PROFESSIONAL SERVICES AGREEMENT

This PROFESSIONAL SERVICES AGREEMENT (this 'Agreement') is entered into by and between The Sleep Health Organization, Inc. (the 'Service Provider') and the 'Customer' on the date of execution. The ‘Parties’, together with the Service Provider, hereby establish the effective date of this agreement as the date of execution."

WHEREAS, the ‘Customer’ desires to retain Service Provider to provide the Sleep Health Intelligence Program and accompanying certification programming for pediatric sleep consultants upon the terms and conditions hereinafter set forth, and Service Provider is willing to perform such services.

In consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

• Services
  • Service Provider shall provide the Services to Customer as described in the applicable Invoice in accordance with the terms and conditions of this Agreement.
• Term
  • This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services described in the applicable Invoice, unless sooner terminated under Article 8.
• Payment Terms
  • In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the total fees set forth in the applicable Invoice. Payment to Service Provider of such fees under this Article 3 shall constitute payment in full for the performance of the Services.
  • Customer shall pay all amounts due to Service Provider in accordance with the applicable Invoice. Unless otherwise noted in the applicable invoice, all payments hereunder shall be in United States dollars USD and made in accordance with the applicable Invoice.
  • In the event payment is not received in accordance with the due date specified on the applicable Invoice, Service Provider reserves the right to suspend or terminate access to the services provided under the Invoice. The loss of access will continue until the outstanding balance is settled in full.
• Intellectual Property Rights; Ownership
  • Customer acknowledges that all Intellectual Property Rights, associated with, or arising from, provision of the Services and any Deliverables provided by Service Provider under this Agreement, or any applicable Invoice, shall remain the property of the Service Provider, unless otherwise agreed upon in writing in accordance with Section 11.6.
  • Service Provider grants Customer a limited, non-transferable, non-sublicensable license solely to the extent reasonably required in connection with the direct provision of Customer’s sleep health assessment and management services. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
  • Customer shall not register or attempt to register any trademarks, domain names, or social media handles that are similar or identical to Service Provider’s trademarks or branding.
  • Customer acknowledges and agrees that the Deliverables provided are for their internal use only. The Customer shall not, without the prior written consent of the provider, reproduce, distribute, modify, sell, sublicense, or otherwise exploit the deliverables for any commercial purpose or disclose them to any third party.
• Confidential Information
  • The Customer agrees:
    • not to disclose or otherwise make available Confidential Information of the Service Provider to any third party without the prior written consent of the Service Provider; provided that the Customer may disclose the Confidential Information of the Service Provider to its legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by non-disclosure obligations at least as restrictive as those set forth in this Article 5;
    • to use the Confidential Information of the Service Provider only to make use of the Services and Deliverables; and
    • to immediately notify the Service Provider if it becomes aware of any loss or disclosure of any of the Confidential Information of Service Provider.
  • If the Customer becomes legally compelled to disclose any Confidential Information, the Customer shall provide:
    • prompt written notice of such requirement so that the Service Provider may seek a protective order or other remedy; and
    • reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.

If, after providing such notice and assistance as required herein, the Customer remains required by Law to disclose any Confidential Information, the Customer shall disclose no more than that portion of the Confidential Information which, on the advice of the Customer’s legal counsel, the Customer is legally required to disclose and, upon the Service Provider’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

• The Parties acknowledge that they may have access to and receive confidential information from the other Party. Both Parties agree to treat all confidential information received from the other Party as strictly confidential and to exercise reasonable measures to protect its confidentiality.

• Indemnification
  • Customer shall defend, indemnify, and hold harmless Service Provider and its officers, directors, employees, agents, successors and permitted assigns from and against all Losses awarded against Service Provider arising out of or resulting from any third-party claim, suit, action, proceeding or government order or prosecution (each, an “Action”) arising out of or resulting from Customer’s breach of any obligation of Customer in this Agreement.
  • The Customer shall not settle any Action in a manner that adversely affects the rights of the Service Provider without the Service Provider’s prior written consent. The indemnified party’s failure to perform any obligations under this Section 6.2 shall not relieve the indemnifying party of its obligations under this Section 6.2 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
• Limitation of Liability
  • No Medical Advice: The information and advice provided by Service Provider, including but not limited to text, graphics, images, videos, or any other material, are solely for informational and educational purposes. They are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Service Provider does not provide medical, psychiatric, or psychological services to the Customer.
  • Consultation with a Qualified Professional: Customers are strongly encouraged to seek the advice of a qualified healthcare professional or medical practitioner for any health-related concerns or questions. The Services provided by Service Provider should not be relied upon as a substitute for professional medical advice.
  • No Doctor-Patient Relationship: The use of the Services does not create a doctor-patient relationship between Service Provider and Customer nor any of the Customer’s Affiliates or clients. No confidential or personal information shared with Service Provider through the Services shall be treated as protected health information or be subject to doctor-patient confidentiality.
  • Accuracy and Completeness: Service Provider strives to provide accurate and up-to-date information through the Services. However, Service Provider does not warrant or guarantee the accuracy, completeness, or timeliness of the information provided. Information may become outdated, and new research or developments may supersede previously provided information.
  • Third-Party Content: The Services may include links or references to third-party websites, articles, or resources for additional information. Provider does not endorse, control, or have responsibility for the content, policies, or practices of any third-party websites or resources.
  • EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.8, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER UNDER THE APPLICABLE INVOICE PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  • The exclusions and limitations in Section 7.6 and Section 7.7 shall not apply to:
    • damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Article 4 (Intellectual Property Rights; Ownership);
    • damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Article 5 (Confidentiality);
    • a party’s indemnification obligations under Article 6 (Indemnification);
    • damages or other liabilities arising out of or relating to a party’s gross negligence, wilful misconduct or intentional acts;
    • death or bodily injury or damage to real or tangible personal property resulting from a party’s negligent acts or omissions;
    • damages or liabilities to the extent covered by a party’s insurance; and
    • a party’s obligation to pay legal fees and court costs in accordance with Section 11.14.
  • Termination; Effect of Termination
    • Either party, in its sole discretion, may terminate this Agreement, in whole or in part, at any time without cause, by providing at least sixty (60) days’ prior written notice to the other party.
    • Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
    • Upon expiration or termination of this Agreement for any reason:
      • Each Customer shall (i) return to the Service Provider all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the Service Provider’s Confidential Information, (ii) permanently erase all of the Servicer Provider’s Confidential Information from its computer systems and (iii) certify in writing to the Servicer Provider that it has complied with the requirements of this clause; provided that Customer may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.
    • The rights and obligations of the Parties set forth in this Section 8.4 and Article 4, Article 5, Article 7, Article 8 and Article 11, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
    • In the event of the termination of this Agreement, no portion of any payments of any kind whatsoever previously provided to Service Provider hereunder shall be owed or be repayable to Customer.
  • Non-Exclusivity; Non-Compete

The Service Provider retains the right to perform the same or similar type of services for third Parties during the Term.

•  Force Majeure
  • No party is liable or responsible to the other party, nor is deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation (each, a "Force Majeure Event"): (a) acts of God; (b) flood, fire, earthquake, tsunami or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority and (g) national or regional emergency. The party suffering a Force Majeure Event shall give notice within 14 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
•  Miscellaneous
  • The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  • Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trade-marks, service marks, trade names, logos, symbols or brand names, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
  • All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated on this Agreement (or at such other address for a party as shall be specified in a notice given in accordance with this Section 11.3).
  • For purposes of this Agreement, (a) the words “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Schedules, refer to the Sections of, and Schedules, attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
  • This Agreement, together with all Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule or Invoice, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Schedules; (b) second, the applicable Invoice; and (c) third, any Schedules to this Agreement.
  • Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and enure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
  • This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
  • The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
  • This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  • If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  • This Agreement shall be governed by and construed in accordance with the Law of the province of Ontario and the federal Law of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the province/territory of Ontario or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the province of Ontario. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the courts of the province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
  • Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
  • Each party acknowledges that a breach by a party of Article 4 (Intellectual Property Rights; Ownership) or Article 5 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
  • EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  • In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual legal fees and court costs from the non-prevailing party.
  • This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

•  Definitions

“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. The term “control” (including 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.

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

“Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure before receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.

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

“Deliverables” means all documents, work product and other materials that are delivered to Customer hereunder or prepared by, or on behalf of, Service Provider in the course of performing the Services, including any items identified as such in each Invoice.

“Disclosing Party” means a party that discloses Confidential Information under this Agreement.

“Force Majeure Event” has the meaning set forth in Section 10.1.

“Intellectual Property Rights” means rights in all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trade-marks, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, (e) industrial designs and design rights, (f) audio and video recordings and (g) all other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

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

“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, 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.

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

“Pre-Existing Materials” means the pre-existing materials specified in all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider before the commencement or independently of this Agreement.

“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.

“Service Provider” has the meaning set forth in the preamble.

“Services” mean any professional or other services to be provided by Service Provider under this Agreement, as described in more detail in each Invoice, and Service Provider’s obligations under this Agreement.

“Invoice” means the Invoice delivered to the Customer by the Service Provider outlining services to be rendered.

“Term” has the meaning set forth in Article 2.