1. Services; Order of Precedence.

1.1 Service.

During the term of this MSA and subject to the terms and conditions herein, Mission Control agrees to provide certain: (i) Remotely Managed IT Services (“Managed Services”) purchased by Partner in accordance with the terms of this Section 1.1. These Services may include NOC, HelpDesk, Projects and Dispatching, and other remotely managed IT services provided by Mission Control, however combined or separated.

The Services being purchased by Partner are to be specified in a physical, digital or online service order (“Service Order”) or Statement of Work (“Statement of Work” or “SOW”) executed (or, if online, accepted pursuant to an online order process) by the parties which references this MSA. A detailed description of the specific Managed Services being purchased is set forth in the service description and service level agreement (“SLA”) for such Managed Services and attached to (or “linked to” / “linked from” if the Partner is purchasing online) the Service Order or SOW and incorporated therein by reference. All Service Orders and SOWs (whether signed or accepted pursuant to an online order process) are subject to the terms and conditions of this MSA and will include the following:

a) the Services to be performed, including, if applicable, any SLAs;
b) the term of the Services;
c) the compensation and billing method for the Services; and
d) any other applicable information agreed to by the parties.

1.2 Order of  Precedence.

In the event of a conflict between the terms of the MSA and a Service Order/SOW (including any exhibits or attachments thereto), the terms of the Service Order/SOW shall govern.

2.  Service Fees; Taxes; Invoicing and Payment.

2.1  Services

Mission Control’s fees for the Services are set forth on each Service Order/SOW.

2.2  Managed Services Service Fees.

The contract term for the Managed Services specified on each Service Order/SOW will begin on the first day in which: (a) Mission Control is requested to start the service; (b) Partner has received login details and is able to access an Mission Control online  portal (“Portal”), and/or (c) Mission Control has verified and completed all appropriate onboarding, (the “Service Commencement Date”).

Partner purchases of Services ordered via a Service Order/SOW will receive a first invoice for prorated Managed Services  from the Service Commencement Date to the end of the calendar month containing the Service Commencement Date along with any non-recurring charges associated with the Service Order/SOW. 1st  Payment will be due 5 days from  Invoice Date. Billing for the next calendar month will follow on the first of the next month and each consecutive 1st of month there-after and will include any overages or additional non-recurring charges associated with the Service Order/SOW used in the previous month. Billing will commence for the entire service even if there are devices, systems, or services not yet implemented by Partner.

2.3  Change Control.

“Change” means any change to the Services that 1) would modify or alter the delivery of the Services or the composition of the Services, 2) would alter the cost to Partner for the Services, or 3) is agreed by Partner and Mission Control in writing to be a Change. From time to time during the term of the Services, Partner or Mission Control may propose Changes to the Services. In   order for any Change to the applicable Service Order/SOW to be effective, it shall be  memorialized  in a change order (“Change Order”) or other written amendment signed by Mission Control and Partner, that specifically identifies the portion of the Service Order/SOW that is the subject of the modification or amendment and the changed or new provision.

2.4  Taxes

Partner shall be responsible for the payment of all taxes and fees assessed or imposed on the Managed Services for itself, and/or its customers, including taxes and fees charged under the Service Order/SOW in any country or territory in which the Partner receives the benefit of the Services, including any sales, use, excise, value-added, or comparable taxes, but excluding taxes: 1) for which the Partner has provided a valid resale or exemption certificate, or 2) imposed on Mission Control’s  income or arising from the employment relationship between Mission Control and its employees. If  Partner is required by law to withhold or deduct an amount from payments due to Mission Control for taxes or other impositions by a government entity under this MSA, Partner shall include such additional amount to Mission Control with its payment to ensure that Mission Control receives, after such withholding or deduction, the amount that it would have been paid had no withholding or deduction been required. The preceding sentence shall not apply in the case of any execution or other legal process served on Partner relating to the collection of judgments against Mission Control.

2.5  Invoices and Payment

Mission Control will invoice Partner in accordance with the billing terms set forth and detailed on the applicable Service Order or SOW. Unless otherwise specified on the Service Order or SOW, (i) all charges, fees, payments and amounts hereunder will be in United  States dollars, and (ii) all undisputed amounts due hereunder are payable within five (5) days from the date of the invoice, which shall be submitted to Partner electronically (the “Invoice Due Date”).

2.6  Disputes and Nonpayment

Partner shall have the right to reasonably, and in good faith, dispute any invoice or any portion of any invoice claimed by Mission Control as due and payable provided that, prior to the Invoice Due Date, Partner (i) timely pays any undisputed portion of the amount due and payable, and (ii) provides Mission Control with written notice specifying the disputed amount and the basis for the dispute in reasonable detail.

Except for amounts that are disputed in good faith by Partner in accordance with this Section 2.6, Mission Control reserves the right to charge Partner a late fee of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, for invoices not paid on or before the Invoice Due Date. In addition, Mission Control, without waiving any other rights or remedies to which it may be entitled, shall have the right, upon at least 15 days prior written notice to Partner, to suspend the Services until such payment is received.  Mission Control does not retain the right to suspend    Services in the event of a good faith dispute.

3.  Term of MSA; Service Order(s) and SOW(s).

3.1 Term of  MSA.

The term of this MSA shall commence on the Effective Date and shall continue until terminated as provided herein. Notwithstanding any termination of this MSA, its terms shall remain in effect for the limited purpose of governing the completion or expiration of the Services set forth on any Service Order/SOW that is still in effect at the time of termination.

3.2 Term of Service Orders/SOW(s).

The term for the Services is specified on the Service Order and/or SOW.

4.  Termination.

4.1 Termination for Breach.

Either party may terminate this MSA or any or all Service Orders and/or SOWs, if the other party materially defaults in performing any obligation under this MSA (including any Service Order/SOW) and such default continues un-remedied for a period of ninety (90) days following written notice of default.  If this MSA or the Service Order and/or SOW is terminated by Partner prior to the expiration date of the term for the Services for any reason other   than Mission Control’s breach, Partner agrees to pay to Mission Control: (i) for Managed Services, all unpaid Managed Services Service Fees as set forth on the Service Order for the Managed Services performed through the effective termination date plus a termination fee equal to the Managed Services Service Fees that will become due during the remaining term of the Service Order(s). If Partner terminates this MSA or the Service Order and/or SOW because of Mission Control’s breach, then to the extent that Partner has prepaid any Service fees, Mission Control shall refund to Partner any prepaid Service fees on a  pro-rata basis to the extent such Service fees are attributable to the period after such termination date.

4,2  Termination for Insolvency

This MSA will terminate, effective upon delivery of written notice by either party to the other party upon the following: (a) the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party; (b)   the making of an assignment for the benefit of creditors by the other party; or (c) the dissolution of   the other party.  For purposes of Section 4.1, a termination by Mission Control under this Section shall   be deemed a termination for its breach.

4.3  Termination for Convenience.

Unless otherwise specified on the Service Order and/or SOW, either party may terminate this MSA or any or all Service Orders and/or SOWs for convenience by providing thirty (30) days written notice.

5. Proprietary Rights

5.1 Partner’s Proprietary Rights.

Partner represents and warrants that it has the necessary rights, power and authority to transmit and allow access to Partner Data (as defined below) to Mission Control under this MSA and that Partner has and shall continue to fulfill all obligations with respect to individuals as required to permit Mission Control to carry out the terms hereof, including with respect to all applicable laws, regulations and other constraints applicable to Partner As between Partner and Mission Control, Partner will own all right, title and interest in and to (i) any data provided by Partner to Mission Control and/or Partner’s data accessed or used by Mission Control or transmitted by Partner to Mission Control in connection with Mission Control’s provision of the Services, including, but not limited to, Partner’s data included in any written or printed summaries, analyses or reports generated in connection with the Services (Partner’s data, is the “Partner Data”), (ii) all intellectual property, including patents, copyrights, trademarks, trade secrets and other proprietary information (“IP”) of Partner that may be made available to Mission Control in the course of providing Services under this MSA, and (iii) all confidential or proprietary information of Partner or Partner Affiliates, including, but not limited to, Partner Data, Partner Reports (as defined in Section 6.3), and other Partner files, documentation and related materials, in each case under this clause (iii), obtained by Mission Control in connection with this MSA.

Partner grants to Mission Control a limited, non-exclusive license to use the Partner Data to perform the Services. Mission Control may process NOC Event Data during and after the term hereof to develop and enhance its products and services. “NOC Event Data” means information, collected during Mission Control provision of Managed Services, related to security events. Partner grants to Mission Control a limited, non-exclusive, perpetual, worldwide, irrevocable license to use and otherwise process the NOC Event Data during and after the term hereof to develop, enhance and/or improve its security services and the products and services it offers and provides to partners. To the extent such NOC Event Data includes information about individuals, Mission Control will be the controller. This MSA does not transfer or convey to Mission Control or any third party any right, title or interest in or to the Partner Data or any associated IP rights, but only a limited right of use as granted in and revocable in accordance with this MSA.

6.  Confidentiality.

In the performance of the Services, Partner and Mission Control may have access to or be exposed to information of the other party not generally known to the public, including, but not limited to software, product plans, marketing and sales information, partner lists, “know-how,” or trade secrets which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential (collectively, “Confidential Information”).

Confidential Information may not be shared with third parties unless such disclosure is to personnel of Mission Control or Partner, including employees, agents and subcontractors, on a “need-to-know” basis in connection with its performance obligations pursuant to this MSA or any Service Order or SOW, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take precautions to maintain the confidentiality of Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care. The foregoing shall not include information, which:

(A) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient,
(B) is received by the recipient from a source other than a party to this MSA,
(C) is independently developed by a party without causing a breach of the terms hereunder, or
(D) a party is required to disclose in response to an order by a court or governmental agency, but as much advance notice of the disclosure as reasonably possible is to be provided to other party prior to the making of the disclosure.

During the term of this MSA and the Services, Mission Control shall employ and maintain reasonable and appropriate safeguards designed to: (a) reasonably protect all Partner Data in Mission Control’s possession from unauthorized use, alteration, access or disclosure; and (b) ensure that Mission Control’s employees and agents are appropriately trained to maintain the confidentiality and security of Partner Data in Mission Control’s possession.

An unauthorized intrusion by a third party into Mission Control’s network or systems, not directly caused by Mission Control’s negligence or willful misconduct, that results in unauthorized access to Partner’s Confidential Information or Partner Data shall not be considered a breach of this Section 6.

Mission Control agrees to notify Partner promptly (within 48 hours), upon becoming aware of a   confirmed use, accidental or unlawful destruction, loss or unauthorized disclosure of Partner Data or Partner Information in violation of this MSA.

This Section 6 shall survive any expiration or termination of this MSA; provided that with respect to any Confidential Information remaining in the receiving party’s possession following any termination or expiration of this MSA, the obligations under this Section 8 shall survive for as long as such Confidential Information remains in such party’s possession.

7.  Warranties; Limitation of Liability.

7.1 Warranties

Mission Control WARRANTS THAT:
I) ITS PERSONNEL ARE AND WILL THROUGHOUT THE TERM BE ADEQUATELY TRAINED AND COMPETENT TO PERFORM THE SERVICES, AND 2) THE SERVICES SHALL BE PERFORMED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH THE SERVICE ORDER/SOW AND THIS MSA. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 1, Mission Control (INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “MISSION CONTROL PARTY(IES)“) MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE PRODUCTS, SERVICES OR PARTNER REPORTS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT. PARTNER UNDERSTANDS THAT MISSION CONTROL’S SERVICES DO NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT THE SECURITY OF PARTNER’S SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK.

7.2 Limitation of Liability

7.2.1 NEITHER THE MISSION CONTROL PARTIES NOR PARTNER WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS MSA, INCLUDING ANY SERVICE ORDER OR SOW.

7.2.2 NEITHER THE MISSION CONTROL PARTIES NOR PARTNER, SHALL HAVE ANY LIABILITY FOR THE FOLLOWING: (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, OR (D) BUSINESS INTERRUPTION OR DOWNTIME.

7.2.3 EXCEPT AS PROVIDED IN SECTIONS 11.1 AND 11.2, THE MISSION CONTROL PARTIES’ AND PARTNER’S RESPECTIVE AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THIS MSA SHALL NOT EXCEED: (A) FOR THE MANAGED SERVICES: THE AMOUNTS PAID BY PARTNER FOR THE SPECIFIC MANAGED SERVICES GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE (12) MONTH PERIOD; AND (B) FOR ANY CONSULTING SERVICES: THE AMOUNT OF THE SOW.

7.3.4 The foregoing limitations, exclusions and disclaimers shall apply, regardless of whether the claim for such damages is based in contract, warranty, strict liability, negligence, and tort or otherwise. Insofar as applicable law prohibits any limitation herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation permitted to the fullest extent possible under such law. The parties agree that the limitations on liabilities set forth herein are agreed allocations of risk constituting in part the con sideration for Mission Control’s sale of Services and/or Products to Partner, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has   been advised of the possibility of such liabilities.

This Section 7 shall survive any expiration or termination of this MSA.

8. Data Privacy

8.1 Partner authorizes Mission Control to collect, use, store, transfer and otherwise process the personal data Mission Control obtains from its customers as a result of providing the Services for the purpose of complying with Mission Control’s rights and obligations under this MSA and for any additional purposes described pursuant to this MSA.

9. Indemnification.

“Indemnified Parties” shall mean, in the case of Mission Control, Mission Control, its Affiliates and subcontractors, and each their respective directors, officers, employees, contractors and agents and, in the case of Partner, Partner, and each of their respective directors, officers, employees, contractors and agents.

9.1 Mutual General Indemnity.

Each party agrees to indemnify, defend and hold harmless the other party from any third-party claim or action 1) for personal bodily injuries, including death, or tangible property damage resulting from the indemnifying party’s gross negligence or willful misconduct (as to which the exclusions and limitations of liability set out in Section 9 shall not apply).

9.2 Indemnification Procedures.

The Indemnified Party will i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement.  In no event may either party enter into any third-party agreement which would in any manner whatsoever affect the rights of the other party or bind the other party in any manner to such third party, without the prior written consent of the other party.

This Section 9 states each party’s exclusive remedies for any third-party claim or action, and nothing in this MSA or elsewhere will obligate either party to provide any greater indemnity to the other.  This Section 9 shall survive any expiration or termination of this MSA.

10. Government Entity

Partner represents and warrants that it is not a national, provincial, Federal, state, county or  municipal government or any governmental agency, department, subdivision, instrumentality, body, corporation or other arm or extension of any of the foregoing and, in executing and delivering this MSA and receiving the Products and Services hereunder, is not acting under the authority or color    of authority of any of the foregoing.

This Section 10 shall survive any expiration or termination of this MSA.

11. Important Additional Terms.

11.1 Independent Contractor Relationship; No Publicity; Assignment; Subcontracting.

The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this MSA. Neither party will use the other party’s name (except internal use only), trademark, logos, or trade name without the prior written consent of the other party. Mission Control has the right to assign, subcontract or delegate in whole or in part this MSA, or any rights, duties, obligations or liabilities under this MSA, by operation of law or otherwise, provided Mission Control shall remain responsible for the performance of Services under this MSA. Otherwise, neither party may assign this MSA without the permission of the other party which permission shall not be unreasonably withheld, conditioned or delayed; except that either party may assign this MSA without the consent of the other party to a successor in connection with a merger, sale of all, or substantially all, of such party’s assets, or other change of control.

11.2 Entire Agreement; Amendments; Severability; Binding Effect;

This MSA, including any appendices, applicable Service Orders and/or SOW(s), including related and linked documents declared within the Service Orders and/or SOW(s) are the entire agreement between Mission Control and Partner with respect to its subject matter and supersede all prior oral  and  written understandings, agreements, communications, and terms and conditions between the parties  including, without limitation, any terms contained within a purchase order issued by Partner in connection with the Services, including, but not limited to, any separate security or privacy agreements executed by the parties.  This MSA, Service Orders, and SOW(s) may be amended from time to time by Mission Control, as reasonably necessary, in its reasonable discretion as long as such amendments (a) will have no material adverse impact on the Services or Service Levels currently being provided to Partner by Mission Control; and (b) are being effected with respect to all similarly situated Mission Control Partners. If any provision of this MSA is void or unenforceable, the remainder of this MSA will remain in full force and effect. Section headings are for reference only and shall not affect the meaning or interpretation of this MSA.  This MSA, along with all related Service Order(s) and SOW(s) shall be binding upon, inure to the benefit of, and be enforceable by Mission Control and Partner, and their respective affiliates, successors, heirs, executors, administrators and permitted assigns.

11.3 Force Majeure.

Neither party shall be liable to the other party for any failure to perform any of its obligations under this MSA during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, acts of God, terrorism, strikes, failure of suppliers, fires, floods, earthquakes, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure  event lasts longer than thirty (30) days, or fifteen (15) business days as to a Force Majeure delaying Partner’s performance of its payment obligations, the other party may immediately terminate the applicable Service Order and/or SOW by giving written notice to the delayed party.

11.4 Notices

Neither party shall be deemed to be in breach of this MSA for any failure or delay in performance caused by reasons beyond its reasonable control, including, force majeure. Any notices required under this MSA shall be sent to the addresses of the parties stated on the Service Order / SOW and shall be deemed received if delivered personally, on the day of delivery; if sent by mail or courier three (3) days after dispatch; if sent by facsimile or electronic mail, upon successful completion of transmission to the party to whom the notice is given.

Either party may change its notice address at any time by giving notice of the change to the other party as provided in this Section.

This Section 11.4 shall apply for formal contract notices only and shall not limit the parties’ ability to communicate via e-mail or other agreed to methods for routine communications.

11.5 Governing Law, Forum and Language

THE PARTIES AGREE THAT THIS MSA, ANY THE SERVICES HEREUNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER  IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN PARTNER AND MISSON CONTROL ARISING FROM OR RELATING TO THIS MSA, THE SERVICES, ITS INTERPRETATION, OR THE BREACH, TERMINATION OR VALIDITY THEREOF, THE RELATIONSHIPS WHICH RESULT FROM THIS MSA OR ANY RELATED PURCHASE SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO, CANADA, WITHOUT REGARD TO CONFLICTS OF LAW.

The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to the MSA and/or the Services its interpretation, or the breach, termination or validity thereof, the relationships which result from this MSA or any related purchase shall be brought exclusively in the courts located in Toronto, Ontario, Canada, provided, however, that any third-party action between Mission Control and Partner may be brought in any jurisdiction in which the main litigation is pending so long as such litigation is within Canada. Partner and Mission Control agree to submit to the personal jurisdiction of the courts located within Toronto, Ontario, Canada and to any other court within Canada for purposes of a third party action and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.

11.6 Compliance with Laws.

Each party agrees to comply with all laws and regulations applicable to such party during performance of its obligations under this MSA.

11.7 Third Party Beneficiaries.

The parties do not intend, nor will any Section hereof be interpreted, to create for any third-party beneficiary rights with respect to either of the parties.

11.8 Non-Solicitation.

During the term of this MSA, and for a period of three (3) years thereafter, neither party shall directly or indirectly employ, solicit or retain the services of the personnel of the other party, for its own benefit or for the benefit of another.  Notwithstanding the foregoing, the provision shall not restrict in any way the right of either party to solicit generally in the media for required personnel, and shall not restrict employees, contractors, or other representatives of either party from pursuing on their own initiative employment or contract opportunities from or with either party.

11.9 Dispute Resolution.

The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) arising out of or relating to this MSA or the Services hereunder (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as Notwithstanding the foregoing, either party will have the right to seek from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity.

11.10 Execution

A digital copy of the signature of any party on the Service Order / SOW in connection or linked to/from this MSA shall be deemed an original signature for all purposes and a counterpart of this MSA may be delivered by email in PDF format. The Effective Date of this MSA shall be the date on which the last of the Company and Partner to sign has signed the related Service Order / SOW