Last updated: September 4, 2023
Master Service Agreement
This Master Service Agreement constitutes a legal agreement and is entered into by and between the customer (the “Customer”) named in an order form (the “Order Form”) entered into between the Customer and Mindsec Security Inc., a Canadian corporation, with its principal place of business at 1 av. Holiday , Pointe-Claire (Québec) H9R5N3 Canada (“Mindsec” and collectively with the Customer, the “Parties” and each a “Party”). This Master Service Agreement together with the Order Form constitutes the legal agreement between the Parties governing the provision and use of the Services (as defined herein).
1. Definitions:
1.1 “Access Credentials” means any user name, identification number, password, licence or security key, security token, personal identification number (PIN) or other security code, method, technology, or device used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
1.2 “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, the first Person.
1.3 “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
1.4 “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
1.5 “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
1.6 “Control” (and 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.
1.7 “Documentation” means any manuals, instructions, or other documents or materials that Mindsec provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Mindsec Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
1.8 “Losses” mean all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements, and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.9 “Mindsec Materials” means the Services, Documentation and Mindsec Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, and other technologies, and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Mindsec or any Subcontractor (as defined below) in connection with the Services or otherwise comprise or relate to the Services or Mindsec Systems. For the avoidance of doubt, Mindsec Materials include Resultant Data and any information, data, or other content derived from Mindsec’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
1.10 “Mindsec Systems” means the information technology infrastructure used by or on behalf of Mindsec in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Mindsec or through the use of third-party services.
1.11 “Person” means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association, or any other entity holding juridical personality.
1.12 “Personal Information” means any information which relates to a natural person and allows that person to be identified.
1.13 “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.
1.14 “Resultant Data” means data and information related to Customer’s use of the Services that is used by Mindsec in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.15 “Third Party Licenses” means any software, services or products that are owned and /or offered by a Third-Party Licensor and that are provided, made available, displayed, run or accessed through or in association with the Services.
1.16 “Third Party Licensor” means any third party licensor of software included in or offered in association with the Services.
2. Services:
2.1 Services. Mindsec shall provide any or all of the following i) licenses as described herein to certain software; ii) cybersecurity services; and or iii) professional managed services, as specified in one or more order forms (collectively, the “Services”) entered into by the Parties (each, an “Order Form”).
2.2 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Master Service Agreement and all Order Forms, Schedules, all applicable Additional Terms and Conditions (as defined below) , as such may be amended or supplemented from time to time (collectively, the “Agreement”), including without limitations, Section 3 (Use Restrictions), Mindsec hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Mindsec shall provide to Customer the Access Credentials.
2.3 Authorized Users. The total number of Authorized Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.4 Documentation Licence. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, including without limitations, Section 3 (Use Restrictions), Mindsec hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable licence to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.5 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:
2.5.1 Mindsec has and will retain sole control over the operation, provision, maintenance, and management of the Mindsec Materials; and
2.5.2 Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Mindsec Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any:
2.5.2.1 information, instructions, or materials provided by any of them to the Services or Mindsec;
2.5.2.2 results obtained from any use of the Services or Mindsec Materials; and
2.5.2.3 conclusions, decisions, or actions based on such use.
3. Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions. Customer shall, and shall ensure that its Authorised Users shall, only access or use the Services or Mindsec Materials for lawful, appropriate, permitted internal business, non-personal use, as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not and shall not allow any Authorised Users or third party to: i) download, print, copy, modify, translate or create derivative works or improvements of the Services or Mindsec Materials; ii) rent, lease, lend, pledge, hypothecate, sell, sublicense, assign, distribute or otherwise make available any Services or Mindsec Materials to any Person other than an Authorised Users; iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Services or Mindsec Materials, in whole or in part; iv) input, upload, transmit, or otherwise provide to or through the Services or Mindsec Systems any information or materials that are unlawful or contain, transmit, or activate any harmful or malicious code; v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Mindsec Systems, or Mindsec’s provision of Services to any third party, in whole or in part; vi) remove, delete, register, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any Intellectual Property Rights (as defined below) notices from any Services or Mindsec Materials, including any copy thereof; vii) represent that it possesses any proprietary rights in any of the Services; viii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Services (such as usage monitoring features); ix) disclose to any third party the results of any internal performance testing or benchmarking studies of or about the Services; x) directly or indirectly take any action to contest Mindsec or any Third Party Licensor’s Intellectual Property Rights or infringe them in any way; xi) export or re-export the Services or any component thereof or use the Services in any manner, prohibited by law, including without limitation in any manner in violation of any applicable export or import restrictions, laws and regulations or requirements of any applicable government authority; xii) otherwise access or use the Services or Mindsec Materials beyond the scope of the authorization granted under Section 2.
4. Intellectual Property.
4.1 Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, moral rights, and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement, including without limitations the Services, the Mindsec Material, the Third Party Licenses or prepared by or on behalf of Mindsec in the course of performing the Services except for any Confidential Information of Customer or Customer Data shall be owned by Mindsec or the respective right holders in the Third Party Licenses.
5. Privacy.
5.1 Personal Information. During the course of the Services Mindsec may be provided or granted access to Personal Information by Customer (“Customer Personal Information”). Mindsec agrees that it will:
5.1.1 only use the Customer Personal Information to fulfill the Agreement and to carry out the Services;
5.1.2 protect the confidentiality of the Customer Personal Information;
5.1.3 maintain the Customer Personal Information only for as long as is necessary to fulfill the Agreement and to carry out the Services, or as may be required by law, whichever is longer;
5.1.4 employ administrative, physical, and technological safeguards to protect the Customer Personal Information in an environment secure against loss, theft, unauthorized access, acquisition, disclosure, destruction, alteration, copying, misuse, modification, and accidental loss or damage in compliance with applicable law;
5.1.5 notify the person in charge of the protection of personal information at the Customer without delay of any violation or attempted violation by any Person of any obligation concerning the confidentiality of the Customer Personal Information, and will also allow this person in charge of the protection of personal information at the Customer to conduct any verification relating to Mindsec’s confidentiality requirements pursuant to this Section 5; and
5.1.6 will comply with applicable data protection and privacy laws.
6. Customer Data.
6.1 Customer retains all rights in and related to Customer Data and is responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of the Customer Data and the means by which the Customer obtained the Customer Data. Customer represents and warrants that it has and will collect, store, maintain and as the case may be, share with Mindsec, Customer Personal Information in compliance with applicable data privacy and protection laws. Customer represents and warrants that the Customer Data it will share with Mindsec does not infringe on any third-party Intellectual Property Rights.
7. Confidentiality.
7.1 Confidentiality. From time to time during the Term, either Party (as the “Disclosing Party“) may disclose or make available to the other Party (as the “Receiving Party“), information about its business affairs, products, services, confidential intellectual property, third-party confidential information and other sensitive, non-public or proprietary information, data, documents, agreements, files and other materials regarding or concerning and treated as confidential by the Disclosing Party whether disclosed orally or disclosed, stored or accessed in written, electronic or other form or media (“Confidential Information“); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
7.2 If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For the purposes of this Section 5, Receiving Party shall mean the Receiving Party’s employees, officers, directors, shareholders, lawyers, accountants, contractors, subcontractors, agents and financial advisors.
8. Fees.
8.1 Fees. All fees for the Services are set forth in the Order Form (the “Fees”). Customer will pay Mindsec the Fees in accordance with the payment terms set forth in the applicable Order Form. Unless otherwise stated, all Fees are in Canadian dollars. All Fees are non-refundable.
8.2 Taxes. Customer shall be responsible for all goods and services tax, harmonized sales tax, provincial sales tax, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity or regulatory authority on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Mindsec’s income, revenues, gross receipts, personnel or real or personal property or other assets.
8.3 Payment. Unless otherwise specified in the Order Form, Customer shall pay all Fees within thirty (30) days after the date of the invoice. All late payments shall bear interest at the maximum legal rate.
8.4 No Deductions or Set-Offs. All amounts payable to Mindsec under this Agreement shall be paid by Customer to Mindsec in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason.
9. Disclaimer of Warranty.
9.1 DISCLAIMER OF CONDITIONS AND WARRANTIES. ALL SERVICES AND MINDSEC MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER AT CUSTOMER’S OWN RISK AND PERIL AND MINDSEC HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND MINDSEC SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING BY LAW, FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MINDSEC MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR MINDSEC MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (a) MEET THE REQUIREMENTS OF THE CUSTOMER, ANY SPECIFIC LAW OR REGULATIONS OR ANY OTHER PERSON; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; OR (d) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES. THE SERVICES ARE NOT, AND ARE NOT INTENTED AS, LEGAL ADVICE. ALL THIRD-PARTY LICENCES ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY LICENSES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY LICENSOR.
10.Indemnification
10.1 Mindsec Indemnification. Mindsec shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any claim, demand or lawsuit, (an “Action”) by a third party (other than an Affiliate of Customer) to the extent that such Losses arise from any allegation in such Action that Customer’s use of the Services (excluding Customer Data and Third-Party Licenses) in compliance with this Agreement infringes their Intellectual Property Rights protected in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
10.1.1 access to, or use of, the Services or Mindsec Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Mindsec;
10.1.2 modification of the Services or Mindsec Materials other than: (i) by or on behalf of Mindsec; or (ii) with Mindsec’s written approval in accordance with Mindsec’s written specification; or
10.1.3 failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Mindsec.
10.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Mindsec and its officers, directors, employees, agents, successors, and permitted assigns (each, a “Mindsec Indemnitee“) from and against any and all Losses incurred by such Mindsec Indemnitee in connection with any Action by a third party, including Third-Party Licensors (other than an Affiliate of Mindsec) to the extent that such Losses arises out of or relates to any:
10.2.1 Customer Data, including any Processing of Customer Data by or on behalf of Mindsec in accordance with this Agreement;
10.2.2 breach by Customer or Authorized Users of any Third-Party Licensor license agreement (EULA);
10.2.3 Customer or Authorized Users use of the Third-Party Licenses; or
10.2.4 allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.
10.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified. The Party seeking indemnification (the “Indemnitee“) shall cooperate with the other Party (the “Indemnitor“). The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11. Limitations of Liability.
11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL MINDSEC BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (d) BREACH OF DATA OR SYSTEM SECURITY; OR (e) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MINDSEC BE LIABLE FOR ANY DAMAGES WHASOEVER ARISING OUT OF OR CAUSED BY I) THE ACTS OR OMISSION OF A THIRD PARTY LICENSOR; II) THE CUSTOMER OR ANY AUTHORISED USERS; III) THE CUSTOMER DATA OR THE CUSTOMER SYSTEMS; OR ANY THIRD-PARTY LICENSES.
11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MINDSEC UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACTION. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Term
12.1 Term. This Agreement shall come into effect on the date of the first Order Form and shall continue until terminated in accordance with this Agreement. Each Service shall come into effect on the date stated in the applicable Order Form, and shall continue for the term of twelve (12) months unless stated otherwise in the Order Form (the “Initial Term”). Each Order Form shall automatically renew thereafter for successive twelve (12) months terms (“Renewal Terms“) unless a prior notice of not less than three (3) months is provided by either Party. The Initial Term and the Renewal Terms shall be collectively referred to as the “Term“.
13. Termination
In addition to any other express termination right set forth elsewhere in this Agreement:
13.1 Termination for Breach. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach:
13.1.1 is incapable of cure; or
13.1.2 being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
13.2 Immediate Termination. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
13.2.1 fails to pay its debts generally as they become due or otherwise acknowledges its insolvency;
13.2.2 makes a general assignment for the benefit of its creditors;
13.2.3 has issued against it a bankruptcy order or otherwise becomes subject to any involuntary proceeding under any domestic or foreign bankruptcy law;
13.2.4 commences or institutes any application, proceeding, or other action under any law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors, compromise of debts, or similar Laws, seeking: (A) to have an order for relief entered with respect to it; (B) to adjudicate it as bankrupt or insolvent; (C) reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or (D) appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator, or other similar official for it or for all or any substantial part of its assets.
13.3 Third Party Licensor Termination. In the event any agreement between Mindsec and a Third Party Licensor is terminated, in whole or in part, Mindsec may terminate this Agreement or any Order Form by providing a reasonable notice to Customer, but in no case a notice longer than the notice provided to Mindsec by the Third Party Licensor, without liability or further obligations.
13.4 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
13.4.1 all unpaid Fees shall be immediately due and payable without the benefit of any payment terms afforded by Mindsec;
13.4.2 all rights, licences, consents, and authorizations granted by either Party to the other hereunder will immediately terminate;
13.4.3 Mindsec shall immediately cease all use of any Customer Data and Customer’s Confidential Information and return, or at Customer’s written request, destroy all such Customer Data and Customer’s Confidential Information except as required by applicable law or as retained in its backups, archives, and disaster recovery systems until such information and data is deleted in the ordinary course provided such information and data will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
13.4.4 Customer shall immediately cease all use of any Services and Mindsec Materials and return, or at Mindsec’s written request, destroy all Mindsec Materials and Mindsec’s Confidential Information except as required by applicable law or as retained in its backups, archives, and disaster recovery systems until such information and data is deleted in the ordinary course provided such information and data will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; and
13.4.5 Mindsec may disable all Customer and Authorized User access to the Services and Mindsec Materials.
13.5 Customer Data upon Termination or Expiration. If Customer requests in writing at least sixty (60) days before the effective date of expiration or termination, Mindsec shall, within sixty (60) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Mindsec, provided that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination.
13.6 Survival. The rights and obligations of the Parties set forth in this Section 6, and Section 3 (Use Restrictions), Section 4 (Intellectual Property), Section 7 (Confidentiality), Section 9 (Warranty), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 13.4 (Effect of Termination or Expiration) and Section 14 (Miscellaneous) will survive termination or expiration of this Agreement.
14. Miscellaneous
14.1 Relationship of the Parties. 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.
14.2 Additional Terms and Conditions. Certain Services may be subject to additional terms and conditions of the Third Party Licensor as such may be provided by the Third Party Licensor from time to time, including without limitations, the end user licenses for the training platform and the compliance platform (collectively, the “Additional Terms and Conditions”). Any such Additional Terms and Conditions are integrated herein by reference and all references to the “Agreement” shall include all such Additional Terms and Conditions.
14.3 Entire Agreement. This Agreement and all Order Forms constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
14.4 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Mindsec’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any change in the Control of Customer will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Mindsec’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.4 is void. Mindsec may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).
14.5 Amendments and Modifications. Mindsec reserves the right at its sole discretion to revise and update this Master Service Agreement from time to time. Any and all such modifications are effective immediately upon posting and apply from such date onwards.
14.6 Waiver. 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.
14.7 Marketing. Customer hereby agrees that Mindsec may list Customer’s name and trademark in its client lists in Mindsec’s marketing material for all platforms (website, social media, articles, print material, etc).
14.8 Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent the performance is rendered impossible by acts beyond the impacted Party’s reasonable control, such as, without limitations, strike, fire, flood, governmental acts or orders or restrictions, acts of war, embargoes, telecommunication breakdowns, power outages or shortages, or other similar events beyond the reasonable control of the impacted Party.
14.9 Severability. 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.
14.10 Governing Law. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Quebec and elect domicile in the City of Montreal with respect to any matter relating to the execution or construction of the Agreement or the exercise of any right or the enforcement of any obligation arising hereunder.
14.11 Language. The Customer hereby confirms that prior to its acceptance of this Agreement it received a French version of this Agreement, and expressly requested and consented, and hereby expressly requests and consents, to have this Agreement and all documents relating hereto be in English. Le Client confirme avoir reçu la version française de la présente convention avant d’avoir accepté la version anglaise. Le Client confirme avoir expressément demandé et consenti, et demande et consent expressément par la présente, à ce que la présente convention, de même que tous les documents afférents, soient rédigés en anglais.