Terms and Conditions

1.1 “Account” means Company's account through which the Company can access and use the Platform, including designating Authorized Users and Administrators.

1.2 “Administrator” means the individual Company Authorized Users designated by the Company to access the Account as an administrator of such Account, each of which will be assigned a unique user login and password.

1.3 “Affiliate” means an entity controlling, controlled by or under common control with a Party. As used in this definition, the terms “control,” “controlling” and “controlled by” shall mean the possession, directly or indirectly, of the power either to (a) vote 50% or more of the securities or interests having ordinary voting power for the election of directors of such person or (b) direct or cause the direction of the actions, management or policies of such person, whether through the ownership of voting securities or interests, by contract or otherwise.

1.4 “Apex Data” means administrative and technical data related to the Platform and the use by Apex's customers and their authorized users of the Platform, including information related to Platform errors, bugs, areas for improvement, and related system data.

1.5 “Authorized User” means Company's employees and/or contractors who have been provided access to and use of the Platform or any portion thereof by Company, regardless of whether or not such individuals actually access and/or use the Platform or any portion thereof.

1.6 “Authorized User Data” means data, including personal data, provided by Company and/or collected and stored by Apex in connection with the provision of the Platform, about the Company's Authorized Users, excluding Apex Data.

1.7 “Company Data” shall mean all data provided by Company to Apex in connection with its use of the Platform, as well as all data derived from the use of such provided data and/or collected by Apex in connection with the use of the Platform by Company, including its Authorized User Data, but specifically excluding Apex Data.

1.8 “Confidential Information” means any and all information disclosed by one Party to the other, directly or indirectly, that is designated as confidential or proprietary, or that is provided under circumstances reasonably indicating it is confidential, including trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of the Agreement.

1.9 “Documentation” means all operating manuals, user manuals, training materials, guides, product specifications, and technical manuals relating to the Platform.

1.10 “Intellectual Property Rights” means any copyright, trademark, service mark, trade name, patent, patent application, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction, whether registered or unregistered.

1.11 “Order Form” means an order form, whether in paper format or online format, that incorporates these Terms by reference from time to time, pursuant to which Company orders access to the Platform and any related services or modules specified therein.

1.12 “Platform” means Apex's cloud-based and/or hosted platform provided on a software as a service basis, as more particularly identified in an Order Form, including RailPro SMS, as well as all Software comprising a portion thereof and any applications, inventions, or other technology developed by or on behalf of Apex in connection with this Agreement.

1.13 “RailPro SMS” means Apex's proprietary RailPro SMS software and related services, as further described at www.railprosms.com, including all Intellectual Property Rights therein.

1.14 “Software” means all software code comprising all or a portion of the Platform, made available by Apex for use by Company, including any modified versions, updates or upgrades thereto that may be provided to Company by Apex, but does not include source code.

2.1 Access to RailPro SMS Platform. Subject to the terms and conditions of these Terms and each applicable Order Form, Apex hereby grants Company the right, during the term set forth in the Order Form, to access and use the Platform for the purposes set forth in the Order Form through Company's Account. Apex will use commercially reasonable efforts to initiate onboarding of the Company and its Authorized Users within five (5) days following the Effective Date.

2.2 Apex will provide the Company with technical and support services as governed by the support terms referenced in the applicable Order Form. Technical and Support Services may be updated or modified by Apex from time to time to reflect enhancements, service improvements, or changes in available features.

2.3 Company Obligations. Exclusive of any Software comprising a part of the Platform, Company shall be solely responsible, at its sole cost and expense, for providing and maintaining all hardware, software, electrical and other physical requirements necessary for Company's use of the Platform, including telecommunications and Internet access connections. The Company shall be responsible for the acts or omissions of its Authorized Users in connection with their use of the Platform.

2.4 Permitted Use; Limited License. Subject to Company's compliance with these Terms, Apex hereby grants to Company during the Term a limited, revocable, non-transferable, non-sublicensable, non-assignable, non-exclusive license and right to access and use the Platform and related Documentation for the purposes set forth in the Order Form.

2.5 Restrictions. Company agrees that Company will not, nor will Company allow or facilitate a third party to, directly or indirectly: (i) reproduce or modify the Platform; (ii) interfere with the proper working of the Platform; (iii) share or provide access to the Platform to any third party other than Authorized Users; (iv) use automated means to download the Platform; or (v) permit the Platform to become incorporated into any other content.

2.6 Third Party Integrators. The Company shall be solely responsible for all actions of and agreements with third parties engaged by the Company to provide any integrations of the Platform with Company's infrastructure.

2.7 Onboarding Services. Upon Company's request, Apex may provide onboarding and implementation assistance services. Unless otherwise specified in an applicable Order Form, the fee for Onboarding Services is a one-time fee of $1,500 per Company. Apex may waive the Onboarding Services fee in its sole discretion.

Certain Services made available by Apex may include products, features, or modules provided by third parties. The use of such products or modules shall be subject to the applicable product-specific terms identified in the applicable Order Form, which are incorporated into these Terms by reference.

4.1 Fees. Company shall pay Apex the fees set forth in the Order Form. Unless otherwise set forth in an Order Form, Fees will be invoiced and payable monthly in advance. Apex reserves the right to terminate and/or suspend the provision of the Platform upon ten (10) days' prior written notice to Company of a failure to timely pay any amounts due. Company shall pay a finance charge of 1.5% per month on any outstanding balance after the due date.

4.2 Taxes. All Fees are exclusive of applicable taxes. Company shall be responsible for all sales, use, value-added, goods and services, harmonized sales, and other taxes imposed by any federal, provincial, or local governmental entity on amounts payable by Company hereunder, excluding taxes based on Apex's net income.

4.3 Price Adjustments. Apex may increase subscription Fees once per year, limited to the greater of ten percent (10%) of the then-current Fees or the percentage change in the Consumer Price Index (CPI) for the previous calendar year. Apex will provide at least sixty (60) days' written notice before the new pricing takes effect.

4.4 Confirmation of Authorized Users. Company will not permit more than the number of Authorized Users specified in the applicable Order Form to access or use the Platform.

4.5 Fee Disputes. In the event Company disputes Apex's calculation of Fees, it shall provide notice to Apex within ninety (90) days of receipt of the applicable invoice. The Parties shall then work together for a period of thirty (30) days to resolve such dispute in good faith.

5.1 Proprietary Rights. As between Apex and Company, Apex and/or its licensors own all right, title and interest, including all Intellectual Property Rights, in and to the Platform, RailPro SMS, any related Documentation, and the Apex Data. As between Apex and Company, Company owns all rights, title and interest in and to the Company Data.

5.2 No Reverse Engineering. Company may not sell, resell, copy, distribute, rent, lease, sublicense, translate, merge, adapt, vary, transfer, assign or make the Platform available to any third party; modify, alter, translate, decompile, reverse engineer, or disassemble the Platform; or create derivative works based on the Platform.

5.3 No License. Nothing in any Order Form or these Terms shall be deemed to grant Company any license to use the Platform other than as expressly stated herein.

5.4 Platform Feedback. Any suggestions, feedback, or ideas Company provides relating to the Platform are provided on a non-confidential basis, and Company hereby grants Apex a nonexclusive, worldwide, royalty-free, perpetual, irrevocable right and license to exploit such feedback in any manner without compensation or liability to Company.

5.5 Competitive Use Restrictions. Company agrees that, during the Term and for a period of two (2) years following termination or expiration of this Agreement, Company shall not use any Confidential Information or knowledge obtained through access to the Platform to develop or assist in developing any product or service that competes with the Platform.

6.1 Restrictions on Use and Disclosure. Each Receiving Party agrees to protect and safeguard the Disclosing Party's Confidential Information with the same degree of care it uses to protect its own Confidential Information and in any event not less than reasonable care; and not to use the Disclosing Party's Confidential Information except as reasonably necessary to perform its obligations under the Agreement.

6.2 Exceptions. Each Receiving Party may disclose Confidential Information if required by order of a court or other governmental authority, but only to the extent necessary and after notice to the Disclosing Party if practicable and legally permissible.

6.3 Confidentiality of Agreement. Each Party agrees that the terms and conditions of the Agreement shall be treated as Confidential Information, subject to limited exceptions for legal counsel, enforcement, and merger/acquisition transactions.

6.4 Remedies. Each Party understands that any disclosure or misappropriation of Confidential Information may cause irreparable harm, and the Disclosing Party shall have the right to apply to a court of competent jurisdiction for injunctive or other equitable relief.

6.5 Backup and Recovery Systems. The Receiving Party will be entitled to retain a copy of the Disclosing Party's Confidential Information to the extent required for back-up, recovery, contingency planning, or business continuity purposes.

7.1 Term. Unless terminated earlier in accordance with these Terms, the Agreement shall commence on the Effective Date and remain in effect for the term set forth in the Order Form. Each Order Form shall be automatically renewed for successive terms equal in duration to the Initial Term unless either Party provides at least sixty (60) days' prior written notice of non-renewal.

7.1A Suspension of Access. Apex may suspend Company's access to the Platform immediately upon written notice if: (a) Company fails to pay undisputed Fees within ten (10) days after written notice; (b) Company's use poses a security risk; (c) Company is in material breach; or (d) suspension is required by law. Apex shall promptly restore access when the condition giving rise to the suspension is cured.

7.2 Termination. The Agreement may be terminated immediately upon written notice: (a) by Apex if Company breaches any material provision and fails to cure within thirty (30) days; (b) by Company if Apex breaches any material provision and fails to cure within thirty (30) days; or (c) by either Party if the other becomes insolvent or enters bankruptcy proceedings.

7.3 Effect of Termination or Expiration. Upon termination, Apex shall deauthorize all access and Company shall immediately cease all use of the Platform. In the event of termination by Apex for Company's breach, Company shall not be entitled to a refund. In the event of termination by Company for Apex's breach, Company shall be entitled to a pro-rata refund of any pre-paid Fees.

7.4 Survival of Provisions. Sections 1, 2.5, 4, 5, 5.5, 6, 7.3, 7.4, 8.3, 9, 10, and 12 shall survive any termination or expiration of this Agreement.

8.1 Mutual Warranties. Each Party represents and warrants that it has the power to enter into and perform the Agreement; the Agreement has been duly authorized; and it will comply with all applicable laws in the performance of its obligations.

8.1A Compliance with Laws Warranty. Company specifically represents and warrants that it holds all licenses, permits, and authorizations required for its railway operations and that its use of the Platform shall not violate any applicable laws or regulations, including the Railway Safety Act and applicable Transport Canada regulations.

8.2 Apex Warranties. Apex represents that the Platform does not violate or infringe upon the Intellectual Property Rights of any third party, and that the Platform does not include any programming devices that would permit Apex or third parties to access Company's equipment without authorization.

8.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE PLATFORM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE PLATFORM IS DESIGNED TO ASSIST COMPANY IN MANAGING COMPLIANCE-RELATED INFORMATION AND DOES NOT CONSTITUTE LEGAL, REGULATORY, OR PROFESSIONAL ADVICE. COMPANY ACKNOWLEDGES THAT IT REMAINS SOLELY RESPONSIBLE FOR ENSURING ITS OWN COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

8.4 No Guarantee of Regulatory Compliance. COMPANY ACKNOWLEDGES AND AGREES THAT: (A) THE PLATFORM IS A SOFTWARE TOOL DESIGNED TO ASSIST WITH COMPLIANCE MANAGEMENT AND DOES NOT GUARANTEE COMPLIANCE WITH ANY LAWS, REGULATIONS, OR STANDARDS; (B) APEX IS NOT A LICENSED LEGAL, ENGINEERING, OR SAFETY PROFESSIONAL; (C) COMPANY IS SOLELY RESPONSIBLE FOR INTERPRETING AND IMPLEMENTING REGULATORY REQUIREMENTS; AND (D) ANY REGULATORY TEMPLATES, CHECKLISTS, OR GUIDANCE PROVIDED THROUGH THE PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY.

9.1 Exclusion of Damages. EXCEPT FOR DAMAGES ARISING IN CONNECTION WITH A PARTY'S BREACH OF SECTIONS 2.5, 5, 6, AND/OR 11, PURSUANT TO A PARTY'S INDEMNIFICATION OBLIGATIONS, AND/OR AS A RESULT OF A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL).

9.2 Limitation on Liability. EXCEPT FOR PAYMENT OBLIGATIONS, BREACHES OF SECTIONS 2.4, 2.5, 5, 6, AND/OR 11, INDEMNIFICATION OBLIGATIONS, AND GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY'S LIABILITY EXCEED THE AMOUNT OF FEES PAID BY COMPANY TO APEX IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. APEX'S AGGREGATE LIABILITY TO COMPANY SHALL BE LIMITED TO ONE MILLION DOLLARS ($1,000,000) IN ALL CASES.

9.3 Essential Purpose. The Parties acknowledge that the limitations set forth in this Section 9 allocate the risks under this Agreement between the Parties and that the Fees reflect this allocation of risk.

10.1 Indemnification from Company. Company shall indemnify and hold the Apex Indemnified Parties harmless from and against any Losses incurred in connection with any Claim arising out of: (i) Company's use of the Platform not in accordance with the Agreement; (ii) any alleged breach by Company; (iii) Company's gross negligence or willful misconduct; (iv) Company's failure to maintain compliance with applicable railway safety laws; and/or (v) any claim by a third party arising from Company's use or interpretation of data generated by the Platform.

10.2 Indemnification from Apex. Apex shall indemnify and hold the Company Indemnified Parties harmless from and against any Losses incurred in connection with any Claim that the Platform violates or infringes upon the Intellectual Property Rights of any third party.

10.2A Indemnification for Company Data. Company shall indemnify and hold the Apex Indemnified Parties harmless from and against any Losses arising out of the accuracy, completeness, or legality of Company Data provided to Apex, or any allegation that Company Data infringes the rights of any third party.

10.3 Indemnity Process. The Indemnitor will control the defense and settlement of any Claim, provided that any settlement shall require the prior written approval of the Indemnitee, such approval not to be unreasonably withheld.

11.1 Roles of the Parties. Company is the data controller that determines the purposes and means of processing personal data. Apex is the data processor, processing such personal data solely on behalf of Company and only as necessary to provide the Platform.

11.2 Permitted Processing. Apex shall process personal data only as necessary to provide the Platform, in accordance with Company's documented instructions, or as required by applicable law.

11.3 Security Measures. Apex shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect personal data against unauthorized access, use, loss, or disclosure.

11.4 Sub-Processors. Apex may engage sub-processors bound by data protection obligations no less protective than those imposed on Apex herein. Apex remains fully responsible for sub-processors' acts and omissions.

11.5 Data Breach Notification. In the event of a confirmed personal data breach affecting Company personal data, Apex shall notify Company without undue delay after becoming aware of the breach.

11.6 Cooperation & Assistance. Apex shall, at Company's cost and to the extent legally permissible, provide reasonable assistance to Company in responding to data subject requests and fulfilling Company's obligations relating to security and breach notifications.

11.7 Cross-Border Transfers. Where Apex processes personal data in jurisdictions outside the country of origin, Apex shall ensure such transfers comply with applicable data protection laws through appropriate safeguards.

11.8 Return or Deletion of Data. Upon termination or expiration of this Agreement, Apex shall, at Company's written request, delete or return personal data processed on behalf of Company, except to the extent retention is required by law or Apex's backup retention policies.

11.9 Compliance with Laws. Apex shall comply with all applicable data protection laws in its role as processor/service provider. The Company shall be solely responsible for compliance with laws applicable to its role as controller, including providing necessary notices and obtaining all required consents.

11.10 Data Processing Addendum; Privacy Policy. Any data processing addendum (DPA) and privacy policy provided by Apex and/or Company will operate in parallel with this Agreement and govern the processing of personal data. In the event of any conflict, the DPA shall control.

12.1 Governing Law; Jurisdiction. These Terms are governed by the internal laws of the Province of Ontario and the federal laws of Canada applicable therein. Any action may be brought only in the courts of the Province of Ontario, and each of the Parties consents to the exclusive jurisdiction of such courts.

12.2 Dispute Resolution. Prior to initiating any legal action, the Parties shall first attempt to resolve the dispute through good faith negotiation. If not resolved within thirty (30) days of the initial notice, either Party may proceed with litigation.

12.3 Assignment. The Agreement may not be assigned by either Party without the prior written consent of the other Party, except in the event of a merger or the sale of all or substantially all of a Party's assets.

12.4 Recovery of Fees by Prevailing Party. The prevailing Party in any legal action relating to the Agreement will be entitled to reimbursement of all reasonable expenses, including court costs and actual attorneys' fees.

12.5 Severability. If any provision of the Agreement is held invalid or unenforceable, the validity of other provisions will not be affected, and such provision will be enforced to the maximum extent possible.

12.6 Waiver. A waiver of a Party's breach of any provision will not operate as a waiver of that Party's prior, concurrent or subsequent breach of that or any other provision.

12.7 Force Majeure. Neither Party will be deemed in default to the extent that performance of its obligations is delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, or any other cause beyond the reasonable control of such Party.

12.8 Force Majeure - Compliance Obligations. Notwithstanding Section 12.7, Company acknowledges that its obligations to comply with applicable laws governing railway safety and operations cannot be excused by force majeure events.

12.9 Notices. Any notice desired or required to be provided to a Party hereunder will be given in writing by overnight messenger, mail, or e-mail in accordance with the contact details set forth in the applicable Order Form.

12.10 Counterparts. Each Order Form may be executed in two or more counterparts. Electronic, facsimile or scanned signatures shall have the same force as an original signature.

12.11 Entire Agreement. The provisions of the Order Form and these Terms constitute the entire agreement between the Parties with respect to the subject matter hereof. In the event of any conflict between the terms of an Order Form and these Terms, the terms of the Order Form shall control.

12.12 Amendments. The Agreement may be amended only by a writing signed by both Parties.

12.13 Headings. The headings to the sections of these Terms are used for convenience only.

12.14 Export Compliance. Company shall not export, re-export, or transfer, directly or indirectly, any Apex technology or technical data in violation of any applicable export laws or regulations.