“Action” has the meaning set forth in Section 14.1.

“Administrator” means an Authorized User designated by Customer with enhanced privileges to manage users, Sites, and Systems within the Services.

“Affiliate” of a Person means any other Person that, directly or indirectly, through one or more intermediaries, Controls, is controlled by, or is under common Control with, such Person.

“Agreement” means the Core Agreement together with all Schedules, Exhibits, Annexes, Service Orders, Change Orders, Statements of Work, side letters, and any other attachments or appendices expressly incorporated by reference.

“Authorized User” means an individual whom the Customer permits to access and use the Services under this Agreement, including any employee or individual contractor of the Customer or of a third-party service provider engaged by the Customer, and for whom the Customer has purchased a subscription.

“Availability” has the meaning set forth in Section 5.1.

“Availability Requirement” means the percentage of time the Subscription Services are Available during each Service Period, excluding any periods when the Subscription Services are not Available due solely to Exceptions, as measured in accordance with Schedule D: Service level agreement.

“Available” means that the Subscription Services are available and operable for use by Customer and its Authorized Users over the Internet, in full conformity with the Specifications. Subscription Services are not Available during any period of degradation or inoperability that materially impacts Customer’s ability to use the core functionalities of the Subscription Services.

“BC/DR Plan” has the meaning set forth in Section 13.3.

“Billing Period” means each calendar month during the Term, unless a different period is specified in the applicable Service Order.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New Brunswick are authorized or required by Law to be closed for business.

“Change Order” has the meaning set forth in Section 2.4.

“Commercial Terms” means only Fees, pricing, payment and invoicing terms, quantities and usage limits, subscription duration and scheduling, and the specific modules, features, or add-ons purchased, together with any other item a Service Order expressly designates as a Commercial Term.

“Confidential Information” has the meaning set forth in Section 11.1.

“Control” (and the terms “Controlled by” and “under common Control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Core Agreement” means this Agreement, excluding all Schedules, Exhibits, Service Orders, Change Orders, Statements of Work, Annexes, and side letters.

“Corrective Action Plan” has the meaning set forth in Section 6.6.

“Critical Service Error” has the meaning set forth in Schedule D: Service level agreement.

“Customer” has the meaning set forth in the preamble.

“Customer Data” means data, information and content, in any form or medium, that is: (a) provided to TankAware by the Customer or an Authorized User; or (b) collected, generated or processed by or through the Subscription Services on the Customer’s behalf; and includes inspection data, maintenance records, Site information, System specifications, operational data, and all Confidential Information and Personal Information of Customer. Customer Data excludes TankAware Materials.

“Customer Indemnitee” has the meaning set forth in Section 14.1.

“Customer Modification” has the meaning set forth in Section 14.2(a).

“Customer SaaS Manager” has the meaning set forth in Section 3.3.

“Customer Systems” means, collectively, the information technology infrastructure, including the computers, software, databases, electronic systems (including database management systems), and networks, of Customer or any of its designees.

“Documentation” means all generally available documentation relating to the Services, including all user manuals, operating manuals, and other instructions, specifications, documents, and materials, in any form or media, that describe any component, feature, requirement, or other aspect of the Services, including any functionality, testing, operation, or use thereof.

“Effective Date” has the meaning set forth in the preamble.

“Exception” has the meaning set forth in Section 5.2.

“Fees” has the meaning set forth in Section 8.1.

“Force Majeure Event” has the meaning set forth in Article 18.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, trojan horse, worm, backdoor, malware or other malicious computer code, the purpose or effect of which is to:

• permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any; (i) computer, software, firmware, hardware, system or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby; or
• as applicable, prevent the Customer or any Authorized User from accessing or using the Hosted Services as intended by this Agreement.

“High Service Error” has the meaning set forth in Schedule D: Service Level Agreement.

“HST” means harmonized sales tax or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax, or goods and services tax).

“HST Act” means Part IX of the Excise Tax Act (Canada).

“Initial Term” has the meaning set forth in Section 16.1.

“Intellectual Property Rights” means all intellectual and industrial property rights, including patents, patent applications, inventions, copyrights, moral rights, trade secrets, trademarks, service marks, trade names, domain names, design rights, database rights, and all other proprietary rights, whether registered or unregistered, and all applications, renewals, extensions and rights to claim priority in connection with any of them.

“Key Personnel” means any TankAware Personnel identified as key personnel in Schedule E.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.

“Low Service Error” has the meaning set forth in Schedule D (Service Level Agreement) (Support Request chart).

“Medium Service Error” has the meaning set forth in Schedule D (Service Level Agreement) (Support Request chart).

“Non-Production Environment” means any sandbox, staging, test, or training environment that TankAware makes available to Customer for Non-Production Use.

“Non-Production Use” means use of the Subscription Services in a test, training, configuration, integration, development, or other non-production context, and not for processing live operational data or outputs.

“Permitted Uses” means the specific business purposes, functions, or activities for which the Customer is authorized to use the Services, as set out in the Service Order.

“Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association, or any other entity.

“Personal Information” means information about an identifiable individual that is collected, created, compiled, used, disclosed, or otherwise transmitted or stored by or on behalf of TankAware and has the same meaning as under the Personal Information Protection and Electronic Documents Act (Canada) and the Right to Information and Protection of Privacy Act (New Brunswick), as applicable. For clarity, Personal Information is a subset of Customer Data for the purposes of this Agreement.

“Process” means to take any action or perform any operation or set of operations on any data, information, material, work, expression, or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalogue, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works, (b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or (c) block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Professional Services” means custom configuration, training, data migration, consulting, or other non-recurring or project-based services, excluding Subscription Services and Support Services, that TankAware agrees to deliver to Customer, as described in the applicable Service Order.

“Renewal Term” has the meaning set forth in Section 16.1.

“Representatives” means, with respect to a party, that party’s and its Affiliates’ respective employees, officers, directors, consultants, agents, independent contractors, service providers, legal advisors and, with respect to TankAware, TankAware’s Subcontractors.

“Resolve”, “Resolved”, “Resolution” and correlative capitalized terms have the meaning set forth in Section 6.4(c).

“Scheduled Downtime” has the meaning set forth in Section 5.3.

“Service Level Failure” means a failure by TankAware to meet any Support Service Level Requirement.

“Service Limit” means, for any given Subscription Service, the maximum permitted usage or quantity specified for Customer in the applicable Service Order.

“Service Order” means the signed order form between the Parties referencing this Agreement and specifying the Services to be provided, including any applicable Fees, quantities, subscription duration, and other commercial terms.

“Service Period” means each calendar month during the Term and any additional period during which TankAware is required to perform Subscription Services.

“Service Software” means TankAware’s software application or applications and any integrated third-party software components necessary for the Subscription Services, including all new versions, updates, revisions, improvements, and modifications thereof, that TankAware provides access to and use of as part of the Subscription Services.

“Services” has the meaning set forth in Section 2.1.

“Site” means a specific geographical location containing one or more Tanks, as registered in the Services by Customer.

“Source Code” means the human readable source code of the Service Software to which it relates, in the programming language in which the Service Software was written, together with all related flow charts and technical documentation, including a description of the procedure for generating object code, all of a level sufficient to enable a programmer having ordinary skill in such programming language to understand, build, operate, support, maintain, and develop modifications, upgrades, updates, adaptations, enhancements, new versions, and other derivative works and improvements of, and to develop computer programs compatible with, the Service Software.

“Specifications” means the specifications for the Services set forth in the applicable Service Order and, to the extent consistent with and not limiting of the foregoing, the Documentation.

“Subcontractor” means any third party that TankAware engages, directly or indirectly through one or more subcontractors, to perform any part of the Services.

“Subscription Services” means the hosted, cloud-based software application(s) and related functionality that TankAware makes available to Customer over the Internet, as described in the applicable Service Order and the Specifications, including all updates, upgrades, enhancements, and new versions that TankAware deploys during the Term. Subscription Services exclude Professional Services and any on-premise software, unless expressly stated in a Service Order.

“Support Request” has the meaning set forth in Section 6.4.

“Support Service Level Requirements” means the response and resolution time commitments in Schedule D (Service Level Agreement)

“Support Services” has the meaning set forth in Article 6.

“Term” has the meaning set forth in Section 16.1.

“System” means a physical container for storing petroleum products or other regulated substances that is monitored through the Services. Systems may include above-ground storage tanks (ASTs), underground storage tanks (USTs), or other storage vessels with specific regulatory requirements, inspection schedules, and monitoring needs for which Customer has purchased monitoring rights as specified in the applicable Service Order.

“TankAware Indemnitee” has the meaning set forth in Section 14.3.

“TankAware Materials” means the Subscription Services, Specifications, Documentation, and TankAware Systems, and any and all other information, data, documents, all devices, documents, data, know-how, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by TankAware or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or TankAware Systems.

“TankAware Personnel” means all employees and agents of TankAware, all Subcontractors and all employees and agents of any Subcontractor, involved in the performance of Services.

“TankAware Security Officer” has the meaning set forth in Section 3.1.

“TankAware Service Manager” has the meaning set forth in Section 3.1.

“TankAware Systems” means TankAware’s information technology infrastructure, including all computers, software, databases, electronic systems (including database management systems), and networks used to provide the Services.

“Taxes” means any commodity tax, including sales, use, excise, value-added, goods and services tax, HST, provincial sales tax, consumption, or other similar tax, including penalties and interest, imposed, levied, or assessed by any federal, provincial, territorial, municipal, or other governmental authority.