MASTER SERVICES AGREEMENT
Last updated: March 22, 2023
This Master Services Agreement (“Agreement”) governs Customer (defined below)’s receipt of Services from Designer Technologies Inc. dba Bvigilant, a British Columbia corporation, with a principal place of business at 1475 Banff Place, Victoria, BC V8P 2E7 (“Bvigilant”, “we”, “our”). Bvigilant and Customer are hereinafter individually referred to as a “Party” and collectively referred to as the “Parties”. Customer may be referred to as “you” or “your”. This Agreement is made as of the date of execution of the SOW by both Parties (“Effective Date”). By entering into a SOW that references this Agreement, Customer accepts the terms and conditions of this Agreement.
This Agreement may be amended or updated by Bvigilant from time to time at Bvigilant’s sole discretion. If we make changes to this Agreement, we will notify you by updating the “Last Updated” date above, posting a notice on the Bvigilant website, or sending you an email (as appropriate). Any changes to this Agreement shall become effective thirty (30) days after notice is provided of such changes. Bvigilant may require you to provide consent to the updated Agreement in a specified manner before continuing to receive the Services. Your continued receipt of the Services following any such change shall constitute your acceptance of the revised Agreement.
Your personal information will be processed in accordance with the Bvigilant privacy policy, the latest version of which can be found here.
DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Background Technology” means all Intellectual Property owned, used, developed, acquired, or otherwise obtained by Bvigilant (including but not limited to the Services and all Bvigilant templates, processes, business practices and methodology, but excluding Third Party Integrations), either prior, during or after the Term of this Agreement;
“Baseline Requirements” means the minimum specification requirements necessary, as determined by Bvigilant on a case-by-case basis and set out in an applicable SOW, the Customer must meet in order for Bvigilant to properly provide any Services hereunder. For greater certainty, Baseline Requirements may apply to computer hardware or software, or may apply to the specification of a Customer’s business premises, including the premises’ electrical setup or loadbearing capabilities.
“Customer” means, in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a legal entity, such legal entity for which such individual is accepting this Agreement.
“Customer Data” means all electronic data or information, including Personal Information, submitted by Customer to Bvigilant or made available to Bvigilant during the course of the Services, as applicable;
“Disclosing Party” means a Party that discloses Proprietary Information under this Agreement;
“Deliverables” means any software, studies, documentation and/or other work product prepared by Bvigilant for Customer as described in a SOW. For greater certainty, Deliverables shall exclude Background Technology and Third-Party Integrations;
“Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, digital art work, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, protocols, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
“Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
“Personal Information” means information about an identifiable individual;
“Privacy Laws” means applicable laws and regulations in respect to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including, without limitation, the Personal Information Protection and Electronic Documents Act (Canada) and applicable Canadian provincial privacy legislation;
“Proprietary Information" means information of any kind (whether communicated in written form, orally, visually, demonstratively, technically or by any other electronic form or other media, or committed to memory, and whether or not designated, marked, labelled or identified as proprietary) relating to the Agreement that is obtained by Receiving Party from Disclosing Party, including Customer Data and any information concerning business, affairs, operations, properties, assets (including, without limitation, the Services), employees, customers, suppliers, contracts, prospects, liabilities, research, processes, business records, business plans, project lists, methods of operation, and any other documents or materials that is not readily available to the general public;
“Receiving Party” means a Party that receives Proprietary Information under this Agreement;
“Services” means Bvigilant’s security consulting and advisory services (including and not limited to virtual chief information officer services, fully managed desktop services, and regular privacy check-ins, as described in more detail in the applicable SOW);
“SOW” means a statement of work describing the Services to be provided by Bvigilant to Customer, including but not limited to the Fees (defined below) associated with such Services, time commitments and anticipated dates of completion, and any Deliverables to be prepared by Bvigilant;
“Term” has the meaning ascribed to that term in Section 7; and
“Third-Party Integration” means a third-party service which Bvigilant may use as part of the Services or incorporate into the Services.
SERVICES
Subject to the terms of this Agreement, including the payment of all Fees (defined below), Bvigilant will provide Customer the Services in accordance with the terms and conditions of the applicable SOW. Unless otherwise specified in a SOW, for all Services provided under this Agreement, Bvigilant shall, in its sole discretion, determine which Services shall be provided to the Customer by remote support or on-site. The Services will be implemented in accordance with the services implementation plan set out in the SOW or the Bvigilant website (as applicable).
Bvigilant may provide Customers the option of using Third-Party Integrations in connection with the Services. Use of Third Party-Integrations with the Services will be at Customer’s sole decision. The applicable Third-Party Integrations and their use in connection with the Services will be set out in the applicable SOW. In no event shall any reference to any Third-Party Integration or third-party product or service be construed as an approval or endorsement by Bvigilant of that Third-Party Integration or third-party product or service. Bvigilant is not responsible for the content of any material, third-party product or service available to Customer through Third-Party Integrations. Any Third-Party Integration accessed, used, or relied on by Customer in connection with the Services is subject to the terms and conditions of those Third-Party Integrations. Customer is solely responsible for determining those terms and conditions and complying with them. Customer hereby release Bvigilant from all liability and/damages that may arise from Customer’s decision to use Third-Party Integration in connection with the Services, including but not limited to receipt of services from any such Third-Party Integration, or reliance on the information available or services provided by any Third-Party Integration.
RESTRICTIONS AND RESPONSIBILITIES
Bvigilant will: i) not use, process, store, or modify the Customer Data or disclose the Customer Data to anyone other than Customer except for the purposes of performing its obligations or exercising its rights under this Agreement; and ii) make the Services available to Customer in accordance with the Agreement.
Customer will not, directly or indirectly: i) reverse engineer, decompile, disassemble or otherwise attempt to discover the Services; ii) modify, translate, or create derivative works based on Background Technology (except to the extent expressly permitted by Bvigilant or agreed upon by the Parties in a SOW); iii) use Services for timesharing or service bureau purposes or otherwise use Services for the benefit of a third party; iv) remove any proprietary notices or labels from Background Technology; v) interfere with or disrupt the servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services; vi) build a competitive product or service; or vii) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services.
Subject to Customer’s waiver of Baseline Requirements (as set out in the applicable SOW), Customer hereby acknowledges and agrees that Customer is solely responsible for meeting the Baseline Requirements set out in a Customer’s SOW at Customer’s sole expense. If at any time during the Term (defined below) the Customer fails to meet the Baseline Requirements, Customer will meet Baseline Requirements as soon as possible, in accordance with Bvigilant’s instructions or recommendations, and at Customer’s sole expense. Customer agrees that continued failure to meet Baseline Requirements may result in Bvigilant being unable to meet its obligations to Customer under a SOW, and Bvigilant will not be liable for any loss or damage arising from Customer’s failure to comply with this Section 3.3.
Customer Affiliates may use the Services subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with of this Agreement to the full extent as if such Affiliate were a Party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, either Party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect a Party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such Party.
PROPRIETARY INFORMATION
The Receiving Party agrees: i) to take reasonable precautions to protect Proprietary Information, including all precautions the Receiving Party employs with respect to its own Proprietary Information, and in no case using less than a reasonable standard of care; ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information; and iii) not to modify, reverse engineer, decompile, create other works from, or disassemble any Proprietary Information without the prior written consent of the Disclosing Party.
If the Receiving Party is an organization, then the Receiving Party also agrees that, even within Receiving Party, Proprietary Information will be disseminated only to those employees, officers, directors, Subcontractors (defined below), affiliates and agents (collectively, “Representatives”) who need to know the Proprietary Information in connection with the Purpose, who are informed of the confidential nature of the Proprietary Information, who are directed to hold the Proprietary Information in the strictest confidence and who agree to act in accordance with this Agreement. Each of the Parties shall take all necessary precautions or measures as may be reasonable in the circumstances to prevent improper use or disclosure of the Proprietary Information by its Representatives and shall be responsible for any breach of this Agreement by any of its Representatives.
The Disclosing Party agrees that the foregoing shall not apply with respect to any Proprietary Information that the Receiving Party can document: i) is or becomes generally available to the public (through no improper action or inaction by the Receiving Party or any Representatives of the Receiving Party); ii) was in its possession or known by it prior to receipt from the Disclosing Party; iii) was rightfully disclosed to it without restriction by a third party; or iv) was independently developed without use of any Proprietary Information of the Disclosing Party. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the Disclosing Party to oppose such disclosure and participate in the proceeding.
INTELLECTUAL PROPERTY AND DATA RIGHTS
Subject to the limited rights granted to Customer hereunder, Bvigilant shall own and retain all right, title and interest and all Intellectual Property Rights in and to the Background Technology, regardless of: (i) whether Bvigilant contributed any such enhancements and/or modifications; or (ii) whether any such enhancements and/or modifications were made during the Term. The Background Technology is the exclusive property of Bvigilant and its licensors. Except as explicitly provided herein, nothing in this Agreement gives you a right to Bvigilant’s Intellectual Property without our prior written consent. Subject to the restrictions set out in this Agreement, Bvigilant hereby grants Customer a non-transferable, non-exclusive, limited license to access and use the Services set out in the applicable SOW for Customer’s personal use.
If you provide Bvigilant with any suggestions, comments or other feedback relating to any aspect of the Background Technology (“Feedback”), Bvigilant may use and incorporate such Feedback in the Services and/or in any other Bvigilant products or services (collectively, “Bvigilant Offerings”). Accordingly, you agree that: (a) Bvigilant is not subject to any confidentiality obligations in respect to the Feedback; (b) the Feedback is not Proprietary Information or proprietary information of any third party and you have all of the necessary rights to disclose the Feedback to Bvigilant as contemplated herein; (c) Bvigilant (including all of its Representatives) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any Bvigilant Offerings; and (d) you are not entitled to receive any compensation or re-imbursement of any kind in respect of the Feedback or its incorporation into the Bvigilant Offerings.
Unless otherwise agreed upon by the Parties in a SOW, Customer shall own all right, title and interest and all Intellectual Property Rights in and to any Deliverables created by Bvigilant in connection with the Services. If Bvigilant incorporates any Background Technology in the Deliverables, subject to payment of Fees set forth in the applicable SOW, Bvigilant grants to Customer a limited, non-exclusive, non-transferable license under Bvigilant’s Intellectual Property Rights to the Background Technology incorporated in the Deliverables solely to the extent necessary for Customer to use the Deliverables for Customer’s business objectives.
Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer is solely responsible for complying with its Customer Data obligations under Privacy Laws, including but not limited to: i) accuracy of Customer Data; ii) providing all necessary notices; and iii) obtaining all necessary consents. Customer Data is deemed Proprietary Information under this Agreement. Bvigilant shall not access Customer Data except to respond to service or technical problems, at Customer's request, or as necessary for providing the Service or meeting its obligations under the Agreement.
Bvigilant shall have the right to process and analyze data (in aggregate and/or de-identified formats) collected in relation to Customers’ use of and interaction with the Services. Customer hereby grants Bvigilant a non-exclusive, perpetual, royalty-free license to: i) use such information and data to develop, improve and enhance Background Technology and other Bvigilant products, services, and offerings; and ii) disclose such information and data to third parties, solely in aggregate or other de-identified form, in connection with Bvigilant’s business purposes.
PAYMENT OF FEES; AUDIT RIGHTS
Customer will pay Bvigilant the applicable onboarding and setup fees (“Onboarding Fees”) and/or the recurring monthly fees for the Services (“Services Fees” and together with Onboarding Fees, the “Fees”) described in a SOW in accordance with the terms therein (“Fees”). Onboarding Fees and/or Services Fees may include i) one-time or recurring subscriptions for Third-Party Integrations; and ii) fees for overages, as described in the applicable SOW. Unless otherwise stated in a SOW, any applicable Onboarding Fees shall be paid upfront by Customer before commencement of the then-applicable Term.
Customer will be invoiced for Services Fees at the end of each calendar month during the Term (defined below). Invoiced Services Fees shall be due net thirty (30) days from the invoice date. If the Agreement is renewed for a Renewal Term (defined below), any prepaid Fees that are unused during an Initial Service Term or a previous Renewal Term (as applicable) shall be applied to the subsequent Renewal Term.
Bvigilant reserves the right to change Fees and to institute new Fees for a new Renewal Term. If Customer believes that Bvigilant has invoiced Customer incorrectly, Customer must contact Bvigilant no later than thirty (30) days after receiving the invoice in which the error or problem appeared, in order to dispute the invoice.
Any payment for Fees not received from Customer by their applicable due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Bvigilant's discretion, late charges at the rate of: i) 1.0% of the outstanding balance per month (12.67% per annum); or ii) the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date the payment is made.
Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Bvigilant’s net income or property. If Bvigilant has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Bvigilant with a valid tax exemption certificate authorized by the appropriate taxing authority.
If Customer's unpaid Fees are thirty (30) days or more overdue (except with respect to Fees then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Bvigilant reserves the right to suspend the Services provided to Customer, without liability to Customer, until such unpaid Fees are paid in full.
TERM AND TERMINATION
This Agreement shall commence on the Effective Date and will last for the term specified in the applicable SOW (“Initial Service Term”). Upon expiration of the Initial Service Term, this Agreement shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each such renewal a “Renewal Term” and together with Initial Service Term, the “Term”), unless otherwise agreed upon by the Parties in an SOW or unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days prior to the end of the then-current Term.
Either Party may terminate this Agreement for cause upon thirty (30) days’ written notice if: i) the other Party materially breaches any of the terms or conditions of this Agreement and such breach has not been cured by the breaching Party at the end of such thirty (30) day notice period; or ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Sections 2.2, 3-6, 7.3, and 8-12 shall survive termination of this Agreement. Upon termination, all licenses granted to Customer by Bvigilant hereunder will terminate and all SOWs shall terminate at the same time as this Agreement terminates. Except as expressly provided in any applicable SOW, termination of this Agreement shall not relieve Customer of the obligation to pay any Fees accrued or payable to Bvigilant prior to the effective date of termination and shall not entitle Customer to refunds of any pre-paid Fees.
WARRANTIES AND DISCLAIMER
Each Party warrants that i) it has the legal power to enter into this Agreement; ii) it shall comply with all applicable foreign, federal, state and local laws, rules and regulations (including but not limited to Privacy Laws); and iii) it has all rights and licenses necessary to perform its obligations hereunder and has the rights to grant the licenses contemplated hereunder.
Bvigilant warrants that, subject to Section 3.3:i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and ii) the Services shall perform materially in accordance with the requirements in this Agreement.
Customer acknowledges that Bvigilant does not provide insurance coverage to Customer or to Customer’s clients under the Services. Customer shall be solely responsible for securing and maintaining adequate insurance coverage for the duration of the Term at its sole expense.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BVIGILANT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND BVIGILANT DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
EXCEPT FOR LOSSES ARISING (A) AS A RESULT OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, OR (B) PURSUANT TO SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (I) EACH PARTY’S LIABILITY FOR ANY LOSSES, LIABILITIES, DAMAGES, FINES, PENALTIES, DEFICIENCIES, COSTS OR EXPENSES, INCLUDING THE REASONABLE FEES AND REASONABLE EXPENSES OF LEGAL COUNSEL, ACCOUNTANTS OR OTHER EXPERTS AND PROFESSIONAL ADVISERS (COLLECTIVELY, “LOSSES”), ARISING FROM OR RELATING TO THIS AGREEMENT, OR THE PROVISION OF THE SERVICES HEREUNDER, SHALL NOT EXCEED THE AMOUNT PAID IN THE PRIOR SIX MONTH PERIOD BY CUSTOMER TO BVIGILANT FOR THE SPECIFIC SERVICES TO WHICH SUCH CLAIMS RELATE; AND (II) REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY (INCLUDING BREACH OF STATUTE, REGULATION OR CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY: INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS). THE PARTIES AGREE THAT THIS SECTION 9 REPRESENTS A REASONABLE ALLOCATION OF RISK.
INDEMNIFICATION
Subject to Section 10.3, Bvigilant will defend, indemnify and hold Customer harmless from and against all third-party claims (and all resulting damages awarded) to the extent arising from infringement by the Services of any Intellectual Property Rights of a third party (each such claim, an “IP Claim”). As conditions for such defense and indemnification by Bvigilant: i) Customer shall notify Bvigilant promptly in writing upon becoming aware of all pending IP Claims; ii) Customer shall give Bvigilant sole control of the defense and settlement of such IP Claims; iii) Customer shall cooperate fully with Bvigilant in the defense or settlement of such IP Claims; and iv) Customer shall not settle any IP Claims, or compromise the defense of any such IP Claims or make any admissions in respect thereto, without Bvigilant’s prior written consent.
If: i) Bvigilant becomes aware of an actual or potential IP Claim; or ii) Customer provides Bvigilant with notice of an actual or potential IP Claim, Bvigilant may (or in the case of an injunction against Customer, shall, at Bvigilant’s sole option and determination: I) procure for Customer the right to continue to use the Services without infringement; II) modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or III) if I) or II) are not commercially reasonable, stop making the infringing aspect of the Services available to Customer and refund to Customer any prepaid Fees for any periods after termination, less any outstanding Fees owed by Customer to Bvigilant.
The obligations in Sections 10.1 and 10.2 do not extend to: i) any IP Claim arising out of improper use of the Services or the combination of the Services with other products, software or services not offered or supplied by Bvigilant; ii) any IP Claim arising out of willful misconduct or fraudulent action of a third party; iii) any IP Claim related to any Third Party Integration; or iv) any IP Claim related to any use or exercise of any other right in respect to Services outside the scope of the rights granted in this Agreement.
Customer shall, at its own expense, defend, indemnify and hold Bvigilant, its Affiliates and its Representatives (collectively, “Bvigilant Indemnitees”) harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses (of whatever form or nature, including, without limitation, reasonable attorneys’ fees and expenses and all costs of litigation), whether direct or indirect, that Customer or any related party may sustain, in violation of this Agreement, as a result of any acts, errors or omissions of Customer, its Affiliates and its Representatives (collectively, “Indemnitors”), including but not limited to: i) breach of any of the provisions of this Agreement; ii) negligence or other tortious conduct; iii) representations or statements not specifically authorized by Bvigilant herein or otherwise in writing; iv) violation of any applicable law, regulation or order; v) breach of a third party’s Intellectual Property Rights or rights under Privacy Laws; or vi) Indemnitors’ misuse or altercation of Background Technology in violation of this Agreement (each a “Customer Claim”). Customer Claims will not include any claim which arises as a direct result of gross negligence, fraud, or willful misconduct of Bvigilant or a claim for which Bvigilant is responsible under Section 10.1. As conditions for such defense and indemnification by Customer: a) Bvigilant shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; b) Bvigilant shall give Customer sole control of the defense and settlement of such Customer Claims; c) Bvigilant shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and d) Bvigilant shall not settle any Customer Claims, or compromise the defense of any such Customer Claims or make any admissions in respect thereto, without Customer’s written consent. For the purpose of this Section 10.4, you acknowledge that Bvigilant is acting as agent and trustee of Bvigilant Indemnitees.
GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The Parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
The provincial and federal courts located in Vancouver, British Columbia, Canada shall have exclusive jurisdiction to adjudicate any dispute. arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the rest of this Agreement will otherwise remain in full force and effect.
This Agreement is not assignable, transferable or sublicensable by either Party to a successor in interest, without consent by the other Party. Notwithstanding the foregoing, Bvigilant may assign this Agreement without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Bvigilant’s business, shares or assets.
This Agreement, together with all SOWs, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any SOW, the terms of such SOW shall prevail to the extent of the conflict or inconsistency.
Customer acknowledges and agrees that Bvigilant may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Bvigilant in performing its obligations under this Agreement. Subcontractors shall remain under the direction and control of Bvigilant. Bvigilant shall, in the performance of its obligations under this Agreement, use reasonable efforts to comply with all Customer policies, procedures and rules that have been communicated to Bvigilant in writing with respect to Subcontractors.
All waivers and modifications hereof must be in writing signed by both Parties, except as otherwise provided herein. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
The Parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Customer nor Bvigilant has any authority of any kind to bind the other Party in any respect whatsoever. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be addressed to the Party’s signatory of the applicable SOW.
Either Party may refer to the other Party in its lists of customers or partners or its marketing materials and website, including by using the Party’s logo and name in relation to such reference (“Publicity Rights”). Neither Party may issue press releases or other public statements relating to this Agreement without the other Party's prior written consent.
This Agreement may be executed by facsimile or electronic mail and in counterparts, which taken together shall form one legal instrument.
Neither Party shall be responsible for its failure to perform its obligations under this Agreement due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, health pandemics, strikes, labour problems, or computer, telecommunications, internet service or hosting facility failures or delays not within a Party’s possession or reasonable control, provided that such Party gives the other Party prompt written notice and the reason for failing to meet its Agreement obligations.