KPMG LLP

SaaS Terms and Conditions

1. Definitions

1.1. “Agreement” shall mean these Terms and Conditions and the Order Form, collectively.

1.2. “Customer” shall be defined in the Order Form.

1.3. “Customer Data” shall mean all data loaded into or through to Third Party Software (as defined in Section 2.3) using the Online Service by or on behalf of Customer.

1.4. “Documentation” shall mean all written or electronic materials provided to Customer by KPMG for facilitating use of the Online Service, and includes Training Materials but does not include advertising or similar promotional materials.

1.5. “Effective Date” is the last signature date of this Agreement by either party.

1.6. “Force Majeure” shall mean any event outside KPMG’s control which renders the Online Service unavailable such as, but not limited to, a natural disaster, fire, an extended power or an electrical outage, or a problem caused by a Related System.

1.7. “Intellectual Property Rights” shall mean any and all rights, on a world-wide basis, provided under (a) patent law; (b) copyright law; (c) trade-mark law (including goodwill); (d) industrial design law; (e) any other statutory provision or common law principle, including trade secret law (including know-how); and (f) any and all registrations and licenses in relation to the foregoing.

1.8. “KPMG” shall mean KPMG LLP.

1.9. “Network” shall mean the Internet, telephone network, cellphone network, and other transmission methods by which the Online Service is delivered by KPMG and made accessible to Customer.

1.10. “Order Form” the shall mean the order confirmation of KPMG or other written document that identifies the Online Service ordered by Customer, which is accepted by KPMG in writing, but shall exclude any pre-printed or linked terms and conditions set forth in such written document that are in addition to, inconsistent or in conflict with, or different than, this Agreement.

1.11. “Online Service” shall mean the online service set out in the Order Form and provided by KPMG to Customer. It shall also include all corrections, Updates (as defined in Section 2.2) and new releases of the Online Service as may be provided to Customer by KPMG from time to time under the Agreement. For the sake of clarity, the Online Service does not include any source code or Related Systems.

1.12. “Related Systems” shall mean Customer or third party owned or operated computers, web-browsers, operating systems, firewalls, e-mail servers, LDAP servers, portals, Networks, Third Party Software and any other hardware or software that connects to the Online Service or affects the Online Service if they are not configured or operating properly, whether or not provided by or configured by KPMG.

1.13. “Training Materials” shall mean the instructor guide(s), student guide(s), job aids, recorded executable files, and/or tutorials developed by KPMG for the use of the Online Service, but shall not include any e-Learning Courseware.

2. License and Third Party Connectivity

2.1. Subject to the terms and conditions of this Agreement and payment of the fees, KPMG grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Online Service during the Term as defined in Section 4.1. Any use of the Online Service prior to the Effective Date shall be considered a trial period during which the terms of this Agreement do not apply and the use of the Online Service is entirely at the risk of Customer.

2.2. KPMG may periodically make available updates to the Online Service (“Updates”) but makes no representations as to the frequency of such Updates or the features or enhancements that will be provided in the Updates.

2.3. Customer acknowledges and agrees that KPMG will in no way use, store or access Customer Data and will only provide Customer with access and connectivity to third party applications and software solutions offered by Microsoft Corporation and other third parties (the “Third Party Software”). Customer’s use of Third Party Software is subject to any agreements, online or otherwise, or other terms and conditions and service level agreements as may be agreed to directly between Customer and Microsoft Corporation or such other third party, including without limitation all terms and conditions attached to this Agreement , if any, and KPMG makes no representation, warranty or covenant in relation to the appropriateness or effectiveness of any agreements between Customer and Microsoft Corporation or any other third parties or in relation to the security, availability, access to or support relating to Customer’s use of Third Party Software. For further certainty, KPMG shall not be responsible if Customer Data is lost or corrupted in between scheduled backups or for a reason caused by the acts or omissions of Customer or any Third Party Software.

2.4. Customer acknowledges that in a Force Majeure event, including if any Third Party Software comprising the Online Service is unavailable for any reason, the Online Service may not be available and that the Online Service may be provided on a reduced use basis and may require Customer to make changes to the procedures used to access the Online Service.

3. Customer Responsibilities

3.1. Customer has sole responsibility to (a) make backup copies of data, files, and programs located on its own equipment and shall employ all necessary security measures to ensure its information is kept secure from unauthorized or accidental erasure or changes when connected to the Online Service or any Third Party Software; (b) check the accuracy of information processed using the Online Service or any Third Party Software; (c) terminate inactive users and periodically change passwords to ensure continued security of the Online Service; and (d) manage and configure its Related Systems and ensure they operate properly. KPMG shall have no obligation to store, back up or keep Customer Data pursuant to this Agreement and any Customer Data incidentally retained by KPMG shall be destroyed in accordance with KPMG`s then applicable data retention policies.

3.2. Customer assumes all responsibilities and obligations with respect to (a) the selection of the Online Service to meet its intended results; (b) any and all arrangements required with Third Party Software and related providers; and (c) any decision it makes based on the results produced by the Online Service. Customer understands and acknowledges that KPMG is not engaged in rendering professional advice either as a service or through the Online Service, including relating to the Third Party Software and related terms and conditions of use and it is not relying on KPMG for any advice or guidance regarding such Third Party Software or otherwise. To the extent permitted by law, Customer shall indemnify and hold KPMG harmless from any and all actions, damages, claims, fines, penalties, complaints, demands, suits, proceedings, liabilities, costs, expenses, or losses (including reasonable legal fees) of its current and former owners, directors, officers, employees, contractors, agents and representatives arising from the use by such persons or by Customer of the Online Service, the Documentation or the Third Party Software.

3.3. Customer has not relied on the availability of any future version or features of the Online Service as a condition of entering into this Agreement.

3.4. If Customer suspects a failure of the Online Service to perform as set forth in the Documentation, it shall notify KPMG, provide a detailed description of the problem, steps to reproduce the problem, and other assistance as KPMG may reasonably request to allow it to investigate the problem.

3.5. Customer shall make every prudent effort to refer to the Documentation as a first step in answering questions and learning functions of the Online Service prior to contacting KPMG with regard to problems or questions.

3.6. Customer is solely responsible to ensure Related Systems operate properly. Should KPMG identify that the root cause of a problem is caused by Customer modifications to the Online Service or problems with Related Systems, it shall notify Customer and request approval to provide additional assistance (if applicable). Should Customer give its approval, the additional time spent by KPMG after such approval shall be considered professional services and will require a separate agreement for services.

3.7. Customer will not reverse engineer, decompile, reverse assemble, disassemble or translate any portion of the Online Service. Customer shall not permit any third party to use, sub-license, sell, assign, convey, transfer, publish, copy, duplicate, disassemble or otherwise deal with the Online Service or Documentation except as expressly permitted hereunder, and, without limiting the foregoing, shall not use the Online Service to provide information processing, computer service bureau or computer time sharing or similar services to any other person or entity or for any purposes. Customer shall use the Online Service and Documentation solely for its own internal functions and in accordance with all applicable law. For certainty, and without limiting any other provision of this Agreement, Customer shall be liable for any and all acts and omissions of its authorized users and for any breach of this Agreement by any authorized user.

4. Term and Termination

4.1. The term (the “Term”) of this Agreement starts on the Effective Date and terminates when this Agreement terminates.

4.2. Upon termination of the Agreement, the Customer’s rights to the Online Services and Documentation granted herein shall be of no further force or effect, and Customer shall immediately cease using the Online Service and shall, within thirty (30) days after such termination, destroy or permanently purge all copies of Documentation then in its possession or control.

4.3. Any indemnities, warranties, waivers and any payment obligations incurred by Customer prior to or upon termination shall survive termination of this Agreement.

4.4. If either party commits a material breach of this Agreement, and should such breach not be corrected within thirty (30) days after receipt of written notice from the non-breaching party, this Agreement may be terminated by the non-breaching party upon written notice. Notwithstanding the foregoing, if the nature of the breach requires longer than thirty (30) days to cure, and KPMG is taking commercially reasonable efforts to cure such breach throughout the initial thirty (30) day cure period, KPMG shall have a reasonable time thereafter to continue to effectuate a cure of such breach. Upon termination in such instance, KPMG shall refund the unused portion of any fees paid prorated based on the number of full months left in the given period.

4.5. If at any time during the Term it is determined by KPMG, in its sole discretion, that there may be an actual or potential breach by KPMG of applicable professional standards, KPMG may terminate this Agreement, without liability, immediately upon notice to Customer.

5. Proprietary Right, Non-Disclosure and Protection of Personal Information

5.1 Each party shall maintain as confidential and shall not disclose, publish, or use for purposes other than as intended in this Agreement the other party’s Confidential Information except to those partners (in the case of KPMG), employees, contractors, legal or financial consultants and auditors of the recipient and its affiliates and contractors who need to know such information in connection with the recipient’s performance of its rights and obligations under this Agreement and in the normal course of its business and who are bound by confidentiality terms no less stringent than the terms contained herein. “Confidential Information” shall mean financial information, business plans, technology, marketing or sales plans that are disclosed to a party and any other information that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party to be proprietary and confidential to the disclosing party because of (a) legends or other markings; (b) the circumstances of disclosure; or (c) the nature of the information itself. For clarity, “Confidential Information” of KPMG shall also include the Online Service, the pricing and terms of this Agreement, benchmarks, statistics or information on the capabilities of the Online Service, and the Confidential Deliverables (as defined in Section 5.3), and “Confidential Information” of Customer shall also include the Customer Data. Each party shall protect the other’s Confidential Information with reasonable care and no less care than it would exercise to protect its own Confidential Information of a like nature and to prevent the unauthorized use, disclosure, or publication thereof. Notwithstanding anything else in this Agreement, either party may disclose Confidential Information in accordance with a judicial or governmental order, or as otherwise required by law, regulation, or professional standards applicable to such party or its professionals, provided that the recipient either, to the extent permitted by law (i) gives the disclosing party reasonable notice prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or equivalent, if available; or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, neither party shall disclose any computer source code that contains Confidential Information in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (i) of this Section 5 to the extent permitted by law. In any event, regardless of whether or not it is possible to comply with (i) and (ii), the recipient will only disclose the portion of the Confidential Information required to be disclosed.

5.2. Either party may disclose the existence of this Agreement and its terms to the extent required by law, regulation, or professional standards, or the rules of any applicable regulatory authority or the rules of a stock exchange or other trading system on which that party's securities are listed, quoted, and/or traded, as well as to its professional advisors and insurers. Either party may also retain copies of all Confidential Information of the other party to the extent required by applicable law, regulation and professional standards. KPMG shall be entitled to share all information with all other member firms of KPMG International Cooperative ("KPMG International"). KPMG may retain and may disclose to other KPMG International member firms, subject to terms of this Section 5, such information required for compliance with applicable professional standards or internal policies or for quality reviews or to share best practices.

5.3. Any administrative tools that may from time to time be used or provided by KPMG to Customer to assist in the setup of the Online Service and any related Documentation (collectively the “Confidential Deliverables”) are trade secrets of KPMG and contain especially valuable Intellectual Property Rights. Customer shall limit access to Confidential Deliverables to those on a need to know basis and shall not duplicate such Confidential Deliverables.

5.4. Breach of the obligations in Section 5 may cause irreparable damage to the disclosing party and therefore, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief for such breach. In the event of any litigation to enforce or construe this Section 5, the prevailing party shall be entitled to seek recovery of, in addition to any charges fixed by the court, its costs and expenses of suit, including reasonable legal fees, costs and expenses.

5.5. KPMG shall retain all rights, title, and interest in any Documentation that may be provided to Customer by KPMG relating to the Online Service. Customer shall not alter, modify, copy, edit, format, translate, or create derivative works of these materials, except as provided herein or when approved in writing by KPMG. Customer may (a) copy the Documentation for purposes of making backup and archival copies; and (b) duplicate the Documentation for the purpose of training authorized users without payment to KPMG provided that all trademarks, copyright notices and other proprietary markings on the Documentation are not removed or altered/modified and are reproduced therewith. Customer’s license to use the Training Materials is granted solely for the purpose of permitting Customer to train authorized users. No other use of the Training Materials is permitted and all terms and conditions of this Agreement apply to all copies and derivative works. The Online Service and Documentation are confidential and intended solely for Customer’s internal use and are not for general use, circulation or publication.

5.6. Customer shall at all times control, retain and own all title, rights, and interest in Customer Data. KPMG has no liability to Customer for any Customer Data used, stored or processed through Third Party Software and Customer acknowledges and agrees that Customer is responsible for procuring any and all necessary licenses with third parties in using or accessing Third Party Software and for complying with the terms of such licenses.

5.7. Both parties agree to comply with all applicable privacy and data protection statutes, rules, or regulations governing the respective activities of the parties. Customer hereby consents to the use, processing and/or disclosure of Customer Data only for the purposes described herein and to the extent such use or processing is necessary for KPMG to carry out its duties and responsibilities under this Agreement or as required by law. Any collection, use or disclosure of personal information is subject to KPMG’s Privacy Policy available at https://home.kpmg/ca/en/home/misc/privacy.html . To the extent that KPMG is required to collect, use and disclose personal information about individuals during the Term of this Agreement, Customer represents and warrants that (i) it will obtain from individuals all consents required by law to permit KPMG to collect, use and disclose all personal information reasonably required during the Term of this Agreement; and (ii) it has provided notice of KPMG's potential processing of information outside of Canada (as described in Section 5.9 below) to all individuals whose personal information is disclosed to KPMG.

5.8. KPMG retains all Intellectual Property Rights in all methodologies, know-how, knowledge, applications and software developed by KPMG either prior to or during the Term, including all Intellectual Property Rights in the Online Service and Documentation and in any KPMG Confidential Information and Confidential Deliverables.

5.9 Certain information (including information relating to time, billing and conflicts) collected by KPMG during the course of this Agreement may be used, retained, processed and stored outside of Canada by KPMG, KPMG International member firms or third party service providers or subcontractors providing support services to KPMG for administrative, technological and clerical/organizational purposes, including in respect of client engagement acceptance procedures and maintaining engagement profiles; and to comply with applicable law, regulation or professional standards (including for quality performance reviews). Such information may be subject to disclosure in accordance with the laws applicable in the jurisdiction in which the information is used, retained, processed or stored, which laws may not provide the same level of protection for such information as will Canadian laws. KPMG may also share information with its legal advisers and insurers for the purposes of obtaining advice.

5.10 Customer acknowledges that KPMG aggregates anonymous information from sources including the Customer for various purposes, including to monitor quality of service, and Customer consents to such use. KPMG may also use Customer’s information to offer services that may be of interest to Customer.

6. Payments, Credits, and Refunds

6.1. Customer shall pay all fees specified in the Order Form to KPMG or its designated representative. Unless specified otherwise in the Order Form (i) payment obligations are non-cancelable and fees paid in advance are non-refundable; (ii) the quantities of the Online Service ordered cannot be decreased during the Term; and (iii) all fees quoted and payments made hereunder shall be in the currency specified in the Order Form. Any use of the Online Service in excess of the amounts specified in the Order Form shall be billed as incurred to the Customer monthly in arrears for the period of overuse at the unit prices specified in the Order Form.

6.2. KPMG’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties.

6.3. All invoices submitted shall be due Net 30. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount when due and submit written notice of the disputed amount (with details of the nature of the dispute and the invoice(s) disputed) within thirty (30) days of receipt of the invoice. KPMG may assess interest at the rate of 1.5% per month on any disputed amounts ultimately paid and Customer shall pay all costs incurred in the collection of charges due and payable, including any reasonable legal fees.

6.4. Notwithstanding any other provision herein, upon any termination of this Agreement, Customer acknowledges and agrees that (a) both the Online Service and (unless otherwise agreed to by Customer and the applicable third party provider of such Third Party Software) the Third Party Software shall no longer be made available to Customer; (b) regardless of the foregoing, including whether or not the applicable third party provider continues to make available the Third Party Software to Customer, Customer remains responsible to pay any fees payable in respect of any Third Party Software for the then-outstanding balance of the Term, it being understood that such fees are payable to the applicable third party provider of such Third Party Software regardless of the termination of this Agreement and the availability or availability of the Third Party Software; and (c) any refund of pre-paid fees owing to Customer by KPMG that is expressly set out in this Agreement shall not include a refund of any pre-paid fees relating to the Third Party Software.

7. Warranties and Indemnifications

7.1. KPMG shall, at its expense, indemnify, defend and hold Customer harmless from and against any claim that the Online Service infringes an Intellectual Property Right; provided, however, that (a) Customer promptly notifies KPMG of any such claim; (b) permits KPMG to defend with counsel of its own choice; and (c) Customer gives KPMG such information and/or assistance in the defense thereof, as KPMG may reasonably request. If the Online Service is adjudged to infringe an Intellectual Property Right by a court of competent jurisdiction, KPMG shall, at its expense and election either (i) procure the right for Customer to continue using the infringing items; (ii) replace the infringing items with a functionally equivalent non-infringing product; (iii) modify the infringing items so that they are non-infringing; or (iv) terminate this Agreement and refund the unused portion of any fees paid related to the infringing items. The provisions of Section 7.1 constitute the entire liability of KPMG and sole remedy of Customer with respect to any claims or actions based in whole or in part upon infringement or violation of an Intellectual Property Right of any third party. For greater certainty, the foregoing indemnity does not pertain to any Third Party Software that may be provided with or as part of the Online Service or that may otherwise be required to be licensed by Customer to use or receive the benefit of the Online Service, and shall only be limited to the Online Service that is owned by KPMG.

7.2. KPMG represents and warrants that (a) it has the rights to grant the licenses and rights specified herein, and (b) the Online Service will not contain any viruses or Trojan horses.

7.3. KPMG warrants that the Online Service, when used as authorized herein, shall perform substantially as set forth in the Documentation during the Term.

7.4. KPMG’s sole obligation and Customer’s exclusive remedy for any material breach of the above warranty in Section 7.3 is limited to undertaking commercially reasonable efforts to promptly make corrections to the Online Service or provide a workaround at no additional charge to Customer. In the event that KPMG is unable to make corrections to or provide a workaround for the Online Service after using its commercially reasonable efforts to do so, Customer shall be entitled to terminate this Agreement and receive a refund of any fees paid in respect of the remainder of the Term. KPMG’s obligations hereunder for breach of warranty are conditioned upon Customer notifying KPMG of the material breach in writing, and providing KPMG with sufficient documentation of such non-conformity to enable KPMG to reproduce and/or verify the same.

7.5. THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7, KPMG SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES AS TO THE ONLINE SERVICE, DOCUMENTATION AND ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, BUT WITHOUT LIMITATION, KPMG SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO KPMG AGENT, PARTNER, CONTRACTOR OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION TO THIS WARRANTY, UNLESS IN A SIGNED WRITING EXECUTED BY A KPMG EMPLOYEE OR PARTNER WITH ACTUAL AUTHORIZATION TO BIND KPMG. KPMG DOES NOT WARRANT THAT THE DOCUMENTATION, ONLINE SERVICE OR ANY PORTION THEREOF WILL OPERATE UNINTERRUPTED, WILL BE ERROR FREE OR THAT KPMG WILL CORRECT ALL NON-MATERIAL ERRORS.

7.6. Customer acknowledges that it has made its own independent assessments in relation to the Online Service and has determined, on its own accord, that the Online Service and related fault tolerance is appropriate for Customer’s environment and uses notwithstanding any limitations, delays, and other problems inherent in the Online Service or Related Systems. Customer acknowledges that the Online Service and Related Systems may be subject to limitations, delays, and other problems which are beyond KPMG’s control and that KPMG shall have no liability for any delays, failures, or unavailability resulting from such problem. In the event of a claim by any third party against KPMG that arises out of or relates to this Agreement or the Online Service, Customer will indemnify and hold harmless KPMG from all such claims, including, without limitation, reasonable legal fees, except to the extent finally determined to have resulted from the intentional, deliberate or fraudulent misconduct of KPMG.

7.7. In no event shall either party be liable for any loss of profits, loss of use, loss of data, interruption of business or indirect, special, incidental or consequential damages of any kind in connection with or arising out of this Agreement, whether alleged as a breach of contract or tortious conduct. The limitation of liability specified in this paragraph applies regardless of the cause or circumstances giving rise to such losses or damages, including without limitation, whether the other party has been advised of the possibility of damages or that the damages are foreseeable, or the alleged breach or default is a fundamental breach or breach of a fundamental term.

KPMG’s aggregate liability hereunder for damages shall not, in any event, exceed the fees paid by Customer pursuant to this Agreement in respect of the applicable Online Service giving rise to the claim up to the date on which the claim arose. The foregoing limitation on liability shall not apply to KPMG’s breach of the non-disclosure provisions of this Agreement, its indemnification obligations hereunder, or any death, personal injury, or damage to tangible property caused solely by the willful misconduct of KPMG’s staff while on-site at Customer’s locations, all of which claims, demands, suits, proceedings, liabilities, costs, expenses, or losses shall be capped at the maximum aggregate amount of one million dollars ($1,000,000).

7.8. Notwithstanding anything else in this Agreement, including, but not limited to, claims for breach of confidentiality or Intellectual Property Right infringement, KPMG shall have no liability whatsoever for the Third Party Software and the Third Party Software IS PROVIDED ON AN “AS, IS” BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND KPMG DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE THIRD PARTY SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND INFORMATION COMPLETENESS, UNINTERRUPTED USE, CURRENCY OR ACCURACY. KPMG SHALL IN NO WAY BE RESPONSIBLE FOR OR SUBJECT TO UPTIME GUARANTEES OR ANY SERVICE LEVEL AGREEMENTS IN RELATION TO THIRD PARTY SOFTWARE.

7.9. Customer acknowledges that the Online Service and Third Party Software may be subject to limitations, delays, and other problems which are beyond KPMG’s control and that KPMG shall have no liability for any delays, failures, or unavailability resulting from such problem.

8. General Provisions

8.1. Neither party shall incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, where such delay or failure is caused, in whole or in part, by a Force Majeure event. If a party asserts a Force Majeure event for failure to perform the party’s obligations, the asserting party shall notify the other party of the event and take commercially reasonable steps to minimize the delay or damages caused by the Force Majeure event. Either party may terminate this Agreement on prior written notice to the other if the Force Majeure event continues for more than sixty (60) consecutive days.

8.2. Any notice to be sent relating to this Agreement shall be in writing and shall be sufficiently given if personally delivered or if sent by facsimile transmission, e-mail, courier or other express mail service, postage prepaid, addressed to the party entitled or required to receive such notice at the address for such party set forth on the signature page hereof. This Agreement contains the entire agreement of the parties with respect to its subject matter, and there are no promises, conditions, representations or warranties except as expressly set forth herein. This Agreement may be modified or amended only by written instrument executed by the parties. This Agreement has been the subject of arm’s length negotiations and shall be construed as though drafted equally by the parties. No terms, provisions or conditions of any purchase order or other document that Customer may use in connection with this Agreement shall have any effect on the rights, duties or obligations of either party.

8.3. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by either party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to or waiver of any different or subsequent breach. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. The headings and titles provided in this Agreement are for convenience only and shall have no meaning on the terms of this Agreement. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld). Notwithstanding the foregoing, consent is not required for an assignment of this Agreement in connection with a sale or disposition of a majority of all the assets, voting securities or equity interests of KPMG, or a reorganization, merger or similar transaction of KPMG. This Agreement binds and enures to the benefit of the parties hereto and their respective successors and permitted assigns. The parties agree that reliable copies such as scanned or facsimile counterpart signatures are acceptable.

8.4. This Agreement shall be subject to and governed by the laws of the province of Ontario (without regard to such province’s rules on conflicts of law) and the federal laws of Canada applicable therein.

8.5. No action arising out of any claimed breach of this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. Each party shall be liable for breaches of its affiliates and contractors under this Agreement. Notwithstanding the foregoing, in the case of multi-firm engagements, all KPMG International member firms performing services hereunder shall be entitled to the benefits of this Agreement. Customer agrees that any claims that may arise out of this Agreement will be brought solely against KPMG, the contracting party, and not against any other KPMG International member firms or such third party service providers referred to in this Agreement. Any dispute or claim between the parties arising under or relating to this Agreement (the “Dispute”) shall be submitted to non-binding mediation. If mediation is not successful within ninety (90) days after the issuance by a party of a request for mediation, then the Dispute shall be referred to and finally resolved by arbitration under the Arbitration Rules of the ADR Institute of Canada in force at that time. The Seat of Arbitration shall be the province of Ontario. The language of the arbitration shall be English. The Arbitral Tribunal shall be made up of a single Arbitrator. The arbitration award shall be final, conclusive and binding upon the parties, and not subject to appeal.

8.6. KPMG and Customer shall, for all purposes hereunder, be considered independent contractors. This Agreement is not intended in any manner to create the relationship of principal and agent between the parties, nor shall this Agreement be deemed to establish a partnership or joint venture. Neither party shall have the power, expressed or implied, to obligate or bind the other in any manner whatsoever. Each party shall be solely responsible for compensating its own employees, including the payment of employment related taxes and shall maintain its own worker’s compensation and general liability insurance.

8.7. KPMG may refer to Customer as a Customer in KPMG’s promotional materials, including on KPMG’s website, and KPMG may use Customer's name and logo for that purpose, with Customer granting any and all applicable licenses to use Customer’s name and logo for the purposes described herein. For purposes of the services described herein only, the Customer hereby grants to KPMG a limited, revocable, non-exclusive, non-transferable, paid up and royalty-free license, without right of sublicense, to use all logos, trademarks and service marks of Customer solely for the foregoing, and for presentations or reports to the Customer or for internal KPMG presentations and intranet sites. Customer shall not refer to KPMG or use KPMG’s name or logo in any manner or medium without the prior written permission of KPMG in each instance, which permission may be unreasonably withheld by KPMG.

8.8. EACH PARTY ACKNOWLEDGES THAT THE WARRANTY DISCLAIMERS, LIABILITY AND REMEDY LIMITATIONS, AND SERVICE LEVELS IN THIS AGREEMENT ARE MATERIAL TO THE NEGOTIATION OF THIS AGREEMENT AND THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.