Terms and Conditions

These Master Terms and Conditions (the “Master Terms”) govern the provision, access and use of the Flinks Technology (as hereinafter defined) as provided by Flinks Technology Inc. (hereinafter “Flinks”) to Flinks’ clients (hereinafter the “Client”), as determined by Client’s applicable Order Form(s) (as hereinafter defined).

(Hereinafter individually a “Party” and collectively the “Parties”)

By accessing and using the Flinks Technology pursuant to any Order Form, Client agrees to be bound by and comply with these Master Terms. Any breach of these Master Terms may result in suspension and/or termination of Client’s access and/or use of the Flinks Technology and/or the End-Customer Data (as hereinafter defined).

1. DEFINITIONS

“Account” means a singular account accessed from a Data Source using a Set(s) of Credentials that an End-Customer has provided to Flinks through the Embedded Services.

“Affiliate” means, as to any entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity. For the purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests.

“Agreement” means, collectively, these Master Terms and any Order Form, Service Schedule, schedule and/or exhibit issued pursuant to the Master Terms.

“Aggregated Data” means Anonymized Data that has been combined with other datasets and which do not allow for the identification of Client, any Internal User nor any End-Customer.

“Anonymized Data” means (a) any data that does not identify Client, any Internal User or any End-Customer; and/or (b) any Personal Information that has undergone processes according to generally accepted industry standards which reasonably prevents an individual from being identified directly or indirectly.

“API” means application programming interface.

“Applicable Laws” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, official plans, permits, licenses, authorisations, directions, and agreements, by and/or with all governmental authorities, including any court order, that now or at any time hereafter may be applicable, and as amended or replaced from time to time, including Applicable Privacy Laws.

“Applicable Privacy Laws” means all Applicable Laws regarding data protection, personal information and privacy, and all applicable principles, guidelines and codes issued by a competent data protection authority to which any Flinks entity or any Client entity may be subject, including any amendments or successors thereto, by any country, state, or other jurisdiction.

“Audit Report(s)” shall have the meaning ascribed to it in Section 7.2a).

“Client Materials” shall have the meaning ascribed to it in Section 9.2.

“Client Service(s)” means a customer-facing product, software, application or service that (a) is detailed by the Client during its onboarding process; (b) is owned and operated by the Client; (c) is intended to be provided by the Client to an End-Customer; and (d) may involve the Processing of the Applicable End-Customer Data, including the access, collection and/or extraction of such through Flinks Connect, subject to the End-Customer’s Consent.

“Client System(s)” means Client’s information technology infrastructure, including the computer systems, computer programs, peripherals, terminals, communications equipment and all other related hardware and software and connectivity products owned by, leased by, used by or otherwise under the control of Client that are used by Client to consume the Services, including, but not limited to, the Client Service. Client System does not include the Flinks Technology.

“Confidential Information” shall have the meaning ascribed to it in Section 8.1.

“Connection Method” means the technological mechanism that may be made available by Flinks to or on behalf of Client to allow End-Customers to authenticate themselves using their Set(s) of Credentials and, ultimately, to connect their Account(s) with the Client Services.

“Connection Method Availability” means stable access by the End-Customer to the Connection Method without substantial degradation of responsiveness.

“Consent” means a specific and express consent that is informed, unambiguous and freely given through a clear and affirmative action and for specific purposes by an individual and on their own behalf. Silence, pre-ticked boxes and inactivity shall not constitute Consent.

“Data Access Method” means a data distribution channel(s) or method(s) that may be made available by Flinks to or on behalf of Client and through which Applicable End-Customer Data (as hereinafter defined) is transmitted to or on behalf of Client on a read-access basis.

“Data Source” means a single repository of information (e.g., an internet site, server or document, as applicable) from which information can be extracted by Flinks.

“Disclosing Party” shall have the meaning ascribed to it in Section 8.1.

“Documentation” means the specifications, instructions, guidelines, and documents detailing the functionalities of the Services, as provided by Flinks.

“Embedded Services” means the component(s) of Services embedded within the Client Services and visible to the End-Customer, including the Connection Method where applicable.

“Emergency Maintenance” means critical system changes that cannot wait for Scheduled Maintenance. These changes could destabilize the system if not addressed expeditiously.

“End-Customer” means a Person residing in the Territory that is a customer of both (i) a Person controlling a Data Source, and (ii) the Client.

“End-Customer Agreement” means valid and enforceable terms and conditions governing the access and use of the Client Services by End-Customers.

“End-Customer Complaint(s)” means any material complaints, inquiries, issues or disputes by an End-Customer with regard to the Client Services (including the Embedded Services and access of End-Customer Data, the End-Customer Agreement, the Privacy Notice and Consents) that is either lodged directly with the Client or directed to the Client by Flinks or any third party.

“End-Customer Data” means an End-Customer’s Personal Information, as provided by the End-Customer and/or retrieved by Flinks from a Data Source, excluding Set(s) of Credentials.

“Error(s)” shall have the meaning ascribed to it in Section 2.6.

“Fees” shall have the meaning ascribed to it in Section 13.1.

“Flinks Connect” means the technological mechanism made available by Flinks to Client to allow Client to access the Services, view Reports, and view End-Customer Data on an End-Customer by End-Customer basis, as applicable.

“Flinks Connect Availability” means stable access by the Client to Flinks Connect without substantial degradation of responsiveness.

“Flinks Material” means (a) all materials that Flinks provides to Client for Client’s use of the Services, including without limitation the Documentation; (b) and any and all data and information (i) relating to Flinks or the products and business operations of Flinks or any personnel or providers of Flinks, or (ii) relating to the performance or operations of Flinks’ systems, including the Flinks Technology and the Data Access Method (where appliable); and (c) any deliverables, interfaces, integrations, reports, data outputs, customizations, configurations and other materials created or developed in connection with or pursuant to the Agreement, whether by a Party jointly or alone.

“Flinks Technology” means the underlying technologies, including, without limitation, computer programs, works of authorship, know-how, inventions, processes, data, APIs, data feed format, software development kits, platforms, codes, algorithms and similar technologies, and technical specifications, information and tables, and all improvements, derivative works, updates, fixes and new releases thereof, which are used and made available by Flinks to provide the Services. For the avoidance of doubt, the Flinks Technology includes (i) the Connection Method, and (ii) where Client has been identified as eligible to access End-Customer Data through the “Data Access Method” in accordance with the terms and conditions set forth in the applicable Service Schedule, if any.

“Force Majeure Event” shall mean circumstances beyond the reasonable control of a Party which cannot be reasonably foreseen and is not caused by the negligence of this Party, including, but not limited to, an act of God, fire, flood, storm, epidemic, pandemic (excluding COVID-19 and any related consequences), revolution, act of terrorism, electric or network failure, riot or civil commotion (but excluding strikes and industrial disputes of a third party).

“Indemnified Party” shall have the meaning ascribed to it in Section 11.1a).

“Indemnifying Party” shall have the meaning ascribed to it in Section 11.1a).

“Individual Privacy Rights” any of individuals’ privacy rights over their Personal Information under Applicable Privacy Laws, including, but not limited to, the right to access and the right to correct such Personal Information.

“Intellectual Property” means any and all intellectual property, including but not limited to works, inventions (whether patentable or not), discoveries, improvements, trade secrets, know-how, scientific formulae, data, information, images, reports, results, analysis, software, models, research and development information, technical information, prototypes, specifications, patterns, drawings, algorithms, products, compositions, processes and protocols, methods, tests, devices, computer programs, trademarks and any and all proprietary rights provided under patent law, copyright law, trademark law, design patents or industrial design law, semiconductor chip or mask work law, or any other statutory provision or civil or common law principle applicable to the protection of intangible proprietary information or rights, including trade secret law, which may provide a right in any of the foregoing as well as any and all applications, registrations or other evidence of a right in any of the foregoing.

“Internal User” means Client Personnel accessing Flinks Connect from time to time.

“Licensed Party” shall have the meaning ascribed to it in Section 9.3.

“Marks Owner” shall have the meaning ascribed to it in Section 9.3.

“Order Form” means an order form issued pursuant to these Master Terms, which i) includes at least one (1) Service Schedule, and ii) has been duly executed between the parties.

“Order Form Effective Date” means the date determined in Client’s applicable Order Form(s).

“Permitted Use of End-Customer Data” has the meaning ascribed to it in Section 5.2.

“Permitted Use of Services” has the meaning ascribed to it in Section 3.1.

“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government authority.

“Personal Information” means any information that would meet the definition of “personal information”, or of a similar nomenclature under Applicable Privacy Laws.

“Personnel” means employees, contractors, consultants or any other individuals employed or engaged by the applicable entity.

“Personal Information” means any information that would meet the definition of “personal information”, or of a similar nomenclature under Applicable Privacy Laws.

“Privacy Notice” means privacy notices, disclosures, and policies that accurately and clearly describe the Processing of Personal Information in connection with a Client Service and the Services, the whole in full compliance with Applicable Privacy Laws.

“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, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy.  For greater certainty, “Processing” and “Processed” shall have correlative meanings.

“Receiving Party” shall have the meaning ascribed to it in Section 8.1.

“Renewal Service Term” shall have the meaning ascribed to it in Client’s applicable Order Form(s).

“Reports” means the reports generated by the provision of Services by Flinks to Client from time to time.

“Scheduled Maintenance” means system/software/ Service maintenance that is scheduled to fix non-critical errors and implement system/software/Service changes. These are primarily scheduled during weekend off hours.

“Security Breach” means: (a) any act or omission that compromises or adversely affects the security, confidentiality, integrity and/or availability of any End-Customer Data, Flinks Material or Flinks Technology, including the Data Access Method where applicable to Client, or any Client System; and/or (b) the actual or reasonably suspected theft, loss, or unauthorized disclosure, acquisition, destruction, alteration, processing, access to, or misuse of any Flinks Material or End-Customer Data.

“Security Standards” shall have the meaning ascribed to it in Section 7.2a).

“Service(s)” shall have the meaning ascribed to it in Section 2.1.

“Service Schedule” means a schedule to an Order Form which i) sets forth Services to be provided pursuant to these Master Terms, ii) certain rights and obligations of either party in relation to such Services, and iii) the Fees for such Services.

“Set(s) of Credentials” means the username, online ID (or other user ID), passcode, password, challenge question and answer pairs, authentication token, or other identity confirmation information (provided by End-Customers) that are necessary for End-Customers to directly access their Account(s) and End-Customer Data at, through, or from a Data Source.

“Severity Levels” shall have the meaning ascribed to it in Schedule A to these Master Terms.

“Term” shall have the meaning ascribed to it in Section 4.1.

“Territory” means the territory of Canada and/or the United States of America, as determined in the Client’s Order Form(s), within which the Services may be used and deployed by Client.

“Trademarks” means a Person’s distinctive logos, names, brands, product names, phrase, word or symbol, whether trademarked or not.

2. THE SERVICES

2.1 Service Description

Flinks shall provide Client with the services, as more fully set forth in an Order Form and related Service Schedule(s) pursuant thereto (the “Services”).

2.2 Service License

Flinks hereby grants to Client, in the Territory, a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to:

1. integrate and display the Services and the Flinks Technology as necessary for Client to receive and use the Services in accordance with the terms of the Agreement; and
2. integrate and display the Services and the Flinks Technology as necessary for Client to receive and use the Reports and the Documentation in accordance with the Permitted Use of Services.

2.3 Hosting

The Parties agree and acknowledge that Client is solely responsible for providing, operating, maintaining and hosting the Client Services and the Client Systems. The Services and the Flinks Technology are hosted by Flinks.

2.4 Testing and Integration

As part of the Services, Flinks provides Client with access to a sandbox environment to configure and test the Services. The end-to-end integration requires Client-side and server-side configurations. Client may also develop a custom integration of the Services within the Client Services. Flinks shall have no liability whatsoever for such testing and integration if not done in accordance with the Documentation. Client agrees and understands that the sandbox must be used for testing and does not constitute a production environment. Prior to going into production, Client shall submit the sandbox integration for review by Flinks’ integration team. Flinks may reject any integration which is not secure, in violation of the Agreement or Applicable Laws, at its sole reasonable discretion, in which case, the Client shall submit a new integration workflow. This approval and refusal authority shall not create any liability for Flinks to find any possible issues, and Flinks’ approval shall not be considered as a warranty that the production environment will not contain any bugs, issues, or vulnerabilities.

2.5 Operation Metrics

Connection Method Availability and Flinks Connect Availability are monitored on a 24/7 basis and assessed on a monthly basis. Flinks commits to deploy its best efforts to ensure 99% Connection Method Availability and Flinks Connect Availability, excluding Scheduled Maintenance, Emergency Maintenance and any Data Source malfunction outside of Flinks’ control.

2.6 Technical Support

In the event that any bugs, defects, delays, hindrances, or other errors (collectively, “Errors”) occur, Client will report the Error to Flinks in accordance with the Severity Levels (to be reasonably determined by Client) as set forth in Client’s applicable Service Schedule. Flinks commits to deploy its best efforts to respond to an Error, depending on the Severity Level, within the time frames set forth in such Service Schedule, starting from the time Client notifies Flinks of the Error.

2.7 Limitations on License

Notwithstanding anything to the contrary hereunder in any Order Form or related Service Schedule issued pursuant hereto, Client shall not distribute, re-distribute, white label, co-brand, and or sub-brand the Services or Flinks Technology to any third party in any manner, including, without limitation, as an integrated service with any Client Service and/or the Client Systems. Except as provided herein, no license under any patents or other intellectual property rights, express or implied, are granted by Flinks to Client under the Agreement. Any logos shown via the Embedded Services are for display purposes only, and Flinks makes no representations with respect to the use of such logos.

3. USE OF SERVICES

3.1 Permitted Use

Subject to the terms of the Agreement (including the onboarding process and the suspension and termination provisions herein), Flinks permits Client, and Client agrees, to access and use (and allow, authorize, encourage, aid or attempt the access and use of the Services solely:

1. in accordance with the Agreement, Applicable Laws, the Documentation and the End-Customer Agreement;
2. as necessary to develop the Client Services to interoperate with the Services; and
3. as necessary for lawful, legitimate, and internal Client’s purposes of requesting, collecting, retrieving, and/or accessing the End-Customer Data for Client’s Permitted Use of End-Customer Data (as defined in Section 5.2 to these Master Terms).

(the “Permitted Use of Services”).

4. TERM AND TERMINATION

4.1 Term

The term of these Master Terms shall take effect as at the effective date of an applicable Order Form between the Parties and continue until all applicable Order Forms between the parties have been terminated or have otherwise expired (the “Term”).

4.2 Termination

1. Either party may terminate the Master Terms or any individual Order Form upon thirty (30) days’ prior written notice to the other party where such other party breaches any of its material obligations hereunder, and such breach is not cured, or is incapable of being cured, within the foregoing thirty (30) day notice period. Notwithstanding the foregoing, where Client is domiciled in the Province of Quebec, the Parties waive application of Art. 2125 and 2126 C.c.Q in relation to the Agreement.
2. Either party may terminate the Agreement or any individual Order Form forthwith:
   • if there is an inaccuracy or misrepresentation in any representation or warranty of the other party in the Agreement;
   • if any act of insolvency occurs in respect of the other party, or if such other party ceases or threatens to cease to carry on business generally, or admits its inability to pay or fails to pay its debts generally; or
3. Notwithstanding anything else to the contrary in the Agreement, Flinks shall have the right to suspend and/or terminate Client’s access and/or use of the Flinks Technology or the End-Customer Data in the case of a violation of these Master Terms by Client.

4.3 Effect of Termination

Upon the expiration or termination of this Master Terms or any Order Form for any reason: (a) Client will immediately pay to Flinks the unpaid amount accrued for the Services provided to Client by Flinks up to and including the expiry or termination date; (b) any outstanding amount shall automatically be due and payable by Client to Flinks as at the date of termination, and all licenses, rights and authorizations granted under the terminated Order Form(s) will cease unless expressly stipulated otherwise; and (c) End-Customer Data will be deleted in the normal course of Flinks operations, provided however that Flinks reserves the right to preserve End-Customer Data if required to resolve a dispute or assert or defend any claim.

5. DATA ACCESS AND USE OF END-CUSTOMER DATA

5.1 Data Sources

All Data Sources that are generally available to all Flinks clients operating exclusively in the Territory will be available to Client. Flinks will be entitled to remove any Data Source from the Services for any reason in its reasonable discretion.

5.2 Client Permitted Use of End-Customer Data

Flinks permits Client, and Client agrees, to access and use (and allow, authorize, encourage, aid or attempt the access and use of) the End-Customer Data solely:

1. in accordance with the Agreement, Applicable Laws, the Documentation, the applicable End-Customer Agreement(s) and the applicable Privacy Notice(s);
2. within the scope of the Consent that the Client obtained from the End-Customer(s) to which the End-Customer Data relates prior to Client’s use of the Services in respect of such End-Customer(s); and
3. as reasonably necessary for lawful, legitimate, and internal purposes of Client to provide such End-Customer with any applicable Client Service(s);

(the “Permitted Use of End-Customer Data”)

Client further acknowledges and agrees that any use of End-Customer Data that is not a Permitted Use of End-Customer Data is strictly prohibited.

6. PRIVACY AND END-CUSTOMER DATA

6.1 Compliance

Each Party will only Process Personal Information in compliance with Applicable Privacy Laws and any agreement between Client and End-Customer. The Parties agree to cooperate to enter into any appropriate agreements relating to new Applicable Privacy Laws as and when they apply, including data processing agreements between the Parties and their applicable Affiliate(s). Client shall cooperate with Flinks with respect to any registrations, filings or responses for applicable governmental organizations, data protection authorities, data protection working groups or commissions, works councils, or other third party obligations and requests related to the Services.

6.2 Client Systems

Client will procure, implement and maintain the Client Systems required to access and use the Services. Client will ensure that all Client Systems are compatible and operate optimally with Services (including without limitation the Connection Method, and where applicable, the Data Access Method, including any updates and replacements thereto). Flinks will not be responsible for any integration and compatibility issues, and non-compliance with any Applicable Laws, including fines and related costs and expenses, associated with Client’s use of the Services, or the operation or functionality of the Client Systems.

6.3 End-Customer Data

Although Flinks may hereunder impose upon Client certain conditions and parameters to ensure lawful access and use of its Services and the End-Customer Data, Client acknowledges and agrees that (a) Flinks does not exert any control over, nor does it manage and/or manipulate in any fashion, any End-Customer Data within the Client System, or otherwise within Client’s possession; and (b) consequently, Client shall be solely responsible and liable for all Processing of such End-Customer Data once it has been provided to Client in accordance with the terms of the Agreement.

6.4 End-Customer Agreement

Client shall be solely responsible for entering into valid and enforceable End-Customer Agreements with End-Customers or prospective End-Customers that comply with all Applicable Laws and that govern the performance and use of the Client Services (including the underlying Services). Client shall not make any representation, warranty, or other statements with respect to End-Customer Data that are contrary or otherwise inconsistent with the Documentation. All End-Customer Agreements shall provide:

1. that Client is acting independently and that no Flinks entity has any responsibility or liability with respect to the Client Services;
2. for an acknowledgement by End-Customers that Flinks is not liable for any Processing of the End-Customer Data made by Client or on its behalf (or any unauthorized access, use or disclosure of such End-Customer Data while in the possession or control of Client) or any misleading representation related thereto made by Client;
3. that the End-Customer Data does not represent an official record of the End-Customer’s Account;
4. that the End-Customer agrees to bring any claim in relation to any of the foregoing directly against Client and to waive End-Customer’s right to bring a claim related to any of the foregoing against any Flinks entity;
5. for a grant of all licenses and rights as required for Flinks to perform all applicable End-Customer Data Processing contemplated in Section 6.3; and
6. for Client’s right to terminate the Client Service at any time.

6.5 Privacy Notice and Consent

Client shall be solely responsible to provide Privacy Notices and other clear and conspicuous disclosures to, and obtain all Consents from End-Customers and prospective End-Customers, that comply with all Applicable Laws and that covers how End-Customer Data is Processed by and on behalf of the Parties in connection with the Client Services (including the underlying Services), including with respect to any derivatives, compilations or combinations of End-Customer Data. Client shall not make any representation, warranty, or other statement or disclosure with respect to End-Customer Data that are contrary or otherwise inconsistent with the Documentation.

6.6 Records

Client shall create and maintain records and copies of Consents, Privacy Notices and End-Customer Agreements, the time of acceptance thereof, and the scope and effective date (and, if applicable, expiration/termination dates) thereof.

6.7 End-Customer Issues and Complaints

Client shall be solely responsible for (a) establishing and making available to End-Customers a process for receiving and dealing with all End-Customer Complaints; and (b) managing and resolving any and all End-Customer Complaints. Client shall immediately notify Flinks in writing of any End-Customer Complaints that relate directly or indirectly to End-Customer Data, the Services or the Flinks Technology. Flinks will have the right to (c) request and receive any further information about the End-Customer Complaints or their handling by the Client; and (d) engage with the End-Customer directly regarding any End-Customer Complaints that relate directly or indirectly relate to End-Customer Data, the Services, or the Flinks Technology.  

6.8 Individual Privacy Rights Requests

Each Party shall deploy adequate technical and organizational safeguards as reasonably required to assist the other Party in responding to any Individual Privacy Rights request in accordance with Applicable Privacy Laws and in a timely manner. If Flinks receives an Individual Privacy Rights request from an End-Customer in respect to their Personal Information, Flinks will not respond to that Individual Privacy Rights request except upon the documented instruction of the Client, or as required to comply with Applicable Laws, and shall transmit such Individual Privacy Rights request to the Client without undue delay for which Client shall be responsible for response. Flinks shall comply with any reasonable request by Client to assist with Client’s response to such Individual Privacy Rights request.

7. SECURITY

7.1 Reasonable Safeguards

Each Party shall deploy appropriate technical and organizational safeguards to ensure the confidentiality, integrity and availability of End-Customer Data, taking into consideration the nature, scope, context, purpose and risks inherent to End-Customer Data. Without limiting the generality of the foregoing, each Party shall (a) encrypt all End-Customer Data at rest with AES 256 bit encryption; (b) use HTTPS 256-bit encryption (TLS 1.2, or such cryptographic protocol equivalent to, or exceeding, the functionality of same) for communication protocols for End-Customer Data in transit; d) enforce access controls on a need-to-know basis and following the principle of least privilege; e) provide its Personnel with information security awareness and training.

7.2 Security and Attestation

1. Flinks shall at all times maintain and operate the Flinks Technology in such a way as to enable Flinks to obtain an unqualified ISO 27001 (or any successor information security standards) (the “Security Standards”) and SOC 2 Type II (or any successor authoritative guidance for reporting on service organizations) audit report (each an “Audit Report”, and collectively as “Audit Reports”) from Flinks’ appointed third party auditor. Flinks will be considered to have obtained an unqualified Audit Report if an independent auditor performs an examination in accordance with ISO 27001 (or any successor information security standards) and SOC 2 Type II (or any successor authoritative guidance for reporting on service organizations) and opines that: (i) Flinks’ description of its controls accurately presents, in all material respects, the relevant aspects of Flinks’ controls that have been placed into operation as of a specific date; (ii) the controls are suitably designed to achieve the specified control objectives, and; (iii) the controls that were tested were operated with sufficient effectiveness as to provide reasonable assurance that the control objectives were achieved during the specified period. Flinks shall participate in one (1) SOC 2 Type II (or any successor authoritative guidance for reporting on service organizations) audit each calendar year. The full copy of each resulting Audit Report shall be made available to Client upon reasonable written request for such Audit Report by Client.
2. Client shall at all times maintain and operate the Client System in such a way as to enable Client to obtain Audit Reports from a a third-party auditor. Client will be considered to have obtained an unqualified Audit Report if an independent auditor performs an examination in accordance with the Security Standards and SOC 2 Type II (or any successor authoritative guidance for reporting on service organizations) and opines that: (i) Client’s description of its controls accurately presents, in all material respects, the relevant aspects of Client’s controls that have been placed into operation as of a specific date; (ii) the controls are suitably designed to achieve the specified control objectives, and; (iii) the controls that were tested were operated with sufficient effectiveness as to provide reasonable assurance that the control objectives were achieved during the specified period. Client shall participate in one (1) SOC 2 Type II (or any successor authoritative guidance for reporting on service organizations) audit each calendar year. The full copy of each resulting Audit Report shall be made available to Flinks upon reasonable written request for such Audit Report by Flinks.  

7.3 Security Breach of Flinks Services

In the event of a Security Breach of the Services or other material cause for reasonable concern about security as related to the Services, Flinks will use best efforts to inform Client within forty-eight (48) hours of such event being known by Flinks, of the breach or cause for concern. Flinks shall cooperate with Client in the investigation and provide all necessary material related to Client and Client Services to satisfy Client’s investigation and resolution process. Flinks shall provide reasonable access to information reasonably required by Client and will make Personnel available to the extent reasonably necessary to answer questions or otherwise assist Client in determining the impact to the Services and the Client. At conclusion of incident, Flinks shall provide a written summary of the incident to Client.

7.4 Security Breach of Client System

In the event of a Security Breach of the Client Systems or other material cause for reasonable concern pertaining to Client’s security protocols in relation to Client’s use of the Services, Client will use best efforts to inform Flinks, within forty-eight (48) hours of such event being known by Client, of the breach or cause for concern. Client shall provide reasonable access to information reasonably required by Flinks and will make Personnel available to the extent reasonably necessary to answer questions or otherwise assist Flinks in determining the impact to the Services. All information exchanged in connection with this activity shall be deemed to be the Confidential Information of the Disclosing Party. In the event of a Security Breach of the Client’s site, or other material cause for reasonable concern about security, reported and confirmed by Client, Flinks reserves the right to suspend the Services upon written notice to Client until Flinks has reasonably determined that the incident does not pose a security or reputational risk to Flinks. Client will not be responsible for any charges or fees during the period of such Services suspension. If Client and Flinks are unable to agree on reinstatement of the Services, Client and Flinks shall have the right to immediately terminate all or part of the Services or the Agreement for convenience without cost or penalty.

8. CONFIDENTIALITY

8.1 Obligations

The Receiving Party shall only use the Confidential Information of the Disclosing Party for the purposes set forth in the Agreement and shall protect such Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care and confidentiality, which the Receiving Party utilizes for its own Confidential Information, and in compliance with the Agreement. The Receiving Party shall take commercially reasonable steps as necessary to prevent the unauthorized access and disclosure of the Disclosing Party’s Confidential Information, such as enforcing access on a need-to-know basis.“Confidential Information” means any and all information of a party (the “Disclosing Party”) which has or will come into the possession of the other Party (the “Receiving Party”) concerning the business, properties, affairs or finances of the Disclosing Party, including, but not limited to, proprietary information and trade secrets, Personal Information, or anything that would reasonably be understood to require handling as Confidential Information. Confidential Information does not include information that (i) is, or becomes, generally available to the public through no act or failure to act of Receiving Party, (ii) is already known by the Receiving Party at the time of receipt, (iii) was provided to Receiving Party by a third party that Receiving Party could not reasonably have known to be bound by an obligation of confidentiality to Disclosing Party, and (iv) is independently developed by Receiving Party without use of, or reference to, the Confidential Information.

8.2 Permitted Disclosure

The Receiving Party shall be authorized to disclose the Confidential Information to its Affiliates, third-party service providers, auditors and consultants as necessary to perform the Services for legal reasons, or as required for reasonable operational efficiency. The Receiving Party shall ensure that all such recipients are under an appropriate confidentiality obligation or undertaking, such as attorney-client privilege. The Receiving Party shall also be allowed to disclose Confidential Information if approved in writing by the Disclosing Party. The Receiving Party shall be authorized to disclose Confidential Information if required by Applicable Laws, or by the administration thereof, including through warrants and subpoenas. In the event such disclosure is required, and if permitted by Applicable Laws, the Receiving Party shall advise the Disclosing Party prior to making such disclosure and give the Disclosing Party a reasonable chance to contest the requested legal disclosure, unless such delay would put the Receiving Party in breach of Applicable Laws. In any case, the Receiving Party shall not disclose more Confidential Information than it is required to do under Applicable Laws, or the administration thereof.

8.3 Termination

Upon termination or expiry of the Agreement for any reason, the Receiving Party shall, at the Disclosing Party’s option, (i) return the Confidential Information without undue delay and/or (ii) securely destroy the Confidential Information without undue delay, and in accordance with industry’s best standards. Upon request, the Receiving Party shall confirm in writing that the Confidential Information has been returned and/or deleted. Notwithstanding the foregoing, the Receiving Party is authorized to keep a copy of the Confidential Information as required for business continuity purposes, pursuant to internal retention schedules, and for legal, auditing or financial reasons.

9. INTELLECTUAL PROPERTY

9.1 Flinks Intellectual Property

Client understands and agrees that Flinks shall be the exclusive owner of its Intellectual Property, including without limitation the Services, the Flinks Technology, the Flinks Material, and the Aggregated Data, and shall retain all right, title and interests therein and thereto.

9.2 Client Intellectual Property

Flinks understands and agrees that Client shall be the exclusive owner of its Intellectual Property, including Client Services, all HTML templates and all other text, data images, design, structure, graphic images, any audio, video and audiovisual material, Trademarks, and other materials provided by Client to Flinks (collectively “Client Materials”), and retains all right, title and interest thereto.

9.3 Trademarks

Each Party (the “Licensed Party“) agrees that, with respect to its use of the other Party’s (the “Marks Owner“) Trademarks provided or otherwise identified by the Marks Owner for the Licensed Party’s use: (a) as between the Parties, all rights in and to such Trademarks are owned by the Marks Owner, (b) the Licensed Party will do nothing inconsistent with such ownership, (c) all uses of such Trademarks will inure to the sole benefit of and be on behalf of the Marks Owner, (d) it will use the Marks Owner’s Trademarks in accordance with any guidelines for the use of such Trademarks as provided by the Marks Owner from time to time, (e) it will not alter any such Trademarks and will use only exact reproductions thereof as supplied by the Marks Owner, and (f) at the Marks Owner’s reasonable request, all depictions of such Trademarks which the Licensed Party intends to use will be submitted to the Marks Owner for approval of design, color, or other details.

9.4 No Other Rights or Licenses

Except as specifically provided herein, Client does not grant to Flinks any right or license, express or implied, regarding Client’s Intellectual Property. Except as specifically provided herein, Flinks does not grant to the Client any right or license, express or implied, regarding Flinks’ Intellectual Property.

10. REPRESENTATIONS AND WARRANTIES

10.1 Mutual Representations and Warranties

Each Party represents and warrants to the other that: (a) it has the full power and legal authority to enter into these Master Terms and any applicable Order Form and perform its obligations hereunder and the consent of a third party is not necessary for the Agreement to be binding on the Parties (except as set forth in these Master Terms regarding Personal Information); (b) is licensed to operate its business in the manner contemplated herein and (c) each person signing the Master Terms and any applicable Order Form on behalf of an entity is duly authorized to bind such entity.

10.2 Flinks Services

Flinks represents and warrants that the Services will be performed in a professional manner, in material accordance with industry standards, the Documentation, and all applicable service schedules made between the Parties pursuant hereto. In case of a breach of this Section 10.2, Client’s sole remedy shall be for Flinks to re-perform the Services at no additional cost to Client.

10.3 Client

In addition to the other representations and warranties made under these Master Terms and any applicable Order Form, Client represents and warrants that: (a) it has obtained and will obtain all necessary third-party permissions, licences and consents (including all End-Customers’ Consents) and made all required acts to allow Flinks to perform the Services, including to access the Client Systems and for Processing of Personal Information made by any of the Parties for the purpose of these Master Terms and any applicable Order Form; (b) Client, including its use of the Services, is and will remain in compliance with Applicable Laws, including Applicable Privacy Laws; (c) the Client Materials do not infringe on any Intellectual Property of any third party; and (d) it has not violated, and will not violate, any Applicable Laws, Documentation or other Flinks policies of which Client has been given prior written notice, including these Master Terms and any applicable Order Form; (e) it will implement reasonable technical security controls such as anti-virus or other endpoint detection and response solutions; (f) it will prevent the introduction or proliferation of any computer virus, worm, Trojan horse, malicious software or any other contaminating or destructive feature into the Flinks Technology and any other systems used in connection with the provision of the Client Services; (g) it will not (i) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the Flinks Technology, (ii) make the Flinks Technology or the End-Customer Data  available to any third parties other than as expressly permitted in these Master Terms and any applicable Order Form, (iii) modify, adapt, translate or create derivative works based on the Flinks Technology as may be expressly permitted by these Master Terms and any applicable Order Form, (iv) reproduce any portion of the Flinks Technology except as expressly permitted herein, or (v) permit or authorize any party to do any of the foregoing; and (h) it will cause the Client Services and Client Systems to be integrated and compatible with the Services for the purposes of these Master Terms and any applicable Order Form.

11. INDEMNIFICATION

11.1 Mutual Indemnification

1. Each Party (the “Indemnifying Party”) shall defend, indemnify and hold the other Party (the “Indemnified Party”) harmless from and against any and all losses, liabilities, suits, claims, damages, fees, and expenses (including, but not limited to, court costs and reasonable attorneys’ and expert witness fees) of whatever kind or nature which may arise out of or be in any way connected with or is alleged to arise out of or be connected with a breach of the Indemnifying Party’s representations, warranties, obligations, covenants or agreements contained in the Agreement.
2. The Indemnifying Party, at its own expense, will defend or at its option settle, any claim, suit or proceeding brought against the Indemnified Party by a third party, and will pay any damages, costs and liability (including reasonable legal fees) arising out of or resulting from (a) a claim of infringement of any trade secret or copyright, patent, or Trademark of any third-party to the extent attributable to any services, solutions, information or technology provided by the Indemnifying Party, (b) any use, sale, license, distribution or disclosure of End-Customer Data by the Indemnifying Party in violation of the Agreement, except for any disclosure of End-Customer Data resulting from a Security Breach, provided that Indemnifying Party has adhered to the reasonable safeguards set forth in Section 7 hereto; (c) any material Security Breach resulting in the unauthorised access to, or use, modification, destruction, or a disclosure of, End-Customer Data, to the extent such Security Breach results from the Indemnifying Party’s failure to adhere to the Security Standards; and (d) the Indemnifying Party’s failure to comply with Applicable Laws, rules and regulations; provided that in each case the Indemnified Party provides the Indemnifying Party with, unless prohibited by law: (i) prompt written notice of such claim, (ii) exclusive control over the defense and settlement of such claim, except any settlement that includes any form of admission of fault by the Indemnified Party, which shall be subject to the Indemnified Party’s prior written consent, which may be withheld by the Indemnified Party at its sole discretion, and (iii) proper and full information and assistance to settle or defend any such claim. Notwithstanding the above, the Indemnifying Party assumes no liability for infringement claims that would not have arisen but for the combination of the Indemnifying Party’s services, solutions, information or technology with services, solutions, information or technology not provided by the Indemnifying Party.

11.2 Additional Remedies

Should any use of the Flinks Technology or the Services be enjoined, or if Flinks reasonably believes that the Flinks Technology or the Services may be subject to an infringement claim, then Flinks may, at its sole option and expense: (a) procure the right to use the Services as provided for in the Agreement, (b) replace the Services with other non-infringing services with equivalent functionality, (c) suitably modify the Services such that they do not infringe, or (d) if Flinks determines that none of the foregoing is commercially feasible, terminate the Agreement.

11.3 Sole Remedy

THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF THE INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTY, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS UNDER THE AGREEMENT.

12. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

12.1 Disclaimer of Warranties

1. EXCEPT FOR FLINKS’ COMMITMENT TO PROVIDE THE SERVICE(S) IN ACCORDANCE WITH THE SERVICE LEVELS, FLINKS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES, AND FLINKS SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FLINKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
2. FLINKS IS IN NO WAY RESPONSIBLE, AND SHALL NOT BE LIABLE, FOR THE COLLECTION, PROCESSING, OR MANAGEMENT OF, AND/OR CONTROL OVER, ANY END-CUSTOMER CONSENT OR PRIVACY NOTICE REQUIRED PURSUANT TO APPLICABLE PRIVACY LAWS.
3. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS AND EXCEPT AS SET FORTH IN THE AGREEMENT, FLINKS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES FLINKS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS PROVIDED IN THE AGREEMENT, THE SERVICES, THE DOCUMENTATION, THE FLINKS TECHNOLOGY AND ANY OTHER COMPONENTS OF THE SERVICES ARE PROVIDED TO CLIENT “AS IS”, “WHERE IS” AND “AS AVAILABLE”. FOR THE AVOIDANCE OF DOUBT, FLINKS AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR CLIENT SYSTEMS. IF ANY THIRD-PARTY CONTENT IS PROVIDED AS PART OF THE SERVICES BY FLINKS, THE SUPPORTED THIRD-PARTY CONTENT IS PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE”.
4. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, CLIENT AGREES AND ACKNOWLEDGES THAT FLINKS IS NOT RESPONSIBLE FOR THE INTEGRITY OF END-CUSTOMER DATA AND CLIENT MATERIALS COLLECTED OR USED AS PART OF THE SERVICES OR PURSUANT TO THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS COMPLETENESS, LAWFULNESS, ACCURACY AND VALIDITY. FLINKS AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR THE END-CUSTOMER DATA AND CLIENT MATERIALS THAT ARE PROCESSED THROUGH THE SERVICES, EXCEPT AS SET FORTH IN THE AGREEMENT. FOR THE AVOIDANCE OF DOUBT, FLINKS AND ITS AFFILIATES SHALL HAVE NO RESPONSIBILITY WHATSOEVER (I) IF CLIENT FAILS TO COMPLY WITH APPLICABLE PRIVACY LAWS, INCLUDING TO PROVIDE ALL PRIVACY NOTICES TO, AND OBTAIN ALL CONSENTS FROM, END-CUSTOMERS; (II) IF CLIENT DOES NOT COMPLY WITH THE DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ANY INSTRUCTIONS REGARDING THE IMPLEMENTATION OF THE FLINKS TECHNOLOGY; (III) IF CLIENT’S USE OF END-CUSTOMER DATA IS NOT COMPLIANT WITH APPLICABLE LAWS, THE AGREEMENT, APPLICABLE PRIVACY NOTICES AND APPLICABLE CONSENTS; AND (IV) FOR ANY MODIFICATION, ALTERATION OR CUSTOM IMPLEMENTATION, WORK OR AGGREGATION WITH THE FLINKS TECHNOLOGY WHICH HAVE NOT BEEN PERFORMED BY FLINKS AS PROFESSIONAL SERVICES OR DULY RECOMMENDED AS PART OF THE DOCUMENTATION. FOR THE AVOIDANCE OF DOUBTS, CLIENT IS SOLELY RESPONSIBLE FOR DETERMINING IF THE NATURE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS RELATING TO THE INTENDED USE OF SAME BY CLIENT.

12.2 No Consequential Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY (INCLUDING ITS AFFILIATES, EMPLOYEES, DIRECTORS, SHAREHOLDERS AND AGENTS) BE LIABLE TO THE OTHER PARTY (INCLUDING ITS AFFILIATES, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AND AGENTS OR TO ANY OTHER ENTITY FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, COSTS OF COVER, OR OTHER SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, HOWSOEVER CAUSED, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SAME, AND WITHOUT REGARD TO THE NATURE OF THE CLAIM, OR UNDERLYING THEORY OR CAUSE OF LIABILITY OR ACTION.

12.3 Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY UNDER OR ARISING OUT OF THE AGREEMENT WILL BE LIMITED TO THE AGGREGATE AMOUNTS PAID OR DUE AND OWING BY CLIENT TO FLINKS HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE ORIGINATION OF THE CLAIM ASSERTING LIABILITY. THE FOREGOING LIMITATIONS OF THIS SECTION 12 WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. FEES, INVOICING AND PAYMENT

13.1 Fees

Client agrees to pay Flinks fees for the Services as set forth in each applicable Order Form executed between the Parties in accordance with the payment terms set forth in each applicable Service Schedule, along with any taxes which Flinks is required to collect pursuant to Applicable Laws (the “Fees”). Flinks reserves the right to increase any Fee by not more than 5% once annually at the commencement of each Renewal Service Term.

13.2 Invoices

The Fees are invoiced monthly for the Services performed during the previous month. For recurring monthly Services, the Fees are invoiced after the first month of each applicable Term for Services and following each month thereafter. The payment for each invoice is due within thirty (30) days of the invoice date. Invoices shall be provided to Client representative set forth in the applicable Order Form(s). Client shall pay the Fees by electronic fund transfer in accordance with the instructions on the invoice, or by credit card if authorized by Flinks. In case of a payment by credit card, Client hereby authorizes Flinks to collect the Fees on the credit card and represents and warrants being authorized to use this credit card. Except as set forth in the Agreement, the Fees are non-reimbursable.

13.3 Late Payment

If Client fails to make payment when due, Client shall pay Flinks a late payment charge equal to one and one half percent (1.5%) monthly and eighteen percent (18%) annually for any such late Fees, and until such Fees are paid and received in full by Flinks, together with all applicable late payment charges accrued. Client shall also be responsible for any reasonable fees related to the collection of late Fees, including, without limitation, reasonable attorney and accounting fees. If the Fees are not paid within forty-five (45) days of Client’s receipt of Flinks’ invoice, Flinks shall have the right to issue a notice of non-payment to Client. If the Fees are not paid within the subsequent fifteen (15) day period, Flinks may, at its sole discretion, suspend the provision of the Services, until all Fees and late payment charges have been paid in full by Client. Client shall remain responsible for the Fees during the suspension of the Services as if the Services continued to be delivered in accordance with the Agreement. Upon receipt of all outstanding Fees and associated late payment charges, Flinks shall resume provision of the Services within forty-eight (48) hours.

14. MISCELLANEOUS

14.1 Notices

Notices sent pursuant to the Agreement will be sent to each Party’s representative as identified in any applicable Order Form(s). Notices may be sent by e-mail, in which case, an e-mail will be deemed received on the business day immediately following such email’s send date. Notices may alternatively be sent in writing, and shall be delivered personally or sent by certified, registered or express mail, postage prepaid or overnight courier (provided evidence of receipt can be verified).

14.2 No Third-Party Beneficiaries

Nothing express or implied in the Agreement is intended to confer, nor will anything herein confer, upon any person other than the Parties hereto and their respective permitted successors and assigns, any rights, remedies, obligations or liabilities whatsoever.

14.3 Publicity

• With Client’s prior written consent, which may not be unreasonably withheld, Flinks may i) publish a press release announcing the use by Client of the Services; ii) promote and identify Client as a Flinks customer in print, web, or any other promotional media; and/or iii) publish a case study highlighting the benefits of the Services provided to Client by Flinks.
• Client shall not make or publish any representation or statement of any kind, whether public or otherwise, concerning Flinks, Flinks’ Systems, the Services (including any Security Breach), or Client’s use thereof, without the prior written authorization of Flinks.  

14.4 Severability

If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Agreement will remain in full force and effect.

14.5 Survival

All provisions that logically ought to survive termination or expiration of the Agreement will survive the termination or expiration of the Agreement for any reason.

14.6 Waiver and Amendment

No modification, amendment or waiver of any provision of the Agreement will be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under the Agreement will operate as a waiver of any such right, power or remedy.

14.7 Independent Contractors

The Parties are independent contractors with respect to each other. Each Party is not and will not be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and will not have any right, power or authority to create any obligation or responsibility on behalf of the other.

14.8 Modification

By executing an Order Form, Client agrees and recognizes that Flinks may, from time to time and in its’ sole discretion, modify these Master Terms without prior notice to Client. Client further agrees and recognizes that the most current version of these Master Terms shall automatically replace and supersede any previous version of such Master Terms the Client may have agreed to in the past.

14.9 Assignment

Neither Party may assign or delegate the Agreement or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other, and any such purported assignment or delegation will be void. Notwithstanding the foregoing, either Party may assign the Agreement in connection with the sale or other transfer of substantially all of the Party’s equity or assets to which the Agreement relates. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

14.10 Force Majeure

Except with respect to obligations to make payments hereunder, neither Party will be deemed in default hereunder, nor will it hold the other Party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to a Force Majeure Event.

14.11 Export Control

All Client’s rights and obligations under the Agreement are subject to all Applicable Laws regarding export control, including without limitation, Canadian Government laws and regulations and the Export and Import Permits Act. Client represents and warrants that (a) it is not located in a country where export from Canada is prohibited and (b) to Client’s knowledge, the transaction and exports envisaged under the Agreement comply with Applicable Laws regarding export control

14.12 Counterparts

The Agreement, and any amendment thereof, may be executed and delivered in any number of counterparts, by facsimile or electronically, each of which, when so executed and delivered, will be deemed an original, and such counterparts together will constitute one and the same instrument.

14.13 Language

The Parties have agreed that the Agreement, and all relevant schedules, be drafted in English. Les Parties ont convenu que le présent document et toute annexe y attachées soient rédigés dans la langue anglaise.

14.14 Governing Law

The Agreement is governed by, and will be interpreted and enforced in accordance with, the Laws of the province of Ontario and the federal Laws of Canada applicable therein.

The Parties agree that the courts of the City of Toronto, Province of Ontario, Canada, will have exclusive jurisdiction for the adjudication of any and all disputes or controversies arising out of or relating directly or indirectly to the Agreement and waive any objections to the assertion or exercise of jurisdiction by such courts, including any objection based on forum non conveniens.

14.15 Entire Agreement; Precedence

The Agreement and, including all schedules attached to it and hereby incorporated by reference, constitute the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any prior or contemporaneous discussions, negotiations or agreements, either written or oral, including, without limitation, any non-disclosure or confidentiality agreement between the parties in effect as at the applicable Order Form Effective Date. In the event of any inconsistency between these terms and conditions, and of any schedule, appendix, order form and/or purchase order between the parties, these terms and conditions will govern.

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