) it has all required power and capacity to enter into and perform its obligations and grant the rights, licences and authorizations it grants and is required to grant under this Agreement, (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary action of such party, and (d) when executed and delivered by the parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, but subject to bankruptcy and other laws affecting creditor’s rights as well as principles of equity.

DISCLAIMER OF WARRANTIES. ALL SERVICES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY VOLTELLIGENT ARE PROVIDED “AS IS.” VOLTELLIGENT HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, VOLTELLIGENT MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR DOCUMENTATION, OR ANY OTHER VOLTELLIGENT OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CLIENT’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.

Future Functionality. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Voltelligent regarding future functionality or features.

INDEMNIFICATION.

From Voltelligent. Voltelligent shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by Client arising out of or relating to any Action by a third party to the extent that such Losses arise from any allegation in such Action that the Services, or any use of the Services, in the Territory in accordance with this Agreement (including the Documentation) infringes any Canadian IP Right in the Territory. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: (a) Open-Source Components or other Third-Party Materials, (b) patent issued on a patent application published after the Effective Date, (c) incorporation by the Services of, or combination, operation or use of the Services in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Voltelligent or specified for Client’s use in the Documentation, (d) modification of the Services other than: (I) by Voltelligent in connection with this Agreement; or (II) with Voltelligent’s express written authorization and in strict accordance with Voltelligent’s written directions and specifications, (e) failure to timely implement any Updates, modification, update or replacement of the Services made available to Client by Voltelligent, (f) use of the Services after Voltelligent’s notice to Client of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights, (g) negligence, abuse, misapplication or misuse of the Services or Documentation by or on behalf of Client, Client’s Representatives or a third party, (h) use of the Services or Documentation by or on behalf of Client that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Voltelligent’s instructions, (i) events or circumstances outside of Voltelligent’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions), or (j) Action or Losses for which Client is obligated to indemnify Voltelligent under Section 9.2.

From Client. Client shall indemnify, defend and hold harmless Voltelligent from and against any and all Losses incurred by Voltelligent in connection with any Action by a third party to the extent that such Losses arise out of or relate to any allegation: (a) that any IP Right or other right of any Person, or any Law, is or will be infringed, misappropriated or otherwise violated by any (I) use or combination of the Services by or on behalf of Client or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by Voltelligent nor authorized by Voltelligent in this Agreement and the Documentation, and information, materials or technology or other matter whatsoever directly or indirectly provided by Client or directed by Client to be installed, combined, integrated or used with, as part of, or in connection with the Services or Documentation, (b) of or relating to facts that, if true, would constitute a breach by Client of any representation, warranty, covenant or obligation under this Agreement, (c) of or relating to negligence, abuse, misapplication, misuse, injury, death, loss of or damage to real or tangible personal property, or more culpable act or omission (including recklessness or wilful misconduct) by or on behalf of Client or any of its Representatives with respect to the Services or Documentation or otherwise in connection with this Agreement, or (d) of or relating to use of the Services or Documentation by or on behalf of Client or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Voltelligent’s instructions.

Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified under Section 9.1 or Section 9.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defence and investigation of such Indemnified Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

Mitigation. If the Services, or any part of the Services, is, or in Voltelligent’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party IP Right, or if Client’s use of the Services is enjoined or threatened to be enjoined, Voltelligent may, at its option and sole cost and expense: (a) obtain the right for Client to continue to use the Services materially as contemplated by this Agreement, (b) modify or replace the Services, in whole or in part, to seek to make the Services non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Services under this Agreement, or (c) if none of the remedies set forth in Section 9.4(a) or 9.4(b) is reasonably available to Voltelligent, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Services, effective immediately on written notice to Client, in which event Client shall cease all use of the Services and Documentation immediately on receipt of such notice.

SOLE REMEDY. THIS ARTICLE SETS FORTH CLIENT’S SOLE REMEDIES AND VOLTELLIGENT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DOCUMENTATION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY IP RIGHTS OF ANY THIRD PARTY. By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users or other third parties will be limited to a claim against those particular users or other third parties. You agree not to attempt to impose liability on or seek any legal remedy from Voltelligent with respect to such actions or omissions.

LIMITATION OF LIABILITY.

EXCLUSION OF DAMAGES. IN NO EVENT WILL VOLTELLIGENT, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SERVICES OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (D) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (E) COST OF REPLACEMENT GOODS OR SERVICES, OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF VOLTELLIGENT AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, RE-SELLERS, CONTRACTORS, SERVICE PROVIDERS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO VOLTELLIGENT UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

TERM & TERMINATION.

Term. This Agreement commences as of the Effective Date of the Agreement and will continue in effect as outlined in the Agreement unless terminated earlier under any of the Agreement’s express provisions (the “Initial Term“).

Renewal Term. This Agreement will automatically renew for successive 1 year terms unless earlier terminated under any of the Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 60 days before the expiration of the then-current term (each, a “Renewal Term” and , collectively, together with the Initial Term, the “Term“).

Termination. This Agreement may be terminated at any time: (a) by Voltelligent, effective on written notice to Client, if Client fails to pay any amount when due under this Agreement, where such failure continues for more than 10 days after Voltelligent’s delivery of written notice thereof (the “Payment Failure“), (b) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach, (c) by Voltelligent, effective immediately, if Client (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any federal or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property, (d) by either party with mutual consent of the parties hereto, provided that such consent to terminate is in writing and signed by each of the parties hereto.

Effects of Termination. Upon termination of this Agreement, Client shall cease all use of the Services and delete, destroy, or return all copies of the Services, Documentation, and Voltelligent Confidential Information in its possession or control, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials. The following will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Section 3.4 (Client Restrictions), Article 6 (Intellectual Property & Feedback), Article 7 (Confidential Information), Article 8 (Representations and Warranties), Article 9 (Indemnification), Article 10 (Limitation of Liability), and this Section; and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

MISCELLANEOUS.

Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Voltelligent employee or contractor will be an employee of Client.

Authorized Users. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible and liable for the acts and omissions of Authorized Users related to this Agreement and to the products and services provided pursuant to this Agreement, as if they were Client’s own acts and omissions. Client shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.

Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver or other communication under this Agreement will have legal effect only if in writing and addressed to party as follows (or to such other address or such other person that such addressee party may designate from time to time in accordance with this Section):

If to Voltelligent: 2529 Munroe Ave. S Saskatoon, SK. S7J 1S8

[email protected]

Attention: Allan Dehod, President

If to Client: At the address or email provided on the first page of the Agreement.

Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 2nd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, failure of communications networks, denial of service/access attacks or other causes beyond the performing party’s reasonable control.

Assignment. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Voltelligent’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section 12.6 is void. This Agreement is binding on and enures to the benefit of the parties and their respective permitted successors and assigns.

Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.

Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

Governing Law and Forum. This Agreement is governed by and construed in accordance with the Laws of the Province of Saskatchewan and the federal Laws of Canada applicable therein. Any Action arising out of or related to this Agreement or the licences granted hereunder will be instituted exclusively in the courts of the Province of Saskatchewan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process notice or other document by mail to such party’s address set forth herein will be effective service of process for any Action brought in any such court. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

Export. Client acknowledges that the Services will not be exported except as authorized by the laws of the jurisdiction in which the Services was obtained.

Currency. Unless otherwise specified in this Agreement, all references to currency, monetary values and dollars set forth herein shall mean Canadian dollars and all payments hereunder shall be made in Canadian dollars.

Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

Counterparts; Electronic Transmission. This Agreement may be executed in counterparts and such counterparts together shall constitute a single instrument. Delivery of an executed counterpart of this Agreement by electronic means, including, without limitation, by facsimile transmission or by electronic transmission of portable document format (“.pdf”) file or other electronic file, shall be equally effective as delivery of a manually executed counterpart. The parties hereto acknowledge and agree that in any legal proceedings between them respecting or in any way relating to this Agreement, each waives the right to raise any defence based on the execution in counterparts or the delivery of executed counterparts by electronic means.

Dispute Resolution. Should a dispute arise regarding any invoice or any other matter in connection with this Agreement, the parties agree that they shall meet and negotiate in good faith to attempt to resolve the dispute. If the dispute cannot be resolved though good faith negotiations between the parties within 5 days then either party may provide the other with written notice of the need to appoint a mediator. Should the parties fail to agree upon a mediator within 5 days after the notice or the parties fail to resolve the dispute by way of mediation then such dispute shall be finally resolved by binding arbitration pursuant to the provisions of The Arbitration Act, 1992 (Saskatchewan) (the “Act”), as from time to time in force or as amended. The arbitration shall be administrated by the Rules of the Court of Queen’s Bench and the Rules of the Court of Appeal for Saskatchewan, in accordance with section 58 of the Act. The arbitration shall take place in Saskatoon, Saskatchewan before a single arbitrator selected by agreement of the parties. Should the parties fail to agree on an arbitrator, the arbitrator shall be appointed by a court of competent jurisdiction pursuant to the Act. The costs of arbitration, including legal fees and disbursements, shall be awarded by the arbitrator in the manner which the arbitrator considers appropriate under the circumstances.

WAIVER OF CLASS ACTION. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

Choice of Language. The parties have required that this Agreement and all documents and notices resulting from it be drawn up in English. Les parties aux présents ont exigés que la présente convention ainsi que tous les documents et avis qui s’y rattachent ou qui en découleront soit rédigés en la langue anglaise.