Apex Resource Management Solutions Ltd. (“ApexRMS”, “we”, “us”, and “our”) owns the software, SyncroSim, that it has developed and makes commercially available to its customers (“you”, “your”) for use as a cloud based, hosted service offering (the “Service”, or “SyncroSim Cloud”, as more fully defined below).

These Terms of Service (the “Terms of Service”) constitute a legally binding agreement between you and ApexRMS regarding your access to and use of the Service, which includes, without limitation, registering for an account (“Account”).

BY ACCEPTING THE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THE TERMS OF SERVICE ONLINE, OR B) USING, OR GENERALLY ACCESSING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAVE THE AUTHORITY TO AGREE TO, AND ARE CONFIRMING THAT YOU ARE AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. IF, AFTER READING THE TERMS OF SERVICE, YOU DO NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU SHALL NOT USE, OR ACCESS THE SERVICE.

IF YOU ARE USING THE SOFTWARE AS AN AGENT OR EMPLOYEE OF A COMPANY, ORGANIZATION OR OTHER ENTITY THEN ANY REFERENCES TO “YOU” IN THIS LICENSE AGREEMENT SHALL REFER TO SUCH COMPANY, ORGANIZATION OR OTHER ENTITY AND NOT TO YOU IN YOUR PERSONAL CAPACITY. YOU HEREBY REPRESENT AND WARRANT THAT: (I) YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

1. Definitions

(a) “Agreement” means, collectively, to all the terms, conditions, or policies referenced in these Terms of Service.

(b) “Community Edition” means the free version of SyncroSim™ Cloud subscribed for pursuant to the Community plan described on the Plan Description.

(c) “Content” means any content featured or displayed through the Service, including without limitation code, text, data, articles, images, photographs, graphics, software, applications, packages, designs, features, and other materials that are available through the Service.

(d) “Customer”, “You” or “Your” means the individual creating an Account and accessing and using SyncroSim Cloud, any entity on whose behalf such individual is acting, or the person or entity named in the applicable Order Form.

(e) “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Data Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time), applicable to the Processing of Personal Information under the Agreement.

(f) “Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and release notes that ApexRMS generally makes available to subscribers to SyncroSim Cloud, as updated from time to time.

(g) “Fees” means the Subscription Fee and any fees for professional services specified on an Order Form.

(h) “Library” means User Content uploaded and submitted to the Service by a User in the form of a published dataset.

(i) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

(j) “Order Form” means an electronic form provided by ApexRMS on its website or a written document executed by ApexRMS and you for ordering Subscriptions and specifying matters such as the Subscription Start Date, the Subscription Term, the Subscription Fee and professional services, if any.

(k) “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

(l) “Plan Description” means the description of the subscription plans made available by ApexRMS for SyncroSim™ Cloud located at https://syncrosim.com/pricing.

(m) “Price List” means the non-public list of Subscription Fees and associated pricing terms for SyncroSim™ Cloud, as updated by ApexRMS from time to time.

(n) “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(o) “Service Content” means Content created and owned by ApexRMS.

(p) “Software” means the SyncroSim™ software program(s) in machine-readable object code format and other related software which is (are) made available by ApexRMS as a Service for use by you in accordance with the terms hereof.

(q) “Subscription” means the right granted by ApexRMS to you to access and use the Service in accordance with the terms of this Agreement for the Subscription Term specified in the applicable Order Form.

(r) “Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form.

(s) “Subscription Start Date” means the date on which a Subscription begins as specified in the Order Form.

(t) “Subscription Term” means the period of time that you are authorized to access and use the Service as specified in the applicable Order Form.

(u) “Support Services” means the technical support services for the Service provided by ApexRMS and described in Section 4.

(v) “Support Terms” means the terms on which ApexRMS, or an authorized support partner, provides Support Services to Customer, which terms are described in Section 4 hereof or otherwise agreed to in writing by ApexRMS and Customer.

(w) “SyncroSim Cloud” or “Service” means the cloud-based, hosted version of the Software for which Customer is granted rights of access and use in accordance with this Agreement, including any ancillary services available in connection therewith, as such Service may be updated from time to time by ApexRMS in its sole discretion.

(x) “User” means an individual who has created an Account and is authorized by Customer to use the Service, and who is bound by enforceable terms at least as protective of the Service and ApexRMS Confidential Information as the terms contained herein, and in each case, also includes you and your employees, consultants, contractors and agents.

(y) “User Content” means Content that you create or own as defined in Section 8.1.

2. The Service

2.1. Grant of Rights. Subject to the terms and conditions of this Agreement and any usage limitations applicable to the Service plan to which you have subscribed (including those described in Section 2.4 hereof), ApexRMS hereby grants to you a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and, subject to Section 2.4, to permit Users to access and use) SyncroSim Cloud; and (b) use the Documentation as reasonably necessary to support the authorized use of SyncroSim Cloud during the Subscription Term. To the extent you receive any Software from us in connection with our Service, subject to your compliance with this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable right and license to use our software solely as reasonably necessary for your use of our Service in accordance with this Agreement. No other rights in SyncroSim Cloud are granted to You and any other use of SyncroSim Cloud is strictly prohibited and a violation of this Agreement.

2.2. Reservation of Rights. ApexRMS and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Service. You shall keep the Service free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, ApexRMS reserves all rights, title and interest in and to the Service. No rights are granted to you pursuant to this Agreement other than as expressly set forth in this Agreement.

2.3. Restrictions. This Agreement does not include any resale or commercial use of any part of the Service, or its contents; you shall not: (a) possess, download or copy the Service or any part of the Service, including but not limited any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of ApexRMS’ users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Service; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software or Service, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service in any form to any person without the written consent of ApexRMS; (f) remove any proprietary notices, labels, or marks from the Service; (g) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (h) use the Service to create, collect, transmit, store, use or process any Service Content or User Content that: (i) you do not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).

2.4. Limits on Concurrent User. A User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of SyncroSim Cloud. If you exceed the authorized number of concurrent Users, ApexRMS will work with you Customer to seek to reduce your usage so that it conforms to the applicable limit. If, notwithstanding ApexRMS’ efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional Users promptly upon ApexRMS’ request, and/or pay any invoice for excess usage in accordance with the terms hereof.

3. Accounts

3.1. Account Creation.

(a) You are required to open an account (an “Account”) in order to use the Service. As part of the registration process, you will be required to provide us with certain information, such as your name, username, email address and a password. For more information about the information that we collect, please see our Privacy Policy. You agree that you will provide accurate, current and complete information about yourself and promptly update all information in your Account to ensure that your Account is accurate, current and complete.

(b) You may update or change your Account settings at any time. You are not permitted to provide any unauthorized person with access to your Account. You are fully responsible for all activity that occurs in your Account, including for any actions taken by you.

(c) You are solely responsible for ensuring that the use of the Service in accordance with this Agreement in your jurisdiction of residence is permitted by law or regulation. If such use is not permitted by law, we prohibit all access to and use of the Service.

3.2. Account Confidentiality. You are responsible for maintaining the confidentiality of your password. You must notify us if you become aware of a potential breach of security, such as the unauthorized disclosure of your password. You acknowledge and agree that we 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 the unauthorized use of your Account.

3.3. Account Termination and Cancellation. We may terminate, suspend or otherwise restrict or prohibit your access to and use of your Account or the Service at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party. You acknowledge and agree that if we disable access to your Account, you may be prevented from accessing the Service. You have the right to close your Account at any time once all obligations associated with the Account have been completed in accordance with Section 12.

4. Community Edition

4.1 Application of this Agreement. This Agreement governs Customer’s use of the Community Edition, provided that, the following sections of this Agreement do not apply to the Community Edition: Sections 5 (Support), 6 (Fees and Payment Terms), 11 (Warranties and Disclaimers), and 12 (IP Infringement Indemnification).

4.2 No Support Services. This Agreement does not grant You the right to receive any Support Services in respect of the Community Edition. Community forum support for the Community Edition is available at: https://community.syncrosim.com.

4.3 Warranty Disclaimer. THE COMMUNITY EDITION IS PROVIDED “AS-IS” WITHOUT ANY WARRANTIES WHATSOEVER.

4.4 Limitation of Liability. IN NO EVENT SHALL APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LIABILITY OR DAMAGES (WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE) ARISING IN CONNECTION WITH THIS AGREEMENT, RELATED TO THE COMMUNITY EDITION OR CUSTOMER’S USE OF THE COMMUNITY EDITION.

5. Support

ApexRMS shall provide the following basic support services during the Subscription Term: (a) email support is monitored and provided from 9:00 am to 7:00 pm (ET), Monday to Friday (excluding statutory holidays in the Province of Ontario) and emails outside of these hours will be responded to on a reasonable efforts basis; and (b) ApexRMS will use commercially reasonable efforts to respond to support enquiries within one business day. Customer will have access to ApexRMS’s technical support web site and may use the web site to submit service requests.

6. Fees and Payment Terms

6.1 Subscription Plans. The most current information about our Subscription Fees is available on our Price List, which will be provided to Customer upon request or as part of the Order Form process. We may or add or amend Subscription plans or Subscription Fees at our sole discretion. When we add plans or amend the Subscription Fees, we will update our Plan Description and Price List accordingly. Any change to our Plan Description or Subscription Fees shall become effective upon your next renewal of your Subscription Term following notice of such change to you as provided in this Agreement.

6.2 Fees. ApexRMS allows you to use the Service, without charge, or under a paid plan that entitles you to additional features and capabilities, subject to your payment of the applicable Subscription Fees as set forth in the Order Form. All purchases of paid plans are final and no refund shall be given for unused portions if you cancel your Account prior to any renewal period. If you upgrade from a free plan to a paid plan, we will immediately bill you. Paid plans are billed in advance on a monthly basis.

6.3 Taxes. All fees for a paid plan do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. For clarity, ApexRMS is solely responsible for taxes assessable against it based on its income, property and employees.

6.4 Invoicing and Payment. Subscription Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with ApexRMS.

6.5 Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at ApexRMS’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

7. Use of the Service by You

7.1 Applicable Laws. Your use of the Service is subject to all applicable local, provincial, state and federal laws and regulations. You must be over the age of majority in your jurisdiction in order to register for an Account and to use the Service.

7.2 Additional Restrictions. You agree that you will not use the Service to:

(a) promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;

(b) upload, post or otherwise make available any material that contains viruses, malware or other malicious software;

(c) upload, post, or otherwise make available any material that you do not have a right to make available or that infringes any patent, trade-mark, trade secret, copyright or other proprietary rights of any person. You shall be solely liable for any damage resulting from any infringement of the intellectual property of any third-party;

(d) create a false or clearly fictional profile;

(e) engage in any activity that interferes with or disrupts the use of the Service, including bypassing any measures we may use to prevent unauthorized access to the Service;

(f) engage in any activity that attempts to extract any proprietary software used to maintain the Service;

(g) track, trace or harvest any information on the Service or any other person who visits the Service; or

(h) sell or otherwise monetize the Service without our consent.

7.3 Confidentiality of SyncroSim Cloud. The SyncroSim Cloud, whether provided in source code or object code form, including without limitation, the specific design, structure and logic of individual programs, their interactions both internal and external, and the programming techniques employed therein are considered confidential and trade secrets of ApexRMS and/or its licensors (the “Confidential Information”), the unauthorized disclosure of which would cause irreparable harm to ApexRMS. Customer shall not use such Confidential Information except to the extent necessary to exercise the rights granted to Customer under this Agreement. For greater certainty, Customer shall not disclose any performance, benchmarking, or feature-related information about the SyncroSim Cloud. Customer further agrees not to disclose, transfer or otherwise provide to any third party any portion of the SyncroSim Cloud, Documentation or Confidential Information or know-how, except as explicitly permitted herein. Customer shall use the same degree of care and means that Customer use to protect Customer’s own information of a similar nature, and in any event, shall use reasonable efforts to prevent the disclosure of Confidential Information to any third parties. This confidentiality obligation shall continue to apply to the Confidential Information following the termination hereof, provided that the confidentiality provisions contained herein shall not apply to Confidential Information which (i) was known by Customer prior to disclosure, as evidenced by its business records; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of the confidentiality provisions contained herein; (iii) was disclosed to Customer by a third party, provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; or (iv) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, provided that Customer shall give all reasonable prior notice to ApexRMS to allow it to seek protective or other court orders.

7.4 Interactions with other Users. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. ApexRMS shall have no liability for your interactions with other Users, or for any User’s action or inaction.

8. User-generated Content

8.1. Ownership of User Content. As between ApexRMS and you, you exclusively own all rights, title and interest in and to all data submitted by you to the Service or collected and processed by you using the Service (“User Content”).

8.2 Technical and Organizational Safeguards. In connection with the provision of the Service, ApexRMS will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Service and User Content. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of User Content by ApexRMS personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Customer. ApexRMS shall, in connection with the provision of the Service, comply with Data Protection Laws.

8.3 User Content License. By posting any User Content to the Service, you expressly grant to ApexRMS a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute, and display such User Content for the purposes of providing the Service. You represent and warrant that you own or otherwise control all of the rights to the User Content that you post; that such User Content is accurate; that use of such User Content you supply does not violate this Agreement and will not cause injury to any person or entity; and that you will indemnify ApexRMS for all third party claims against Apex RMS resulting from User Content you post. Except for the foregoing license, ApexRMS does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any User Content.

8.4 User Content Confidentiality. You acknowledge and agree that even if you remove User Content from the Service, your Content may have been downloaded by, and remain accessible to, the licensors of any Library in which you shared User Content. Accordingly, do not share User Content which you desire to remain confidential or which you wish to limit the right to access or use. You should never submit to the Service any User Content which consists of personally identifiable information as such term is defined by relevant laws, rules, and regulations. APEXRMS IS NOT RESPONSIBLE FOR THE CONFIDENTIALITY, AVAILABILITY, SECURITY, LOSS, MISUSE OR MISAPPROPRIATION OF ANY USER CONTENT YOU SUBMIT TO THE SERVICE OR ANY LIBRARY MADE AVAILABLE VIA THE SERVICE.

9. Shared and Private Libraries

9.1. Private Library.

(a) If you choose to, you can keep your User Content and any analyses, data, or other information that you submit to the Service in the form of a private Library, which shall remain confidential to you. ApexRMS shall protect the contents of any private Library from unauthorized use, access, or disclosure in the same manner that we would use to protect our own confidential information of a similar nature and in no event with less than a reasonable degree of care.

(b) From time to time, ApexRMS may need to access User Content stored in a private Library for security purposes, to assist you with a support matter, to maintain the integrity of the Service, to comply with our legal obligations, if we have reason to believe the contents are in violation of the law, or with your consent.

9.2. Shared Library.

(a) You may share User Content uploaded to a private Library as a shared Library (each a “Shared Library”) with other Users and unregistered users that do not have an Account, or invite specific Users of your choosing to view and download your Library. If you decide to share User Content that you submit to the Service, you are giving certain legal rights to Users (along with unregistered users) as explained in subsection (b) below. ApexRMS has no responsibility to enforce or police, or aid you in enforcing or policing, the terms of the license(s) or permission(s) you have chosen to offer. Once a specific Library has been shared with other Users, or unregistered users, such individuals may download the Library at any time and share it outside of the Service with third parties.

(b) If you access or use any User Content which is in a shared Library or otherwise made available by other Users to the Service, you acknowledge and agree that your use of such User Content is subject to any license terms, terms of use or other permissions granted by the licensor of the Shared Library and you agree to comply with such terms. In the absence of any license terms in a Shared Library, the User contributing User Content is deemed to have granted you a non-exclusive, sublicenseable, perpetual, irrevocable, worldwide license to reproduce, publicly perform, transmit, publicly display, distribute, modify, adapt, and create derivative works based on such User’s User Content through all media now known or hereafter developed. You further acknowledge and agree that ApexRMS does not have any obligation to monitor any Shared Library created by Users and disclaims all responsibility and liability for your use of User Content and any Shared Library made available to you through the Service, including without limitation the accuracy, completeness, appropriateness, legality, security, availability, or applicability of any Shared Library and you hereby waive any and all legal or equitable rights or remedies you have or may have against ApexRMS with respect to any Shared Library and User Content that you may download, share, access or use.

(c) APEXRMS IS NOT RESPONSIBLE FOR MISUSE OR MISAPPROPRIATION OF USER CONTENT, LIBRARIES AND /OR ANY ANALYSES, DATA, OR OTHER INFORMATION THAT YOU SUBMIT TO THE SERVICE BY THIRD PARTIES.

9.3. Content License. Whenever you add any Content to a Library containing a notice of a license, you license that Content under the same terms and agree that you have the right to license such Content under those terms. If you have a separate agreement to license that Content under different terms, such as a contributor license agreement, such agreement will supersede this Agreement.

10. Intellectual Property Rights

10.1 Service Content. The contents of the Service include, without limitation, all information, data, products, materials, services, software applications and tools, APIs, design elements, text, images, photographs, illustrations, audio and video contents, artwork and graphics contained therein or otherwise made available to you in connection therewith (collectively the “Service Content”) and, unless the context clearly requires otherwise, or we explicitly say so in writing, the term Service includes all of the Service Content.

10.2 Ownership of the Service. The Service together with all trademarks and other intellectual property displayed, distributed, or otherwise made available via the Service, is the exclusive property of ApexRMS, and its successors, assigns, licensors, and/or suppliers. Unless you have agreed otherwise in writing with ApexRMS, nothing in this Agreement gives you a right to use any of the Service Content, ApexRMS’ trademarks or other intellectual property of ApexRMS, except as expressly permitted herein. You may not assign or transfer any of the Service Content and you may not grant a license to use or access the Service to any party. Any unauthorized or prohibited use of any Service Content may subject you to civil liability, criminal prosecution, or both, under applicable federal, provincial, and local laws.

10.3 Rights in Derivative Data. Customer acknowledges and agrees that the Service compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Service and for the creation of new products. Customer hereby grants to ApexRMS a non-exclusive, transferable, assignable, irrevocable, worldwide, perpetual license to collect, process and aggregate User Content and other such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Service, develop new products and services, to understand usage, and for any other business purpose. All Derivative Data will be in aggregate, anonymized and/or de-identified form only and will not identify Customer, its Users, Personal Information, or any third parties utilizing the Service.

10.4 Feedback. All feedback, comments, and suggestions for improvements that you provide to us, in any form, and the results, metrics, analysis and statistics resulting from access to and use of the Service and applications made available via the Service (collectively, the “Feedback”) will be the sole and exclusive property of ApexRMS. You hereby irrevocably transfer and assign to ApexRMS all of your right, title, and interest in and to all of your Feedback.

11. Warranties and Disclaimers

11.1 Limited Warranties. ApexRMS hereby represents and warrants that (i) SyncroSim Cloud will perform materially in accordance with the Documentation during the Subscription Term; (ii) SyncroSim Cloud will not contain any Malicious Code; (iii) it owns or otherwise has sufficient rights in SyncroSim Cloud to grant to Customer the rights to use SyncroSim Cloud granted herein; and (iv) to its knowledge, SyncroSim Cloud does not infringe any intellectual property rights of any third party. ApexRMS does not warrant, however, that the Customer’s use of SyncroSim Cloud will be uninterrupted, that the operation of SyncroSim Cloud will be error-free, that SyncroSim Cloud will meet Customer’s requirements or that all errors will be corrected.

11.2 Exclusions. The warranty shall not apply to the extent that the breach is caused by misuse, negligence, accident, unauthorized modification, alteration, customization or repair, improper operation or maintenance.

11.3 Remedies. In the event of a breach of one or more of the warranties set forth in Section 11.1 above, ApexRMS shall use reasonable commercial efforts to correct such breach of the warranty.

11.4 Disclaimers.

(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11.1, THE SYNCROSIM CLOUD IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. WITHOUT LIMITATION, APEXRMS AND ITS AFFILIATES, LICENSORS, SUBCONTRACTORS AND DISTRIBUTORS DISCLAIM ANY IMPLIED REPRESENTATIONS, IMPLIED WARRANTIES OR IMPLIED CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK OF THE USE OF THE SYNCROSIM CLOUD SHALL BE BORNE BY YOU. APEXRMS DOES NOT WARRANT THAT THE SYNCROSIM CLOUD WILL BE FREE OF ALL DEFECTS, ERRORS, OR INACCURACIES.

(b) Any third-party content, data or publications made available through the Service are furnished on an as-is basis for your convenience and information. Any opinions, advice, statements, services, offers, or other information made available by third parties are those of the respective author(s) or publisher(s) and not of ApexRMS. APEXRMS DISCLAIMS ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT THE INFORMATION IN SUCH PUBLICATIONS IS ACCURATE OR COMPLETE.

(c) ApexRMS provides no warranties, representations or conditions on the Community Edition.

11.5 Internet Connectivity Disclaimer. ApexRMS makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and an internet connection meets the minimum specifications published by ApexRMS in the Documentation and updated from time to time on ApexRMS’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to (a) website downtime for scheduled maintenance at ApexRMS’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond ApexRMS’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within ApexRMS’s control or network intrusions. Customer hereby acknowledges and agrees that ApexRMS shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases ApexRMS from any claims relating thereto.

12. IP Infringement Indemnification

12.1 Infringement Indemnity. Subject to this Agreement, ApexRMS shall defend Customer against any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the SyncroSim Cloud (other than the Community Edition) and/or Documentation as contemplated hereunder infringes the intellectual property rights of a third party (each an “Infringement Claim”) and shall reimburse or pay on Customer’s behalf all losses, damages and costs (including reasonable legal fees and disbursements) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement arising out of such Infringement Claim; provided that, Customer (a) promptly gives written notice of the Infringement Claim to ApexRMS; (b) gives ApexRMS sole control of the defense and settlement of the Infringement Claim (provided that ApexRMS may not settle or defend any Infringement Claim unless it unconditionally releases Customer of all liability); and (c) provides to ApexRMS, at ApexRMS’ cost, all reasonable assistance and information.

12.2 Other Remedies. If (a) ApexRMS becomes aware of an actual or potential Infringement Claim, or (b) Customer provides ApexRMS with notice of an actual or potential Infringement Claim, ApexRMS may (or in the case of an injunction against Customer, shall), at ApexRMS’ sole option and determination: (i) procure for Customer the right to continue to use the SyncroSim Cloud; or (ii) replace or modify the SyncroSim Cloud with equivalent or better software so that Customer’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially reasonable, as determined by ApexRMS in its sole discretion, terminate this Agreement and the Subscription for the SyncroSim Cloud and refund to Customer that portion of any prepaid Subscription Fee that is applicable to the period following the termination of the Subscription.

12.3 Exclusions. The indemnity in Section 12.1 does not extend to (a) any Infringement Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the SyncroSim Cloud furnished by ApexRMS with other products, software or services not provided or approved by ApexRMS, other than SyncroSim Cloud designed by ApexRMS with certain commercial hardware or other commercially available software, if such infringement would have been avoided but for such combination; (b) any Infringement Claim related to or in connection with any modification of the SyncroSim Cloud by anyone other than ApexRMS if such infringement would have been avoided but for such modification; or (c) any use, distribution, sublicensing or exercise of any other right outside the scope of the licenses or rights granted in this Agreement.

12.4 Sole Remedies. THIS SECTION 12 CONTAINS APEXRMS’s ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, FOR INFRINGEMENT CLAIMS.

13. Customer Indemnification

You agree to defend, indemnify and hold harmless ApexRMS and its employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to legal fees) arising from: (i) your use of and access to the Service, including any User Content transmitted or received by you; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Content or any Content submitted via your Account; or (vi) any other party’s access and use of the Service with your unique username, password or other appropriate security code.

14. Limitation of Liability

14.1 Indirect, Consequential etc. Damages. IN NO EVENT SHALL APEXRMS OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS OR DISTRIBUTORS HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, RELIANCE, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFIT, LOSS OF OR DAMAGE TO DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS, WHETHER ARISING IN CONTRACT, EQUITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS OR DISTRIBUTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THEY ARE FORESEEABLE.

14.2 Liability Cap. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT, RELATED TO THE SYNCROSIM CLOUD, OR RELATED TO ANY SERVICES PROVIDED TO YOU BY APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) EXCEED THE SUBSCRIPTION FEES PAID BY YOU FOR THE SYNCROSIM CLOUD IN THE SIX (6) MONTHS PRIOR TO THE DATE OF THE CLAIM, IF ANY. APEXRMS (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, LICENSORS, SUBCONTRACTORS, RESELLERS AND DISTRIBUTORS) SHALL NOT BE RESPONSIBLE FOR CLAIMS BY A THIRD PARTY.

14.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, SECTIONS 14.1 AND 14.2 DO NOT APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

14.4 Basis of Bargain. THE LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM OR FUNDAMENTAL BREACH. THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT BUT FOR THE DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION, NEITHER APEXRMS NOR ANY OF ITS LICENSORS WOULD GRANT THE RIGHTS GRANTED IN THIS AGREEMENT.

15. Term and Termination

15.1 SyncroSim Cloud. Subscriptions commence on the earlier of the Subscription Start Date specified in the relevant Order Form and continue for the Subscription Term specified therein, unless terminated earlier as provided for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional 12 month periods at the Subscription Fee in effect at the time of renewal, unless Customer gives ApexRMS written notice of non-renewal at least 60 days prior to the end of the applicable Subscription Term. Upon termination, You must cease all use of SyncroSim Cloud.

15.2 Community Edition. This Agreement shall continue for as long as You use the Community Edition, however, it will terminate, without notice from ApexRMS, if You fail to comply with any of its terms or conditions. ApexRMS may terminate your Community Edition Subscription for convenience and without cause on notice to You.

15.3 Termination for Material Breach.

(a) A party may terminate this Agreement or a Subscription for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the bene-fit of creditors.

(b) If a Subscription is terminated by Customer in accordance with this Section 15.3, ApexRMS will refund Customer any prepaid Subscription Fees covering the remainder of the Subscription Term after the effective date of termination. If a Subscription is terminated by ApexRMS in accordance with this Section 15.3, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Fees payable to ApexRMS for the period prior to the effective date of termination.

15.4 Customer Termination. If you want to terminate your Account, you may do so by closing your Account, where we have made this option available to you. Your Account will be closed provided that (i) any disputes in which you have been involved have been satisfactorily resolved; (ii) you have met all outstanding payment obligations associated with your Account; and (iv) you have completed any other obligation(s) associated with your use of the Service.

15.5 Rights Upon Termination. Upon the termination or expiration of this Agreement, all of the legal rights, obligations and liabilities that you and ApexRMS have benefited from, been subject to (or which have accrued over time while this Agreement have been in force) or which are expressed to continue indefinitely, shall be unaffected by such termination. You acknowledge that termination and/or monetary damages may not be sufficient remedy if You breach this Agreement and that ApexRMS will be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction in the event of a breach.

15.6 Survival. Sections 1 (Definitions), 11.4 (Disclaimers), 14 (Limitation of Liability), 16 (General) shall continue in force even after any termination of this Agreement.

16. General

16.1 Entire Agreement. This Agreement, including the Privacy Policy, constitute the entire agreement between you and ApexRMS relating to your use and our provision of the Service.

16.2 Amendments. ApexRMS may amend this Agreement as it applies to the Community Edition, in whole or in part, from time to time. In the event of such an amendment by ApexRMS, the revised Agreement will be posted to apexrms.com or syncrosim.com. If You do not agree with such amendment, you may refuse same and cancel Your use of the Community Edition. In the event this Agreement is amended, ApexRMS will provide You notice before the amendment comes into effect by posting the amended Agreement, and where applicable, by sending You notice using any contact information that may be available to ApexRMS and setting out the new clause, or the amended clause and how it read formerly, as well as the date on which the amendment will come into effect. Your continued access or use of the Community Edition after such posting constitutes Your express consent to be bound by the Agreement, as amended.

16.3 Assignment. You may not assign this Agreement whether voluntarily, by operation of law, or otherwise without ApexRMS’s prior written consent. ApexRMS may assign this Agreement at any time without Your consent and without notice. Upon any such assignment, ApexRMS shall be fully released from its obligations hereunder and the assignee shall assume the rights and obligations of ApexRMS as if the assignee were an original party to this Agreement.

16.4 Notice. You agree that ApexRMS may provide you with notices, including those regarding changes to this Agreement, by posting on the Service or the Website.

16.5 Remedies. You agree that if ApexRMS does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to ApexRMS.

16.6 Unenforceable Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this will not affect any other provision of this Agreement and the agreement between you and us will be deemed amended to the extent necessary to make it legal, valid, and enforceable.

16.7 Language. The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.

16.8 Governing Law. The laws of the Province of Ontario and the federal laws of Canada applicable therein shall govern this Agreement in all respects, without giving effect to conflicts of laws principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.

16.9 Counterparts and Facsimile Execution and Delivery. Order Forms may be signed electronically, including through DocuSign and similar applications. Each Order Form may be signed in any number of counterparts (including counterparts by scanned or electronic signature) and each counterpart will be deemed an original; taken together, all counterparts will be deemed to constitute one and the same instrument. Delivery of a printed counterpart (whether or not the counterpart was signed electronically) or electronic delivery (including by email transmission or transmission over an electronic signature platform) of an executed counterpart of this Agreement are each as valid, enforceable and binding as if the signatures were upon the same instrument and delivered in person.

16.10 Contact. To request the consent of ApexRMS for any of the actions for which such consent is required under this Agreement, or if you have any comments, questions or concerns as it relates to this Agreement, please send an e-mail to info@syncrosim.com. ApexRMS reserves the right to refuse any such requests of consent in its sole discretion.