Last Updated: 03-10-2025
Governing Law: Ontario, Canada
This Master Services Agreement (the "MSA") is Provider’s standard terms. It applies to any Client that signs a Service Order (also called a Statement of Work or Quote or a Proposal) that references this MSA. “Provider” means THINKFLEX. “Client” means the entity identified in the applicable Service Order. Service descriptions, pricing, and term are defined in one or more Service Orders. Capitalized terms not defined in a Service Order have the meanings in this MSA.
1. Structure and Scope
1.1 Agreement Structure. This MSA governs all Services provided by Provider and accepted by Client under any Service Order executed by the Parties.
1.2 Precedence. If there is a conflict, the Service Order controls, then this MSA, then any schedules/attachments.
2. Term, Renewal, Termination
2.1 Term per Service Order. Unless a Service Order states otherwise, Services have an Initial Term of twelve (12) months, billed monthly.
2.2 Auto‑Renewal. At the end of the Initial Term, Services renew automatically for successive twelve (12) month terms unless either Party gives thirty (30) days’ written notice before the end of the then‑current term.
2.3 Termination for Cause. Either Party may terminate a Service Order for material breach not cured within thirty (30) days of written notice (ten (10) days for payment breach).
2.4 Early Termination for Convenience (Client). Client may terminate a Service Order early by paying an Early Termination Fee (ETF) equal to 100% of the remaining monthly fees for the Term, plus any non‑cancellable third‑party charges.2.5 Suspension. Provider may suspend Services on seven (7) days’ notice if any undisputed invoice is more than forty‑five (45) days past due.
3. Fees, Invoicing, Taxes
3.1 Fees and Billing. Fees are set forth in each Service Order and are billed monthly, unless otherwise stated.
3.2 Payment Terms. Invoices are due Net 30 days from the invoice date.
3.3 Taxes. Fees are exclusive of HST and other applicable taxes, which will be charged as required. Client is responsible for any duties or similar charges.
3.4 Late Charges. Overdue balances may accrue interest at 1.5% per month (18% APR) or the maximum lawful rate, whichever is lower.
3.5 Price Protection; Renewal Adjustments. Fees are fixed during the Term. At renewal, fees may adjust by the lesser of CPI + 3% or 8%, excluding third‑party vendor increases and new regulatory charges, which may be passed through upon notice.
3.6 True‑Ups. Seat/device counts may be trued up as stated in the Service Order. Increases take effect immediately; decreases apply at the next term/renewal unless otherwise agreed.
3.7 Third‑Party Charges. Client is responsible for non‑cancellable third‑party costs committed on Client’s behalf.
4. Changes and Out‑of‑Scope Work
4.1 Change Management. Material changes to scope, assumptions, or timelines require a written change order or updated Service Order.
4.2 Time‑and‑Materials. Work not expressly included in a Service Order will be billed at the then‑current hourly rates.
5. Services; Service Levels and Support
5.1 Services. Provider will deliver the services described in each Service Order using commercially reasonable skill and care, consistent with industry practices.
5.2 Service Levels. Any SLAs or response targets will be stated in the applicable Service Order or schedule.
5.3 Onboarding. Provider may provide onboarding at the start of a Service; any credits/discounts are conditional on completion of the Initial Term unless otherwise agreed.
5.4 Client Environment. Provider’s performance depends on Client’s timely access, information, and fulfilment of responsibilities.
6. Client Responsibilities
6.1 Access and Cooperation. Client will provide reasonable access to systems, facilities, and personnel as needed.
6.2 Designated Contacts. Client will appoint an authorized contact for decisions and approvals.
6.3 Acceptable Use. Client and users will comply with applicable laws and any acceptable use requirements stated in a Service Order.
6.4 Licensing Compliance. Client will maintain valid licences for Client‑provided software and systems.
7. Data Ownership, Privacy, and Security
7.1 Ownership. Client owns all rights in Client Data. Provider obtains no rights other than to provide the Services.
7.2 Security. Provider will implement administrative, physical, and technical safeguards consistent with industry practices and applicable privacy laws, including PIPEDA.
7.3 Confidentiality of Data. Provider will treat Client Data as Confidential Information.
7.4 Data Return/Deletion. Upon request within 30 days after termination, Provider will deliver Client Data in a commonly used, machine‑readable format and then securely delete remaining copies, except as required by law or backup retention cycles.
7.5 Incident Notice. Provider will notify Client without undue delay upon confirming a security incident impacting Client Data and will cooperate in investigation and remediation.
8. Confidentiality
8.1 Obligations. Each Party will protect the other’s Confidential Information with the same care it uses for its own, and at least reasonable care.
8.2 Exclusions. Information is not confidential if it is public without breach, independently developed, or rightfully obtained from a third party without duty of confidentiality.
8.3 Compelled Disclosure. A Party may disclose Confidential Information if required by law, after providing reasonable notice if legally permitted.
9. Intellectual Property and Licensing
9.1 Provider Materials. Provider retains all IP in its pre‑existing tools, methods, and software ("Provider Materials"). Provider grants Client a non‑exclusive, non‑transferable licence to use Provider Materials delivered under a Service Order solely for Client’s internal business purposes.
9.2 Deliverables. Subject to payment of fees, Client receives a perpetual, non‑exclusive licence to use deliverables for internal purposes.
9.3 Third‑Party Products. Third‑party terms may apply as specified in a Service Order; Client agrees to comply with such terms.
10. Warranties and Disclaimers
10.1 Warranties. Provider warrants it will perform Services in a professional and workmanlike manner.
10.2 Disclaimer. Except as expressly stated, the Services and deliverables are provided “as is.” Provider does not warrant that the Services will be uninterrupted, error‑free, or free of vulnerabilities, or that they will prevent, detect, or remediate all security events or cyber attacks. Provider is not responsible for outages or failures of third‑party or upstream services, including but not limited to public clouds, internet service providers, power utilities, data centre providers, domain registrars, SaaS platforms, or email and telecommunications networks.
10.3 Third‑Party Dependencies. The Services may rely on third‑party hardware, software, platforms, or networks. Client acknowledges that third‑party terms may apply (as referenced in the Service Order) and that Provider is not liable for acts, omissions, changes, price increases, limits, or failures of such third parties. Provider will use commercially reasonable efforts to coordinate remediation with the applicable third party.
11. Indemnification
11.1 By Provider. Provider will defend and indemnify Client against third‑party claims that Provider’s Provider Materials used in the Services infringe that third party’s IP rights, subject to customary exclusions (e.g., combinations not supplied by Provider, Client instructions, or unsupported uses).
11.2 By Client. Client will defend and indemnify Provider against claims arising from Client Data, Client‑provided materials, or Client’s misuse of the Services.
11.3 Process. The indemnified Party must promptly notify the indemnifying Party and provide reasonable cooperation; the indemnifying Party controls the defence.
12. Limitation of Liability
12.1 Cap. Except for confidentiality or IP infringement obligations, each Party’s total liability under this MSA and any Service Order will not exceed the fees paid or payable by Client in the twelve (12) months preceding the event giving rise to the claim.
12.2 Exclusion. Neither Party is liable for indirect, incidental, special, punitive, or consequential damages, including loss of profits or data.
12.3 Essential Basis. The limitations form an essential basis of the bargain.
13. Subcontractors; Non‑Solicitation
13.1 Subcontractors. Provider may use subcontractors; Provider remains responsible for their performance.
13.2 Non‑Solicitation. During the Term and for twelve (12) months thereafter, neither Party will solicit for employment any personnel of the other who were materially involved in the Services, except through general solicitations.
14. Force Majeure
Neither Party is liable for delays or failures due to events beyond its reasonable control (e.g., natural disasters, acts of government, network outages, strikes), provided it uses commercially reasonable efforts to mitigate.
15. Notices; Governing Law; Dispute Resolution
16.1 Notices. Legal notices must be in writing and sent to the addresses set out in the applicable Service Order (or updated by notice) via email with confirmation, courier, or certified mail.
16.2 Governing Law. This MSA is governed by the laws of Ontario and the federal laws of Canada applicable therein.
16.3 Dispute Resolution. The Parties will escalate disputes to senior management in good faith before pursuing litigation. Venue is the courts of Ontario.
16. Updates to this MSA
Provider may update this MSA from time to time. Updates apply (a) immediately to new Service Orders issued after the update, and (b) to existing renewable Services at the next renewal after 30 days’ notice to Client. Material changes will not apply mid‑term unless required by law, security, or third‑party vendor changes.
17. Entire Agreement; Miscellaneous
18.1 Entire Agreement. This MSA, together with all Service Orders and referenced schedules, is the complete agreement regarding its subject matter and supersedes prior discussions.
18.2 Assignment. Neither Party may assign without the other’s consent, except to an affiliate or in connection with a merger, acquisition, or sale of substantially all assets, with notice.
18.3 Severability; Waiver. If any provision is unenforceable, the remainder remains in effect. Failure to enforce is not a waiver.
18.4 Counterparts; Electronic Signatures. Service Orders may be executed in counterparts and by electronic signature.
Schedule A — Definitions
“Client Data” means data supplied by or on behalf of Client in connection with the Services.
“Confidential Information” means non‑public information disclosed by a Party that is marked confidential or should reasonably be understood as confidential.
“Deliverables” means work product specifically identified in a Service Order.
“Service Order” means any ordering document (including SOW or Quote or Proposal) that references this MSA.
“Services” means the services described in a Service Order.
“Term” means the Initial Term and any renewal terms set out in a Service Order.
Schedule B — Data Protection (PIPEDA)
B1. Purpose Limitation. Provider will process Client Data solely to deliver the Services.
B2. Safeguards. Provider will maintain reasonable administrative, physical, and technical safeguards appropriate to the nature of Client Data.
B3. Personnel. Provider will ensure personnel with access to Client Data are bound by confidentiality obligations.
B4. Breach Notice. Provider will notify Client without undue delay after confirming an incident that results in loss, unauthorized access, or unauthorized disclosure of Client Data and will provide available information to support Client’s notifications under PIPEDA, if applicable.
B5. Cross‑Border Processing. Client acknowledges Services may involve processing outside the province of Ontario and outside Canada; Provider will ensure appropriate safeguards and require subcontractors to provide substantially similar protections.
B6. Return/Deletion. As set out in Section 7.4.