BACKGROUND

     A. The Client is of the opinion that the Service Provider has the necessary qualifications, experience and abilities to provide information technology services and consulting to the Client.

     B. The Service Provider is agreeable to providing such information technology services to the Client on the terms and conditions set out in this Agreement.

IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Client and the Service Provider (individually the “Party” and collectively the “Parties” to this Agreement) agree as follows:

SERVICES PROVIDED

• The Client hereby agrees to engage the Service Provider to provide the Client with information technology services (the “Services”) as described in a separate Quote, Proposal or Statement of Work.
• • Each Quote, Proposal or Statement of Work shall include the following information, if applicable:

• • • description of the Services to be performed pursuant to the Engagement;
    • the date upon which the Services will commence and the term of such Engagement;
    • the fees to be paid to Atomic Guardian under the Engagement;
    • the Services implementation plan, including a timetable;
    • Services milestones and payment schedules;
    • any criteria for completion of the Services;
    • procedures for the testing and acceptance of the Services and Deliverables by Client; and
    • any other computer tasks which the Parties may agree on.
    • any other terms and conditions agreed upon by the Parties in connection with the Services to be performed pursuant to such Engagement.
• The Service Provider hereby agrees to provide such Services to the Client.

SERVICE PROVIDER’S OBLIGATIONS

• During the Term, Atomic Guardian shall:

• • Appoint a Atomic Guardian employee to serve as primary contact with respect to this Agreement and who will have the authority to act on behalf of Atomic Guardian in connection with matters pertaining to this Agreement (the “Atomic Guardian Partner Success Manager”);
  • Appoint other Atomic Guardian Personnel, who shall be suitably skilled, experienced and qualified to perform the Services;
  • Require any Person engaged as sub-contractors of Atomic Guardian (other than Atomic Guardian’s employees) that provide any Services and Deliverables to Client (each such Person, a “Permitted sub-contractor”) to be bound in writing by confidentiality and intellectual property assignment or license provisions similar to those in this Agreement, and, upon Client’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Client.

• Atomic Guardian is responsible for all Its Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, the payment and withholding of CPP and other payroll taxes, employment insurance, workers’ compensation insurance payments and health benefits.
• If Atomic Guardian’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or their Affiliates, agents, subcontractors, consultants or employees, Atomic Guardian shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.

CLIENT’S OBLIGATIONS

• During the Term, Client shall:

• • Co-operate with Atomic Guardian in all matters relating to the Services and appoint a Client employee to serve as the primary contact with respect to this Agreement and who will have the authority to act on behalf of Client with respect to matters pertaining to this Agreement;
  • Obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, the installation of the Atomic Guardian Equipment, the use of Client Materials and the use of the Client Equipment in relation to the Atomic Guardian Equipment to the extent that such licenses, consents and Law relate to Client’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
  • Grant Atomic Guardian the right to send Client employees Newsletters, “Tech Tips” and other email communication; and acknowledge and comply with (1) the current Sales Terms and (2) the current Travel and Expense Policy.

PERFORMANCE

• The Parties agree to do everything necessary to ensure that the terms of this Agreement take effect.

TERM OF AGREEMENT

• The term of this Agreement (the “Term”) will begin on the date of this Agreement and will remain in full force and effect indefinitely until terminated as provided in this Agreement.
• In the event that either Party wishes to terminate this Agreement, this Agreement will be in effect until terminated per section TERMINATION.
• In the event that either Party breaches a material provision under this Agreement, the non-defaulting Party may terminate this Agreement immediately and require the defaulting Party to indemnify the non-defaulting Party against all reasonable damages.
• If the Client fails to pay two (2) consecutive monthly invoices, Atomic Guardian may suspend further services until the account is brought current. Prior to suspension, Atomic Guardian will issue a written notice by email advising the Client of the overdue balance and the risk of service disruption, including potential impacts to data availability.
• If payment arrangements are not made within ninety (90) days of the initial default, or if a payment arrangement is made but not honored, Atomic Guardian may cancel or disable any licenses or subscriptions provided under this Agreement. The Client acknowledges that cancellation of such licenses may result in loss of access to data or systems, and agrees that Atomic Guardian shall not be liable for any resulting data loss or service interruption.
• This Agreement may be terminated at any time by mutual agreement of the Parties.
• Except as otherwise provided in this Agreement, the obligations of the Service Provider will end upon the termination of this Agreement.

TERMINATION

• Either party may terminate this Master Services Agreement upon 60 days (transition period) written notice to the other party for any reason with or without cause of any nature, thereby terminating the right to enter into any future Statement of Work under the terms of this Master Services Agreement. The terms of the Master Services Agreement shall remain in effect with respect to any Statement of Work that has not yet terminated or expired until said Statement of Work terminates or expires.
• Upon requesting a termination of the Agreement, Atomic Guardian will continue to provide agreed services for the transition period of 60 days and will bill as per the Statement of Work in effect.
• Atomic Guardian will take reasonable measures to ensure that the client’s business is transitioned to a new service provider with minimal disruption and agrees to co-operate with new service provider.
• Any confidential information which is deemed the property of the client in possession by Atomic Guardian will be delivered to new Service Provider at the request of the Client during the 60-day transition period only after all existing or past-due invoices and any termination costs have been paid in full.

TERMINATION COSTS

• No termination fee shall be payable by the client in connection with the expiration or a termination for cause of this Agreement with the exception of the following:

• • Client agrees to continue to pay agreed upon fee for a period of 60 days following the notice of termination.
  • Within ten (10) days after termination notice is given, Atomic Guardian may invoice liquidated damages representing a reasonable pre-estimate of losses, including unrecovered vendor commitments, early termination penalties, or third-party costs incurred on Client’s behalf in connection with Services provisioned for the Client.

TIME & MATERIALS

• Any hardware or software quoted by Atomic Guardian for Client, must be paid in full prior to procuring and delivering quoted item(s).
• The Client agrees that unless there is an existing Quote, Proposal or Statement of Work which outlines agreed costs, the client shall be billed on a time and materials basis as follows:

• • Time & Materials will be invoiced separately from any recurring invoices.
  • Time & Materials Invoices will be due upon receipt.
  • Any Materials over $500 will be invoiced up-front and paid for in full before procuring.
  • Remote Support – $200 per hour.
  • On-Site Support – $250 per hour with a 2-hour minimum.
  • Project work – $250 per hour with a 4-hour minimum.
  • Emergency, Holiday, and Incident Response requests – $400 per hour with a 3-hour minimum.
  • Any required onsite work will incur a $75 travel fee charged per trip.

COMPENSATION

• Client will be invoiced by the Service Provider every month.
• Client will receive recurring monthly invoices from Service Provider at least 10 days prior to due date.
• All recurring Invoices submitted by the Service Provider to the Client will be processed on the first of the month via Pre-Authorized Debit or Credit.
• Service Provider may adjust the fees for Services no more than once in any twelve (12) month period, effective at the start of a future monthly billing period, upon not less than sixty (60) days’ written notice to Client. Continued use of the Services after the effective date of the adjustment constitutes acceptance of the revised fees. Fee adjustments may reflect changes in service scope, inflationary pressures, prevailing market conditions, or increases in third-party licensing or supplier costs that are not otherwise addressed as Third-Party Costs below.
• Fees for third-party products, subscriptions, licenses, usage-based services, and vendor-supplied offerings (“Third-Party Costs”) are subject to change in accordance with pricing, terms, or cost adjustments imposed by the applicable third-party provider. Service Provider may pass through such increases to Client upon written notice. Unless otherwise stated, such adjustments may take effect on the same date as the applicable third-party increase and are not subject to the annual fee-adjustment limitations set out above. Service Provider shall have no obligation to subsidize or absorb Third-Party Cost increases.

REIMBURSEMENT OF EXPENSES

• The Service Provider will be reimbursed from time to time for reasonable and necessary expenses incurred by the Service Provider in connection with providing the Services.
• Pre-approval is not required for expenses.

INTEREST ON LATE PAYMENTS

• Interest payable on any overdue amounts under this Agreement shall be charged at a rate of 2% monthly. (24.00% per annum, non-compounding)

CONFIDENTIALITY

• Confidential information refers to any data or information relating to the business of the Client which would reasonably be considered to be proprietary to the Client including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Client and where the release of that Confidential Information could reasonably be expected to cause harm to the Client.
• The Service Provider agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Service Provider has obtained, except as authorized by the Client or as required by law. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of this Agreement.
• The Client agrees that all non-public information provided by Atomic Guardian, including but not limited to pricing, methodologies, processes, tools, and internal business practices, shall be treated as Confidential Information.
• All written and verbal information and material disclosed or provided by the Client to the Service Provider under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Service Provider.

OWNERSHIP OF INTELLECTUAL PROPERTY

• All deliverables and work products specifically developed for the Client under this Agreement shall be the property of the Client once all applicable fees are paid. Atomic Guardian retains all rights to its pre-existing intellectual property, including tools, scripts, methodologies, monitoring systems, and know-how used in providing the Services. Nothing in this Agreement transfers ownership of Atomic Guardian’s pre-existing or general intellectual property; the Client receives only a limited right to use such elements as necessary for the intended operation of the deliverables.
• The Service Provider may not use the Intellectual Property for any purpose other than that contracted for in this Agreement except with the written consent of the Client. The Service Provider will be responsible for any and all damages resulting from the unauthorized use of the Intellectual Property.

CLIENT ACKNOWLEDGEMENT – CYBERSECURITY

• The Client acknowledges that cybersecurity is a shared responsibility between Atomic Guardian and the Client. While Atomic Guardian employs industry-standard practices to safeguard systems within its control, the Client remains responsible for maintaining appropriate internal security measures, employee awareness, and insurance coverage to protect against cyber risks. The Client understands that Atomic Guardian shall not be liable for losses arising from the Client’s failure to implement or maintain such protections.

DATA & BACKUP RESPONSIBILITY

• The Client acknowledges and agrees that Atomic Guardian shall have no responsibility or liability for the backup, retention, or restoration of the Client’s data unless the Client has expressly purchased and maintains backup services under a separate Statement of Work or Quote. If the Client elects not to purchase such services, the Client assumes all risks of data loss, corruption, or unavailability. The Client shall indemnify and hold harmless Atomic Guardian, its officers, directors, employees, and subcontractors from any and all claims, damages, losses, or expenses (including legal fees) arising from or related to the absence of such backup services.
• Any request or need to restore or recover data from client-provided backups shall be billed at the standard rate as defined in the Time & Materials section.

LIMITATION OF LIABILITY

• In no event shall Atomic Guardian be liable to client or to any third party for any loss of use, revenue, profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damage was foreseeable and whether or not Atomic Guardian has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
• In no event shall Atomic Guardian’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the aggregate amounts paid or payable to Atomic Guardian pursuant to the applicable proposal in the twelve (12) month period preceding the event giving rise to the claim.
• In no event Shall Atomic Guardian be liable to client for anything which Atomic Guardian does not have exclusive management access to.
• Nothing in this Agreement excludes or limits either Party’s liability for gross negligence, willful misconduct, of fraud.

INDEMNIFICATION

• Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each Party agrees to indemnify and hold harmless the other Party, and its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. This indemnification will survive the termination of this Agreement.

INSURANCE REQUIREMENT

• The Client shall, at its own expense, maintain in full force and effect during the Term of this Agreement, the following insurance coverages with reputable insurers authorized to do business in the Province of Ontario:

1. 1. Commercial General Liability Insurance
   2. Professional Errors and Omissions Insurance
   3. Cyber Liability / Data Breach Insurance

• The Client acknowledges and agrees that cybersecurity is a shared responsibility. The Client further acknowledges that its failure to maintain adequate insurance may expose it to significant financial risk, for which Atomic Guardian shall bear no liability.

RETURN OF PROPERTY

• Upon the expiry or termination of this Agreement, the Service Provider will return to the Client any property, documentation, records, or Confidential Information which is the property of the Client.
• The client agrees to return any equipment owned by Atomic Guardian within 30 days of termination of agreement.

CAPACITY/INDEPENDENT CONTRACTOR

• In providing the Services under this Agreement it is expressly agreed that the Service Provider is acting as an independent Contractor and not as an employee. The Service Provider and the Client acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service.

RIGHT OF SUBSTITUTION

• Except as otherwise provided in this Agreement, the Service Provider may, at the Service Provider’s absolute discretion, engage a third party sub-contractor to perform some or all of the obligations of the Service Provider under this Agreement and the Client will not hire or engage any third parties to assist with the provision of the Services.
• In the event that the Service Provider hires a sub-contractor:
  • the Service Provider will pay the sub-contractor for its services and the Compensation will remain payable by the Client to the Service Provider.
  • for the purposes of the indemnification clause of this Agreement, the sub-contractor is an agent of the Service Provider.

AUTONOMY

• Except as otherwise provided in this Agreement, the Service Provider will have full control over working time, methods, and decision making in relation to provision of the Services in accordance with the Agreement. The Service Provider will work autonomously and not at the direction of the Client. However, the Service Provider will be responsive to the reasonable needs and concerns of the Client.

NO EXCLUSIVITY

• The Parties acknowledge that this Agreement is non-exclusive and that either Party will be free, during and after the Term, to engage or contract with third parties for the provision of services similar to the Services.

EQUIPMENT

• Except as otherwise provided in this Agreement, Atomic Guardian will provide, at its own expense, any and all tools, equipment, cabling, software, replacement parts, supplies and any other items or parts necessary to deliver the Services in accordance with the Agreement.

ASSIGNMENT

• Atomic Guardian may voluntarily, or by operation of law, assign or otherwise transfer its obligations under this Agreement without the prior written consent of the Client. This assignment right only applies to persons, firms, or corporations that acquire Atomic Guardian Inc. in a purchase, buyout, asset purchase or corporate restructure arrangement. The assignee of Atomic Guardian Inc. shall assume all obligations under this Agreement.

FORCE MAJEURE

• Neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of God, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees’ demands are reasonable and within the party’s power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of Atomic Guardian’s technical staff (collectively referred to herein as “Force Majeure”). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event.

PERSONAL COMPUTERS and/or NETWORKS

• If or when Client transitions to home or alternative networks, Atomic Guardian will make best effort to make connections and serviceability. However, home or alternative networks may not have adequate internet connectivity and equipment to effectively work. Atomic Guardian is not responsible for inadequacies in those home or alternative networks or to secure those connections. Home equipment will not be as secure and may not have Atomic Guardian’s software and security features. Atomic Guardian is not responsible for the security of the home or alternative networks. Work on a home or alternative network unless otherwise included is outside the scope of this Agreement and Atomic Guardian may charge its then hourly rate for work on home or alternative networks. Atomic Guardian will charge for additional software installed at home or alternative networks as needed.
• In the event of a Force Majeure Atomic Guardian is not required to have technicians work during periods or at places where their safety or health could be in jeopardy and in any event will not require technicians to go on site.

NOTICE

• All notices, requests, demands or other communications required or permitted by the terms of this agreement will be given in writing and delivered to the Parties by email, or at their primary place of business or to such other address as either party may from time to time notify the other.

MODIFICATION OF AGREEMENT

• Atomic Guardian may update or modify the terms of this Master Services Agreement from time to time in order to reflect changes in law, industry standards, vendor requirements, or service practices. Clients will be provided with written notice of any material updates at least sixty (60) days prior to such changes taking effect. Continued use of Atomic Guardian’s services following the effective date of the updated Agreement will constitute the Client’s acceptance of the revised terms.
• If the Client does not agree to the updated terms, the Client may provide written notice of objection within sixty (60) days of receiving notice of the update. In such case, the version of this Agreement in effect immediately prior to the update will remain binding on the Client for a maximum period of twelve (12) months from the date of the update notice. After such period, continued receipt of services from Atomic Guardian will require the Client’s acceptance of the then-current version of this Agreement.
• Notice of updates shall be deemed received if delivered by email to the Client’s designated contact.
• For clarity, objections under this section shall not apply to fee adjustments or Third-Party Cost pass-throughs governed by the Compensation section.

ENTIRE AGREEMENT

• It is agreed that there is no representation, warranty, collateral agreement, or condition affecting this Agreement except as expressly provided in this Agreement.
• Order of Precedence – In the event of a conflict between this Master Services Agreement and any executed Quote, Proposal, Statement of Work, or Service Agreement, the executed Quote, Proposal, Statement of Work, or Service Agreement shall prevail solely with respect to the specific Services and fees addressed therein. This Master Services Agreement shall otherwise govern all Services.

GOVERNING LAW

• This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada as applicable.

DISPUTE RESOLUTION

• In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, the Parties shall first attempt in good faith to resolve the matter through direct discussions between senior representatives of each Party. If the matter is not resolved within thirty (30) days of written notice of the dispute, the Parties agree to submit the dispute to confidential mediation administered by a mutually agreed mediator located in the Greater Toronto Area. If mediation is unsuccessful, the dispute shall be finally resolved by binding arbitration under the Arbitration Act, 1991 (Ontario), by a single arbitrator appointed in accordance with such Act. The place of arbitration shall be Toronto, Ontario, and the language of arbitration shall be English. Judgment on the arbitral award may be entered in any court of competent jurisdiction. Nothing in this clause prevents either Party from seeking urgent injunctive relief in a court of competent jurisdiction to protect its rights pending arbitration.

GENERAL PROVISIONS

GENDER

• Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.

CURRENCY

• Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in CAD (Canadian Dollars).

WAIVER

• The waiver by either Party of a breach, default, delay, or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.

SEVERABILITY

• In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.