SUPPORT AND MANAGEMENT SERVICES AGREEMENT

1.2

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.

(b)

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.

(i)

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

(b)

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.

(d)

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.

(a)

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

(a)

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.

4.2

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.

(a)

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.

(c)

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.

5.2

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.

5.4

Taxes.

(b)

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.

(e)

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.

5.6

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.

5.8

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.

6.2

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.

6.4

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

(i)

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.

(iii)

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;

(v)

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;

(vii)

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;

(ix)

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;

(xi)

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.

7.2

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:

(b)

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.

(a)

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.

(c)

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.

(e)

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.

8.2

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.

(i)

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

9.2

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:

(b)

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.

(d)

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.

(f)

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.

9.3

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:

(b)

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

9.4

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.

10.2

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.

11.2

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.

11.4

Exceptions.

(b)

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).

(d)

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.

12.2

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.

(b)

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

(d)

All remedies are cumulative.

(f)

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.

(h)

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.

14.4

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.

14.6

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.

14.8

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).