# Boréal Fenestration Inc. — Technology Contracts Negotiation Playbook

Version 3.2 — approved by the Vice-President, Finance and Administration, September 2025. Prepared with Tremblay Roy Lévesque LLP.

## Purpose

This playbook sets out the positions that Boréal Fenestration Inc. ("Boréal") requires in software-as-a-service, licensing and professional services agreements with annual value above CAD $100,000. Outside counsel reviewing a vendor draft must compare every relevant clause against the **required position** below, rate the risk of each deviation (H = required position not met and exposure material; M = required position not met but a documented fallback is available or exposure is limited; L = cosmetic or drafting point), and propose a redline that brings the clause to the required position or, failing that, to the fallback.

Deviations that merely *look* aggressive but fall within an acceptable position described below should **not** be raised as issues; they may be noted for completeness.

## Required positions

| # | Topic | Required position | Fallback | Walk-away |
|---|---|---|---|---|
| PB-01 | Limitation of liability — cap | Vendor's aggregate liability cap must be at least 12 months of fees paid or payable under the agreement (all orders), not per order. | Greater of 12 months of fees or CAD $1,000,000. | Cap below 6 months of fees. |
| PB-02 | Limitation of liability — carve-outs | Mutual carve-outs from the cap and from the consequential-damages exclusion for breach of confidentiality, breach of data-protection obligations, gross negligence, fraud and wilful misconduct are ACCEPTABLE and should not be negotiated away; carve-outs that apply to the client only are not. | Super-cap of 24 months of fees for data-protection breaches if the vendor refuses an uncapped carve-out. | No carve-out for data-protection breaches. |
| PB-03 | Indemnification | Indemnities must be mutual: vendor indemnifies for third-party IP infringement claims relating to the services and for its breach of confidentiality/data-protection obligations; client indemnifies for client data and misuse of the services. | Vendor IP indemnity with standard exclusions (combinations, modifications). | No vendor IP indemnity. |
| PB-04 | Term and renewal | No automatic renewal unless the client receives at least 60 days' written notice before the renewal date; preferred: renewal only by written agreement or by client notice. | Auto-renewal with a 60-day non-renewal window and a 90-day pre-renewal notice from the vendor. | Non-renewal window shorter than 60 days. |
| PB-05 | Governing law and forum | Laws of Québec and the federal laws of Canada; courts of the judicial district of Montréal (or arbitration seated in Montréal). | Laws of Québec with non-exclusive jurisdiction of Québec courts. | Governing law outside Canada. |
| PB-06 | Intellectual property | Client owns all deliverables and work product created specifically for it (assignment on payment); vendor keeps its pre-existing IP and platform and grants a perpetual licence to any vendor IP embedded in deliverables. | Perpetual, irrevocable, royalty-free, transferable licence to all deliverables with unrestricted internal use. | Term-limited licence to deliverables. |
| PB-07 | Payment terms | Net 45 days from receipt of a correct invoice (not net 15); interest not above 1 % per month (12 % per annum) and only after written notice; right to withhold disputed amounts. | Net 30 days. | Payment terms shorter than net 30 or interest above 1.5 % per month. |
| PB-08 | Termination for convenience | Client may terminate for convenience on 90 days' written notice without penalty (pro-rated refund of prepaid fees); vendor may not terminate for convenience during the initial term. | Client termination for convenience after the first 12 months on 90 days' notice. | No client termination right for convenience and vendor termination for convenience. |
| PB-09 | Non-solicitation | Any non-solicitation of personnel must be mutual and last no more than 12 months after termination; general advertisements excluded; no liquidated damages above 25 % of annual compensation. | 12 months, client-only, with the general-advertisement exclusion. | More than 18 months. |
| PB-10 | Data residency | All client data (including backups) must be stored and processed in Canada; no transfer outside Canada without the client's prior written consent (Québec private-sector privacy law requires an assessment before any transfer outside Québec). | Storage in Canada with remote support access from outside Canada under strict access controls. | Storage outside Canada without consent. |
| PB-11 | Service levels and credits | Availability of at least 99.5 % per month; service credits of at least 10 % of the monthly fees for each month below 99.5 %, escalating to 25 % below 98 %; credits are not the sole remedy for chronic failure; termination right after 3 consecutive months of missed SLA. | Credits starting at 5 % and capped at 20 %. | No service credits. |
| PB-12 | Assignment | No assignment without the other party's consent (not unreasonably withheld); assignment to an affiliate or to a successor in a change of control upon notice is acceptable, provided the assignee is not a competitor. | Consent required in all cases. | Vendor free assignment without notice. |
| PB-13 | Insurance minimums | Vendor must maintain commercial general liability of at least CAD $2,000,000 per occurrence, professional liability (E&O) of at least CAD $2,000,000 and cyber liability of at least CAD $5,000,000, with certificates on request. | Cyber liability of CAD $3,000,000 if combined with E&O. | No cyber coverage. |
| PB-14 | Suspension of services | A vendor suspension right is ACCEPTABLE only if limited to undisputed amounts, preceded by at least 30 days' written notice, with prompt restoration on cure; otherwise it must be deleted. | 15 days' notice for a second suspension in any 12-month period. | Suspension without notice for payment reasons. |

## Risk rating guide

- **H (high)**: a required position is not met and the exposure is financial, regulatory or operational and material (for example an inadequate liability cap, one-sided indemnities, loss of ownership of deliverables, data stored outside Canada, foreign governing law, no exit right).
- **M (medium)**: a required position is not met but a fallback exists or the commercial exposure is limited (for example payment terms, renewal mechanics, non-solicitation duration).
- **L (low)**: drafting or consistency points that do not change the allocation of risk.

## Reporting conventions

- Issues are reported in an issues register (one row per deviation) with: clause number, topic, summary of the current wording, the playbook position, risk rating (H/M/L) and the recommended redline.
- The covering memo to the responsible partner summarises the key risks, proposes negotiation priorities (what to concede, what to hold) and lists open items, including any document that was referenced but not provided.
- Risk ratings use the letters H, M and L only.

## Contacts

- Business owner: Nathalie Desrosiers, Vice-President, Finance and Administration, Boréal Fenestration Inc.
- Outside counsel: Marie-Claude Lévesque, Partner, Tremblay Roy Lévesque LLP.