Tailwind Software as a Service User Agreement

WHEREAS:

1. The SaaS Provider makes its proprietary Tailwind Express Platform software application, Tailwind Standard Platform software application, Tailwind Pro software application, Tailwind Enterprise software application, and the Tailwind Unlimited software application (the “Application”) available on a “software as a service” basis (the “Software as a Service”).
2. The SaaS Provider wishes to provide and the Customer wishes to receive the Software as a Service for use in connection with online websites, and mobile device applications.

THEREFORE, in consideration of the mutual covenants and agreements set forth herein, including the Tailwind Order Agreement and the Tailwind Maintenance and Support Policy (and other good and valuable consideration, the receipt and sufficiency of which is hereby confirmed by each party), the parties agree as follows:

1. Software as a Service

1.1. Subject to the terms and conditions of this Agreement, SaaS Provider agrees to provide to Customer, the Software as a Service identified, described and available online at the following URL:  https://www.tailwindtransportationsoftware.com, on a “software as a service” basis.

1.2.      Additional upgrades (i.e., modifications, additions or substitutions that result in a substantial change, improvement or addition to the Software as a Service), if available, may be offered by SaaS Provider for Additional Fees as set forth in the applicable ordering document.

2. Licence Grant

2.1.      SaaS Provider hereby grants to Customer, subject to all of the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited licence for access to the Software as a Service via the Internet and to use the Software as a Service, in object code form only, solely for business purposes in accordance with the terms set out in this Agreement.

3. Licence Restrictions

3.1.      Customer shall not, directly or indirectly:

3.1.1.   reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying, technology, ideas or algorithms of the Software as a Service;

3.1.2.   modify, translate, or create derivative works based on the Software as a Service;

3.1.3.   rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Software as a Service to any other party;

3.1.4.   remove any proprietary notices from the Software as a Service;

3.1.5.   publish or disclose to third parties any evaluation of the Software as a Service without SaaS Provider’s prior written consent; or

3.1.6.   create any link to the Software as a Service or frame or mirror any content contained on, or accessible from, the Software as a Service, other than Payment Services specified in this Agreement.

4. Licence Use

4.1.      SaaS Provider grants to the Customer the non-exclusive, non-transferable right to use the Software as a Service subject to the payment of all Fees when due.

5. Fees

5.1.      Customer shall make Payment of all Fees as specified in the applicable ordering document. All fees due under the agreement are non-cancelable and the sums paid nonrefundable. In the event that payment is not received within the terms of this agreement the SaaS Provider may restrict access to the Software as a Service without notice at its sole discretion.

6. Additional Fees

6.1.      SaaS Provider acknowledges that Customer is entering this Agreement on the understanding that Software as a Service meets the current requirements of Customer. Should the requirements of Customer necessitate additional server and/or language resources and/or specific customization, Customer shall make Payment of Additional Fees as specified in the applicable ordering document.

7. Copyright and Intellectual Property Rights

7.1.      Customer hereby acknowledges that the copyright in and to the Application provided by the SaaS Provider as the Software as a Service is the property of SaaS Provider or its licensors and thus SaaS Provider or its licensors have exclusive ownership of all modifications and additions to the Application under this Agreement. Customer hereby acknowledges the brand, name and patent rights of SaaS Provider and its licensors to the Application provided as the Software as a Service and the SaaS Provider’s website.

7.2.      Customer further acknowledges that any suggestions for enhancements, additions, deletions or amendments to the Application or the Software as a Service shall become the sole property of the SaaS Provider.

8. Third Party Software Rights and Use as SaaS

8.1.      Customer is not permitted use of third party software (other than as provided by SaaS Provider) in combination with the Software as a Service.  Third party products are not included in the price of the software unless otherwise specified. Examples include mapping and mileage programs, GPS, fuel tax, fax servers, EDI, email, and communication programs. The Customer must pay for all third party products prior to installation or use. The SaaS Provider facilitates the translation, interaction, or display of the information of third party products only and is therefore not liable or responsible for their performance or impact of the Customer’s business.  The Customer is responsible for operation and continued function of third party products after the intial sale and installation.

9. Customer Obligations

9.1.      SaaS Provider and Customer hereby agree to the following:

9.1.1.   Hardware. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to internally access the Software as a Service, and for paying all third party access charges (e.g., ISP, telecommunications) incurred while using the administration and related functionality of the Software as a Service, including any costs related to the purchase of bandwidth required to utilize the Software as a Service.

9.1.2.   Conduct. Customer shall be solely responsible for its actions and the actions of its users while using the Software as a Service and the contents of its transmissions through the Software as a Service. Customer agrees:

(i)         to abide by all local and international laws and regulations applicable to Customer’s use of the Software as a Service, including without limitation all laws regarding the transmission of technical data exported from Canada and/or the United States through the Software as a Service;

(ii)        not to knowingly upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Software as a Service or another’s computer;

(iii)       not to use the Software as a Service for illegal purposes;

(iv)      not to interfere or disrupt networks connected to the Software as a Service;

(v)       other than for the purposes of creating filters for which the Software as a Service is being purchased, not to post, promote or transmit through the Software as a Service any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature;

(vi)       other than for the purposes of creating filters for which the Software as a Service is being purchased, not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and,

(vii)      to comply with all regulations, policies and procedures of networks connected to the Software as a Service. Customer acknowledges and agrees that SaaS Provider neither endorses the contents of any customer communications nor assumes any responsibility for any threatening, libellous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. SaaS Provider may remove any violating content posted on the Software as a Service or transmitted through the Software as a Service, which is not being posted for the purposes of creating filters for which the Software as a Service is being purchased, without notice to Customer.

9.1.3.   Advertising. Customer may enter into correspondence with or participate in promotions or transactions directly or with third party advertisers (“Advertisers”), promoting their products, which mentions the Software as a Service. Customer hereby acknowledges and agrees that any such correspondence or participation, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence, promotions, or transactions are solely between Customer and Advertiser. SaaS Provider shall have no liability, obligation or responsibility whatsoever arising out of or in connection with any such correspondence, promotions or transactions.

9.1.4.   Links.  The Software as a Service may provide links to other websites or resources. Customer acknowledges and agrees that SaaS Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources. SaaS Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such external sites or resources.

10. Customer Data

10.1.    As between SaaS Provider and Customer, Customer shall own all data, information or material that Customer transmits to SaaS Provider, enters into the Software as a Service or has entered on its behalf (“Customer Data”). Except as permitted in this Agreement, SaaS Provider will not edit, delete or disclose the contents of Customer Data unless authorized by the Customer or unless SaaS Provider is required to do so by law or in the good faith belief that such action is necessary to:

10.1.1. conform to applicable laws or comply with legal process served on SaaS Provider;

10.1.2. protect and defend the rights or property of SaaS Provider; or

10.1.3. enforce this Agreement.

10.2.    SaaS Provider may provide user statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include personally identifiable information (the “Publishable Data”).  .

10.3.    SaaS Provider may access Customer Data to respond to service or technical problems with the Software as a Service. As the Customer inputs and assigns risk levels to the Customer Data, the Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data, and SaaS Provider assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Services to store any Customer Data.

10.4.    SaaS Provider reserves the right to establish a maximum amount of memory or other computer storage and a maximum amount of Customer Data that Customer may store, post or transmit on or through the Software as a Service.

10.5.    Customer shall be responsible for compliance with all obligations imposed by all applicable privacy laws including, without limitation, the Personal Information Protection Act (British Columbia), the Personal Information Protection and Electronic Documents Act (Canada), the United States Children’s Online Privacy Protection Act of 1998 (“COPPA”) and any implementing or amending legislation as may be enacted from time to time, and Customer shall indemnify, defend and hold SaaS Provider harmless from and against any third party claims against SaaS Provider resulting from the use and disclosure by SaaS Provider of personal information consistent with the terms of this Agreement.  With respect to any and all Customer Data that contains “personal information” (as that term is defined in COPPA) and which is transmitted or disclosed to SaaS Provider pursuant to this Agreement, Customer hereby represents, warrants and confirms that:

10.5.1. Customer is the “operator” (as that term is defined in COPPA) of any and all websites through which such “personal information” was collected by or on behalf of the Customer;

10.5.2. No such “personal information” has been collected by or on behalf of the Customer in contravention of COPPA;

10.5.3. No such “personal information” will be transmitted or disclosed to SaaS Provider except for the purposes of enabling the SaaS Provider to provide support for the internal operations of the Customer’s and/or to protect the security or integrity of such;

10.5.4. where required by law to do so, Customer has identified SaaS Provider as a service provider to the Customer to whom “personal information” may be disclosed and the Customer has obtained the consent of all relevant parties (including, without limitation, any parent or legal guardian) to the transmittal and/or disclosure of such “personal information” to the SaaS Provider.

10.6.    SaaS Provider shall have no obligation to retain Customer Data during or after the term of this Agreement.  SaaS provider may retain Customer Data in retrievable form for a period of not more than thirty (30) days during the term of this Agreement or after expiration or termination of this Agreement. , SaaS Provider may retain Customer Data in non-retrievable form indefinitely during and after the term of this Agreement.

11. Obligations of SaaS Provider

11.1.    SaaS Provider warrants that the Software as a Service will perform substantially and materially in accordance with its functional specification under normal use and circumstances for the Software as a Service provided in accordance with this Agreement. If there is a material breach of the above warranty, SaaS Provider’s entire liability and Customer’s entire remedy shall be, at SaaS Provider’s sole discretion, to:

11.1.1. modify the Software as a Service to conform to the functionality of the Customer’s requirements and/or provide a reasonable workaround to substantially achieve such functionality which will reasonably meet the Customer’s requirements; or

11.1.2. if neither of the foregoing is commercially reasonable, terminate this Agreement with no further liability to SaaS Provider or Customer. These remedies are Customer’s sole and exclusive remedies.

11.2.    The Software as a Service is provided on an “As Is”, “As Available” basis. SaaS Provider expressly disclaims all Warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, as well as warranties arising by usage of trade, course of dealing or course of performance.

11.3.    As the Customer is responsible for the input of the Customer Data and the level of risk assigned to such Customer Data in order to create the filters using the Software as a Service, the SaaS Provider makes no warranty as to the results that may be obtained from use of the Software as a Service or as to the accuracy or reliability of any content or information or payment transaction obtained or made by the Software as a Service.

11.4.    The SaaS Provider also makes no warranty that the Software as a Service will be uninterrupted, timely, secure or error-free, or that defects in the services will be corrected in situations outside of the SaaS Provider’s control including, but not limited to, a force majeure as described in section 31 of this Agreement.  Customer agrees that it shall be solely responsible to provide an alternate backup or failover content filtering system that is suitable to the Customer’s needs and which can be promptly activated in the event that the availability of the Software as a Service is disrupted for any reason.  Without limiting the terms of this section 11 or sections 19, 20 and 31 of this Agreement, in the event that the availability of the Software as a Service is disrupted for longer than one (1) hour as the direct result of a cause that is within the reasonable control of the SaaS Provider, then Customer may, within thirty (30) days of such disruption, provide a written request to the SaaS Provider for a credit against the amounts due under this Agreement.  Upon receipt by SaaS Provider of such a written credit request, SaaS Provider shall, for the Customer’s next billing cycle, provide a credit to the Customer of the equivalent of one (1) day of use of the Software as a Service for each day that the availability of the Software as a Service was disrupted for longer than one (1) hour as the direct result of a cause that was within the reasonable control of the SaaS Provider.

11.5.    Customer understands and agrees that any software or sample code downloaded or otherwise obtained through the Software as a Service is done at Customer’s own discretion and risk and that the Customer will be solely responsible for any damage to Customer’s computer systems or loss of data or income that results from the download of such material or data or transactional use of the Software as a Service.

12. Maintenance Support Services

12.1.    Support Services to be provided by SaaS Provider. During the term of the Agreement, as defined in the Tailwind Order Agreement, SaaS Provider shall provide the Customer with Support Services as outlined and limited by the applicable Tailwind Maintenance and Support Policy, as updated from time to time, for the Services in use by Customer, which shall comprise the following:

12.1.1. Email Support. Email Support shall comprise email access and response.

12.1.2. Direct Support. Direct Support shall comprise the following services:

(i)        advice by telephone subject, or chat;

(ii)       the dispatch out, at SaaS Provider’s sole discretion, by post or email of fix announcements to Services, information regarding forthcoming updates, upgrades and/or new features concerning the Software as a Service and technical newsletters;

(iii)      the creation and upload to the Software as a Service, from time to time at SaaS Provider’s sole discretion, patches and fixes in respect of the Software as a Service;

(iv)      the diagnosis of errors, bugs and defects (collectively “Errors”) in the Software as a Service and the rectification of such Errors (remotely or by attendance on site as determined by SaaS Provider) by the issue of fixes in respect of the Software as a Service and the making of all consequential amendments (if any) to the associated documentation;

(v)       any other support service offered to Customer by SaaS Provider from time to time which SaaS Provider may, at its sole discretion, designate as a support service; and

(vi)       the issue of new releases of the Software as a Service.

12.1.3. Exclusions. Support services shall not include the diagnosis and rectification of any Errors resulting from:

(i)         any modifications of the Software as a Service made by any person other than SaaS Provider;

(ii)       minor defects in the Software as a Service which do not significantly affect or impair the use of the Software as a Service;

(iii)      any incorrect or improper use of the Software as a Service;

(iv)      the failure by Customer to implement recommendations in respect of any solutions to Errors previously advised by SaaS Provider; and

(v)       the use of the Software as a Service for any purpose for which it was not designed.

12.1.4. Rectification of Errors. SaaS Provider shall, upon written request by Customer, provide diagnosis and rectification of Errors notwithstanding that the Error in question results from any of the circumstances described in Section 12.1.3.  SaaS Provider shall charge for this rectification of Errors of the Software as a Service on a time and materials basis.

12.1.5. Support Services. The support services are only provided by SaaS Provider in respect of the current release of Software as a Service and, for a period not exceeding twelve (12) months dating from the date of issuance of the next most current release of the Software as a Service immediately preceding the most current release.

12.1.6. Customer Obligations. During the continuance of this Agreement, Customer shall:

(i)         provide SaaS Provider (so far as Customer is able) with a documented example of any Error in respect of which a request for diagnosis and rectification has been made under this Agreement;

(ii)       co-operate fully with SaaS Provider’s personnel in the diagnosis of any Error in the Software as a Service or the associated documentation and perform such tests of the Software as a Service as SaaS Provider shall request in the evaluation of any request for support services by Customer;

(iii)       ensure that the administration functionality of the Software as a Service is used in a proper manner by competent trained employees only or by persons under their supervision; and,

(iv)      save as otherwise expressly provided in this Agreement, not make any translation, adaptation, arrangement or any other alteration of the Software or Software as a Service or make any reproduction, distribution, communication, display or performance to the public of the results of such acts.

12.1.7. Payment. In the event that Customer fails to pay any amounts due pursuant to the terms of this Agreement within thirty (30) days of the due date, SaaS Provider shall be entitled, without prejudice to any other rights and remedies it may have under this Agreement, to cease provision of the support services until such amounts and any interest payable have been paid in full.

12.1.8. Customer Personnel. Customer shall notify SaaS Provider within three (3) days of the Activation Date (as defined in Section 16), of the identity of up to three (3) individuals who shall act as the sole contact points and channels of communication for the provision by SaaS Provider of the support services during the term of this Agreement. Customer shall inform SaaS Provider of any change in the identity of such persons.

13. Passwords and Security

13.1.    SaaS Provider and Customer hereby agree to the following:

13.1.1. Passwords. SaaS Provider shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each user authorized to use Customer’s account for whom Customer has paid the applicable fee. Customer and its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under Customer’s account. Customer agrees to immediately notify SaaS Provider of any unauthorized use of the Customer’s account (including each password of each user accessing the Software as a Service by means of Customer’s account) or any other breach of security known to Customer. SaaS Provider shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements. SaaS Provider will maintain Customer passwords as confidential and will not disclose them to third parties.

13.1.2. Security. SaaS Provider will maintain the Software as a Service at a reputable third party Internet service provider (“ISP”) and hosting facility, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Software as a Service. Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Software as a Service and Customer Data (defined below). Accordingly, SaaS Provider cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.

14. Payment of Fees

14.1.    Customer shall pay all fees or charges to its account in accordance with the applicable ordering document and billing terms in effect at the time a fee or charge is due and payable. SaaS Provider and Customer hereby agree to the following:

14.1.1. Invoicing. The applicable Fees and Additional Fees will be invoiced monthly or annually in advance and are due within thirty (30) days of date of such invoice;

14.1.2. Billing Errors. Customer must contact SaaS Provider in writing no later than seven (7) days after the billing date to report a billing error;

14.1.3. Movement in Categories.  Should the Customer transition from its current base rate, due to an increase or decrease of registered users, the Fee shall be adjusted accordingly at the next monthly Fee payment; or on a pro-rata basis for the remainder of the term of the agreement if the Customer elects to pay annually.

14.1.4. Taxes. All fees are stated in Canadian or United States currency, as the case may be, and are exclusive of applicable provincial and federal sales and goods and services taxes. Customer shall be responsible for the payment of any taxes, duties or tariffs applicable to the products and services provided under this Agreement.

15. Term and Termination

15.1.    The term of this Agreement commences on the earlier of (i) the Activation Date (as defined in Section 16) and (ii) the date of the first invoice for Fees issued by the SaaS Provider.  This agreement will not terminate unless (i) no earlier than 60 days after the commencement of the initial term of this Agreement, the Customer provides the SaaS Provider with 30  days’ notice of termination; or (ii) the Customer fails to comply with the provisions of this Agreement; or (ii) the SaaS Provider is unable to fulfill its obligations pursuant to the terms of this Agreement; or the SaaS Provider believes that the Software as a Service may become the subject of an infringement or misappropriation claim.  Upon the expiration of this Agreement, this Agreement will terminate and the SaaS Provider will terminate Customer’s ability to use the Software as a Service, unless Customer has signed a new agreement by that date. Any termination of this Agreement pursuant to this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. Upon termination of this Agreement for whatever reason, Customer will immediately deliver up any materials and any confidential and proprietary information which it has no contractual right to retain.

15.2.    Should termination result from 60 days’ written notice by the Customer, SaaS Provider will not be obligated to refund any monthly or annual payments or pre-payments made by the Customer.

16. Activation Date

16.1.    The Activation Date for use of Software as a Service by Customer under this Agreement shall be the date that initial login credentials are provided to the Software as a Service.

17. Confidentiality

17.1.    SaaS Provider and Customer hereby agree to the following:

17.1.1. Parties’ Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement (“Confidential Information”). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.

17.1.2. Exclusions. Confidential Information shall not include any information that is:

(i)        already known to the receiving party at the time of the disclosure;

(ii)       publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party;

(iii)      subsequently disclosed to the receiving party on a non- confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information;

(iv)       disclosable pursuant to section 10.2 of this Agreement;

(v)       communicated to a third party by the receiving party with the express written consent of the other party hereto; or

(vi)      legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process, provided the receiving Party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.

17.1.3. Destruction or Return of Confidential Information. Upon Termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.

18. Indemnification

18.1.    SaaS Provider and Customer hereby agree to the following:

18.1.1. Infringement. SaaS Provider, at its own expense, will defend any claim brought by a third party against Customer to the extent that the claim is based on a claim that the Software as a Service, as used within the scope of this Agreement, directly infringes any Canadian or United States copyright or misappropriates any trade secret recognized as such under the laws of Canada and SaaS Provider will pay those costs and damages finally awarded against Customer for any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action.

18.1.2. Conditions. SaaS Provider’s obligations under the preceding paragraph with respect to a claim are conditioned on:

(i)        Customer notifying SaaS Provider promptly in writing of such claim;

(ii)        Customer giving SaaS Provider sole control of the defence of all such claims and any related settlement negotiations; and

(iii)       Customer co-operating with SaaS Provider in such defence (including, without limitation, by making available to SaaS Provider all documents and information in Customer’s possession or control that are relevant to the infringement or misappropriation claims, and by making Customer’s personnel available to testify or consult with SaaS Provider or its legal advisers in connection with such defence).

If Customer settles any such claim without SaaS Provider’s prior written approval, SaaS Provider shall be relieved of all liability with respect to such claim.

18.1.3. Exclusions. Notwithstanding the foregoing, SaaS Provider shall have no liability or obligation with respect to any infringement or misappropriation claim based upon:

(i)        any use of the Software as a Service not in accordance with this Agreement or for purposes not intended by SaaS Provider; or

(ii)       any modification of the Software as a Service made by any person other than SaaS Provider where such modification is not authorized by SaaS Provider.

18.1.4. Remedies. If the Software as a Service becomes, or in SaaS Provider’s opinion is likely to become, the subject of an infringement or misappropriation claim, SaaS Provider may, at its sole option and expense, either:

(i)         procure for Customer the right to continue to use the Software as a Service pursuant to this Agreement; or

(ii)       replace or modify the Software as a Service to make them non-infringing; or

(iii)      terminate this Agreement and Customer’s right to use the Software as a Service and refund to Customer any unused pre-paid Fees as of the date of Termination.

18.1.5. By Customer. Customer agrees to defend, indemnify and hold SaaS Provider, its parent, subsidiaries, officers, directors, employees, successors and assigns harmless from any claim, demand, damages, costs and expenses (including reasonable legal fees), arising from any third party claim against SaaS Provider due to or arising out of:

(i)         any use of the Software as a Service by Customer, its affiliates, employees agents, successors and assigns other than in accordance with this Agreement;

(ii)        any breach of this Agreement by Customer, its affiliates, employees agents, successors and assigns; and

(iii)       any unauthorized modification of the Software as a Service by Customer, its affiliates, employees, agents, successors and assigns, including any claims for intellectual property infringement arising therefrom.

19. Limitation of Liability

19.1.    In no event shall SaaS Provider be liable for direct damages arising out of this Agreement (whether arising under contract, tort, strict liability, breach of warranty or otherwise) in amounts greater than the total as paid to SaaS Provider by Customer for the calendar quarter in which the cause of action arose. In no event shall SaaS Provider be liable for any indirect, incidental, punitive, special or consequential damages for loss of profits, use, data or other intangible property, even if SaaS Provider has been advised of the possibility of such damages and notwithstanding the failure of any essential purpose.

20. Warranties

20.1.    Subject to the exceptions set out elsewhere herein this Agreement, SaaS Provider warrants that it will provide Software as a Service and perform support services using reasonable care and skill. Subject to the foregoing, all conditions, warranties, terms and undertakings express or implied, statutory or otherwise in respect of the Support Services and any additional services are hereby excluded to the greatest extent permissible by applicable law.

21. Publicity

21.1.    SaaS Provider may use Customer’s name as part of a general list of customers and may refer to Customer as a user of the Services in its general advertising and marketing materials. Each party shall obtain the other party’s permission prior to using the other party’s name for any other marketing or promotional purposes. The parties agree that any press release or other public comments issued by either party relating to this Agreement, any dispute under this Agreement, or Customer’s subscription to or use of the Services, will be prepared jointly between SaaS Provider and Customer and will be issued upon mutual agreement of the parties.

22. 
    Notices

22.1.    All notices to a party shall be in writing and sent to the addresses specified in this Agreement and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Written Notice:                       Email Notice:

7247 120^th Street                     info@tailwindtms.com

Delta, BC

V4C 6P5

23. Entire Agreement

23.1.    This Agreement plus the Tailwind Order Agreement and the Tailwind Maintenance And Support Policy contains the entire agreement of the parties and supersedes any and all previous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement s0upersedes any terms printed on Customer’s purchase order or other forms. If there are any discrepancies this agreement shall prevail

24. Assignment

24.1.    This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Except with respect to wholly owned affiliates, Customer may not assign this Agreement without SaaS Provider’s prior written consent, not to be unreasonably withheld. SaaS Provider may assign this Agreement to any parent, subsidiary or affiliate or to any successor to its business, and SaaS Provider may subcontract any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.

25. Governing Law

25.1.    This Agreement and any disputes hereunder shall be governed in all respects, including validity, interpretation and effect, by the laws of British Columbia without regard of its conflict of laws principles. Any dispute under this Agreement shall be brought exclusively in the courts of British Columbia, and Customer hereby submits to the exclusive jurisdiction of such courts. Customer agrees that any cause of action arising out of or related to this Agreement shall be brought within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

26. Activation, Counterparts and Facsimile

26.1.    This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and both of which together shall constitute one agreement.

27. Headings

27.1.    The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

28. English Language

28.1.    It is the express will of the Parties that this Agreement has been written in English.

29. No Waiver

29.1.    No waiver of any default, condition or breach of this Agreement shall be deemed to imply or constitute a waiver of any other default, condition or breach of this Agreement, whether of a similar nature or otherwise.

30. Severability

30.1.    In the event that any one or more of the provisions of this Agreement are invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

31. Force Majeure

31.1.    Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labour disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.