The expressions which are used in this Agreement have meanings as described below:

• 1.1. “Acceptable Use Policy” or “AUP” means the Pathway Cloud Services Acceptable Use Policy posted at Pathway’s web site. The AUP comes into effect as of the date you enroll for the Pathway Services and may be amended pursuant to the terms of this Agreement relating to changes and modifications. The most current AUP can be found at https://www.pathcom.com/pathway-acceptable-use-policy/.
• 1.2. “Account” means the various elements that comprise your Service, including details and contact information on file with Pathway and the access credentials which are used to access your Pathway Service. The Account is also used to determine the Fee in the aggregate, chargeable to you, for the Service.
• 1.3. “Billing Cycle” means the monthly period for which you may use Pathway’s Services and for the monthly Fee is applicable to your Account.
• 1.4. “Business Day” means 9:00 a.m. to 5:00 p.m. Monday through Friday, Canada Eastern Standard Time and excludes Federal and Provincial public holidays in the Province of Ontario, Canada.
• 1.5. “Confidential Information” means all non-public information disclosed by us or our respective agents, our business partners or their respective agents, or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Pathway’s Confidential Information includes, without limitation:
  • 1.5.1. Non-public information relating to our or our business partners’ technology, customers, business plans, security systems, network, applications and processes, product development plans, prices, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving our products or services which you obtain as a result of your use of the Pathway Services;
  • 1.5.2. Third-party information that we are obligated to keep confidential;
  • 1.5.3. The nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information that you are required to disclose by law or is otherwise freely available in the public domain as of the date of the currency of this Agreement.
• 1.6. “Client Data” means all data, information, applications, software, records, files, input, reports, forms, configurations, and other similar items that are received, stored, created, or transmitted by you when using the Service.
• 1.7. “Fee” means the fee you pay to Pathway for the Service that you enroll for in the Service Order.
• 1.8. “Service Level Agreement” or “SLA” means the Pathway Service Level Agreement which is relevant and applicable to the Service which you have elected to enroll for. The SLA is, by reference, part of this Agreement and comes into effect as of the date you sign the Service Order. The SLA may be amended pursuant to the terms of this Agreement. The most current SLA can be found at https://www.pathcom.com/cloud-service-level-agreement.
• 1.9. “Service Order” means the written Agreement or Order Form (in electronic or paper form) provided to you by Pathway for signature, which describes the Service (“Service Description”) you are purchasing and enrolling for, which is signed by you, either manually or electronically, to signify your agreement to purchase and pay for the Pathway Service.
• 1.10. “Service” means the Pathway Services described in the Service Order which are made available to you for a Fee by Pathway. The Services include, but are not limited to, the following:
  • 1.10.1. Pathway Cloud Service (“CloudPath™”)
  • 1.10.2. Pathway Managed Cloud Service (“CloudPath™” with management)
  • 1.10.3. Pathway Virtual Private Server (“VPS”)
  • 1.10.4. Pathway Software as a Service (“SaaS”)
  • 1.10.5. Pathway Private Cloud Storage (“Storig”)
  • 1.10.6. Any other Pathway Cloud Services that are offered from time to time.
• 1.11. “Support” means the technical assistance provided to you by Pathway’s employees, via email, phone or on site, as this relates to the Service you have enrolled for via a Service Order.

2.1. This Agreement is incorporated into, and forms an integral part of, your Pathway Service Order by reference. If, over time, you sign multiple Service Orders with Pathway using a single account, then the Agreement incorporated into, and which forms part of the latest, or most recent, Service Order will govern all your Service Orders.

2.2. Your use of any Pathway system, application, or Service is governed by the most recent Pathway policies and terms.

2.3. A Service Order will be deemed to have been formally executed when:

• 2.3.1. A copy of a Pathway Service Order has been signed by you and sent to Pathway.
• 2.3.2. Pathway acknowledges via correspondence, including electronic mail, that it has received and accepted such Service Order Agreement.
• 2.3.3. Pathway provisions and activates the Service, described in your Service Order, for your use.
• 2.3.4. Pathway may accept or reject any Service Order you submit, at its sole discretion.

Pathway’s obligations: Non-Managed Services

4.1. For Services which do not include additional Fee-based Managed Services, Pathway will provide only the following:

• 4.1.1. The appropriate Service consistent with the Service Description and/or the Service Order
• 4.1.2. Service at a level equal to that which is defined in the SLA which is relevant and applicable to the Service you have enrolled for through a Service Order.
• 4.1.3. Access to the computing, network, and storage resources described in the signed Service Order, provisioned through Pathway or self-provisioned by you.
• 4.1.4. Access to Client Data and the Services for one Billing Cycle after the payment of your last and final Fee to Pathway, contingent upon your meeting your obligations under this Agreement.
• 4.1.5. Physical security for the hardware (network, storage, and servers) and software that hosts your Service.
• 4.1.6. Privacy for Client Data as required by Canadian Law and as outlined in the Pathway Privacy Policy.
• 4.1.7. 24/7/365 Tier I phone and email technical support.

Pathway’s obligations: Fee-Based Managed Services

4.2.For additional Fee-based Managed Services, Pathway will provide only the following:

• 4.2.1. The appropriate Managed Service consistent with the Services Description and/or the Service Order.
• 4.2.2. 24/7/365 Tier I phone and email technical support for the appropriate Managed Service.
• 4.2.3. Response times for Managed Service technical support as defined in the SLA which is relevant and applicable to the Service that you have enrolled for through a Service Order.
• 4.2.4. Integrity of the state of files in a backup session when the backup session begins.

4.3. For additional Fee-based Managed Services, Pathway will provide only the following:

• 4.3.1. Data Backup.
• 4.3.2. Server Monitoring and Response.
• 4.3.3. Operating System (“OS”) Management.
• 4.3.4. High Availability.
• 4.3.5. Firewalls
• 4.3.6. Other Managed Services as and when these are specifically launched and offered by Pathway.

Specific Exclusions: Specialty Services:

4.4. Pathway’s obligations related to Managed Services specifically exclude the following Specialty Services:

• 4.4.1. Patches, maintenance, and repair of the OS or Applications installed on the Client’s Virtual Machines (“VMs”).
• 4.4.2. Migration of VMs and Services from the Client’s own, internal or other environment to Pathway’s infrastructure.
• 4.4.3. Migration services from the Client’s environment or infrastructure to another environment or infrastructure.
• 4.4.4. Secure VPN connections to your VMs.
• 4.4.5. Additional VLANs.
• 4.4.6. Automatic fail-over for VMs.
• 4.4.7. DNS Server installation and migration.
• 4.4.8. DNS load balancing.
• 4.4.9. Consulting Services, including custom documentation and audits.
• 4.4.10. High availability for any application or software platform.
• 4.4.11. Load balancer installation and management.
• 4.4.12. High availability storage.
• 4.4.13. Microsoft® Exchange or any equivalent messaging environments or platforms.
• 4.4.14. Database servers: installation and management.

4.5. The Specialty Services are not part of the Service Order for Cloud Managed Services. The Specialty Services are available for a Fee from Pathway, are covered by separate SLAs, and require a separate Service Order.

Limitations

4.6. Pathway’s obligations related to Managed Services specifically exclude the following Specialty Services:

• 4.6.1. Any Managed Service which is not specifically listed in a Service Order signed by the Client.
• 4.6.2. Any Specialty Service which is not specifically listed in a Service Order signed by the Client.
• 4.6.3. Support for restored Client Data, unless integrity of data is compromised by a failure of Pathway’s Backup System.
• 4.6.4. Any guarantee beyond the integrity of the backup session that the Client Data within a restored backup session will function correctly or properly. Illustratively, if a backup session includes an installed application that was malfunctioning before the backup session began, it will continue to malfunction when the backup session is restored. Similarly, if a backup session includes a file that was corrupt before the backup session began, the file will be corrupt when the backup session is restored. Pathway is not liable for Client Data either within or outside the backup session(s). Note that these examples are for clarification purposes only.
• 4.6.5. Technical support for any issues that are caused by applications or custom configurations that you install on the OS.
• 4.6.6. OS licenses, unless the appropriate Fee is paid to Pathway.
• 4.6.7. Support for misuse of the environment and for infrastructure monitored directly by the Client.
• 4.6.8. A guarantee that your firewall(s) will detect and prevent intrusions or intrusion attempts.
• 4.6.9. A guarantee that audits undertaken by Pathway will detect any malware including but not limited to registry issues, intrusions, or root kits.
• 4.6.10. Any audits, reports, documentation, actions, configuration, or changes based on recommendations, reports, and documentation provided to you separately through a Pathway Consulting Service Agreement.
• 4.6.11. Any liability (monetary or otherwise) either direct or implied for Client Data lost due to any Managed Service.

For scheduled meaintnance:

5.1. Pathway’s obligations related to Managed Services specifically exclude the following Specialty Services:

• 5.1.1. Pathway will attempt to provide at least five (5) days’ notice at the email address provided by you, and which is available on record with Pathway. The notice will include a description of the maintenance to be performed, the duration of the event, and the expected impact, if any, on your Service.
• 5.1.2. Pathway will make best efforts to schedule maintenance periods outside of normal business hours (9 a.m. to 5 p.m. EST/EDT).
• 5.1.3. Pathway cannot guarantee that we can always schedule maintenance outside of normal business hours (9 a.m. to 5 p.m. EST/EDT) or provide any assurance against, or compensation (monetary or otherwise) for, loss or corruption of Client Data during emergency or scheduled maintenance.
• 5.1.4. You are required to back up your Client Data to a non-Pathway location before scheduled maintenance begins. If you require Pathway’s Data Backup Services, you must enroll for the appropriate Service, agree to the terms and conditions of such Service and pay the appropriate Fee(s) to Pathway.
• 5.1.5. For emergency maintenance, Pathway will attempt to provide notice, at the phone number provided by you, which is available on record with Pathway.

Lawful use:

6.1. You agree to use the Services only for lawful purposes.

6.2. You may not use the Services for any purpose that is contrary to applicable laws or which is a nuisance.

6.3. You agree not to transmit, upload or download, store, post, publish, disseminate, receive, retrieve, or provide access to information, software, files or other material which are defamatory, obscene, deemed to be child pornography or hate literature or which may invade the privacy of others.

6.4. You may not use the Services for unauthorised copying, duplication, distribution, display or modification of any material or information protected by copyright or trademark or otherwise lawfully restricted (including, without limitation, software, programs, games and computer code).

6.5. You may not compile or use the Pathway Services, servers or infrastructure or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations. You agree not to undertake mass-mail broadcasts of electronic mail (“spam”) or blog postings with the intent of sending unsolicited advertising to other users of the Internet.

6.6. You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services.

6.7. You represent and warrant that you are not a person to whom Pathway is legally prohibited from providing the Services.

6.8. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of any nuclear, chemical or biological weapons, weapons of mass destruction or missiles in any country nor may you provide administrative access to the Service to any person (including any natural person or government or private entity) deemed to be located in or is a national of any country that is embargoed or is restricted under Canadian law.

6.9. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury to any person or to physical or environmental damage without verified and tested independent alternate means of Service delivery from a source outside Pathway. For example, you may not use, or permit any other person or entity to use, the Pathway Service to transmit any data or information which is used in critical medical care and where the failure of the Service may endanger life or limb.

6.10. You further agree to:

• 6.10.1. Use only the Service for which you have signed a Service Order and for which you are paying a Fee to Pathway.
• 6.10.2. Comply with all Pathway policies including the Privacy Statement, AUP, and terms of this Agreement.
• 6.10.3. Use adequate and reasonable security precautions in connection with your use of the Services.
• 6.10.4. Cooperate with Pathway’s reasonable investigations of outages, security problems, and any suspected breaches of the Agreement.
• 6.10.5. Keep your billing contact and other account information up to date.
• 6.10.6. Pay, when due, the Fees for the Services.
• 6.10.7. Not interfere, or attempt to interfere in any manner, with the functionality or proper working of the Service.
• 6.10.8. Not attempt to access or use another Client’s Service.
• 6.10.9. Not attempt to circumvent any security measures deployed by Pathway.
• 6.10.10. Not stalk, exploit, threaten, abuse or otherwise harass any Pathway employee.

10.1. We may change this Agreement and Terms of Service, the Privacy Statement and the AUP at any time, at our sole discretion, provided that such changes are reasonable and consistent with applicable law and general industry norms. Any changes made during the term of your Agreement will become effective and applicable to you the earlier of thirty (30) days following such changes being published on Pathway’s web site or our written notice to you describing such changes.

10.2. If the change materially and adversely affects you and you do not accept such changes, you may terminate the Agreement by giving written notice of your intent to terminate Services, no later than thirty (30) days following the date the change becomes effective, stating such grounds. If you terminate your Service because the change adversely affects you, we may, at our option, either:

• 10.2.1. Not enforce that change with respect to your Service and keep your Agreement in place for the remainder of the term; or
• 10.2.2. Permit you to terminate your Agreement without payment of early termination fees.

10.3. Other than as stated herein, the Agreement may be modified only by a formal document signed by authorized representative of each party. If there is a conflict between the terms of this agreement with any of the other documents that comprise this Agreement, then the documents will govern in the following order of precedence: Agreement, Service Order, Terms of Service, and the Acceptable Use Policy.

12.1. Pathway will charge you the Fees stated in your Service Order and you agree to pay Pathway the Fees related to such Services. The Fees posted on Pathway’s web site do not include taxes, long distance or other applicable charges.

12.2. There is a minimum Fee commitment related to each Service that you enroll for, under your Service Order.

12.3. If your actual Service usage is less than your minimum Service usage commitment, Pathway will still charge you the minimum Fee, and such minimum Fee will be higher than the amount of the Fee based on your actual usage.

12.4. Unless otherwise agreed to in writing, the Service Order, your Billing Cycle will be monthly, beginning on the date that Pathway first makes the Service available to you.

12.5. The schedule for payment of Fees to Pathway will be as follows:

• 12.5.1. For recurring Fees, in advance, on or around the first day of each billing cycle, which commences on the date your Service is activated
• 12.5.2. For non-recurring Fees (such as Fees for initial set-up, Service use overages and special, one-time or non recurring Services) on the date Service delivery was initiated and no later than the first day of the billing cycle that follows the date the Service was initiated.

12.6. Unless you have made other arrangements, you will be required to pay the Fees using a valid Credit Card (Visa or MasterCard only) issued in your name. By providing your Credit Card information for payment of the Service Fees to Pathway, you expressly authorize Pathway to charge your Credit Card (and any replacement Credit Card) all Fees and outstanding amounts owing to Pathway.

12.7. It is your responsibility to ensure that the billing information provided to Pathway, including your address and Credit Card details or other billing information, remains current at all times and you agree to notify Pathway of any changes to your billing information forthwith.

12.8. Pathway may suspend all Services (including Services provided to you pursuant to any unrelated Service Order or other agreement we may have with you) if our charges to your credit card are rejected for any reason.

12.9. Pathway may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate, whichever is higher) on any amount that is overdue by more than thirty (30) days. If Pathway brings any legal action to collect, or engages a collection agency, you will also be required to pay Pathway’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in Canadian Dollars. Any “credit” that Pathway may owe you, such as a credit for failure to meet a stated Service Level Assurance, will be applied to Fees due from you for Services, and will not be paid to you as cash or as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed to be accurate.

12.10. Pathway is required, by law, to collect taxes on the provision of the Services, and you must pay Pathway the amount of the tax that is due or provide satisfactory evidence of your exemption from such tax.

12.11. You authorize Pathway to obtain a credit report at any time during the term of the Agreement.

14.1. We may suspend or terminate your Services without any liability if:

• 14.1.1. We reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement;
• 14.1.2. We discover that you are, or are affiliated in any manner with, a person or entity who/which has used similar services abusively in the past;
• 14.1.3. You do not cooperate with Pathway’s reasonable investigation of any suspected violation of the Agreement;
• 14.1.4. We reasonably believe that your Services have been accessed or manipulated by a third party without your consent;
• 14.1.5. 1We reasonably believe that suspension of the Services is necessary to protect our network or our other customers;
• 14.1.6. A payment for the Services is overdue (you revoke our authorization to make Credit Card withdrawals;
• 14.1.7. We cannot reach you to obtain, confirm, revalidate or update information required to process your Fee;
• 14.1.8. The suspension is required by law.

14.2. We will give you reasonable advance notice of suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Pathway or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we will continue to charge you the Fees for the Services during the suspension, and will charge you a Reinstatement Fees (not to exceed $250.00) upon reinstatement of the Services. If your Service is terminated on account of a breach of this agreement pursuant to this paragraph, we will have no obligation to make any refund or other payment (including, without limitation, refund of set up fees, prepaid fees or other credits for future Services) to you and despite any termination, we may pursue any other recourse against you, including barring you from accessing your Client Data.

16.1. We may terminate the Agreement for breach on written notice if:

• 16.1.1. We discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete;
• 16.1.2. If you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Service Order;
• 16.1.3. If you are an entity or fiduciary, the individual submitting the Service Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer;
• 16.1.4. Your payment of an invoiced amount is overdue, and you do not pay the overdue amount within seven (7) days of our written notice;
• 16.1.5. A credit report indicates you no longer meet our reasonable credit criteria. Provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of Pathway in an orderly and reasonable manner within three business days; (v) you use your Service in violation of the AUP and fail to remedy the violation within three (3) business days of our written notice;
• 16.1.6. You fail to comply with any other provision of the Agreement and do not remedy the failure within seven (7) days of our notice to you describing the failure.

16.2. Termination of your Service shall not relieve you from any Fees, Termination Charge, or other fees and charges, owing or other liability accruing hereunder or incurred prior to the time that such termination or suspension becomes effective.

16.3. You may terminate this Agreement for breach on written notice if:

• 16.3.1. We materially fail to provide the Services on more than one occasion in six months and do not remedy that failure within seven (7) days of your written notice describing the failure;
• 16.3.2. We materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within seven (7) days of your written notice describing the failure.

17.1. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from provable or demonstrated gross negligence or wilful misconduct. The credits described in the SLA are your sole and exclusive remedy for failure to provide the Services unless such failure is due to Pathway’s provable and demonstrated gross negligence or wilful misconduct.

17.2 Neither of us, namely you or we, nor any of our respective employees, agents, affiliates, or suppliers, is liable to the other for any lost profits or any other indirect, special, incidental, or consequential loss or damages of any kind or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.

17.3. Notwithstanding anything in the Agreement to the contrary, the maximum aggregate monetary liability of Pathway and any of its employees, agents, suppliers, or affiliates, in connection with the Services, the Agreement and any act or omission related to the Services or Agreement under any theory of law (including Breach of Contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of:

• 17.3.1. The amount of Fees you paid for the Services for two (2) months prior to the occurrence of the event giving rise to the claim; or
• 17.3.2. Five Hundred Canadian Dollars ($500.00).

17.4. Under no circumstances shall we, our affiliates or our agents be liable to you or to any third party for any direct, indirect, special, exemplary, punitive, or consequential damages, including, without limitation, loss of profits and loss of business opportunities that result from

• 17.4.1. This Service, including its use or unavailability or any part thereof, by you or any other person using your Service Account or those who may rely on or use information, services, or merchandise provided on or through the Service, or
• 17.4.2. Mistakes, omissions, interruptions, deletion, or corruption of files, errors, defects, delays in preparations or transmission, or failure of performance, or
• 17.4.3. Any losses or expenses (including legal fees) arising out of, or in connection with any allegation, claim, suit, or other proceeding based upon a contention that the use of the Service by you or a third party through your Account infringes the intellectual property rights or contractual rights of any third party, or
• 17.4.4. Defamation or copyright infringement arising from material transmitted or received over our or our affiliates’ facilities, or
• 17.4.5. Infringement of patents arising from combining or using your facilities with ours or those of our affiliates.

21.1. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:

• 21.1.1. To our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement;
• 21.1.2. To a Canadian law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law;
• 21.1.3. In response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.

24.1. All email communications regarding your Pathway Service should be sent to:

• 24.1.1. For technical support and service matters, the Pathway Communications Technical Support Team at cloudsupport@pathcom.com.
• 24.1.2. For other issues, accounts@pathcom.com.
• 24.1.3. Paper documents must be sent to:
  Pathway Communications
  95 Apple Creek Blvd.,
  Markham, Ontario L3R 1C7, Canada

24.2. Facsimiles must be sent to:
Fax: 416-214-6238
ATTN: Cloud Sales and Support, RE: Cloud Services

24.3. Pathway will send all communications regarding the Services and notices to the phone number or email addresses provided by you, which are available on record with Pathway. Notices are deemed received as of the time sent, or if that time does not fall within a business day (9 a.m. to 5 p.m. – Mondays through Fridays, excluding Federal and Provincial holidays) then on the next occurring business day. All notices must be given in the English language, except if you are a resident of the Province of Quebec, whereupon we will send notices in French.