CollectiveXP Network
Master Participation Agreement

Last Updated: September 12, 2024

PLEASE READ THESE TERMS CAREFULLY AS THEY MAY HAVE CHANGED FROM THE LAST TIME YOU VISITED THIS PAGE.

CollectiveXP Inc. (“CXP”) is in the business of providing various services to its clients (“CXP Clients”). The services that are provided to CXP Clients (each, an “Engagement”) are provided directly by CXP, in conjunction with one or more Persons (as defined below) in its network of experienced professionals, practitioners and vendors (such network, the “CXP Network”; such Persons, each a “Member”) or directly by Members in the CXP Network with minimal involvement from CXP. This Master Participation Agreement is to establish the terms and conditions under which Members in the CXP Network may participate in the Engagement at the request of CXP.

For each participation, a separate document such as a participation form, statement of work or any other document that incorporates this Master Participation Agreement by reference (each an “Participation Form”) will be provided to the Member identified in the Participation Form (such identified Member, “Participant”). Upon signing, Participant agrees to provide the services identified therein in accordance with the terms and conditions set out in the Participation Form and this Master Participation Agreement as amended from time to time (this Master Participation Agreement together with Participation Form(s), the “Agreement”).

NOW THEREFORE, for good and valuable consideration, of which the receipt and sufficiency are acknowledged, the Parties agree as follows:

Article 1 - Definitions

1.1 Definitions

• (a) "Affiliate" means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity.  For purposes of this definition, ownership means control of more than a 50% interest in an entity.
• (b) "Business Day" means every day except Saturday, Sunday and any statutory holidays in the province of Ontario.
• (c) “Claim” means any civil, criminal, administrative, regulatory, arbitral or investigative demand, action, suit or proceeding or any other claim or demand.
• (d) “Client Materials” has the meaning ascribed to it in Section 6.2.
• (e) “Confidential Information” has the meaning ascribed to it in Section 5.1(a).
• (f) “Deliverables” has the meaning ascribed to it in Section 6.3.
• (g) “Force Majeure Event” means an event that: (a) is caused by an occurrence that is beyond the reasonable control of a Party such as fire, flood, hurricane, earthquake, acts of God, pandemic, epidemic, war, terrorism, explosion, riots, civil disorders, rebellions or revolutions, lawful acts of Governmental Authorities; and (b) could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the such Party through the use of alternate sources, work-around plans or other means.
• (h) "Intellectual Property Rights" means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets and know how, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.
• (i) "Party" shall refer to (i) Participant, or (ii) CXP, and "Parties" shall refer to both (i) and (ii).
• (j) “Person” includes an individual, sole proprietorship, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate, and a natural person in his or her capacity as trustee, executor, administrator, or other legal representative.
• (k) "Personnel" means a Party's employees and contractors.

1.2 Interpretation

• (a) Currency. Unless stated otherwise in this Agreement, all references to currency shall be in Canadian Dollars.
• (b) Headings. Headings of sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
• (c) "Includes" or "Including". Where the word "including" or "includes" is used in Agreement, it means "including (or includes) without limitation".
• (d) No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
• (e) Number and Gender. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
• (f) Time Periods. Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.
• (g) "Written" or "in writing". Unless expressly stated otherwise, where any notice, demand, consent or communication is required "in writing" or in written form, either Party may provide such notice, demand, consent or communication in written form and delivered by courier, registered mail or e-mail.
• (h) Interpretation. In the event of any conflict between a Participation Form and this Master Participation Agreement, the conflict shall be resolved in favour of this Master Participation Agreement, subject to Section 9.5, unless specifically overridden by a Participation Form.

Article 2 - Rules of Participation

2.1 Participation. The details of the services to be provided by Participant relating to an Engagement shall be set forth in a Participation Form mutually agreed between the Parties (each service to be provided, the “Service”). Any material changes to the Services shall be documented in writing in a form mutually agreed by the Parties.

2.2 Rules of Participation. CXP strives to deliver world class results and experience to its CXP Clients for every Engagement and Members play an integral part in delivering such results and experience. As such, as a Member providing Services as part of an Engagement, Participant must comply with the following conditions:

• (a) Ensure that there’s no conflict of interest in providing the Services;
• (b) Not violate or breach any agreement or other legal obligations Participant may have with any other Person;
• (c) Provide the Services in a professional and workmanlike manner that is consistent with the highest industry standard applicable to the Services being provided;
• (d) Perform the Services in accordance with all applicable laws;
• (e) Ensure that Participant’s Personnel comply with this Agreement in the performance of the Services. Participant shall be responsible and liable for the actions and inactions of Participant’s Personnel; and
• (f) Conform to any additional agreements, rules or policies provided, entered into or made accessible to Participant by CXP or CXP Clients.

2.3 Additional Responsibilities of Participant

• (a) Except as specified in this Agreement, Participant is responsible for procuring and maintaining the necessary software, licenses and equipment to provide the Services in accordance with this Agreement.
• (b) If CXP or CXP Client provides Participant with access to any third-party software or tools licensed by CXP or CXP Client (“Third Party Tools”), Participant shall, and shall cause its Personnel to, comply with any terms of service or policies set out by such Third Party Tools. Further, if any username, password, API key, or other login or access information in connection with the Third Party Tools, or software or technology owned by CXP or CXP Client, are provided to Participant (the “Access Information”), Participant shall, and shall cause its Personnel to, protect and safeguard such Access Information. Access Information shall be Confidential Information of CXP or CXP Client, as applicable.
• (c) If Participant is provided access to software or technology owned by CXP, it shall at minimum maintain the information security requirements set forth in Schedule A, attached hereto, (those minimum requirements, the “Minimum Security Requirements”). If CXP Clients impose security and/or privacy requirements, Participant shall also adhere to such security and/or privacy requirements as required as part of the Engagement.

Article 3 - Term and Termination

3.1 Service Term. The duration of the Services shall be stated in the applicable Participation Form (the “Service Term”). Unless stated otherwise in the Participation Form, the Participation Form shall not auto-renew at the end of the Service Term.

3.2 Terms of Master Participation Agreement. This Master Participation Agreement shall commence on the effective date of the first Participation Form that incorporates the terms and conditions of this Master Participation Agreement and shall continue until all Participation Forms are terminated in accordance with this Article 3 (the “Term”).

3.3 Termination for Breach. Either Party may terminate this Master Participation Agreement and/or the applicable Participation Form if the other Party materially breaches this Master Participation Agreement and/or the applicable Participation Form. The other Party shall be considered to be in material breach if any of the following events occur: (i) if the other Party is CXP, where CXP fails to pay any overdue undisputed invoices fifteen (15) days after CXP receives written notice of non-payment; (ii) the other Party is in breach of a material, non-monetary term, condition, or provision of this Agreement and such breach is not cured within thirty (30) days of the written notice; or (iii) the other Party undertakes liquidation, dissolution or winding-up, is unable to pay its debts or obligations as they become due, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal, provincial or state law. The written notice for termination shall include a detailed explanation of the material breach justifying the termination in accordance with this Section 3.3

3.4 Termination by CXP. CXP may terminate a Participation Form and/or this Master Participation Agreement for any reason by providing Participant with thirty (30) days’ written notice.

3.5 Effect of Termination

• (a) If a Participation Form is terminated,

  • (i) Participant shall deliver all Deliverables performed under such Participation Form up to the date of termination;
  • (ii) If the Participation Form requires any transition services, Participant shall perform such transition services in accordance with such Participation Form;
  • (iii) upon Participant complying with (i) and (ii), CXP agrees to pay in accordance with the payment provisions in this Agreement, all undisputed amounts for invoices submitted to CXP for all Services performed up to the date of termination; and
  • (iv) Unless Section 3.5(b) applies, this Master Participation Agreement shall continue to apply to all remaining active Participation Forms.

• (b) If this Master Participation Agreement is terminated,

  • (i) Unless agreed otherwise in writing, all Participation Forms shall be terminated and Section 3.5(a) shall apply accordingly;
  • (ii) For any CXP Materials that are not Confidential Information, Participant shall return, cease to access and use, or destroy, as determined by CXP, all such CXP Materials (including all copies and derivatives thereof);
  • (iii) If Participant has been provided any Client Materials, Participant shall return, cease to access and use, or destroy, as determined by the applicable CXP Client, all such Client Materials (including all copies and derivatives thereof); and
  • (iv) Any other rights granted under this Master Participation Agreement shall cease immediately.
• (c) Parties shall comply with Section 5.2(b) of this Master Participation Agreement.
• (d) The Parties intend that the termination rights set out in this Article 3, and termination rights provided in any Participation Form, if any, are the exclusive rights and remedies for termination of each Party.
• (e) Article 1, Article 5, Article 7, Article 8, Article 9 and Section 4.4, 6.3 and 6.4 shall survive termination or expiration of this Agreement.

Article 4 - Fees

4.1 Fees. Fees for the Services shall be stated in each Participant Form (the “Fee”). Any other fees, expenses or charges not agreed to in advance and in writing by the Parties will not be paid by CXP.

4.2 Invoice and Payment. Participant shall invoice CXP for the Services in accordance with the Participation Form. Unless specifically stated otherwise in the Participation Form, all Fees are invoiced in arrears after the Services (or part thereof) have been delivered in accordance with the Participation Form. All undisputed amounts on the invoice will be paid by CXP within sixty (60) days of receiving the invoice.

4.3 Disputes. CXP reserves the right to dispute any invoice prior to it becoming due. Parties agree to resolve the dispute within fifteen (15) days of such dispute being submitted by CXP, failing which Parties shall resolve such dispute in accordance with the formal dispute mechanism set forth in Section 9.4.

4.4 Taxes. Participant is responsible for collecting and remitting any taxes applicable to the Services. Participant shall defend, indemnify and hold harmless CXP, its Affiliates, and their officers, directors and Personnel from and against all losses, damages, costs and expenses (including reasonable legal fees and disbursements) resulting from any claim, judgment or proceeding brought by any relevant taxing authority in respect of taxes owed in connection with the Services rendered by Participant pursuant to this Agreement.

Article 5 - Confidentiality

5.1 Confidential Information

• (a) "Confidential Information" means any non-public information disclosed to Participant ("Receiving Party") during the Term by CXP or CXP Clients (each a "Disclosing Party"; reference to Disclosing Party shall mean the respective Disclosing Party that disclosed the applicable Confidential Information to Receiving Party), that is either furnished or made available, and that is marked or otherwise designated as confidential, proprietary or other similar designation, or that would be reasonably considered confidential or proprietary. Receiving Party may disclose the Confidential Information to its Personnel solely for the purpose of performing the Services ("Purpose"). Receiving Party shall cause its Personnel that have been disclosed the Confidential Information to observe the terms set out in this Article 5 ("Confidentiality Provisions") and shall be responsible for any breach of these Confidentiality Provisions by its Personnel.

• (b) Confidential Information shall not include information that:

  • (i) is or subsequently becomes publicly available without breach of any obligation owed to Disclosing Party;
  • (ii) became known to Receiving Party without confidentiality restrictions, prior to Disclosing Party's disclosure of such information to Receiving Party pursuant to this Agreement, as shown by Receiving Party's records;
  • (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of a confidentiality agreement or a contractual, legal or fiduciary obligation; or
  • (iv) is independently developed by Receiving Party without any use of or reference to the Confidential Information. Burden of proving that information is not Confidential Information rests with Receiving Party.

5.2 Obligations

• (a) Receiving Party shall:

  • (i) not disclose, reproduce, summarize and/or distribute the Confidential Information, except as otherwise permitted in these Confidentiality Provisions;
  • (ii) use the Confidential Information solely for the Purpose; and
  • (iii) make the same effort to safeguard the Confidential Information as it would for its own Confidential Information, but in no case less than reasonable care and at least in accordance with the Minimum Security Requirements.
• (b) Upon termination of this Agreement or at Disclosing Party's request, Receiving Party shall return all Confidential Information, or at Receiving Party's option, certify destruction of same within ten (10) Business Days of the request. This obligation shall include all reproduction, summarization and any derivatives made and permitted in accordance with these Confidentiality Provisions.

5.3 Legal Disclosures

The disclosure restrictions contained in these Confidentiality Provisions do not apply to disclosure that is required (i) by law or any order of any competent court or other authority; or (ii) pursuant to the rules of any relevant stock exchange; unless Receiving Party is permitted or required by law, order or such rule to refrain from making such disclosure for confidentiality or other reasons. Prior to making such disclosure, Receiving Party shall, to the extent not prohibited by such law, order or rule:

• (a) give Disclosing Party prompt notice of the requirement and the proposed content of any disclosure;
• (b) at Disclosing Party's request and expense, co-operate with Disclosing Party in limiting the extent of the disclosure and in obtaining an appropriate protective order or pursuing such legal action, remedy or assurance as Disclosing Party deems necessary to preserve the confidentiality of the Confidential Information; and
• (c) if a protective order or other remedy is not obtained or Disclosing Party fails to waive compliance with these Confidentiality Provisions, disclose only that portion of the Confidential Information that Receiving Party is, on the advice of counsel, required to disclose and exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is given to the Confidential Information disclosed.

5.4 Ownership. All Confidential Information shall at all times remain the property of Disclosing Party. Nothing in these Confidentiality Provisions or in the disclosure of any Confidential Information confers any interest in the Confidential Information to Receiving Party or its Personnel.

5.5 Remedy. Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information contrary to these Confidentiality Provisions will give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Disclosing Party may, in addition to any other remedy, enforce the performance of these Confidentiality Provisions by way of injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damages (and without the requirement of posting a bond or other security) and, notwithstanding that damages may be readily quantifiable, Receiving Party agrees not to plead sufficiency of damages as a defence in any such proceeding. The rights and remedies provided herein are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or equity. All such rights and remedies may be exercised from time to time, and as often and in such order as Disclosing Party deems expedient. Receiving Party shall immediately notify Disclosing Party of any breach of these Confidentiality Provisions.

Article 6 - Proprietary Rights

6.1 CXP Materials. CXP retains all right, title and interest (including any Intellectual Property Rights) in any technology, software, material and information made available or provided to Participant and its Personnel (“CXP Materials”) in connection with an Engagement or in connection with Participant joining the CXP Network. For clarity, as between CXP and Participant, CXP Materials include CXP’s Confidential Information, Third Party Tools, Access Information. During the applicable Service Term, CXP grants a limited, non-exclusive, non-transferable, non-sublicenseable, non-assignable and revokable license to Participant, and its Personnel involved in the performance of the Services, to access and use the CXP Materials for the sole purpose of providing the Services.

6.2 Client Materials. As part of the Engagement, Participant may be provided technology, software, material and information of CXP Client (“Client Materials”). CXP Client retains all right, title and interest (including any Intellectual Property Rights) in the Client Materials. To the extent that CXP Client has provided the necessary rights and/or license to access and use such Client Materials, CXP grants such rights and/or license to Participant, and its Personnel involved in the performance of the Services, for the sole purpose of providing the Services.

6.3 Deliverables

• (a) The Services performed by Participant varies depending on the type of Engagement. Some are services based (e.g. professional services), whereas others may lead to original work being produced.
• (b) If original work is produced and delivered as a result of the performance of the Services (“Deliverables”), upon payment of Fees due under the applicable Participation Form, as between CXP and Participant, such Deliverables shall be owned by CXP and Participant hereby waives all moral rights to the Deliverables. Participant hereby assigns to CXP, all right, title and interest (including any Intellectual Property Rights) in and to the Deliverables. At the request and expense of CXP, both during and after the Term, Participant shall (and shall cause its Personnel to) do all acts necessary and sign all documentation necessary in order to (i) assign all right, title and interest (including any Intellectual Property Rights) to CXP and its Affiliates, and their successors and assigns; and (ii) register patents, copyrights, domain name, trademarks, and other rights or protections as CXP deems appropriate anywhere in the world. In the event that CXP is unable, after reasonable efforts, to secure Participant’s (or the Personnel’s, if applicable) signature on any document(s) needed to apply for or prosecute any patent, copyright, domain name, trademark, or other right or protection relating to the Deliverables, for any other reason whatsoever, Participant hereby irrevocably designates and appoints CXP and its duly authorized officers and agents as his or her agent and attorney-in-fact, to act for and on Participant’s behalf to execute and file any such application or applications, and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, domain names, trademarks, or similar protections thereon with the same legal force and effect as if executed by Participant. With respect to Participant’s Personnel from whom signature may be required to effect the rights stated herein, Participant agrees to have the necessary document in place with such Personnel prior to the commencement of the Services to ensure that the rights stated herein can be promptly effected to CXP and its Affiliates, and their successors and assigns.
• (c) Participant acknowledges and agrees that CXP and CXP Clients have the right to review the Deliverables and request revisions to ensure that the Deliverables meet the requirements of the Engagement within thirty (30) days of the Deliverables being delivered. Upon delivery, CXP and/or CXP Clients may require changes to the Deliverables to meet the requirements of the Engagement, as determined solely by CXP or the CXP Clients. If CXP and/or CXP Clients fail to request such changes within the time period mentioned above, the Deliverables shall be deemed accepted. Express acceptance of the Deliverables must be provided by CXP in writing.

6.4 Feedback. During the Term, if Participant or its Personnel makes or provides any suggestions, ideas, recommendations or other feedback to CXP (the “Feedback”), all such Feedback shall be solely owned by CXP. Participant shall do (and shall cause its Personnel to do) all that is necessary to assign the ownership of such Feedback to CXP.

6.5 CXP Network Promotion. CXP engages in various promotional, marketing and advertising efforts to promote its capabilities. Unless Participant has expressly opted out, CXP may showcase Participant as part of such promotional, marketing and advertising efforts and Participant expressly grants CXP the rights to do so.

Article 7 - Warranty and Disclaimers

7.1 Warranty

• (a) Except as expressly permitted in this Section 7.1, Participant warrants that the Deliverables is an original work of Participant and is not derived from any works from other Person(s). Prior to including any non-original work into any part of the Deliverables, Participant shall seek the written consent of CXP. If such consent is obtained, which CXP may withhold for any reason, Participant shall obtain the necessary rights for Participant to comply with Section 6.3. Further, Participant warrants that Deliverables will not infringe the rights (including Intellectual Property Rights) of any third party.
• (b) Participant may incorporate software or other material that is distributed for “free” and without royalty, provided that the terms of distribution are not a “copyleft” type of license. “Copyleft” types of distribution licenses impose material limitation, restriction or condition on the right or ability for the licensee to use or distribute the “free” software, or the software that incorporates or uses such “free” software. Examples of such “copyleft” licenses include GNU General Public License, GNU Lesser General Public License, and Mozilla Public License.

7.2 Disclaimers

• (a) EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CXP MATERIALS, CONFIDENTIAL MATERIALS OF CXP AND THIRD PARTY TOOLS ARE PROVIDED ON AN “AS-IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF MEASUREMENTS OR OTHER OUTPUTS, THAT THE CXP MATERIALS, CONFIDENTIAL MATERIALS OF CXP AND THIRD PARTY TOOLS WILL BE FREE OF FAULT OR INTERRUPTIONS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
• (b) PARTICIPANT ACKNOWLEDGES AND AGREES THAT CXP DOES NOT EXERCISE CONTROL OVER THE CLIENT MATERIALS, EVEN IF CXP PROVIDES THE CLIENT MATERIALS TO PARTICIPANT. CXP IS MERELY A CONDUIT FOR RELAYING THE CLIENT MATERIALS TO PARTICIPANT IN RELATION TO THE SERVICES. NO REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITY OR OTHERWISE ARE PROVIDED RELATING TO THE CLIENT MATERIALS.
• (c) IF THE ENGAGEMENT REQUIRES PARTICIPANT TO PROVIDE THE SERVICES ON THE PREMISES OF CXP CLIENT, CXP WILL USE REASONABLE EFFORTS TO OBTAIN ASSURANCES REGARDING THE HEALTH AND SAFETY OF SUCH PREMISES VIA CONTRACT OR OTHERWISE. HOWEVER, PARTICIPANT ACKNOWLEDGES AND AGREES THAT CXP DOES NOT EXERCISE DIRECT CONTROL OVER SUCH PREMISES AND IT IS ULTIMATELY THE RESPONSIBILITY OF PARTICIPANT TO EXERCISE DILIGENCE AND PRECAUTIONS TO MINIMIZE RISKS (FOR ITSELF AND FOR ITS PERSONNEL) ASSOCIATED WITH BEING PRESENT AT THE PREMISES. CXP ALSO ENCOURAGES PARTICIPANT TO CARRY INSURANCE COMMENSURATE WITH THE LEVEL OF RISKS ASSOCIATED WITH PROVIDING THE SERVICES ON SUCH PREMISES. IF ANY PARTICIPANT IS CONCERNED WITH HEALTHY AND SAFETY, IT IS THE RESPONSIBILITY OF PARTICIPANT TO COMMUNICATE WITH CXP AND/OR CXP CLIENT TO RESOLVE SUCH CONCERNS AND IF SUCH CONCERNS ARE NOT RESOLVED, PARTICIPANT MAY TERMINATE THE APPLICABLE PARTICIPATION FORM BY PROVIDING CXP WITH TEN (10) DAYS’ WRITTEN NOTICE.

Article 8 - Indemnification and Limitation of Liabilities

8.1 Indemnification

Participant (the “Indemnifying Party”) will defend and hold harmless CXP (the “Indemnified Party”) and its Affiliates and their respective officers, directors and Personnel (such parties together with the Indemnified Party, the “Indemnified Parties”) from and against:

• (1) all Claims brought by a third party (including, for clarity, CXP Client) arising from, in connection with or related to (i) the Services provided under this Agreement, (ii) breach of Article 2, Article 5 or Section 7.1 by Participant or its Personnel, or (iii) any negligent act or omission of Participant or its Personnel; and
• (2) all Claims brought by Participant’s Personnel arising from, in connection with or related to (i) bodily injuries or death while performing the Services, (ii) loss of or damage to property owned or licensed to the Personnel used in the performance of the Services, or (iii) unpaid wages, benefits, vacations, tax dues or other responsibilities of Participant as its Personnel’s employer or head contractor (if Personnel is the Participant’s contractor); and

Indemnifying Party shall indemnify Indemnified Parties for all damages, fines, penalties, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and disbursements of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of investigation, litigation, settlement or other proceedings or of any claim, default or assessment) from such Claims set forth in (1) and (2).

8.2 Limitation of Liabilities

• (a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, CXP, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND PERSONNEL (COLLECTIVELY, THE “CXP PARTIES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS, EVEN IF THE SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIMS IS BASED.
• (b) THE TOTAL LIABILITY AND OBLIGATIONS OF CXP PARTIES SHALL NOT EXCEED: (i) FOR ALL CLAIMS ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO A PARTICIPATION FORM, THE FEES PAID BY CXP TO PARTICIPANT UNDER SUCH PARTICIPATION FORM IN THE SIX (6) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY OR OBLIGATION; OR (ii) IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT, THE FEES PAID PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY OR OBLIGATION. THE LIMITS OF LIABILITY IN THIS SECTION ARE CUMULATIVE AND NOT PER-INCIDENT.
• (c) TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 8.2 SHALL APPLY (i) REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE; (ii) EVEN IF CXP PARTIES ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iii) EVEN IF PARTICIPANT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF LIABILITY, THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

Article 9 - General

9.1 Non-Solicitation. During the Term and for a period of twelve (12) months from the end of the Term, Participant will not, individually or, through or in connection with any Person, directly or indirectly, solicit or entice, or attempt to solicit or entice:

• (a) any CXP Client that Participant participated in an Engagement pursuant to a Participation Form; or
• (b) any Person that CXP solicited business or with whom had directly contact, and Participant was involved in the procurement process (whether or not such business led to an Engagement).

9.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between the Parties. The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties.

9.3 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement will be deemed to be made in the Province of Ontario and, subject to Section 9.5, the Parties hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario for any legal action arising out of or related to this Agreement and agree not to commence any action, suit or proceeding in any jurisdiction other than the Province of Ontario. A Party may bring suit against the other Party in a forum other than Ontario, Canada, provided that (A) such suit is solely for an injunction to enforce this Agreement and is not for damages; (B) such suit is brought against the other Party in a jurisdiction or forum in which the other Party is doing business; and (C) the other Party is not a resident of Ontario, Canada and would not otherwise be directly subject to an injunction issued by an Ontario, Canada court.

9.4 Force Majeure. Notwithstanding anything to the contrary contained herein, a failure or delay in performance by a Party, other than a payment obligation, shall be excused to the extent caused by a Force Majeure Event provided that, the affected Party notifies the other Party promptly and in detail of the commencement and nature of such Force Majeure Event, and provided further that the affected Party uses its commercially reasonable efforts to render performance in a timely manner utilizing to such end all resources reasonably required in the circumstances.

9.5 Dispute Resolution Procedure

• (a) In the event of any dispute or disagreement between the Parties with respect to the interpretation of any provision hereof, the performance of either Party hereunder, or any other matter that is in dispute between the Parties arising from or in connection with or related to this Agreement ("Dispute"), upon the written request of either Party, the Parties will promptly meet for the purpose of resolving such Dispute. The Parties agree to discuss the Dispute and negotiate in good faith without the necessity of any formal proceedings for the first thirty (30) days of an occurrence of a Dispute.
• (b) Each Party shall continue performing its obligations under this Agreement while any Dispute is being resolved in accordance with this Section 9.5, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.

9.6 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement will be deemed to create a partnership or joint venture or a relationship of principal and agent, employer-employee, master-servant, or franchisor-franchisee among or between the Parties. The relationship between the Parties is non-exclusive.

9.7 No Assignment. Except as expressly permitted in this Agreement, Participant may not assign, transfer or sub-license any of its rights or delegate any of its responsibilities without the written consent of CXP.

9.8 Severability. The Parties agree that it is the intention of each Party not to violate any public policy or law. To the extent that any provision of this Agreement is deemed to be invalid, illegal or unenforceable, such provision will be severed and deleted or limited so as to give effect to the intent of the Parties insofar as possible and the Parties will use their best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provisions and the remainder of this Agreement will remain binding upon the Parties.

9.9 No Waiver. Either Party's failure to enforce any provision or right in this Agreement will not be construed as a waiver of any such provision or right. Waiver of any provision or right must be specifically in writing by the waiving Party. Except as expressly stated in the written waiver, a Party's waiver shall not operate or be construed as a continuous waiver to such provision or right.

9.10 Notices. Any demand, notice, consent, authorization or other communication required or permitted to be given in connection with this Agreement must be given in writing and will be given by personal delivery or sent by, courier, prepaid registered mail or electronically receipted e-mail, in each case addressed to the recipient as follows: (1) in the case of CXP, Attn: legal, 4145 North Service Road, 2nd Floor, Burlington, ON, L7L 6A3 with a copy to legal@collectivexp.io; and (2) in the case of Participant, to the address stated in the applicable Participant Form, Attn: legal, or to such other address, individual, or email address as may be designated by notice given by either Party to the other Party in the same manner. Any demand, notice, consent, authorization or other communication if given by personal delivery (including courier) will be deemed to have been given on the day of actual delivery thereof, if given by registered mail will be deemed to have been given on the fifth (5th) Business Day following the deposit thereof in the mail, if given by electronically receipted e-mail will be deemed to have been given upon receipt thereof.

9.11 Counterparts and Electronic Execution. The execution of the Participation Form, which incorporates the Master Participation Agreement by reference, whether executed electronically or physically, and delivered by electronic means or sent to the addresses set forth in Section 9.10, shall constitute effective delivery by that Party of an original executed copy of this Agreement to the Party receiving the transmission. Also, the Participation Form may be executed by the Parties in several counterparts, each of which will be deemed to be an original, but all of which taken together will constitute one and the same instrument.

9.12 Amendment. No modification, amendment, or waiver of any provision of this Master Participation Agreement or any Participation Form will be effective unless in writing and signed by both Parties. Notwithstanding the foregoing sentence, CXP may unilaterally amend this Master Participation Agreement, in whole or in part, from time to time. The date of any change to the Master Participation Agreement shall be indicated above.

9.13 Participant’s Terms. No terms in any purchase order, invoice or other document of the Participant, other than the identification of the Services being provided, the Service Term, the applicable pricing and the address for invoicing shall be binding on CXP, and all such terms are hereby expressly rejected.

Schedule A - Minimum Information Security Requirements

This Schedule A sets out the mutual understanding between the Parties with respect to information security requirements in handling information made available by CXP.

1. Definitions

• (a) “CXP Information” means the CXP Materials and the Deliverables.
• (b) “Data Incident” means any reasonably suspected or actual unauthorized access to or acquisition, disclosure, use, or loss of CXP Information or breach or compromise of the Security Program that presents a potential threat to any CXP Information.
• (c) “Privacy and Security Requirements” means all of the following: (i) all legal requirements (federal, provincial, local, and international laws, rules and regulations, and governmental requirements) currently in effect and as they become effective, relating in any way to the privacy, confidentiality, integrity, availability, or security of CXP Information, including the Personal Information Protection and Electronic Documents Act (Canada); (ii) all industry standards concerning privacy, data protection, confidentiality, integrity, availability, or security of information; and (iii) all policies, statements, or notices that are provided to Participant in writing.
• (d) “Security Breach” means any reasonably suspected or actual unauthorized access to or acquisition, disclosure, use, or loss of CXP Information (including hard copy records) or breach or compromise of the Security Program that presents a potential threat to any CXP Information.
• (e) “Security Program” means the security program described in Section 2.

2. Security Requirements

• (a) Requirements. Participant shall maintain a security program that complies with the Privacy and Security Requirements and incorporates industry best practices. Notwithstanding the foregoing sentence, the security program shall include at least the following safeguards:

  • (i) User Authentication and Passwords. (i) Appropriate user authentication controls, including secure methods of assigning, selecting, and storing access credentials, restricting access to active users, and blocking access after a reasonable number of failed authentication attempts; and (ii) strong password policy (consistent with any password policy provided by CXP) applied to all authenticated systems, including the Third Party Tools.
  • (ii) Monitoring. Monitoring of systems designed to ensure data integrity and prevent loss or unauthorized access to, or acquisition, use, or disclosure of CXP Information.
  • (iii) Technical Safeguards. Technical security measures, including firewall protection, antivirus protection, security patch management, logging of access to or use or disclosure of CXP Information, intrusion detection, and encryption of data in transit and at rest.
  • (iv) Physical Safeguards. Physical facility security measures, including access controls, designed to restrict access to Participant’s premises to authorized personnel only.
  • (v) Training. Appropriate, ongoing training and awareness programs designed to ensure workforce members and others acting on Participant’s behalf are aware of and adhere to the Security Program.
  • (vi) Testing. Regular testing, at least annually, of the effectiveness of the Security Program and whenever there is a material change in Participant’s technical environment or business practices that may implicate confidentiality, integrity and safety of CXP Information.

• (b) Breach Handling and Reporting

  • (i) Upon detection of any Security Breach, notify CXP within 24 hours and the notice shall set out: (i) the details of the Security Breach and (ii) the correction action already taken or to be taken by Participant. Upon request by CXP, Participant shall provide additional details available to it.
  • (ii) Participant shall promptly take all necessary and advisable corrective actions, and shall cooperate fully with CXP and its designees in all reasonable efforts to investigate the Security Breach, mitigate adverse effects, and prevent recurrence. Participant shall further collaborate with CXP where necessary to provide notice to the appropriate parties (consumers, governmental entity, media or other parties) regarding the Security Breach.
• (c) Audit. Once per year and upon providing reasonable notice, CXP may audit Participant to confirm compliance with this Agreement. The audit may be in the form of security testing, questionnaires or other form determined by CXP, and Participant agrees to cooperate and provide the necessary access to its staff and documentation to facilitate this audit.

• (d) Restrictions

  • (i) Any Participant’s Personnel working on any CXP competitor’s work shall be prohibited from having access to CXP Information.