Master Business Partner Agreement
Updated: July 15, 2021
Version: 1.0

ARTICLE 1
INTERPRETATION

1.1 Definitions. Throughout this Agreement, except as expressly provided in a Business Partner Agreement or a Schedule, the following words, terms and expressions shall have the following meanings:

“Affiliate” means, with respect to a Party, a legal entity that is controlled by, controls, or is under common control with that Party.
“Control” means ownership of more than 50% of the voting power or ownership interests of the entity or the right to direct or control the management of the entity.
“Business Day” means any day which is not a Saturday, a Sunday or a day observed as a statutory or civic holiday under the laws of the Province of Ontario or the federal laws of Canada applicable in the Province of Ontario, on which the principal commercial banks in the City of Toronto, Ontario are open for business.
“Business Partner Agreement” means a Business Partner Agreement, which, when executed, forms part of this Agreement.
“Confidential Information” means the information of a Party, its Representatives or customers and is non-public, confidential or proprietary in nature, including, any and all technical and non-technical information, including Intellectual Property and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, design details, specifications, equipment, algorithms, software programs, software source documents and formulae related to the current, future and proposed products and services of such party, and including, information concerning research, experimental work, development, engineering, financial information, procurement requirements and processes, purchasing, manufacturing, customer lists and preferences, business ventures, forecasts and strategic plans, sales, merchandising and marketing strategies, plans and programs. Confidential Information includes without limitation: (a) information transmitted in written, oral, magnetic or any other medium; (b) all copies and reproductions, in whole or in part, of such information; and (c) all summaries, analyses, compilations, studies, notes or other records which contain, reflect, or are generated from such information. Confidential Information does not include information that (a) has become part of the public domain through no act or omission of the receiving Party or its Representatives in contravention of this Agreement; (b) was developed by the receiving Party, or on the Receiving Party’s behalf, independently of and without reference to any Confidential Information; or (c) is or was lawfully and independently provided to the receiving Party from a third party who was not, to the knowledge of the receiving Party, subject to an obligation of confidentiality to the disclosing Party or otherwise prohibited from transmitting such information.
“Customer” means a Party’s existing end-user customer that purchases the Services of the other Party.
“Intellectual Property” means intellectual property rights (including, patents, patent applications, trade secrets, trademarks, trade names, service marks, logos, moral rights, or any other copyrights inherent thereunder, along with any registrations and applications to register, as applicable) in tangible and intangible materials or information which may be continually under development, modification or improvement, including, but not limited to, software, source code, object code, routines, tools, documentation, methodologies, techniques, algorithms, inventions, ideas, databases, and know-how.
“Law” or “Laws” means all applicable laws (including those arising under common law), statutes, codes, orders, rules, regulations, reporting or licensing requirements, ordinances, and other pronouncements having the effect of law in Canada, any foreign country or other political subdivision where Services are performed.
“Licensed Marks” has the meaning given to it in Article 4.
“Marketing Materials” has the meaning given to it in Article 4.
“Master Services Agreement” means that certain master services agreement to be entered into between WatServ and a Referral.
“Originating Party” means the Party that first introduced the Customer to the other Party.
“Personal Data” means data about an identifiable individual, but does not include the name, title, business address or telephone number of an employee of an organization.
“Qualified Referrals” mean Referrals which are (a) referred by one Party (herein, the “Referring Party”) to the other Party and who does not have an active account with the other Party (or an active account with any of the other Party’s distributors, resellers, agents or other distribution channels) at the time the Referring Party first registered the Referral with the other Party; or (b) referred by the Referring Party to the other Party and who has an active account with the other Party (or an active account with any of the other Party’s distributors, resellers, agents or other distribution channels), but where the other Party was unaware of the opportunity at the time that the Referring Party first registered the Referral with the other Party.
“Referral” means a customer that has been referred by the Referring Party to the other Party.
“Representative(s)” means Affiliates, employees, agents, and representatives, including attorneys, accountants, consultants, financial advisors, and third parties retained to perform the work required in connection with the Services provided.
“Services” means those certain services provided by WatServ or the Partner, whichever the case may be.
“Supplier” means any vendor, supplier or licensor of software, services or products included in the Services, and any of its Affiliates.
“WatServ Tools” means any and all processes, materials, software, and products, including Intellectual Property in the foregoing, and any modifications, enhancements, or derivative works thereof, developed or used by or on behalf of WatServ in its delivery of Services that do not contain any of Customer’s Confidential Information and which do not qualify as a Deliverable.

1.2 Certain Rules of Interpretation. In this Agreement and the Schedules and Exhibits:

(a) Time. Time is of the essence in and of this Agreement.
(b) Calculation of Time. Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends. Where the last day of any such time period is not a Business Day, such time period shall be extended to the next Business Day following the day on which it would otherwise end.
(c) Business Days. Whenever any action to be taken or payment to be made pursuant to this Agreement would otherwise be required to be made on a day that is not a Business Day, such action shall be taken, or such payment shall be made, on the first Business Day following such day.
(d) Currency. Unless otherwise specified in a Business Partner Agreement or a Schedule, all references to amounts of money in this Agreement refer to the lawful currency of Canada.
(e) Headings. The descriptive headings preceding Articles and Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Articles or Sections. The division of this Agreement into Articles and Sections shall not affect the interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and similar expressions refer to this Agreement and not to any particular Section or other portion hereof and include any supplemental agreement.
(f) Including. Where the word “including” or “includes” is used in this Agreement, it means “including without limitation” or “includes without limitation”.
(g) Plurals and Gender. The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits.

ARTICLE 2
PRINCIPLES OF COOPERATION

2.1 Co-operation. The Parties shall work cooperatively, but independently, to market and deliver each Party’s Services to current and prospective customers. Within the scope of the cooperation, the Parties agree to exchange all information necessary to carry out the Agreement without delay and to adhere to the Business Partner Agreement. The aim is to attain the highest possible level of Customer satisfaction.
2.2 Back-to-Back Service Level Agreement Process. The following outlines the process pursuant to which the Parties shall agree to the service level commitments (“SL Commitments”) to be delivered by Partner to WatServ Clients and WatServ to Partner Clients (each, a “Client”):

(a) WatServ and Partner agree to cooperate with one another in developing a set of SL Commitments for each Client requesting services and support capabilities from Partner or from WatServ. Prior to the execution and delivery of a master services agreement and/or any statement of work (collectively, the “Client Agreement”) with a Client, WatServ will consult with Partner on the appropriate SL Commitments for such Client. Only once the SL Commitments have been determined and agreed to by the Parties, shall either Party include such SL Commitments in the Client Agreement. Delivery of a fully-executed Client Agreement containing such SL Commitments shall be deemed evidence of the approval thereof by the Parties.
(b) The SL Commitments will be performed by Partner in a good and workmanlike manner and will conform to the specifications described in the applicable Client Agreement in all material respects.

2.3 Roles and Responsibilities. WatServ and Partner agree to cooperate with one another in establishing clearly defined roles and responsibilities (“R&Rs”) for each Client requesting services and support capabilities from either Party. Prior to the execution and delivery of a master services agreement and/or any statement of work (collectively, the “Client Agreement”) with a Client, WatServ will consult with Partner on the appropriate delegation of R&Rs for such Client. Only once the R&Rs have been determined and agreed to by the Parties, shall either Party include such R&Rs in the Client Agreement if necessary.
2.4 Promotion, Referral Activities. Each of the Parties agrees to engage in continued, active promotion of each Party’s Service in various marketing channels using the other Party’s Licensed Marks, Marketing Materials, and Digital Assets, and to do so in compliance with the terms of this Agreement.
2.5 Prohibited Activities. Each of the Parties agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in the other Party’s sole discretion. Each of the Parties agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting Services, or otherwise to engage in any other form of electronic communications, mass or otherwise, prohibited by law, including Canada Anti-Spam Legislation, in connection with activities contemplated under this Agreement.
2.6 Permissible Use of Licensed Marks.

(a) Each of the Parties expressly agrees to comply with all the terms herein in using the other Party’s Licensed Marks and in creating Marketing Materials.
(b) Each Party shall provide specifications and other instructions from time to time as to the other Party’s permissible use of such Party’s Licensed Marks in creating Marketing Materials and promoting such Party’s Service. Each Party further agrees to comply with all such specifications and instructions.
(c) Each Party shall (i) ensure that all Licensed Marks of the other Party appearing on its Marketing Materials are in the form approved by such other Party, (ii) not modify any such Licensed Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by such other Party, and (iii) further comply with reasonable instructions from such other Party as to the form, content, and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by a Party, the license granted herein shall expire and the other Party shall immediately cease all its activities under this Agreement.

2.7 Liabilities. Each of the Parties shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of such Party’s operations and materials created and used in connection with this Agreement. Except for a claim alleging that a Licensed Mark of a Party violates a third party’s trademark rights, such Party is not responsible for the development, operation or content of the other Party’s Marketing Materials and the other Party agrees to defend, indemnify, and hold WatServ harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content, and maintenance of the other Party’s Marketing Materials.
2.8 Customer Relations. During and after the Term, each Party shall be the exclusive owner of all Customer relations created in connection with this Agreement as follows:

(a) If WatServ is the Originating Party and elects for the Customer to contract directly with Partner, then Partner shall be the exclusive owner as it relates to the Partner Services only;
(b) If Partner is the Originating Party and elects to white-label the WatServ Service, then Partner shall be the exclusive owner; and
(c) If Partner is the Originating Party and elects for the Customer to contract directly with WatServ, then WatServ shall be the exclusive owner as it relates to the WatServ Services only.

2.9 Regulatory Requirements. In connection with its performance under this Agreement, each Party will comply with all applicable Laws.
2.10 Non-Exclusive. Each of the Parties is aware that the other Party works with multiple other partners. Each of the Parties is authorized to enter any other agreements with any other person for any reason and cooperate with them, simultaneously during the Term of this Agreement.

ARTICLE 3
INTELLECTUAL PROPERTY RIGHTS

3.1 Ownership. Each Party (herein “Owner”) shall at all times retain the sole and exclusive right and title to all of the Owner’s Licensed Marks, and nothing contained in this Agreement or any other agreement is intended to, or shall be construed to, grant to the other Party (herein “User”) any Intellectual Property ownership rights to the Owner’s Licensed Marks. For greater certainty, all other Intellectual Property rights and other proprietary rights in and to the Owner’s Services, including, but not limited to, any information, know-how, and processes developed by the Owner, or anyone acting on the Owner’s behalf, and arising from the Owner’s Services, shall be the sole and exclusive property of the Owner. All Intellectual Property rights and other proprietary rights of a Supplier shall remain the sole and exclusive property of such Supplier.
3.2 License. Neither Party (herein, the “Licensor”) grants any license to any of its Intellectual Property except as expressly provided herein. The Licensor grants to the other Party (the “Licensee”) a non-exclusive, non-sublicensable, worldwide, royalty-free, non-transferable (except as expressly granted herein) license to execute, display, and perform internally, solely in connection with the marketing and distribution of the Licensor’s Services, to Referrals, the Licensor’s trademarks and logos provided by the Licensor and listed in Exhibit A (“Licensed Marks”), as may be amended by the Licensor, in its sole discretion, from time to time, and associated materials, language or code for the sole purpose of promoting the Licensor’s Services (collectively, “Marketing Materials”).

ARTICLE 4
FEES, INVOICING AND PAYMENT

4.1 Fees, Invoice and Payment Terms. The fees for Services shall be set forth in the applicable Business Partner Agreement and shall be exclusive of all applicable taxes. Unless otherwise specified in the applicable Business Partner Agreement, WatServ shall submit invoices on a monthly basis for Services furnished during the preceding month and all amounts, including applicable taxes, are due and payable within thirty (30) days from the date of invoice. Unless otherwise expressly set forth in a Business Partner Agreement, any program or milestone payments shall be invoiced on a monthly milestone basis. In addition to the fees for Services, Partner shall reimburse WatServ for all out-of-pocket expenses incurred in accordance with the applicable Business Partner Agreement within thirty (30) days from the date of invoice. Partner requests for re-submission of an invoice due to format changes are due based on the original invoice date.
4.2 Taxes. Except to the extent that Partner provides WatServ with a complete and valid exemption certificate, Partner shall be invoiced for and agrees to pay all applicable sales, service, value-added, lease, use, personal property, excise, withholding or similar consumption and other taxes and duties, whether assessed to Partner or WatServ on the provision of the Services excluding any taxes based on WatServ’s capital or net income. The Parties shall cooperate fully with each other to more accurately determine tax liability and to minimize such liability to the extent legally permissible (e.g., through tax exemptions, resale certificates, or local billing). Each Party shall be responsible for its own income taxes and for any sales, lease, use, personal property, or other such taxes on equipment, software, or property it owns or leases from a third party.
4.3 Amendments. WatServ reserves the right to increase the fees upon ninety (90) days’ prior notice to Partner. Partner’s continued use of the Services after the effective date of such increase will be deemed to be acceptance by Partner of the updated fees. If Partner does not agree with such increase, Partner may terminate the applicable Business Partner Agreement with respect to such Services by providing written notice to WatServ, provided, however, that such notice must be received within fourteen (14) days after WatServ’s notification and that such termination will be deemed a termination for convenience by Partner for the purpose of the Agreement.
4.4 Disputes; Late Payments. Partner agrees to provide WatServ with written notice of any disputed invoice items within fifteen (15) days of receipt of invoice. If Partner disputes any item on an invoice, Partner shall pay all undisputed portions of the invoice as provided in Section 4.1. If Partner fails to pay or dispute a balance as provided in this Article 5, (a) Partner shall pay, on demand, interest at the lesser of one and one half percent (1.5%) per month (eighteen percent (18%) per annum), or the highest rate allowed by applicable Law on such balance from the due date until paid; (b) WatServ may charge an administrative fee equal to five percent (5%) of the invoice for each month in which the invoice is not paid; and (c) WatServ may suspend further performance of Services. In the event of suspension, Partner shall be responsible for any costs incurred by WatServ. The assessment and acceptance, or any non-assessment, of any late charge shall not be construed as a waiver by WatServ of its rights with respect to the default giving rise to such payment and shall not affect any of WatServ’s rights under this Agreement or its remedies at Law.

ARTICLE 5
TERM AND TERMINATION

5.1 Agreement. The term of this Agreement will commence on the Effective Date and shall continue in effect until terminated in accordance with Section 5.2 below.
5.2 Termination. The Agreement may be terminated as follows:

(a) Termination for Convenience. Either Party may terminate this Agreement for any reason, with or without cause, at any time upon sixty (60) days’ prior written notice to the other Party; provided, however, that if any outstanding Business Partner Agreement has not been terminated or canceled in accordance with this Section 5.2, then the terms of this Agreement shall remain in effect with respect to any such Business Partner Agreement or SOW.
(b) Insolvency. Either Party may terminate this Agreement if the other Party (a) makes an assignment for the benefit of creditors or a proposal under applicable bankruptcy or is declared bankrupt or becomes insolvent; (b) is wound up, dissolved or liquidated or has its existence terminated or has any resolution passed therefor; or (c) any trustee in bankruptcy, receiver, receiver and manager, liquidator or other officer with similar powers is appointed for such Party or for all or any material part of its property.
(c) Breach of Agreement. Either Party may terminate the Agreement, upon five (5) days’ prior written notice if the other Party breaches any of the provisions of this Agreement and, where the breach is curable, does not cure such breach within thirty (30) days’ prior written notice from the non-breaching Party.
(d) Immediate Termination. Each Party may terminate the Agreement, immediately and without prior notice, on the occurrence of any of the following events:

(i) the other Party uses such Party’s Licensed Marks in violation of the Intellectual Property rights of such Party;
(ii) the other Party breaches its confidentiality obligations under the Agreement;
(iii) the other Party’s promotion, marketing or advertising of such Party’s Service or use of such Party’s Licensed Marks results in, or is the subject of, actual, potential, or threatened legal action, against such Party or any of its Affiliates, vendors, partners, representatives, or customers, regardless of whether such actual, potential, or threatened legal action is eventually determined to be with or without merit;
(iv) the other Party owns or controls a company with direct substitute offerings as such Party and takes actions to compete with such Party; or
(v) the other Party breaches Section 11.13 or Section 11.14.

5.3 Effect of Termination. Upon termination of the Agreement:

(a) Each Party shall only be entitled to receive the fees earned up to the date of termination and forfeits any future compensation generated from any Referral made to the other Party.
(b) Each Party shall continue to service the Customer for so long as such Customer remains a user of Services in accordance with the terms of any applicable agreement, provided that such Party shall be entitled to, and shall be paid, for the Services provided by such Party.
(c) Each Party will terminate all joint marketing activities, including removal of any reference to a working relationship in any of such Party’s promotional materials, including on its website.

ARTICLE 6
CONFIDENTIAL INFORMATION

6.1 Confidentiality. During the term of this Agreement and any applicable Business Partner Agreement, each Party may have access or have disclosed to it to certain Confidential Information of the other Party and/or its Affiliates. Each Party agrees for a period of two (2) years from expiration or termination of this Agreement or applicable Business Partner Agreement, whichever is applicable, to:

(a) use the disclosing Party’s Confidential Information solely in connection with its performance under this Agreement and any applicable Business Partner Agreement;
(b) disclose the disclosing Party’s Confidential Information only to its Representatives on a need-to-know basis, provided that such Representatives are bound by a duty of confidentiality to such Party, whether legal, contractual or fiduciary;
(c) protect the disclosing Party’s Confidential Information from disclosure in the same manner and to the same duty of care that the receiving Party uses to protect its own Confidential Information of like importance, but in no event less than a reasonable standard of care; and
(d) return or destroy the disclosing Party’s Confidential Information promptly upon request of the disclosing Party at the completion of the Services.

For greater certainty, Partner agrees not to discuss or share any WatServ Intellectual Property including, but not limited to, pricing, proposals, royalty/commission/rebate payments, technical engineering designs, or any other WatServ information with any person or entity, and WatServ agrees not to disclose or share any Partner information relating to any sales opportunity with any person or entity. Notwithstanding the foregoing, a Party and its Representatives (i) may retain Confidential Information of the disclosing Party in accordance with policies and procedures implemented by such persons in order to comply with Law, regulatory requirements, professional accountancy standards, or document retention policies, and (ii) will not be required to destroy electronic back-up versions of the Confidential Information to the extent such destruction is not reasonably practical.

6.2 Disclosure of Confidential Information. In the event that the receiving Party or its Representatives are required to disclose any of the disclosing Party’s Confidential Information pursuant to Law, or by production order, discovery obligation, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process, the receiving Party shall, if not prohibited by Law or production order, etc.

(a) promptly notify the disclosing Party of the terms and the circumstances of any such request;
(b) consult with the disclosing Party and cooperate with the disclosing Party’s reasonable requests to resist or narrow any such request;
(c) furnish only Confidential Information that the receiving Party is legally compelled to disclose; and
(d) use reasonable efforts to obtain an order or other reliable assurances that confidential treatment will be accorded the Confidential Information disclosed.

Notwithstanding anything contained herein, no notice shall be required by a Party or its Representatives, and such Party and its Representatives may disclose Confidential Information, in connection with a routine audit or examination by a regulator or an auditor, or by a Supplier to ensure compliance with this Agreement and any other agreement applicable to the Services provided to Customer.
6.3 Ownership of Confidential Information. As between the Parties, the Confidential Information, including permitted copies, will be deemed the property of the disclosing Party. No Intellectual Proprietary right is licensed, granted, or otherwise transferred by this Agreement, except for the right to use or disclose such information in accordance with this Agreement. Receiving Party shall reproduce in full all confidentiality notices set forth on the Confidential Information.
6.4 Equitable Relief. The Parties acknowledge that monetary damages may be inadequate to compensate the disclosing Party in the event that the receiving Party (or a Representative of the receiving Party) breaches any provision of this Article 7 and agree that, in addition to any remedies at law, the disclosing Party shall be entitled to seek equitable relief, including injunction and specific performance, without the need to prove actual damages or provide a bond.
6.5 De-Identified Data Use. Each Party may use certain content and transaction information to create information that is de-identified, such that it can not be identified to Partner, and which is sometime referred to as “big data” (hereinafter “Content”). Content may be used and disclosed consistent with applicable Law. Partner grants to WatServ a non-exclusive right and license to use Content including the right of aggregation with data received from other customers, suppliers and users of WatServ’s services for the general provision of data aggregation and comparison services, statistical analysis, the creation and maintenance of comparative databases, product support and development, system analytics, and benchmarking analysis, so long as WatServ does not identify Partner or any individual person associated with Partner and the data remains in an aggregated form. To the extent that the Content has been de-identified, and notwithstanding anything set forth herein to the contrary in this Agreement, WatServ may retain such Content, provided that such Content shall be used or disclosed solely for such purposes provided in this Section 6.5.

ARTICLE 7
RIGHT OF FIRST REFUSAL

7.1 Right of First Refusal. If a Customer makes a request for services from the non-Originating Party not otherwise currently provided to the Customer (the “Requested Services”), then the non-Originating Party shall provide notice to the Originating Party of such Requested Services, including reasonable details regarding the Requested Services and the identity of the Customer. Such notice will provide that the Originating Party is entitled to deliver the Requested Services to such Customer and that if the Originating Party does not provide written notice to the other Party as soon as possible, and in any event within two (2) business days of receipt of such notice, subject to any shorter time period requested by Customer, that it intends to fulfil the Requested Services, the Originating Party will be deemed to have declined to do so and the non-Originating Party shall be entitled to fulfill such Requested Services for such Customer on such terms and conditions as the non-Originating Party determines in its sole discretion without compensation to the Originating Party.

ARTICLE 8
INDEMNIFICATION

8.1 Mutual General Indemnification. Each Party shall indemnify, defend, and hold the other Party harmless and pay resulting costs (including damages and reasonable attorneys’ fees finally awarded), from and against any liability, loss, expense, or claim asserted by third parties (collectively, the “Claims” and individually each a “Claim”) for (a) damage to, or destruction of, real or tangible personal property, or for bodily injury (including death) to persons, or both, to the extent such damage or injury is attributable to the gross negligence or willful misconduct of such indemnifying Party, (b) its breach of the confidentiality obligations in Article 7; provided, the Party requesting indemnification gives the indemnifying Party prompt written notice of any such Claim and all necessary information and assistance so that such indemnifying Party, at its option, may defend or settle such claim, and; provided further, that such indemnifying Party does not take any adverse position in connection with such Claim. In the event that any such Claim is the result of, arises out of, or is in connection with the joint or concurrent negligence of both Parties as determined by a court of competent jurisdiction, the liability, loss, expense, or damage of such Claim shall be borne by each Party in proportion to its respective negligence or fault.
8.2 Infringement Indemnification. Each Party will defend, indemnify, hold the other Party harmless, and pay resulting costs (including damages and reasonable attorneys’ fees finally awarded) from a Claim that (a) in the case of WatServ, the WatServ Pre-existing Technology, the WatServ Tools that are owned by WatServ or any Deliverables as provided to Partner (“WatServ Material”), or (b) in the case of Partner, Partner Pre-existing Technology and Partner Intellectual Property (“Partner Material” and collectively with WatServ Material, the “Material”) infringes a third party’s patents, or copyright rights enforceable in a country signatory to the Berne Convention, provided that (i) the indemnified Party promptly notifies the indemnifying Party in writing of the claim; (ii) the indemnified Party cooperates fully and timely with such indemnifying Party in the defense of the Claim; and (iii) such indemnifying Party has sole control of the defense of the Claim and all related settlement negotiations; provided, further, that no settlement shall be entered into by the indemnifying Party prior to the indemnified Party giving its written consent to the terms of such settlement involving un-indemnified or non-monetary claims. Should the use of any indemnifying Party’s Material (or any portion thereof) be enjoined, or if in indemnifying Party’s opinion are likely to be enjoined, indemnifying Party shall, at its sole option, either (a) substitute a functionally equivalent non-infringing version of the affected portion(s) of indemnifying Party’s Material; (b) modify the infringing aspect of such Material so that it no longer infringes but remains a fully functionally equivalent; (c) obtain for the indemnified Party, at the indemnifying Party’s expense, the right to continue to use or receive the benefits of the indemnifying Party’s use of (as applicable) such Material; or (d) if none of the foregoing is commercially feasible and the Material is WatServ’s, then Partner shall return the applicable WatServ Materials and shall receive a refund for the fees paid by Partner for such WatServ Materials. Notwithstanding any provision in this Agreement or any Business Partner Agreement to the contrary, in no event shall WatServ have any duty to indemnify Partner pursuant to this Section 8.2 in connection with any Services alleged to infringe any third party’s patent or copyright rights enforceable in a country signatory to the Berne Convention, as a result of WatServ’s use of or reliance on any of Partner’s Confidential Information. Notwithstanding any provision in this Agreement or any Business Partner Agreement to the contrary, in no event shall either Party have any duty to indemnify the other Party pursuant to this Section 8.2 with respect to any claim of infringement to the extent that it arises out of: (a) the indemnifying Party following the designs, specifications, or written instructions of the indemnified Party; (b) such indemnified Party’s failure to obtain proper licenses for any Intellectual Property, including but not limited to, hardware, software, tools, or designs provided by indemnified Party for use hereunder; (c) such indemnified Party’s use of the indemnifying Party’s Material in a manner not reasonably contemplated in this Agreement, or any applicable SOW; or (d) Partner’s modification of the Services, or use of the Services in conjunction with hardware, software, systems, or methods not provided by WatServ or specified in the Business Partner Agreement. THE RIGHTS AND REMEDIES PROVIDED IN THIS SECTION 8.2 SHALL BE EACH PARTY’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS FOR INFRINGEMENT OF THE INFRINGING MATERIAL.
8.3 LIMITATION OF LIABILITY. EXCEPT FOR, THE PAYMENT FOR SERVICES DELIVERED UNDER ANY BUSINESS PARTNER AGREEMENT, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9, OR FOR A PARTY’S (A) GROSS NEGLIGENCE, (B) WILLFUL MISCONDUCT, (C) FRAUD, OR (D) FRAUDULENT MISPREPRESENTATION, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT OR ANY SOW, REGARDLESS OF LEGAL THEORY, SHALL NOT EXCEED IN THE AGGREGATE THE LESSER OF: (a) $200,000, OR (b) FEES PAID BY PARTNER FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE MONTH IN WHICH THE CLAIM AROSE UNDER THE APPLICABLE SOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY BUSINESS PARTNER AGREEMENT, IN NO EVENT SHALL WATSERV BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR CAUSED BY (1) ANY THIRD PARTY OR THE ACT OR OMISSION OF A SUPPLIER, (2) PARTNER OR ITS USERS, (3) WATSERV’S ACCESS TO PARTNERS OR USERS COMPUTER EQUIPMENT(S) OR NETWORKS OR (4) ANY OTHER EVENTS BEYOND THE REASONABLE CONTROL OF WATSERV. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE TO THE OTHER FOR INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, OR DIMUNITION IN GOODWILL, OF THE OTHER PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER OF LIABILITY SHALL APPLY WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT, INCLUDING STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR OTHERWISE.

ARTICLE 9
LEGAL AND REGULATORY COMPLIANCE; INSURANCE

9.1 Legal and Regulatory Compliance.

(a) Regulatory Requirements. In connection with its performance under this Agreement or any Business Partner Agreement, each Party will comply in all material respects with (i) in the case of Partner, Partner Regulatory Requirements, and (ii) in the case of WatServ, WatServ Regulatory Requirements. Notwithstanding the foregoing, unless otherwise expressly set forth in the applicable Business Partner Agreement, WatServ shall not be obligated to bring Partner into compliance with any Partner Regulatory Requirement.
(b) Required Changes to Services. Where any change in Law, WatServ Regulatory Requirement or Partner Regulatory Requirement requires a change in the Services, (i) WatServ will be financially responsible for modifications to the Services it is required to make resulting solely from changes in WatServ Regulatory Requirements and shall not impose any additional fees on Partner for such changes; and (ii) Partner shall be responsible for any additional fees associated with modifications to the Services WatServ is required to make resulting from changes in Partner Regulatory Requirements. Subject to Section 11.2, the Parties shall use the Change Order process described in Section 11.2 to document any and all changes to the Services resulting from any changes described in this Section 9.1(b) or from any other changes required pursuant to any other Laws or Regulatory Requirements except those resulting solely from changes in WatServ Regulatory Requirements.

ARTICLE 10
AUDITS

10.1 Audit Rights. Each Party shall be entitled, at its own expense, from time to time on thirty (30) days’ prior written notice, but not more frequently than once in any calendar year during the term of the Agreement, to conduct an audit to confirm the other Party’s compliance with their material obligations under this Agreement. Such audit will be reasonable in terms of time and scope, and the audited Party has no obligation to provide information protected from such release by the audited Party’s policy, information not related to the audited Party’s material obligations under this Agreement, confidential information of third parties, or any other confidential information that the audited Party is prohibited to provide to the auditing Party by contract, applicable Law or otherwise. At least thirty (30) days before an audit, the auditing Party shall provide the audited Party with a proposed audit plan. The Party to be audited may reasonably object to the scope and/or specific items to be audited on the grounds that it oversteps the audit rights in this Section. The auditing Party shall promptly provide the other Party with a copy of any written report or other results of the audit. Partner shall be invoiced by WatServ and pay to WatServ within thirty (30) days from the date of such invoice for audit support exceeding two (2) hours per year at their then current billable rates.

ARTICLE 11
MISCELLANEOUS

11.1 Entire Agreement. This Agreement and the applicable Business Partner Agreement contain the entire understanding of the Parties hereto with respect to the subject matter hereof and thereof. There are no representations, warranties, covenants or other agreements between the Parties in connection with the subject matter of the applicable Business Partner Agreement other than those expressly set forth herein and in such applicable Business Partner Agreement. This Agreement and the applicable Business Partner Agreement supersede all prior agreements, understandings, negotiations and discussions, whether oral, written or otherwise, of the Parties with respect to the subject matter of the applicable Business Partner Agreement.
11.2 Amendments. This Agreement may only be modified or amended through a written document that must clearly and conspicuously indicate the specific Article(s) or Section(s) of this Agreement that are to be modified or amended and must be duly executed by authorized representatives of both Parties. Any applicable Business Partner Agreement may only be modified through a written amendment that must clearly and conspicuously indicate the specific Article(s) or Section(s) of such Business Partner Agreement that are to be modified or amended and must be duly executed by authorized representatives of both Parties.
11.3 Survival. In the event of the expiration or termination of this Agreement or applicable Business Partner Agreement, those provisions which by their nature are intended to survive shall survive and continue in effect.
11.4 Assignment; Successors. Neither Party shall assign this Agreement or Business Partner Agreement, or any of its rights hereunder or thereunder, or delegate any of its duties hereunder or thereunder to a third party without the prior written consent of the other Party; provided, however, that either Party may assign, delegate or transfer its obligations under this Agreement or Business Partner Agreement, in whole but not in part, upon written notice to the other Party to (a) an entity or entities acquiring all or substantially all of the Party’s assets; or (b) an Affiliate, provided however that Partner shall provide WatServ with notice of such assignment in reasonable detail and any such assignee of Partner shall be subject to credit approval by WatServ. Any attempted assignment or delegation not expressly permitted by this Section 11.4 shall be void and of no force and effect. Subject to the foregoing, this Agreement and each applicable Business Partner Agreement shall inure to the benefit of and be binding upon the Parties hereto and their permitted successors, assigns, heirs, and legal representatives.
11.5 Consents, Approvals, and Requests. Unless otherwise stated in this Agreement or applicable Business Partner Agreement, all consents and approvals to be given by either Party hereunder or thereunder shall not be unreasonably withheld, conditioned, denied, or delayed.
11.6 Publicity; Trademarks. Each of the Parties shall be permitted to (a) reference the other Party’s name and/or logo as a solution-partner of such Party in such Party’s marketing materials (including but not limited to, brochures, Web sites, and other communication vehicles); (b) issue a press release announcing the Parties’ business relationship (subject to the other Party’s review and approval); and (c) request that the other Party answer a reasonable number of inquiries from prospective customers and media/industry analysts (to be coordinated by the Parties in order to minimize any disruption to Customer).
11.7 Notices. All notices, requests, authorizations, consents, waivers, and other communications under this Agreement and any applicable Business Partner Agreement must be in writing and will be deemed to have been duly given when (a) delivered personally, with written confirmation of receipt; (b) delivered, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses set forth in this Agreement, or to such other addresses as a Party may designate by notice to the other Party.
11.8 Third-Party Beneficiaries. The Parties understand and agree that this Agreement and any applicable Business Partner Agreement are entered into solely for the benefit of the Parties and this Agreement and any applicable Business Partner Agreement shall not be construed to create any legal, equitable, or beneficial interest in any third party or to vest in any such third party any interest with respect to the enforcement of the Agreement except that Partner acknowledges and agrees that Suppliers shall be deemed to be third party beneficiaries of the Agreement. In the event of a default by Partner under the terms of the Agreement, any Supplier will be entitled to enforce the provisions of the Agreement and to verify Partner’s compliance with the terms of the Agreement.
11.9 Order of Precedence. In the event of a conflict, ambiguity, or inconsistency between this Agreement and any Business Partner Agreement, the terms of this Agreement shall control, provided however, a specific Business Partner Agreement may take precedence over the Agreement to the extent that the Business Partner Agreement expressly avers that it is to supplant the Agreement, sets forth the provision being supplanted, and is expressly approved in writing by authorized representatives of each Party solely for purposes of such Business Partner Agreement.
11.10 Severability. If any provision of this Agreement or the applicable Business Partner Agreement, or the application of any such provision to any person, entity, or circumstance shall be declared judicially to be invalid, unenforceable, or void, such decision shall not have the effect of invalidating, rendering unenforceable or voiding any portion of the remainder of this Agreement or applicable Business Partner Agreement it being the intent and agreement of the Parties hereto that this Agreement or applicable Business Partner Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable, while preserving its intent or if such modification is not possible by substituting therefore another provision that is valid, legal, and enforceable and that achieves the same objective.
11.11 Waiver; Remedies. No delay or failure by either Party to exercise or enforce at any time any right or provision of this Agreement or any applicable Business Partner Agreement shall be considered a waiver thereof or of such Party’s right thereafter to exercise or enforce each and every right and provision of this Agreement or any applicable Business Partner Agreement. A waiver to be valid shall be in writing and signed by the Party waiving a right or provision of this Agreement or an applicable Business Partner Agreement but need not be supported by consideration. A valid waiver of any provision of this Agreement or applicable Business Partner Agreement with respect to a particular situation or event shall not constitute a waiver of such provision with respect to other situations, events, or agreements. Except where expressly stated as an exclusive remedy, in addition to the remedies expressly available under this Agreement and any applicable Business Partner Agreement, the Parties shall have any and all additional remedies available to them, whether at law or in equity, and all remedies shall be cumulative. No action under this Agreement or any Business Partner Agreement may be brought by either Party more than two (2) years after the cause of such action becomes known to such Party.
11.12 Force Majeure.

(a) Except for payment of fees, neither Party shall be considered in default of this Agreement or an applicable Business Partner Agreement or liable for or held responsible, for any delays or failures in a Party’s performance of its obligations caused by fires, third party labor disputes or strikes, floods, embargoes, war, acts of terrorism or sabotage, quarantine restrictions, insurrection, riots, delays of carriers or Suppliers, acts of God or by public enemy, or acts, omissions or other causes beyond a Party’s reasonable control, or without the fault or negligence of such Party, whether or not similar to the foregoing (each, a “Force Majeure Event”), provided that the non-performing Party notifies the other Party as soon as possible, but in no event more than five (5) calendar days following the occurrence of a Force Majeure Event, and the non-performing Party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable promptness when such causes are removed.
(b) For delays due to Force Majeure, the date for delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay; provided that if a Force Majeure Event prevents a Party from performing the Services under a Business Partner Agreement for more than thirty (30) consecutive days, each Party shall have the right on prior written notice to terminate the applicable Business Partner Agreement for convenience and each Party shall be entitled to the fees earned and unpaid for the Services performed and expenses incurred under a Business Partner Agreement through the effective date of termination.

11.13 Non-Solicitation. Each Party will not, during the term of this Agreement and any applicable Business Partner Agreement, and for six (6) months thereafter, directly or indirectly solicit for employment, employ or utilize the services of, any person who is an employee of the other Party or its subcontractors and assignees who has been involved in activities related to the Services provided hereunder (whether in the capacity of an employee, consultant, independent contractor, or as an employee of a subcontractor or consultant) unless and until the Party soliciting employment or services pays to the other Party, as liquidated damages and not as a penalty, and as its sole and exclusive remedy, an amount equal to the aggregate compensation (including bonuses) paid by the employer or any of its Affiliates to such employee during the six (6) months prior to the date such employee is employed by or provides services to the soliciting Party. Notwithstanding the foregoing, and unless undertaken as a means to circumvent or conceal a violation of this Section 11.13, neither the publication of classified advertisements in newspapers, periodicals, internet bulletin boards, or other publications of general availability or circulation nor the consideration and hiring of a person responding to such general advertisements shall be deemed a breach of this provision.
11.14 Non-Interference. Unless otherwise agreed upon in writing by the Parties, during the term of this Agreement and for a period of two (2) years thereafter, neither Party nor any of its officers, directors, members, employees, agents or affiliates shall, directly or indirectly, alone or in cooperation with any other person, induce, request or attempt to influence any customer of the other Party to curtail or cancel its business or prospective business with such other Party or in any way interfere with such other Party’s business relationships with any of such other Party’s customers. If either Party shall interfere with the other Party’s relationship with any of such other Party’s customers as prohibited herein, such interfering Party hereby agrees to pay to the other Party as damages the sum of all software and service fees such Party received from its existing customer for the immediately preceding twelve (12) month period.
11.15 Applicable Law. This Agreement shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract, and the Parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the Province of Ontario and hereby agree that any such court shall be a proper forum for the determination of any controversy or dispute arising hereunder.
11.16 No Construction Against Drafter. The Parties agree and acknowledge that this Agreement and each applicable Business Partner Agreement was the subject of negotiation, each Party was represented by counsel, and each Party had an equal hand in drafting such document. The Parties further agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement, or any applicable Business Partner Agreement.
11.17 Counterparts. This Agreement and any Business Partner Agreement may be executed by two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Agreement or any Business Partner Agreement may be executed electronically, through electronic image or verified e-signature, and transmitted by facsimile or electronic image.

Exhibit A: WATSERV LICENSED MARKS