Financial Statements

Definitions. A glossary of defined terms is set out in Schedule A (Glossary). All capitalized terms used in this Services Agreement will have the meaning set out in Schedule A.

Background. Helix wishes to license the Software and acquire the Services. Provider is engaged in a business substantially similar to that carried on by Helix and operates and maintains the Software in support of its business.

Scope. Provider agrees to provide to Helix the Services described in this Agreement, as amended from time to time, in each case in accordance with the terms and conditions set forth in this Agreement.

Subcontracting. Provider may not subcontract the performance of all or part of any Services to any Person without the prior written consent of Helix which may be withheld by Helix in its discretion and may be subject to terms and conditions prescribed by Helix.

Payment of Representatives. Provider will be solely responsible for all payments including employee benefits and penalties to all of its Representatives including its subcontractors. Helix will not be responsible for conditions of employment, benefits or penalties.

Responsibility. Provider has overall responsibility for the provision of the Services to Helix. All Services will be performed from Provider’s facilities in the United States.

Initiated by Helix. Helix may initiate changes to any of the Work Product and Services by delivering to Provider a copy of the Change Request Form that includes a description of the requested change and has been executed by an authorized Representative of Helix. Once a change is initiated by Helix, Provider will promptly add the following information to the applicable Change Request Form and return the supplemented Change Request Form to Helix:

a reasonably detailed description of how Provider proposes to implement the requested change, including the names of any Representatives of Provider to be made available to perform any Services;

any associated changes to amounts or estimated amounts payable by Helix as are necessary to reflect the proposed changes to the Work Product and Services;

any changes to the dates set out in Schedule B as are necessary to reflect the proposed changes to the Work Product and Services; and

any changes or additions to the terms and conditions applicable to Helix’s use of the Work Product and Services which Provider proposes in connection with the implementation of the proposed change.

Initiated by Provider. Provider may initiate changes to any of the Work Product and Services by delivering to Helix a copy of the Change Request Form that includes the following information and has been executed by an authorized Representative of Provider: (i) a description of the requested change; (ii) a reasonably detailed description of how Provider proposes to implement the requested change, including the names of any Representatives of Provider to be made available to perform any Services; (iii) any associated changes to the amounts or estimated amounts payable by Helix, and any changes to the dates set out in Schedule B, in each case as are necessary to reflect the proposed changes to the Work Product and Services; and (iv) any changes or additions to the terms and conditions applicable to Helix’s use of the Work Product and Services which are necessary to reflect the proposed changes or additions to the Work Product and Services.

Timeframe. A party receiving a Change Request Form will use commercially reasonable efforts to respond to such form within the timeframe requested in such form and, in any event, within a reasonable timeframe.

Change Orders. Once the terms and conditions set out in any Change Request Form are approved in writing by both parties, it becomes a “Change Order”. The changes set out in any Change Order will constitute amendments to this Agreement insofar as they apply to the Work Product and Services. If a Change Order is not approved in writing by both parties within 20 days of the date on which a Change Request Form is submitted by Provider to Helix under section 2.4(b), or in the case of a Change Request Form submitted by Helix, the date on which Provider provides Helix with the additional information referred to in section 2.4(a), the Change Request Form is deemed to be withdrawn.

Accommodation. Each party will use commercially reasonable efforts to accommodate any change to the Work Product and Services initiated by the other party and to reach agreement on the terms of any Change Order required to be made to permit the implementation of such change.

Scope

Work Product. Provider agrees to provide to Helix the Work Product described in this Agreement, as amended from time to time.

Delivery

Delivery of Work Product. Unless otherwise agreed in writing by Helix and Provider, Work Product will be delivered to Helix’s Chief Financial Officer and Chief Technology Officer at 290 McGill Street, Suite A, Hawkesbury, Ontario, K6A 1P8 by the delivery date for that Work Product, if any, specified in Schedule B or otherwise agreed to in writing by Helix and Provider. Work Product will be delivered in a commercially reasonable format. Helix may, on Notice to Provider, change the individuals to whom Work Product is to be delivered or the address for delivery of the Work Product.

Designated Representatives. Each party will appoint an individual who is a Representative of that party to be that party’s “Designated Representative”. A party’s Designated Representative: (i) is responsible for the day-to-day matters arising from or relating to the Work Product and Services; (ii) will be available for problem escalation; and (iii) will perform the specific tasks and duties assigned to him or her in this Agreement.

Reports. Provider will deliver or otherwise make available to Helix such Reports as are specifically set forth in Schedule B at the intervals set out in Schedule B.

Consultation Meetings

Timing for First Six Months. For a period of six months commencing on the Effective Date, at least once every two weeks, or when requested by Helix from time to time, Provider’s Designated Representative will meet with Helix’s Designated Representative at a mutually agreeable time to discuss any outstanding issues or concerns relating to any Work Product or Services.

Timing for Remainder of the Term. Commencing six months from the Effective Date, at least once every quarter, Provider’s Designated Representative will meet with Helix’s Designated Representative at a mutually agreeable time to discuss any outstanding issues or concerns relating to any Work Product or Services.

Meetings. The meetings described in sections 4.3(a) and 4.3(b) shall take place by telephone or other method of telecommunication, unless otherwise agreed by Provider and Helix.

Calculating Fees. The fees for the Services set out in Schedule B.1 (the “Business Transition Support Fees”) and the fees for the Services set out in Schedule B.2 (the “Ongoing Support Fees”) provided pursuant to this Agreement are as set out in Schedule B.3. Any additional fees (“Additional Fees”) that are to be paid on a time and materials basis will be calculated based on the actual time expended by Provider to perform the Services (exclusive of any travel, meal or personal time), based on the rates set out in Schedule B.3.

Issuing Invoices for Services. Unless expressly set out otherwise in Schedule B or in the applicable Change Order, Provider will issue invoices for any Additional Fees for Services monthly in arrears.

Invoices for any Additional Fees. Invoices for any Additional Fees are to be submitted by mail to the attention of Helix’s Chief Financial Officer. Each invoice will describe the Work Product and Services and associated expenses to which it relates in reasonable detail. Additionally, Provider will maintain and promptly provide, upon the request of Helix, detailed records to support the invoices.

Taxes.

Subject to paragraphs (b) and (d) of this section 5.4, the Fees and Additional Fees to be paid by Helix to Provider under this Agreement shall be made free and clear and without deduction and withholding of any Canadian taxes under the Income Tax Act (Canada), as amended (the “ITA”) and the Income Tax Regulations (Canada), as amended (the “Regulations”).

Provider shall indemnify and save harmless Helix from any Canadian withholding taxes under Section 105 of the Regulations or under Part XIII of the ITA and from any interest or penalties related thereto that Helix may be subjected to by the Canadian tax authorities in respect of any Fees or Additional Fees paid by Helix to Provider under this Agreement as a result of (a) Provider or any of its Representatives including subcontractors performing any of the Services under this Agreement in or from Canada or, (ii) Provider not being considered a corporation resident in the United States for purposes of the Canada-United States Tax Convention (1980), as amended (the “Tax Treaty”) and not being entitled to all of the benefits of the Tax Treaty.

A certificate of Helix as to the amount of any such Canadian withholding taxes, interest or penalties with a copy of the notice of assessment issued by the Canadian tax authorities shall be, absent manifest error, prima facie evidence of the amount of such Canadian withholdings taxes, interest or penalties. Indemnification by Provider in this section 5.4 shall be made within 30 days after Helix has submitted a certificate under this section 5.4.

Helix shall be entitled to offset any amount of Canadian withholding taxes, interest or penalties assessed by the Canadian tax authorities against Fees or Additional Fees payable by Helix to Provider under this Agreement. Any such amount that is offset by Helix against such Fees or Additional Fees shall reduce the amount for which Helix can be indemnified by Provider under this section 5.4.

The obligations of Provider in this section 5.4 shall survive the termination of this Agreement and the payment of all Fees and Additional Fees by Helix to Provider under or in respect of this Agreement. For greater certainty, the exclusions and limitations of liability set out in section 11 shall not apply to this section 5.4.

Expenses. All expenses related to the provision of the Services are included in the Fees; provided that, if any travel is required of Provider, Provider shall be reimbursed for the reasonable expenses of airfare, meals, lodging and ground transportation of its Representatives; provided such expenses are pre-approved in writing by Helix prior to being incurred by Provider.

Payment for Ongoing Support and Additional Fees. Helix will pay, by cheque or electronic transfer, the Fees for the Ongoing Support in accordance with the payment schedule set out in section 1.2 of Schedule B.3 and any Additional Fees set out in any invoice issued in accordance with this Agreement within 30 days of Helix’s receipt of the invoice.

Payment for Business Transition Support. Helix will pay, by cheque or electronic transfer, to Provider the Fees for the Business Transition Support incurred by it in any quarter in accordance with the payment schedule set out in section 1.1 of Schedule B.3.

Interest. Interest equal to the lesser of: (a) 1% per month (12.7% per annum); or (b) the maximum rate allowable by law will be charged by Provider on late payments.

Canadian Currency. All amounts specified in this Agreement refer to Canadian currency.

Term. This Agreement will commence on the Effective Date and continue for a period of eighteen (18) months (the “Term”).

Termination. Either party may terminate this Agreement immediately on Notice to the other party, if the other party: (i) ceases to carry on business in the normal course, makes a general assignment for the benefit of creditors, or becomes subject to any proceeding for liquidation, insolvency or the appointment of a receiver; (ii) is in material default of any provision of this Agreement other than section 7 that is not cured or addressed to the satisfaction of the non-defaulting party (acting reasonably) within 30 Business Days following Notice of the default from the non-defaulting party; or (iii) is in material default of section 7 that is not cured or addressed to the satisfaction of the non-defaulting party (acting reasonably) within 5 Business Days following Notice of the default from the non-defaulting party. Notwithstanding the foregoing, if a default relates to the Services set out in Schedule B.2, Schedule B.1 shall not be terminated.

Payment on Provider’s Breach of Agreement. If Helix terminates this Agreement pursuant to section 6.2, Helix shall only be required to pay to Provider the pro-rata portion of the Business Transition Support Fees accrued up to the date the event which gave rise to Helix’s right to terminate this Agreement occurred.

Payment. Upon the termination of this Agreement, Helix will pay all Ongoing Support Fees due under section 1.2 of Schedule B.3.

Upon Termination. If this Agreement is terminated, for any reason, within twelve months from the Effective Date, Provider will:

deliver up to Helix all of Helix’s data, in a format that is acceptable to Helix acting reasonably, including all data contained in the Helix Database.

deliver up to Helix all of Helix’s Confidential Information;

deliver up to Helix all Work Product for which Helix is the owner of all right, title and interest or all applicable Intellectual Property Rights, or for which Helix is granted any license that survives the termination of this Agreement;

ensure, within ten Business Days of the date of termination, that the Helix Journal and Cost Centre Journals are current up to and including the date of termination, and provide Helix with a copy of such Helix Journal and Cost Centre Journals in a format that is acceptable to Helix acting reasonably;

ensure, within ten Business Days of the date of termination, that the Helix General Ledger and Cost Centre General Ledgers are current up to and including the date of termination, and provide Helix with a copy of such Helix General Ledger and Cost Centre General Ledgers in a format that is acceptable to Helix acting reasonably;

perform, within ten Business Days of the date of termination, all of the reconciliations set out in section 1.2.1(f) of Schedule B.1 of this Agreement;

prepare and deliver to Helix, within ten Business Days of the date of termination, an income statement prepared in accordance with generally accepted United States accounting principles for: (i) each Cost Centre; and (ii) Helix;

prepare and deliver to Helix, within ten Business Days of the date of termination, a balance sheet prepared in accordance with generally accepted United States accounting principles for Helix;

prepare and deliver, or otherwise make available to Helix, in a format acceptable to Helix acting reasonably, such financial reports as are reasonably requested by Helix;

prepare and deliver to Helix, within ten Business Days of the date of termination, a list of all of Helix’s accounts payable up to and including the date of termination; and

prepare and deliver to Helix, within ten Business Days of the date of termination, a list of all of Helix’s accounts receivables and a record of any payments received by Helix in respect of its accounts receivables, both up to and including the date of termination.

Survival. Those sections which by their nature should survive the termination or expiration of this Agreement will survive termination or expiration, including sections 1.1, 2.2(b), 2.3, 5, 6.3, 6.4, 6.5, 6.6, 7, 8, 9.1, 9.2, 9.3, 9.4, 10, 11, 12, 13 and 14.

General. Helix and Provider agree to be bound by the terms and conditions set out in Schedule C.

Provider’s Policies. Provider represents and warrants to and covenants with Helix, which representations, warranties and covenants will continue during the Term, that Provider will ensure that all of its Representatives assigned to perform any Services:

will comply with all of Provider’s privacy and security policies. Provider acknowledges that it has reasonable privacy and security policies in place; and

have been screened in accordance with Provider’s screening processes prior to being assigned to perform any Services and such screening has not disclosed any criminal conduct or any material financial problems. Provider acknowledges that it has a reasonable screening process in place.

Ownership of Intellectual Property Rights. The following provisions of this section 8 shall apply with respect to the ownership of all Intellectual Property Rights and any other rights in and to the Work Product and Services:

Ownership by Provider. Except for, and subject to, the limited license rights expressly granted in the License Agreement and the rights granted in this section 8.1, and subject to section 8.3, Provider reserves all rights, title and interest in and to any Pre-existing Works, any Updates or Enhancements.

Ownership by Helix of Work Product. Notwithstanding section 8.1(a), Helix shall own all Intellectual Property Rights, and all other right, title and interest, in and to all Work Product, which ownership shall vest in Helix immediately upon the creation or delivery to Helix of the Work Product, unless the parties agree otherwise in writing.

Pre-existing Works. The provisions of section 8.1(b) shall not apply with respect to any Work Product which are Pre-existing Works, Updates or Enhancements provided that Provider provides Helix with a reasonably detailed written description of such Pre-existing Works, Updates or Enhancements. Ownership of all Intellectual Property Rights in and to such Pre-existing Works, Updates, Enhancements and other derivative works thereof, whenever made, shall remain with Provider and its licensors, provided that in the case of any such Work Product, Provider shall grant or procure for Helix, the rights and licenses set out in section 8.1(d) or section 8.1(e), as applicable, or such other rights and licenses as are expressly agreed in writing by the parties. If an Update or Enhancement contains: (i) any Confidential Information of Helix or Helix’s Representatives; or (ii) any Intellectual Property Rights or proprietary information of Helix or Helix’s Representatives; or (iii) any Personal Information (including Personal Health Information), Provider shall not acquire any rights, title and interest in and to any such information.

Grant of License for Pre-existing Works (other than Updates or Enhancements). For any Work Product that consist of or that contain Pre-existing Works (other than Updates or Enhancements), Provider grants to Helix and its Representatives (or in the case of any such Pre-existing Works (other than Updates or Enhancements) for which the Intellectual Property Rights are owned by a third party and licensed to Provider, shall procure for Helix and its Representatives) a perpetual, world-wide, non-exclusive, irrevocable, transferable, royalty-free, fully paid-up right and license to use, copy, modify and enhance any such Pre-existing Works, to incorporate the same as part of any derivative works created by or for Helix, and to permit any such use by any Representative of Helix.

Grant of License for Updates and Enhancements. For any Work Product that consist of or that contain Updates or Enhancements, such Updates and Enhancements are deemed to be Software and licensed by Provider to Helix pursuant to the License Agreement.

Grant of License for Work Product. Provided that Work Product does not contain: (i) any Confidential Information of Helix or Helix’s Representatives; or (ii) any Intellectual Property Rights or proprietary information of Helix or Helix’s Representatives; or (iii) any Personal Information (including Personal Health Information), or if the Work Product does contain any of such information, all such information is removed from the Work Product to Helix’s reasonable satisfaction, Helix grants to Provider and its Representatives a perpetual, world-wide, non-exclusive, irrevocable, transferable, royalty-free, fully paid-up right and license to use, copy, modify and enhance any such Work Product (excluding any of the aforementioned information), to incorporate the same as part of any derivative works created by or for Provider, and to permit any such use by any Representative of Provider.

General. Without limiting section 8.1, all rights granted to Helix pursuant to such sections apply notwithstanding any terms to the contrary contained in any click-wrap license, shrink-wrap license, browse-wrap license, invoice, or in any other form of documentation or agreement presented or delivered to Helix in connection with any Work Product unless Helix has agreed in a written amendment to the Agreement to be bound by the terms and conditions of that agreement or other document.

Helix’s Intellectual Property. Provider acknowledges that Helix shall own all right, title and interest, including all Intellectual Property Rights, in and to any data or information which:

belongs to Helix or its Representatives, or is licensed to Helix by any third party, and which may be provided or made available to Provider, or

is created by or for Helix or any of their Representatives (subject to the rights and licenses that are set out in Sections 8.1(b) through (f) above),

Obligations on Provider’s Representatives. Provider represents and warrants to and covenants with Helix that, which representations, warranties and covenants will continue during the Term and also following the expiration or termination of this Agreement, Provider will impose upon its Representatives the same obligations that Provider has under this Agreement (including its confidentiality obligations) and will ensure that its Representatives comply with such obligations.

Authority. Provider hereby represents and warrants to and covenants with Helix as follows, which representations, warranties and covenants will continue during the Term, and will continue following the expiration or termination of this Agreement:

Authority. Provider has full rights and authority to execute, deliver and perform its obligations under this Agreement, and the individual executing this Agreement on behalf of Provider is duly authorized to do so.

Binding. The Agreement constitutes a legal, valid and binding agreement of Provider enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles.

Rights. Provider holds all licenses, Intellectual Property Rights and authorities necessary to perform its obligations under this Agreement.

Interference. Provider has not entered into any agreement with any Person which would in any way interfere with Provider’s ability to perform the Services, provide the Work Product or otherwise fulfil its obligations pursuant to this Agreement.

Compliance. Provider will comply in all material respects with all applicable Laws and Regulations in respect of the performance of this Agreement.

Subcontractors. Provider has not entered into any agreement or arrangement which would prevent any one of its subcontractors from licensing any materials to Helix or providing services to Helix directly on the usual commercial basis and at market prices.

Residency. Provider is a corporation resident in the United States for purposes of the Tax Treaty, and is entitled to all of the benefits of the Tax Treaty.

Authority. Helix hereby represents and warrants to and covenants with Provider as follows, which representations, warranties and covenants will continue during the Term, and will continue following the expiration or termination of this Agreement:

Authority. Helix has full rights and authority to execute, deliver and perform its obligations under this Agreement, and the individual executing this Agreement on behalf of Helix is duly authorized to do so.

Binding. The Agreement constitutes a legal, valid and binding agreement of Helix enforceable in accordance with its terms.

Compliance. Helix will comply in all material respects with all applicable Laws and Regulations in respect of the performance of this Agreement.

Disclaimer. WITH THE EXCEPTION OF ANY EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN SECTION 7.2, SECTION 9.1, AND SECTION 9.2, PROVIDER EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS WITH RESPECT TO THE WORK PRODUCT, SERVICES OR OTHERWISE ARISING FROM THIS AGREEMENT WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITH THE EXCEPTION OF ANY EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THIS AGREEMENT, HELIX EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS WITH ARISING FROM THIS AGREEMENT WHETHER EXPRESS OR IMPLIED, PAST OR PRESENT, STATUTORY OR OTHERWISE.

Intellectual Property Indemnification. Provider will indemnify and hold Helix and Helix’s Representatives harmless from any and all claims, suits, losses, damages and expenses (including legal fees and expenses) incurred in connection with any claims, demands and other liabilities asserted against any of them as a result of alleged or actual infringement of any Intellectual Property Right arising from the receipt of the Services or use of any Work Product by Licensee, Licensee’s Representatives or Users, provided that Helix: (i) gives Provider prompt written notice of any such claim; (ii) gives Provider all reasonable co-operation, information and assistance to handle the defense or settlement; (iii) gives Provider, immediately upon Provider’s request, sole control of the defense and settlement negotiations, and (iv) except to the extent required by Laws and Regulations, Helix makes no admission regarding any such claim without Provider’s prior written consent. Provider may not agree to any settlement of any claim that results in any obligations being incurred by Helix or Helix’s Representatives without Helix’s prior written consent. Except for any claims, demands and other liabilities asserted against any of Helix or Helix’s Representatives as a result of alleged or actual infringement of any Intellectual Property Right arising from the receipt or use of any Updates or Enhancements, the indemnity in this section 10.1 shall be subject to the limitation of liability set out in section 11.3 and shall terminate 5 years from the Effective Date.

Harmful Code Indemnification. Provider will indemnify and hold Helix harmless from any and all losses, damages and expenses incurred in connection with any harmful or hidden programs or data incorporated in any Work Product, Update or Enhancements with malicious and mischievous intent including viruses, time bombs, trap doors or similar malicious instructions, techniques or devices capable of disrupting, disabling, damaging or shutting down a computer system or software or hardware component thereof (“Harmful Code”). Once Helix has actual knowledge of any Harmful Code, Helix will use commercially reasonable efforts to mitigate any of its potential losses, damages and expenses. The indemnity set out this section 10.2 shall be subject to the limitation of liability set out in section 11.1, section 11.2 and section 11.3 and shall terminate 3 years from the Effective Date.

Indirect Damages. NEITHER PARTY (INCLUDING ITS REPRESENTATIVES) WILL BE LIABLE TO THE OTHER IN ANY WAY WHATSOEVER, FOR LOST PROFITS OR ANY INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES. THIS LIMITATION WILL APPLY WHETHER OR NOT THE DAMAGES ARE FORESEEABLE OR THE DEFAULTING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Direct Damages. THE PARTIES AGREE THAT THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR ANY CLAIM, ACTION OR DEMAND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (“CLAIM”) WILL BE LIMITED TO SUCH DIRECT DAMAGES AS ARE ACTUALLY INCURRED BY THE CLAIMING PARTY.

Limit. IN NO EVENT WILL THE TOTAL CUMULATIVE LIABILITY OF PROVIDER (INCLUDING ITS REPRESENTATIVES) TO HELIX (INCLUDING ITS REPRESENTATIVES), FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED AN AMOUNT EQUAL TO $400,000.00.

Exceptions.

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN SECTION 11.1, SECTION 11.2 AND SECTION 11.3 DO NOT APPLY TO ANY CLAIM ARISING FROM FRAUD OR WILFUL MISCONDUCT OR ANY CLAIM FOR INDEMNIFICATION UNDER SECTION 5.4 OR SECTION 10.1 (SUBJECT TO THE TERMS OF SECTION 10.1).

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN SECTION 11.1, SECTION 11.2 AND SECTION 11.3 DO NOT APPLY TO ANY CLAIM ARISING FROM ANY VIOLATIONS BY PROVIDER OR PROVIDER’S REPRESENTATIVES OF ANY OF PROVIDER’S, PROVIDER’S REPRESENTATIVES’, HELIX’S OR HELIX’S REPRESENTATIVES’ OBLIGATIONS UNDER APPLICABLE LAWS AND REGULATIONS IN RELATION TO, OR IN CONNECTION WITH, ANY COLLECTION, STORAGE, ACCESS, USE OR DISCLOSURE OF ANY PERSONAL INFORMATION (INCLUDING PERSONAL HEALTH INFORMATION).

PROVIDER’S LIABILITY FOR ANY BREACHES OF SECTION 7, OTHER THAN ANY BREACHES OF SECTION 7 IN RELATION TO, OR IN CONNECTION WITH, PERSONAL INFORMATION (INCLUDING PERSONAL HEALTH INFORMATION), SHALL TERMINATE FIVE YEARS FROM THE EFFECTIVE DATE.

OTHERWISE, THE FOREGOING PROVISIONS SET OUT IN THIS SECTIONS 11.1, 11.2 AND 11.3 WILL APPLY REGARDLESS OF THE FORM OR CAUSE OF ACTION.

General. The Parties agree to use the dispute resolution procedures set out in Schedule D to resolve any disputes which may arise out of or in connection with this Agreement or which are otherwise related to this Agreement.

Exceptions. Notwithstanding section 12.1, the parties acknowledge and agree that either party will be entitled to seek an injunction or other equitable relief in order to prevent any continuing or ongoing breach of this Agreement, or any violation of any other legal obligation of the other party with respect to any Confidential Information or Personal Information required to be protected under this Agreement.

Notices. Any notice given pursuant to this Agreement will be in writing and addressed to the other party at the address for the other party listed above. Any such notice will be deemed to have been received two Business Days following: (i) deposit with a globally recognized overnight delivery service, all delivery charges pre-paid; or (ii) transmission if sent by facsimile and receipt confirmed by the facsimile machine used. Either party may designate a different address by Notice to the other party given in accordance with this section.

Entire Agreement. The Agreement, the Asset Purchase Agreement and the various agreements contemplated under the Asset Purchase Agreement constitutes the complete and exclusive agreement between the parties with respect to its subject matter, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding its subject matter. Except as expressly set out in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of Provider and an authorized representative of Helix. Should any provision of this Agreement be held to be invalid by a court of competent jurisdiction, then that provision will be enforced to the extent permissible, and all other provisions will remain in effect and are enforceable by the parties.

The headings used in this Agreement are for convenience of reference only, and are not intended to be full or accurate descriptions of the content of the paragraphs.

No provision of this Agreement will be interpreted against any party merely because that party or its legal representative drafted the provision.

The Agreement has been drawn up in English at the request of the parties.

All remedies are cumulative.

The Agreement is for the benefit of, and binding upon the parties, their successors and permitted assigns.

Throughout this Agreement, the term “including” or the phrases “e.g.,” or “for example” have been used to mean “including, without limitation”. The examples provided should not be considered to be all-inclusive.

Words denoting the singular include the plural and vice versa, and words denoting any gender include all genders.

Except as otherwise provided, the terms “hereunder”, “herein”, “hereby”, “hereof”, “hereto”, “hereinafter” and any other similar expression when used in this Agreement usually refer to this Agreement as a whole rather than to any particular section thereof.

Waiver. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement.

Assignment. Except as expressly set out in this Agreement, neither party may assign its rights or delegate its duties under this Agreement, either in whole or in part, without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed. Notwithstanding the preceding sentence, either party may, without the prior written consent of the other party, assign this Agreement as part of a sale of all or substantially all of its assets; provided that the assigning party gives the other party written notice of such assignment on the date the assignment is made. Notwithstanding the foregoing, Provider shall not be entitled to assign, either in whole or in part, any of its rights or delegate any of its duties under this Agreement to any third party (including any Affiliate) who is in the business of operating hearing clinics or hearing centres. As part of any assignment by Provider, as permitted pursuant to this section 14.4, Provider shall obtain written assurances from its assignee that such assignee does not and shall not operate any hearing clinics or hearing centres. Upon any assignment hereunder, the assigning party shall remain responsible for the acts and omissions of its assignee. Subject to the restrictions in this section 14.4, this Agreement will be binding on, will inure to the benefit of, and will be enforceable against the parties and their respective successors and assigns.

Independent Contractors. The relationship between the parties is that of independent contractors. The Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither party will have the power to bind the other without the other party’s prior written consent.

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without reference to the conflict of laws provisions or principles. The parties agree that any Dispute shall be dealt with in accordance with Schedule D. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Media. The parties shall consult with each other before issuing any press release or making any other public announcement with respect to this Agreement or the transactions contemplated hereby and, except as required by any applicable law or regulatory requirement, neither of them shall issue any such press release or make any such public announcement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.

Force Majeure. Except as expressly provided otherwise in this Agreement, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight provided that the party affected by such failure or delay gives the other party prompt Notice of the cause, and uses reasonable commercial efforts to correct such failure or delay within a reasonable period of time (not to exceed 30 days).

Schedule B.1 sets out certain Services to be provided by Provider at the outset of the Term (the “Business Transition Support”);

Schedule B.2 sets out certain Services to be provided by Provider in relation to the installation, operation and management of the Software being licensed pursuant to the License Agreement (the “Ongoing Support”); and

Schedule B.3 sets out the Fees applicable to the Services.

Provider will provide to Helix the Services described in this section 1.1 (the “Data Management Services”). 1.1.1 Data

Existing Data

New Data

Back-up

Safeguards

Export

Usernames and Passwords

Role-based Access

Patient Management Services

Patient Information

primary address and temporary address;

primary physician and specialty physician;

phone number;

referral sources;

contact preference;

date of birth;

visit outcome;

other notes on the patient or his or her treatment.

Scheduling Appointments

professional with whom the appointment is made;

type of appointment;

referral source;

appointment confirmation;

3rd party confirmation of the appointment;

appointment status;

3rd party representation; and

appointment notes.

day;

professional; or

room.

Managing Order Information

Managing Invoice and Returns Information

Medical Reporting Module

patient’s audiometric history;

prior hearing aid history including purchases;

audiometric findings including speech testing;

immittance testing findings; and

a summary of findings and recommendations for each patient.

produce a medical consultation form for the applicable patient;

interpreting ABR/ENG test results and reporting them; and

interpret audiometric data.

Report Catalogue Module

Provider will provide to Helix the ability to create the reports set out in section 3.1 below.

Operations Services

Operational Reporting

Daily Transactions

Call-Center Capable

Price Quoting System

Catalogue Data

Grant Data

Insurance

Insurance and Member Information

Insurance Plan Entry and Lookup

Insurance Plans

Bookkeeping

Provider’s Accounting System

Exporting Provider’s Accounting System

Creating Cost Centre Profiles

upload into the Helix Database any patient database(s) relating to the new Cost Centre;

create invoice templates that may be used by Helix for the new Cost Centre; and

create a two digit identifier for the Cost Centre for invoices.

Journals

General Ledgers

Reconciliations

Per Cost Centre

Provided that Helix provides the daily deposit detail for the applicable bank accounts to Provider, Provider will perform a monthly reconciliation of the bank accounts for each Cost Centre. Provider will provide to Helix the reconciliation for a certain Cost Centre for a certain month within the later of ten Business Days of receiving the bank statement or the date Helix provides all the necessary daily deposit detail for the applicable bank account(s). A report setting out the results of the reconciliation will also be provided by Provider to Helix at that time.

Insurance Payments

Provided that Helix provides the insurance payment information from the third party payers, Provider will perform a monthly reconciliation of insurance payments received from third party payers. Provider will provide the reconciliation to Helix within the later of ten Business Days of the last day of the applicable month or the date the Helix provides the necessary insurance payment information from the third party payers. A report setting out the results of the reconciliation will also be provided by Provider to Helix at that time.

Resolution

Provider and Helix will use reasonable efforts to resolve any discrepancy or irregularity in the Financial Records noted as a result of the reconciliation activities described in this section 1.2.1(e).

Income Statements

Within ten Business Days of the last day of any of Provider’s monthly accounting period, Provider will provide to Helix an income statement prepared in accordance with generally accepted United States accounting principles for: (i) each Cost Centre; and (ii) Helix.

Balance Sheet

Within ten Business Days of the last day of any of Provider’s monthly accounting period, Provider will provide to Helix a balance statement prepared in accordance with generally accepted United States accounting principles for Helix.

Reports

Provider shall deliver or otherwise make available to Helix, in a format acceptable to Helix acting reasonably, such financial reports as are specifically set forth in this Agreement, at the intervals set out in the Agreement.

Accounting Documents

Provider shall deliver or otherwise make available to Helix, in a format acceptable to Helix acting reasonably, such other financial documents as are reasonably requested by Helix in order to comply with Laws and Regulations.

Accounts Payable

Accounts Receivable

Assistance by Provider

Records

Installation Support — Telephone

Installation Support — Remote Access

Transition Plan

Development

Acceptance Testing of the Software in a non-production environment using realistic data based on the data in the then current Helix Database;

the installation of a copy of the Helix Database on Helix servers;

a period of time of at least one month beginning on a mutually agreeable date (the “Launch Date”) during which: (A) Provider continues to provide the Services described in this Schedule B.1 and the systems used by Provider to do so remain Helix’s production systems; and (B) Helix begins to use the Software to perform the same tasks for itself (i.e. in parallel);

a period of time of at least one month beginning on a mutually agreeable date (the “Cut-over Date”) during which: (A) Provider continues to provide the Services described in this Schedule B.1 but the systems used by Provider to do so cease to be Helix’s production systems; and (B) Helix continues to use the Software to perform the same tasks and Helix’s systems used to operate the Software become Helix’s production systems; and

a back-out plan should any material problem with Helix’s ability to perform for itself the Services described in Schedule B.1 occur within 30 days of the Cut-over Date.

Implementation of Project Plan

All Orders Report. For a period of time of up to six months from the Effective Date, subject to an extension pursuant to section 4 below, upon the request of Helix, which request may be made only once every seven days, Provider will compile, within two Business Days of Helix’s request, the report set out below. This report will be provided in a Microsoft Excel format.

Daily Delivery Report (DDR). For a period of time of up to six months from the Effective Date, subject to an extension pursuant to section 4 below, Provider will compile the report set out below. This report will be provided in a Microsoft Excel format.

Web-based Training

Provider will host a web-based training session in the form of an interactive presentation via DimDim.com, which presentation can be archived for future viewing by Helix’s Representatives.

In-person Training

Updates

Help Desk

Contacting the Help Desk

Requests for Assistance

Reports

Definitions and Background.

“Confidential Information” means any and all information and materials, which: (i) are designated in writing, as confidential at the time of disclosure, or (ii) a reasonable person, having regard to the circumstances, would regard as confidential, including Personal Information. For clarity, the Software and the “Documentation”, as defined in the License Agreement, are Confidential Information.

Both parties recognize that the protection of any Confidential Information provided or made available by either party or from whom access is otherwise obtained, is of vital importance to the party who provided it or made it available or from whom access is otherwise obtained.

Both parties acknowledge that Confidential Information may include Personal Health Information and that protecting the privacy of the individuals to whom such information relates is of paramount concern.

“Disclosing Party” means, with respect to any item of Confidential Information, the party who provides or otherwise makes available such Confidential Information to the other party, or from whom access to the Confidential Information is otherwise obtained, either directly or indirectly.

“Recipient” means, with respect to any item of Confidential Information, the party who receives or otherwise obtains access to such information.

Exceptions. Confidential Information does not include information which:

is or at any time is made generally available to the public by the Disclosing Party, but only after it becomes generally available to the public;

is known to the Recipient (as substantiated by cogent and reliable written evidence in the Recipient’s possession) free of any restrictions at the time of disclosure;

is independently developed by the Recipient through individuals who have not had either direct or indirect access to the Confidential Information; and

is rightfully obtained by the Recipient, without any obligation of confidence of any kind, from a third party who had a right to transfer or disclose it to the Recipient free of any obligation of confidence.

Required by Law. The Recipient will not be liable for disclosure of Confidential Information if disclosure is required by law, provided that the Recipient, to the extent permitted by applicable Laws and Regulations, notifies the Disclosing Party of any such requirement as soon as legally permissible, so that the Disclosing Party may seek a protective order or other relief. Notwithstanding the foregoing, the provisions of this section 1.3 will not permit Provider to disclose any Personal Information under any law which is not applicable in the Province of Ontario.

Ownership. As between the parties, each party is the owner of its Confidential Information, and except to the extent set out in this Agreement, no interest, licence or other right in or to its Confidential Information is granted to the other party or implied simply by the disclosure of the Confidential Information.

Warranties. EXCEPT TO THE EXTENT EXPRESSLY SET OUT OTHERWISE IN THE AGREEMENT:

ALL CONFIDENTIAL INFORMATION PROVIDED BY OR ON BEHALF OF THE DISCLOSING PARTY IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND.

WITHOUT LIMITING SECTION 1.5(a), EACH PARTY EXPRESSLY EXCLUDES THE FOLLOWING REPRESENTATIONS, CONDITIONS AND WARRANTIES WITH RESPECT TO ITS CONFIDENTIAL INFORMATION: ACCURACY, COMPLETENESS OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES.

Recipient’s Obligations. The Recipient will:

keep the Disclosing Party’s Confidential Information confidential and secure;

use the Disclosing Party’s Confidential Information only in accordance with this Agreement and only for the purpose of fulfilling its obligations and exercising its rights under this Agreement and will not directly or indirectly disclose, destroy, exploit or use any Confidential Information of the Disclosing Party for any other purpose;

use at least the same degree of care to protect the Disclosing Party’s Confidential Information as the Recipient uses to protect its own confidential information of a like nature, but in any event will not use a standard of care that is less than a reasonable standard of care, taking into account the sensitivity of any applicable items of Confidential Information;

not disclose the Disclosing Party’s Confidential Information to any person other than the Recipient’s Representatives and, in the case of Helix, the Clinics who have a need to know it for the purposes described in paragraph (b) above and who are bound by a written contract to keep confidential the confidential information of third parties including the Confidential Information, at least to the same extent as set forth in this Agreement;

not make copies of any of the Disclosing Party’s Confidential Information or modify it other than as expressly permitted under this Agreement;

not remove any confidentiality, copyright or other proprietary rights notices from any of the Disclosing Party’s Confidential Information including from any copies of such Confidential Information;

upon demand, inform the Disclosing Party of the location of the Disclosing Party’s Confidential Information and the measures that the Recipient has taken to preserve its confidentiality; and

notify the Disclosing Party immediately upon becoming aware of any unauthorized copying, disclosure or use of the Disclosing Party’s Confidential Information by the Recipient or by any Representative or other individual or entity to whom the Recipient has disclosed Confidential Information pursuant to this Agreement, and make a commercially reasonable effort to minimize the effect of any such use or disclosure.

Equitable Relief. Each party acknowledges that the Confidential Information of the other party is of value to the other party or to its suppliers and that any breach of this Agreement will cause irreparable injury to the other party or to any third party to whom the other party owes a duty of confidence, and that any such injury to the other party or to any such third party may be difficult to calculate and inadequately compensable in damages. Consequently, each party agrees that in addition to any other remedies that the other party may have, the other party will be entitled to obtain injunctive and other equitable relief, as a matter of right without proving injury, and any other remedy for any actual or potential breach of this Agreement.

Return of Confidential Information. The Recipient will, at any time upon request of the Disclosing Party and upon termination of this Agreement, immediately return the Disclosing Party’s Confidential Information and all copies thereof in any form whatsoever under the power or control of Recipient, to the Disclosing Party, provided that: (a) to the extent that the Recipient is not reasonably able to return any such Confidential Information, the Recipient may, with the consent of the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with a destruction certificate signed by an appropriate officer of Recipient certifying such destruction; (b) the Recipient will be entitled to retain Confidential Information if so required by applicable Laws and Regulations. However, the Recipient will have no obligation to return any Confidential Information of the Disclosing Party that is incorporated in or forms part of any Work Product and Services to be provided under this Agreement, and which the Recipient is entitled to use during the Term of this Agreement or at any time thereafter, and without limiting the foregoing, the Recipient is not required to return any Confidential Information for which any right or license is granted to the Recipient that survives the expiration or termination of this Agreement.

Personal Information. The parties will, at all times, comply with all applicable Laws and Regulations pertaining to the protection of Personal Information.

Assistance.

Each party will promptly provide a reasonable response to any questions posed by the other from time to time with respect to compliance with section 7 of this Agreement and this Schedule C.

Without limiting any other obligation of Provider under this Agreement and promptly upon request, Provider will provide Helix with all such reports, information, cooperation and assistance, as may be requested by Helix from time to time, such co-operation, information and assistance to be provided without cost but with Helix covering Provider’s reasonable out-of-pocket expenses (but not legal fees), to enable Helix to comply with any and all requirements to which Helix is subject under any applicable Laws and Regulations pertaining to the protection of Personal Information (including but not limited to PHIPA).

Escalation Process to Resolve a Dispute. If the Parties’ Representatives are unable to resolve a Dispute within 10 Business Days, then the Dispute will be referred to the President (or substantial equivalent) of each party for resolution (each an “Executive”). The Executives will make all reasonable efforts to resolve the Dispute within 20 Business Days of its referral. Each Party will ensure that its Executive has the necessary authority to resolve that Dispute on behalf of that Party.

Arbitration

If the time periods set out in section 3.1 of this Schedule D applicable to any Dispute expire without that Dispute being resolved, either Party may upon Notice to the other Party, initiate arbitration of the Dispute in accordance with the Rules of the American Arbitration Association (or its successor) in effect at the date of commencement of such arbitration to the extent that the provisions of such rules are not inconsistent with the provisions of this Agreement (the “Rules”).

If the arbitrator fails to render a decision within 30 days following the final hearing of the arbitration or any extension of time thereto granted with the written consent of both Parties, either Party may terminate the appointment of the arbitrator and a new arbitrator will be appointed in accordance with these provisions.

The arbitration will:

be before a single arbitrator appointed in accordance with the Rules;

take place in Buffalo, New York at a time, date and place specified by the arbitrator unless otherwise agreed in writing by Helix and Provider; and

will be final and binding and may be enforced in the same manner as a judgment or order to the same effect, and no appeal will lie therefrom except on questions of law or the jurisdiction of the arbitration.

The arbitrator will:

not be interested financially in this Agreement or in either Party’s business;

not be employed by either Party or employed by a person engaged by either Party;

be required to make his award as soon as possible, and if at all practicable, within 10 days after the conclusion of the arbitration hearing,

may appoint independent experts and any other person to assist him or her in the hearing of the arbitration;

may determine all questions of law and jurisdiction including questions as to whether the dispute is arbitrable;

may determine any question of fact including questions of good faith, dishonesty or fraud arising in the Arbitration;

may order any Party to furnish such further details of that Party’s case, as to fact or law, as it may require;

may require or permit the Parties to give evidence under oath or solemn affirmation;

may order the Parties or either of them to make interim payments towards the costs of the Arbitration;

has the right to grant permanent and interim damages or injunctive relief, and

will have the discretion to award costs including reasonable legal fees, interest and costs of the arbitration; provided that the Arbitrator will not have the right to award any punitive or other damages specifically excluded by this Agreement.

Unless the Parties will at any time otherwise agree in writing, the arbitrator will have the power, on the application of either of the Parties or of its own motion (but in either case only after hearing or receiving any representations from the Parties concerned that it determines in its discretion to be appropriate):

to allow other parties to be joined in the Arbitration with their express consent, and make a single final award determining all disputes between them;

to allow any Party, upon such terms (as to costs and otherwise) as it will determine, to amend its claim, defence, reply, counter-claim or defence to counter-claim;

to extend or abbreviate any time limits provided by these Rules or by its directions;

to direct the Parties to exchange written statements, whether or not verified by oath or affirmation, of the evidence of witnesses, and direct which of the makers of such statements are to attend before it for oral examinations;

to determine what witnesses (if any) are to attend before it, and the order and manner (including cross-examination) in which, and by whom, they are to be orally examined;

to conduct such further or other inquiries as may appear to it to be necessary or expedient;

to order the Parties to make any property or thing available for its inspection or inspection by another Party and inspect it in their presence;

to order the Parties to produce to it, and to each other for inspection, and to supply copies of, any documents or classes of documents in their respective possession, control or power that it determines to be relevant;

to order the preservation or storage of any property or thing under the control of any of the Parties relevant to the Dispute before it; and

to make interim orders for security for costs for any Party’s own costs, and to secure all or part of any amount in dispute in the Arbitration.

Each Party will:

cooperate with the arbitrator;

provide the arbitrator with all information in its possession or under its control necessary or relevant to the matter being determined;

use its best efforts to cause any arbitration hearing that may be held hereunder to be:

started as soon as practicable, and not later than 60 days of when the arbitrator is appointed; and

completed as soon as practicable, and if possible, within one day.

Disputes involving more than two parties will be settled by one arbitration, as determined by the arbitration procedures adopted in this clause.

Where by this clause any Dispute is to be referred to arbitration, the making of a final award will be a condition precedent to any right of action by either Party against the other.

Judgment upon an award, including any interim award, rendered by the arbitrator may be entered in any Court having jurisdiction thereof.

The arbitrator’s fee will be equally shared by the Parties. The fees of any independent experts and any other persons appointed to assist the arbitrator will be shared equally by the Parties.