1. GOVERNING TERMS.  These terms (“Terms”) are incorporated by reference into the Agreement executed between TOPS Telecommunications Inc. (“TOPS”) and the customer identified therein (“Customer”), and form a valid and binding part thereof.   These Terms govern the provision of the Services.  Capitalized terms defined in the main body of the Agreement shall have corresponding meanings in these Terms.

1. SERVICE DESCRIPTION    

1. 1. Support and Maintenance Services. Subject to payment of the Contract Price, TOPS shall provide service labour, and repair or replacement of parts for Equipment covered by the Agreement including effecting, upon Customer request, all repairs necessitated by normal use, wear and tear, and generally maintaining the Equipment in good operating condition.  
   2. Service Requests.  The Customer may report issues or request assistance via the TOPS online support portal, email, or by telephone.
   3. Support Hours.  TOPS will provide the Services at no additional charge during normal business hours, defined as Monday to Friday, 8am to 5pm (excluding statutory holidays in the Province of British Columbia).  If support other than “Emergency Service” (as hereinafter defined) is requested at times other than normal business hours, additional charges may apply.
   4. Response Times. TOPS will endeavour to respond to normal service calls, on average, within 24 hours of receipt of a service request from the Customer.  TOPS will endeavour to respond to service requests for Emergency Service, on average, within 4 hours of receipt of a Customer service request.  For the purposes of these Terms, “Emergency Service” is defined as support for catastrophic failures that materially impede the Customer’s ability to carry on business, including: (a) complete system failure; (b) attendant console failure; (c) inability to receive any incoming calls or to place any calls outside of the facility; and (d) inability to place calls within the facility.
   5. Changes.  TOPS may make changes to the Services description from time to time during the Term; provided that the Customer will be provided with not less than thirty (30) days’ prior written notice of any material changes to the Services.  

1. EXCLUDED SERVICES 

1. 1. TOPS will respond to all Customer service requests. However, the Contract Price does not include, and additional charges may apply, with respect to any support necessitated by damage or failure of the Equipment resulting from causes other than normal wear and tear of the Equipment, including:

1. misuse or negligent operation of the Equipment, including use for any purposes for which it was not designed; 
2. accident, theft or unexplained loss; 
3. failure or addition of any Customer- or third party-supplied wiring, equipment, hardware or software used to host, access or use the Equipment;
4. failure of the Customer to perform any Customer obligations described in Section 4, including any failure to adequately prepare the Installation Site;
5. power failures,  power surges, electrical current fluctuations, and other problems with the electrical supply; 
6. repair or alteration of the Equipment by anyone other than TOPS or its designated agents;
7. failure of Internet or other communications connections; 
8. failure of any third party services;
9. malicious attacks on the Customer’s systems, or on any third party systems required to access or use the Equipment;
10. “No trouble found” tickets;
11. compliance with the requirements of any governmental authority, or service, communication or utility provider; or
12. other circumstances beyond TOPS’s reasonable control, including natural disasters such as lightening strikes, fire, flood, wind and events of “force majeure” (as described below). 

1. 1. Unless otherwise set out in the Agreement, TOPS’s support obligations do not include consultancy, training, back-up processing, use of trial accounts, creation of customized software, corrections or updates to Customer data, reinstatement of Services in accordance with Section 12.6, or any consumable or expendable parts such as paper, tapes, ribbons, diskettes and batteries.  
   2. The Services described in Sections 3.1 and 3.2 (“Excluded Services”) may be provided by TOPS, at its discretion, at the sole expense of the Customer, and the Customer hereby agrees to bear the cost of all labour and materials required in connection with the Excluded Services at TOPS’s then-prevailing rates.  

1. CUSTOMER OBLIGATIONS. The Customer agrees to provide all such assistance as TOPS may reasonably request in connection with the performance of the Services.  Without limitation, the Customer shall: (a) promptly respond to TOPS requests for information, materials and instructions; (b) provide access to all such Customer facilities, equipment and technology as TOPS may require; (c) prepare the Installation Site, including ensuring that all necessary wiring, power outlets, and telephone jacks have been installed, tested and labelled as required by TOPS; and (d) designate one or more authorized representatives who shall be TOPS’ 

primary point of contact for all matters relating to the Services. TOPS shall not be liable for any delay or failure to perform that results from a breach by the Customer of its obligations under this Section 4.  

1. ADDITIONS TO EQUIPMENT. The Customer may add Equipment from time to time during the Term subject to TOPS’ prior written agreement.  Fees for the Services will be adjusted accordingly, and the Customer agrees to pay all such additional charges and fees in accordance with the terms of the Agreement.  

1. PRICES.  The fees for the Services are as set out in the Agreement (“Contract Price”).  The Customer shall pay the Contract Price and shall reimburse TOPS for any reasonable expenses incurred by TOPS and TOPS’s employees and contractors in connection with the performance of the Services.  Such expenses may include, but shall not be limited to, any required permits and reasonable travel costs incurred by TOPS employees in connection with the Services; provided, however, that all expenses shall be evidenced by supporting documentation.  All applicable sales taxes, duties and levies shall be the responsibility of the Customer.  If any new or additional Equipment is added to the Agreement subsequent to the date of initial installation, the Contract Price will be adjusted to take into account the increased cost of servicing and maintaining the additional Equipment during the remainder of the Term, and the Customer agrees to forthwith pay any such additional charges to TOPS.

1. PAYMENT.  Unless otherwise agreed by TOPS, the Contract Price is payable monthly in advance.   Payment is due net thirty (30) days from the date of invoice.  Except as specifically provided herein, payment obligations are non-cancellable.  If requested by TOPS for the purposes of credit review, the Customer will submit its most current financial information to TOPS.  All amounts are payable in Canadian currency unless otherwise agreed.  Interest may be charged on overdue amounts at the rate of 2% for each month that the payment is overdue (26.8% per annum, effective rate), or the highest rate permitted by applicable law, whichever is lower.  All amounts payable to TOPS shall be paid in full without any deduction or withholding.  If at any time the financial condition of the Customer so warrants, or if the Customer fails to make any payment(s) when due, or if the Customer defaults on any obligation to TOPS, TOPS may at its discretion alter the terms of payment, and/or suspend or delay delivery of all or any Services pending receipt of advance payment, and/or pursue any other remedies available under the Agreement, at law or in equity. 

1. LIMITED SERVICES WARRANTY. TOPS represents and warrants to the Customer that: (a) the Services will be performed in a professional and workmanlike manner in accordance with prevailing industry standards; (b) TOPS shall comply with all applicable laws in the course of performing the Services; and (c) the Services will comply substantially with the Service Description in Section 2.  In the event of a breach of this warranty, TOPS will, at TOPS’s option and expense, use all reasonable efforts to rectify the non-conformity and/or re-perform that portion of the non-conforming Services.   All warranty claims must be made within six (6) months of the completion of the Services.  THE WARRANTIES SET OUT IN THIS SECTION 8 ARE THE ONLY WARRANTIES PROVIDED BY TOPS REGARDING THE SERVICES. TOPS EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY RELATING TO THE SERVICES AND THE CUSTOMER’S USE THEREOF INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANITES OF FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR ANY WARRANTY OTHERWISE ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE, OR FROM A COURSE OF DEALING, USAGE OR TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY TOPS.  THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.

1. INSURANCE. TOPS will carry and maintain in force normal and customary insurance coverages. TOPS’s professional liability insurance policies will, if required by the Customer and agreed by TOPS in the Agreement, cover the Customer as additional insured for liability arising out of TOPS’s performance of the Services.  

1. TOPS PERSONNEL.  TOPS will be solely responsible for the payment of its employees’ salaries, unemployment insurance, C.P.P., workers’ compensation, employee benefits and other employment related charges and deductions, and for remitting any amounts due in connection therewith to the appropriate government authorities.  TOPS may subcontract any of its obligations to qualified subcontractors.  TOPS shall be liable to the Customer for the performance of its subcontractors in accordance with the Agreement.  During the Term of the Agreement, and for a period of twelve (12) months thereafter, the Customer will not, directly or indirectly, employ or solicit for employment any employee or consultant of TOPS.  If the Customer violates this provision, it shall pay compensation to TOPS in an amount equal to the employee or consultant’s gross wages over a twelve (12) month period.  The Customer agrees that such compensation is a reasonable estimate of the economic loss that would be suffered by TOPS as a result of a breach of this provision.

1. CONFIDENTIALITY. Each party may, from time to time in connection with the Services, furnish the other party with certain confidential information.  The recipient will use the same care to avoid disclosure of such confidential information as it uses with its own similar confidential information, but such standard of care will not be less than reasonable care.  Recipient will not disclose any confidential information of the disclosing party to any persons other than its directors, officers, employees, contractors, agents, professional advisors or other representatives who have a need to know the confidential information for the purpose of performing their duties in connection with the Agreement, and who are under an obligation of confidentiality which is no less protective of the information than the terms of this section. Recipient will not use the disclosing party’s confidential information for any purpose other than to exercise its rights or to discharge its obligations under the Agreement.  The disclosure of the disclosing party’s confidential information does not grant to the recipient any license or rights to any trade secrets, or under any intellectual property rights, of the disclosing party.

1. TERMINATION 

1. 1. Expiry.  Unless earlier terminated in accordance with this Section 12, the Services will terminate upon expiry of the Term set out in the Agreement, including any agreed extensions.
   2. Termination by Customer for Convenience.   Either party may terminate the Services for convenience at any time upon not less than ninety (90) days’ prior written notice to the other party.  In the event of termination for convenience by Customer, TOPS shall be entitled to retain fifty percent (50%) of any prepaid but unrealized amounts paid by Customer in respect of the Terminated Services.  Customer shall also compensate TOPS for all prepaid costs and expenses, and any additional costs and expenses incurred as a result of early termination of the Agreement, which TOPS cannot mitigate despite reasonable efforts. The Customer agrees that any such amounts are liquidated damages, and not a penalty. 

1. 1. Termination by Customer for Cause. The Customer may terminate the Agreement: (i) if TOPS breaches any of its material obligations under the Agreement, and fails to rectify the breach to the Customer’s reasonable satisfaction within thirty (30) days of delivery of written notice to TOPS specifying the breach; or (ii) immediately, if TOPS enters (or the Customer reasonably believes that TOPS may enter) into any arrangement with its creditors, or if a proceeding in bankruptcy, receivership or insolvency is instituted against TOPS or its property, or if TOPS generally becomes unable to pay its debts as they become due.
   2. Termination or Suspension by TOPS. TOPS may terminate the Agreement, or terminate or suspend all or any part of the Services: (a) if the Customer fails to pay any amounts due in respect of the Services, and payment is not received by TOPS within ten (10) days of delivery of written notice to the Customer specifying the default; (b) if the Customer breaches any other material obligation under the Agreement, and fails to rectify the breach to TOPS’s reasonable satisfaction within thirty (30) days of delivery of written notice to the Customer specifying the default; or (c) immediately, if the Customer enters (or TOPS reasonably believes that the Customer may enter) into any arrangement with its creditors, or if a proceeding in bankruptcy, receivership or insolvency is instituted against the Customer or its property, or if the Customer generally becomes unable to pay its debts as they become due.  If all or any part of the Services are terminated by TOPS for cause in accordance with this Section 12.4, in addition to any other rights or remedies that it may have, TOPS shall be entitled to retain fifty percent (50%) of any prepaid but unrealized amounts paid by Customer in respect of the terminated Services as liquidated damages, and not as a penalty. Customer shall also compensate TOPS for all prepaid costs and expenses, and any additional costs and expenses incurred as a result of early termination of the Agreement, which TOPS cannot mitigate despite reasonable efforts.
   3. Survival. Any provision of these Terms that by its nature should survive the termination or expiry of the Agreement shall survive including, but not necessarily limited to, Sections 7, 11, 12.5, 14 and 15. Termination of the Agreement will not affect the right of either party to pursue any other remedies available at law or in equity, including injunctive relief.
   4. Reinstatement of Support. After any suspension or termination of the Services, the Customer may re-instate the Services by paying all support and maintenance fees, if any, that are in arrears, as well as any costs, calculated on a time and materials basis, incurred by TOPS to update the Equipment and related software to an operable, current version.  

1. FORCE MAJEURE.  TOPS will not be liable for any failure to perform its obligations to the Customer due to circumstances or causes beyond TOPS’s reasonable control, including, but not limited to, acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, delay in delivery by TOPS’s vendors, delay by the Customer, fire, flood, accident, epidemic, strikes, or inability to secure transportation, facilities, fuel, energy, labor, or materials.  In the event of force majeure, TOPS’s time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby.

1. LIMITATION OF LIABILITY. TOPS’, ITS OFFICERS’, DIRECTORS’, EMPLOYEES’ AND AGENTS’ TOTAL COLLECTIVE LIABILITY UNDER THE AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH THE EQUIPMENT AND SERVICES RENTED, LEASED, SOLD OR DELIVERED TO THE CUSTOMER, AND THE PERFORMANCE OR NON-PERFORMANCE OF TOPS’ OBLIGATIONS TO THE CUSTOMER UNDER THE AGREEMENT, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES CAUSED THEREBY, NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY TOPS FROM THE CUSTOMER FOR THE EQUIPMENT OR SERVICES GIVING RISE TO THE DAMAGES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.  IN NO EVENT SHALL TOPS HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE (INCLUDING WITHOUT LIMITATION, LOST REVENUES, LOST PROFITS, DELAY, OR LOSS OF USE) ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF THE AGREEMENT, EVEN IF TOPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS WILL APPLY FOR ALL CLAIMS, INCLUDING WITHOUT LIMITATION, CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WILL APPLY EVEN IF THE CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. 

1. GOVERNING LAWS.  The Agreement, including all schedules and amendments, will be construed, interpreted and governed by the laws of the Province of British Columbia, Canada, without regard to its conflicts of laws principles. The courts of the Province of British Columbia will have exclusive jurisdiction to resolve any dispute that arises out of or in connection with the Agreement that cannot be resolved amicably through discussions between the parties’ senior management.

1. MISCELLANEOUS. No alternations or modifications of the Agreement will be binding upon either party unless made in writing and signed by an authorized representative of each party.  The Agreement may not be assigned by the Customer without TOPS’ prior written consent. The parties are independent contractors, and nothing contained in the Agreement will be construed so as to create or imply any relationship of employment, agency or joint venture. The failure by either party to insist upon the performance of any obligation or to exercise any rights under the Agreement will not be construed as a waiver of the right or obligation, or of any other right or obligation under the Agreement. The Agreement will be binding upon, enure to the benefit of, and is enforceable by, the parties and their respective successors and permitted assigns.