Assessment Tool Access & Quality Assurance (PHS)

PYSCHOLOGICAL HEALTH AND SAFETY ASSESSMENT AGREEMENT

CAREFULLY READ THE FOLLOWING AGREEMENT! THIS PSYCHOLOGICAL HEALTH AND SAFETY ASSESSMENT AGREEMENT (THE “AGREEMENT”) CONTAINS IMPORTANT INFORMATION ABOUT RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS. BY CLICKING ON THE “ACCEPT” BUTTON, (I) THE AGREEMENT SHALL COME INTO EFFECT; (II) THE CLIENT (AS DEFINED BELOW) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT; AND (III) CLIENT’S AUTHORIZED REPRESENTATIVE REPRESENTS THAT THEY ARE DULY AUTHORIZED TO COMMIT CLIENT TO THE TERMS AND CONDITIONS OF THE AGREEMENT AND TO SIGN THE AGREEMENT ON CLIENT’S BEHALF.

This Agreement is between you (the “Client”) and MHCC, a national not-for-profit organization having its principal place of business located at 350 Albert Street, Suite 1210 Ottawa ON K1R 1A4 (“MHCC”). If You have any questions relating to this Agreement, please contact MHCC by email at phs@openingminds.org.

Now therefore in consideration of the mutual covenants and agreements set out below, and other good and valuable consideration (the receipt and sufficiency are hereby acknowledged), the parties agree as follows:

1. ACCESS TO AUDITSOFT TM SOFTWARE, THE SERVICES AND THE FINAL REPORT

(a) Upon the Client executing a contract with an assessor (the “Assessor”) qualified to deliver the Psychological Health and Safety Audit Program (the “Program”), MHCC shall assist the Client in securing the necessary license to the AuditSoft TM Software with AuditSoft Inc. (the “AuditSoft Software”). The license to the AuditSoft Software is valid for twelve (12) months from the date of approval by MHCC. The Client agrees to abide by the applicable terms and conditions of the AuditSoft Inc. pertaining to the AuditSoft Software located at, https://auditsoft.co/terms-conditions and any supplementary terms and conditions as amended from time to time.

(b) MHCC shall provide the Quality Assurance Review (the “Services”) at the rates set out in the applicable Statement of Work issued under this Agreement (the “SOW”) and once completed then release the final report and action plan (collectively, the “Final Report”) to the Assessor who will provide the Final Report to the Client.

(c) Limitations on Scope of Services and Final Report. The Services provided by MHCC are limited to (i) a review of the final report (the “Assessor’s Report”) prepared by the Assessor to ensure that the Assessor complied with requirements of the Program; and (ii) release of the Final Report to the Assessor. MHCC will not audit the materials used or information gathered by the Assessor (the “Background Materials”) to prepare the Assessor’s Report as MHCC assumes that all Background Materials are correct, complete and reliable. In addition, it is understood and agreed that the Final Report may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of and made by the Client. The Client further acknowledges that the Services and the Final Report are intended for the informational purposes and internal use of the Client only and are not intended to be and should not be used by any person or entity other than the Client.

2. FEES AND PAYMENT

(a) Fees. Client shall immediately pay MHCC the license fee (the “License Fee’) for the AuditSoft Software upon executing this Agreement at www.openingminds.org and any fees for the Services (the “Fees”) as set out in the SOW shall be paid by the Client within thirty (30) days after receipt of an invoice from MHCC.

(b) Dispute. The Client shall not be entitled to retain or defer payment of any License Fee or Fees on account of any dispute, counter claim or set off which it may allege against MHCC.

3. MHCC OBLIGATIONS

(a) MHCC shall at all times comply with all applicable federal, provincial and local laws, ordinances, regulations and codes in the performance of its obligations under this Agreement.

(b) MHCC shall perform the Services and release the Final Report to the Assessor in a timely, professional, and workmanlike manner and shall comply with the terms of this Agreement and the SOW. The Services and preparation of the Final Report shall be performed by trained, skilled and properly qualified personnel.

(c) No Representations or Warranties. The Client acknowledges that the Services and the Final Report (as delivered by the Assessor) are being provided to the Client on an “as is” “where is” basis without representation, warranty, endorsement or condition of any kind, either express or implied, including, but no limited to implied representations, warranties or conditions of merchantability, reliability or fitness for a particular purpose. The Client further acknowledges that the AuditSoft Software is being provided by AuditSoft (and not MHCC) on an “as is” “where is” basis without representation, warranty, endorsement or condition of any kind, either express or implied, including, but no limited to implied representations, warranties or conditions of merchantability, reliability or fitness for a particular purpose from MHCC.

4. CLIENT OBLIGATIONS AND REPRESENTATIONS AND WARRANTIES

(a) The Client has full power and authority to execute this Agreement and to consummate the transactions contemplated hereby;

(b) This Agreement, when duly and validly executed and delivered by Client, shall constitute the valid and binding agreement of Supplier, enforceable against Client in accordance with its terms;

(c) The Client represents and warrants that it shall all times comply with all applicable federal, provincial and local laws, ordinances, regulations and codes in the performance of its obligations under this Agreement; and

(d) The Client represents and warrants that the information and documents supplied to the Assessor are correct, complete and reliable, even if it comes from a third party.

5. CONFIDENTIALITY AND PERSONAL INFORMATION

(a) Confidential Information. For the purposes of this Agreement “Confidential Information” means all confidential and proprietary information of a party, including all information in any form that (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, or (ii) is provided to or obtained by a party from the other party in

circumstances where, by its nature or the nature of its disclosure, such party ought reasonably to know has value in being not generally known by the public (including, without limitation, any information that is marked or indicated as confidential at the time of disclosure). Notwithstanding the foregoing, Confidential Information does not include information if, and only to the extent that, the recipient establishes that the information:

(i) is or becomes a part of the public domain through no act or omission of the recipient;

(ii) was in the recipient’s lawful possession prior to the disclosure and (i) had not been obtained by the recipient either directly or indirectly from the discloser and (ii) was not subject to any obligation of confidentiality;

(iii) is lawfully disclosed to the recipient by a third party without restriction on disclosure; or

(iv) is independently developed by the recipient without any direct or indirect use of or reference to the discloser’s Confidential Information whatsoever.

(b) Nondisclosure. Each party agrees to keep all Confidential Information concerning the other in strict confidence, not to make use of such Confidential Information other than in accordance with the performance of its obligations under this Agreement and not to release, disclose, communicate it, or make it available to any person other than:

(i) to employees and permitted subcontractors who reasonably need to know the Confidential Information in connection with this Agreement and which who are legally bound to protect the received Confidential Information from unauthorized use or disclosure on terms and conditions at least as strict as this Agreement; or

(ii) as required by law, rule, regulation, or court order, provided that such party (i) provides prompt advance notice to the other party and such cooperation and reasonable assistance as the other party requests in seeking protection or confidential treatment for such Confidential Information, and (ii) strictly discloses only those parts of such Confidential Information that are required to be disclosed by such law, rule, regulation or order.

(c) Personal Information. In addition to the foregoing, any information in electronic form relating to a natural person who can be identified (i) from such information or (ii) from such information and the use of additional information, taking into account all means reasonably likely to be used by anyone to identify the person directly or indirectly and includes, without limitation, personal information of individual customers, prospective customers or employees of a party (“Personal Information”), shall be considered Confidential Information of such party for the purpose of this Agreement.

a. In addition to the confidentiality obligations set forth in this Article 5, each party shall (i) hold any Personal Information of the other party secure in accordance with the terms of this Agreement, (ii) protect such Personal Information from unauthorized disclosure by using and installing appropriate technological, physical and organizational security measures, (iii) comply with all laws and regulations relating to the protection and privacy of Personal Information, including obligations as they exist or will exist under applicable data protection laws, including but not limited to, the Personal Information Protection

and Electronic Documents Act (Canada), and (iv) if requested by the other party, promptly correct or delete Personal Information within the party’s control. The disclosing party hereby grants permission to the other party to use Personal Information provided by the disclosing party solely for the purpose of carrying out the receiving party’s obligations pursuant to this Agreement and, except as expressly permitted by this Agreement, neither party shall disclose any Personal Information to any third party

, including information that relates to the physical or mental health of an individual and/or to the provision of health care to the individual, without the prior written consent of the disclosing party. b. Storage of Confidential Information and Personal Information. The parties shall store all Confidential Information and Personal Information in Canada only.

c. Return of Information. Upon the expiration or termination of this Agreement, and subject to any regulatory or professional obligations or archival policies regarding the retention of documents, each party will promptly return to the other party all Confidential Information and Personal Information of the other party which is then in its possession or control.

6. INTELLECTUAL PROPERTY

(a) MHCC’s internal documentation to substantiate the Services and Final Report are owned by MHCC, and MHCC retains all proprietary rights therein (hereafter, “Working Papers”) and will be retained by MHCC in accordance with MHCC policies. In addition, any pre-existing materials and any general skills, know-how, processes or other intellectual property (including a non-client-specific version of any deliverables) which may have been discovered or created by MHCC as a result of its provision of the Services (collectively, “MHCC Pre-Existing Intellectual Property”) are owned by MHCC, and MHCC retains all proprietary rights therein. MHCC grants to the Client a non-exclusive, non-transferable license to use MHCC Pre-Existing Intellectual Property included in the Final Report for internal use only.

(b) MHCC will maintain a copy of the Final Report for archival purposes after the termination or expiration of this Agreement for the purpose of compliance with professional standards and internal retention policies.

(c) Nothing in this Agreement will restrict MHCC’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback (as defined below), without compensating or crediting the Client or the individual providing such Feedback, except to the limited extent that Feedback constitutes Client’s Confidential Information. “Feedback” refers to any suggestion or idea for improving or otherwise modifying MHCC’s Services or Final Report, or the Program.

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

(a) Client Indemnification. MHCC accepts no liability to third parties including related entities (including but not limited to, Client subsidiaries or Client affiliates) of the Client with respect to the Services or Final Report provided pursuant to this Agreement. For this reason, the Client agrees to indemnify and hold MHCC, its affiliates and subsidiaries and their respective directors, officers, partners, employees, shareholders, agents and representatives harmless from and against any and (i) all third-party claims, suits and actions, and all associated damages,

settlements, losses, liabilities, costs and expenses, including without limitation reasonable legal fees arising from or relating to the Services and/or Final Report provided under this Agreement; and (ii) any third party claims arising out of or related to the Client’s breach of any representation, warranty, covenant or obligation under this Agreement. (b) Each Party shall indemnify, defend and hold the other Party, subsidiaries and affiliates and their respective directors, officers, partners, employees, shareholders, agents and representatives harmless from and against all judgments, settlements and reasonable legal fees resulting from any third-party claims in respect of a breach of their obligations under Article 5 of this Agreement.

(c) EXCEPT FOR CLIENT’S OBLIGATIONS OF INDEMNIFICATION PURSUANT TO ARTICLE 7(A) AND THE PARTIES’ OBLIGATIONS OF INDEMNIFICATION PURSUANT TO ARTICLE 7(B) DAMAGES OF WHICH SHALL BE CAPPED AT $100,000 CDN FOR BOTH PARTIES IN THE CASE OF BOTH ARTICLE 7(A) AND 7(B) , IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, ANY OF ITS AFFILIATES, OR ANY OTHER THIRD PARTY FOR (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, EVEN IF THAT PARTY IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT WHETHER UNDER CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR (II) DAMAGES UNDER THIS AGREEMENT IN EXCESS OF THE FEES PAYABLE TO MHCC HEREUNDER.

8. TERM AND TERMINATION

(a) Termination for Cause.

(i) MHCC may terminate this Agreement, in whole or in part, at any time upon giving written notice to Client in the event that Client defaults in the performance or observance of any of its obligations under this Agreement and fails to correct such breach within thirty (30) days after its receipt of written notice specifying the nature of the breach.

(ii) Either party may terminate this Agreement, in whole or in part, at any time in the event that the other party makes an assignment for the benefit of creditors, or commences, or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, provided that in the event of an involuntary petition the affected party shall have thirty (30) days from the date of filing thereof to discharge same.

(b) Termination for Convenience. Either party may terminate this Agreement, in whole or in part, for convenience, upon thirty (30) calendar days prior written notice.

(c) Termination in the Event of a Conflict of Interest or Breach of Code of Conduct. MHCC may, in its sole discretion, immediately terminate this Agreement in the event that MHCC learns of a conflict of interest or MHCC believes that there is a breach of or potential breach of MHCC’s code of conduct by the Assessor.

(d) Effect of Termination. Upon termination of this Agreement by MHCC pursuant to Sections 8(a) or 8(c), no refund will be offered on any Fees.

(e) Survival of Terms. Upon expiration or termination of this Agreement, the provisions of this Agreement concerning the ongoing interests of the parties shall continue and survive in full force

and effect. Expiration or termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief.

9. MISCELLANEOUS

(a) This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, undertakings, negotiations, and discussions, whether oral or written, of the parties in respect thereto. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing and consented to by the parties. Headings are not to be considered part of this Agreement, are included solely for convenience, and are not intended to be full or accurate descriptions of the contents of the paragraphs. In this Agreement, words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neutral gender. This Agreement has been negotiated by you and MHCC and shall be fairly interpreted in accordance with its terms and without reference to any rules of construction relating to which party drafted this Agreement.

(b) No failure by either party to strictly enforce the terms of this Agreement will be construed as a waiver of the future performance of that term or condition.

(c) Section 2(a) and Articles 3, 4, 5, 6 , 7 and 9 shall survive any termination or expiry of this Agreement.

(d) Neither party shall be liable for failure to perform any of its respective obligations hereunder if such failure is caused by events outside its reasonable control, including, without limitation, acts of God, war, acts of terrorism, natural disasters, pandemic or epidemic. The delayed party shall (a) notify the other party immediately and in detail of the commencement and nature of such event and the probable consequences thereof and (b) use commercially reasonable efforts to recommence performance as soon as reasonably possible.

(e) We will each bear our own costs with respect to the negotiation of this Agreement, and the performance of our respective obligations hereunder. All fees payable hereunder are in Canadian funds and do not include any applicable taxes. For the avoidance of doubt, you are responsible for the payment of all applicable taxes.

(f) During the term of this Agreement, each Party shall continuously maintain insurance against such risks and in such amounts that could reasonably be expected to be carried by persons acting prudently and, in a business, similar to that of a Party.

(g) In the event of a conflict between this Agreement and any Statement of Work, the Agreement shall take precedence.

(h) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without giving effect to any principles of conflicts of laws, and notwithstanding your domicile, residence or physical location. Each party hereto irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario, Canada over all disputes arising in connection with the subject matter of, existence, or creation of this Agreement.

(j) Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, not to be unreasonably withheld. However, without Client’s consent, MHCC may assign all or part of its benefits, rights or obligations under this Agreement to a related entity, provided it, as

assignee, agrees to be bound by this Agreement and assumes the obligations assigned under this Agreement pursuant to this section on and after the effective date of such assignment.

(k) This Agreement has been drawn up in the English language at the request of all Parties. Cette convention a été rédigé en anglais à la demande de toutes les Parties.

(l) No partnership or joint venture is intended to be created by this Agreement, nor any principal-agent or employer-employee relationship.

(m) The invalidity or unenforceability of any provision of this Agreement or any covenant in it shall not affect the validity or enforceability of any other provision or covenant in it and the invalid provision or covenant shall be deemed to be distinct and severable.

(n) Each of the parties acknowledges that they: (i) have been advised by the other party to seek independent legal advice; (ii) have sought such independent legal advice or deliberately decided not to do so; (iii) understand their rights and obligations under this Agreement; and (iv) are executing this Agreement voluntarily.

(o) This Agreement may be executed in any number of counterparts, and may be delivered originally, by facsimile, or by other electronic transmission and each such original, facsimile copy, or electronically transmitted copy, when so executed and delivered, shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.

I agree