Master Services, Products, and License Agreement

Updated June 2024

This Master Services, Products, and License Agreement (the “Agreement”) is by and between OnX Enterprise Solutions Ltd., an Ontario corporation for itself, its affiliates, and subsidiaries (“Company”), and you (“Customer”) covering: (i) the provision of a variety of information technology/IT and telecommunications services (“Technological Services”) staff augmentation according to the terms of Schedule 1 of this Agreement, or other professional services (“Professional Services” and together with Technological Services, collectively “Services”), (ii) the purchase of IT or telecommunications equipment (“Products”), and/or (iii) the licensing of software, including the purchase of maintenance and support services(“Software”) set forth in separate documents attached hereto or executed from time to time pursuant hereto (the “Related Agreements”), including, without limitation, Statements of Engagement, Statements of Work, Service Schedules, Service Agreements, Rights to Engage, Hardware Quotes, Contract Change Requests, Purchase Orders and Bills of Materials. Customer agrees that it shall be bound by this Agreement with Company, unless the parties enter into a separate written agreement. 

1.  Scope of Agreement.

Each Related Agreement will include applicable prices or fees, and will specify the Services, Products, or Software to be delivered by Company. Customer and Company agree that the terms and conditions of this Agreement will apply to all Services, Products, or Software provided to Customer, and each executed Related Agreement will be deemed incorporated into and made part of this Agreement.

The terms of this Agreement will prevail over any contrary provision in a Related Agreement unless the Related Agreement explicitly states that it prevails over this Agreement.

Subsidiaries and affiliates of Company (together with Company, the “Affiliated Legal Entities”) may transact business under this Agreement in their own names, and this Agreement, including all rights, benefits and obligations, shall extend and inure to the benefit of each such Affiliated Legal Entity. To the extent an Affiliated Legal Entity other than Company executes a Related Agreement with Customer, this Agreement shall be construed and interpreted with respect to the Services covered therein as if the Agreement had been executed directly between such Affiliated Legal Entity and Customer. For purposes of clarity, no Affiliated Legal Entity shall be responsible for, or assume any liability of, any other legal entity transacting business under this Agreement.

2.   Term.

2.1. The term of this Agreement will commence on the Effective Date and will continue in full force and effect for the duration of each applicable Related Agreement executed hereunder, unless earlier terminated pursuant to the terms herein (“Term”). The execution of new Related Agreements following the expiration of the Term shall reinstate the terms of this Agreement.

2.2 Each Related Agreement will set forth an initial term of service. During the initial term, if Company experiences an increase in rates and charges for Services provided by or through a third party, including but not limited to pass-through electrical rate increases and third-party software license, maintenance and support fees, Company may increase the amount it charges to Customer in a proportional amount upon thirty (30) days prior written notice. Unless explicitly stated otherwise in a Related Agreement, after the initial term, the Related Agreement will automatically renew on a month-to-month basis until terminated by either party upon thirty (30) days written notice to the other party except that Company may adjust pricing and fees at any time and from time to time.

3.   Change Request; Change Authorization.

3.1 Customer may request a change to any Service under an applicable Related Agreement (a “Contract Change Request” or “CCR”) at any time. The CCR must describe the proposed modification(s) to the Services and identify the priority of the request. By submitting a CCR, Customer authorizes Company to perform the required work to make the change. Company, however, reserves the right to review (e.g., to determine if the change is contemplated by, or within the scope of the Services covered by, an existing Related Agreement) and to approve, reject, or further negotiate the CCR. In the event that the CCR requires additional work by Company or affects delivery timelines, Company shall advise of the cost and timeline impact of the changes set out in the CCR for Customer’s approval. The parties shall mutually execute each Contract Change Request.

3.2 If Customer owes Company a past due undisputed amount for Services, Products and/or Software, Company may, in its discretion, cease to accept or process any Contract Change Requests. Alternatively, Company may, in its sole discretion, require pre-payment from Customer to cover the cost of performing any Contract Change Request. These rights are in addition to all other rights and remedies provided for in this Agreement or the Related Agreement or at law or in equity.

4.   Purchase Orders, Acceptance, and Cancellation.

4.1 Customer may order Services, Products, and/or Software from Company by submitting a valid purchase order  (“Purchase Order”)  generated by Customer, specifying the Services, Products, and/or Software, quantities, and applicable pricing, on the condition that when required by Company, Customer will also execute an applicable Related Agreement for the Purchase Order.

4.2 Customer warrants and represents that the Services, Products, and/or Software purchased from Company are not for resale purposes but are purchased for Customer’s own use. If during the Term of this Agreement Customer resells any Services, Products, and/or Software purchased from Company, Company may at its election immediately suspend service to Customer and terminate this Agreement or any Related Agreement.

4.3 Company will notify Customer promptly if Customer’s Purchase Order contains inaccuracies or if Products and/or  Software are unavailable, or available but at a different price. Once a Purchase Order is accepted by Company, and, where applicable, the Related Agreement is signed, Company will process the Purchase Order. All Products and Software are subject to availability at the time of order acceptance. Customer acknowledges and understands that (i) Product backorders are not uncommon for Products in high demand; (ii) manufacturers periodically discontinue Products and Software and introduce new models or versions; and (iii) Company has no control over the timing of any Product or Software obsolescence, discontinued availability, or price changes.

4.4 The parties agree that any terms or conditions in Customer’s Purchase Order or other document issued by Customer which are additional to or different than the terms and conditions in this Agreement or in a Related Agreement are not binding on Company, whether or not the additional or different terms would materially alter this Agreement.

4.5 Customer may cancel an order, in whole or in part, only with the written consent of Company. If Company so consents, Customer acknowledges that it will be responsible for any actual out-of-pocket expenses incurred by Company as a result of Customer’s cancellation (including but not limited to fees for restocking, cancellation, and shipping) which Company will pass through to Customer without any markup.

5.   Delivery, Inspection, and Returns.

5.1 Products will be shipped FOB Origin unless otherwise specified with standard shipping charges added to the invoice. As Company is not the manufacturer of Products, Company cannot guarantee delivery by a set date, but all Products will be delivered on a commercially reasonable basis. Customer may request expedited delivery, where available, for an additional charge. Title and risk of loss pass to Customer upon delivery to the freight carrier at origin.

5.2 Customer shall inspect Products upon delivery and must notify Company of any damaged Products received within fifteen (15) days of delivery. Company will exchange or replace damaged Products in accordance with the Company Returns Policy, a copy of which is available from Company upon request, as such policy may from time to time be modified at the sole discretion of Company, and/or the then current return policy of the applicable manufacturer (collectively, the “Returns Policies”). Company will accept return of new, unopened, non-configured Product in accordance with the Returns Policies. Custom-made Products, special order items and cables cannot be returned unless defective. In the event of a conflict in terms, the applicable manufacturer return policy will supersede the Company Returns Policy.

6.   Invoices; Taxes; Payment.

6.1 For Services, Customer will pay to Company the one-time (non-recurring) charges and/or the monthly (recurring) charges as set forth in the applicable Related Agreement. Unless otherwise specified in the applicable Related Agreement, Company will render invoices on a monthly basis.

6.2 For Product or Software purchases, Company will send an invoice to Customer when Products or Software licenses are shipped to Customer. The charges for Company-performed configuration (if any), shipping, or other specified charges will be added to the Company invoice.

6.3 Customer will pay all applicable taxes, regulatory fees, interexchange carrier charges, and surcharges relating to the Services, Products, and Software (including but not limited to sales, use, value added, and personal property) other than taxes based on Company’s net income. If Customer is tax exempt, Customer shall provide Company with a copy of its tax exemption certificate before Company begins invoicing.

6.4 Invoices are due and payable in Canadian dollars within thirty (30) days of the date on the invoice, unless the parties otherwise agree in writing. Payments not received by the due date are considered past due. Company reserves the right to impose a late charge of one and one-half percent (1½%) per month (18% per annum)(but not more than the maximum rate permitted by law) on all undisputed past due amounts. Company reserves the right to suspend performance of Services and/or suspend delivery of Products or Software if Customer owes an undisputed past due amount to Company, and to pursue any other right or remedy that Company may have in law or equity. Customer acknowledges and agrees that restrictive endorsements or other statements on cheques will not be binding on Company.

6.5 If Customer in good faith disputes any portion of a Company invoice, Customer shall, within thirty (30) days following the invoice date, remit to Company full payment of the undisputed portion of the invoice, and notify Company in writing of such dispute in sufficient detail to identify and substantiate the disputed amount. If Customer does not report a billing dispute within sixty (60) days following the invoice date, Customer shall have waived its right to dispute that invoice. Company and Customer agree to use their respective commercially reasonable efforts to resolve any billing dispute within thirty (30) days after Company receives written notice of the dispute from Customer. Any disputed amounts subsequently resolved in favor of Customer shall be credited to Customer’s account on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Company will be due within fourteen (14) days of the resolution of the dispute.

6.6 In the event Customer purchases applicable Services, Products and/or Software through a cloud marketplace, payments shall be made through billing of Customer’s account with such cloud service provider. If Customer owes an undisputed past due amount and provided that cloud service provider has requested Company to assist cloud service provider with its collections efforts, Company reserves the right to impose a late charge of one and one-half percent (1½%) per month (18% per annum) (but not more than the maximum rate permitted by law) on all undisputed past due amounts.   Company reserves the right to suspend performance of Services and/or suspend delivery of Products or Software if Customer owes an undisputed past due amount, and to pursue any other right or remedy that Company may have in law or equity.

7. Security Interest. Company hereby reserves a purchase money security interest in the Products and Software to secure payment of the purchase price, license fees and any related installation charges. The security interest will continue in effect until such amounts are paid in full by Customer.

8.   Export Control.

8.1 Customer acknowledges that the export of certain Products or Software is subject to certain export control laws and regulations. Customer shall not export any Product or Software without obtaining all required government authorizations and licenses, and shall comply with all applicable export control laws. Such prohibition shall extend to Customer’s authorized users.

8.2 Each Party represents and warrants that it is not (a) directly or indirectly owned or controlled by any person included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the office of Foreign Assets Control, US Department of the Treasury (“OFAC”) or other similar list maintained by any applicable governmental entity, or (b) directly or indirectly owned or controlled by any person who is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other applicable governmental entity.

8.3 Customer represents and warrants that it, including any subsidiaries and affiliates, is not the target of any Sanctions Laws, or is located, organized, resides, or has employees, subsidiaries, or affiliates in a country or territory that is, or whose government currently is, the target of countryside sanctions imposed by a U.S. government Sanctions Authority, such as: Cuba, Iran, North Korea, Russia, Sudan and Syria.

8.4 Customer represents and warrants that it, including any subsidiaries and affiliates, is not the target of any Canadian Sanctions Laws, or listed on any Sanctions Lists imposed by the Government of Canada, such as Arms and Related Materials Embargo, Asset Freezes, Export and Import Restrictions, Financial Prohibitions, or Technical Assistance Prohibitions

9.   Software Licenses. All Software distributed or licensed by Company is subject to applicable license agreements (i.e., End User License Agreement or “EULA”) between the Software publisher and Customer. Company will convey to Customer the requisite license rights and EULA terms and conditions with respect to the Software, as applicable. Customer’s compliance with any Software publisher EULA is Customer’s responsibility. Customer agrees to comply with and be bound by the terms and conditions of the applicable EULA. If any Software is subject to shrink-wrap, click-through, on screen or similar license agreements that must be accepted during any installation or configuration service performed for Customer by Company, Customer shall accept the terms of such agreements and/or authorizes Company to accept the terms of such agreements on behalf of Customer. Where practical, Company will provide copies of the terms of such agreements to Customer for Customer’s review prior to any installation or configuration of services by Company.

10.  Product and Software Warranties and Exclusions; Assumption of Risk.

10.1 Company shall pass through to Customer all Product and Software warranties from the equipment manufacturer or software publisher to the extent permitted by such manufacturer or publisher, which will be described in separate documents or on the manufacturer’s or publisher’s website. Company does not provide any additional warranties on Products or Software. Company can assist Customer with obtaining extended warranties or service or support agreements, where available, on purchased Products and Software at Customer’s request.

10.2 Unless otherwise expressly provided in this Agreement or in an applicable Related Agreement, Company is not the manufacturer or developer of any Product or Software, and Company makes no warranties, express or implied, with respect to any Product or Software. SPECIFICALLY, BUT WITHOUT LIMITATION, COMPANY DISCLAIMS AND MAKES NO WARRANTY TO CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FREEDOM FROM INFRINGEMENT CLAIMS OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY PRODUCT OR SOFTWARE.

10.3 In the event that Company chooses to end of life any of the Services, Products and/or Software provided to Customer, Company will provide Customer with reasonable notice of such intention and will work with the Customer to migrate to a comparable alternative Service, Product and/or Software. If Customer chooses not to so migrate, then the applicable Related Agreement shall be terminated effective as of the end-of-life date (or such other date as Company and the Customer may reasonably agree on) without the requirement for Customer to pay any early termination fees.

10.4 All material, equipment, or software required for Customer to use the Services, Products or Software and made available to Customer by Company (“Company Provided Equipment”) shall at all times be and remain the exclusive property of Company (or its third party providers). Upon termination or expiration of the applicable Related Agreement, Customer shall return the Company Provided Equipment to Company in good working condition at Customer’s expense, normal wear and tear excepted. The Company Provided Equipment does not include the Products or Software purchased pursuant to this Agreement or the CPE. Customer shall be responsible for the loss of or damage to the Company Provided Equipment except if caused by the negligence or willful misconduct of Company or its third party providers.

10.5 In addition, unless explicitly provided therein, the warranties in Section 10.1 do not cover and Customer is liable for the cost of services required to repair damages, malfunctions, or failures caused by: (i) Customer’s failure to follow Company’s or the manufacturers’ written operation or maintenance instructions as applicable and provided to Customer or published on the manufacturer’s website; (ii) Customer’s unauthorized repair, modifications, or relocation of Company Provided Equipment or the attachment of any non-Company Provided Equipment; and (iii) Customer’s abuse, misuse or negligent acts.

10.6 Customer is responsible for: (i) use of the Products or  Software by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Products or  Software in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Products or Software.

10.7 Company is not responsible for its inability to provide the Products or Software to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.

11.     Service Warranties and Exclusions; Assumption of Risk.

11.1 Company warrants to Customer that the Services will be performed in a workmanlike and professionally diligent manner by qualified individuals and that the Services will (for the term of the applicable Related Agreement) materially conform to all requirements and specifications identified in the applicable Related Agreement.

11.2 If Company fails to perform any Professional Services as warranted, Customer shall notify Company promptly of such (and in no event later than fifteen (15) days after the date such nonconforming Professional Services were rendered) with a reasonably detailed description of the nature of the nonconformity. Within thirty (30) days after receipt of such written notification, as Customer’s sole remedy, Company will re-perform such nonconforming Professional Services at no additional charge to Customer or, if such re-performance fails to provide Professional Services as warranted, Company will refund any fees paid to Company to the extent attributable to such nonconforming Professional Services.

11.3 EXCEPT AS STATED ELSEWHERE IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS. NOTWITHSTANDING ANYTHING STATED IN THIS AGREEMENT OR IN ANY RELATED AGREEMENT, COMPANY DISCLAIMS AND MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY SHALL NOT BE LIABLE TO THE EXTENT THAT A SERVICE BREACH RESULTS FROM ANY ACT OR OMISSION OF CUSTOMER, ITS EMPLOYEES, OR AGENTS.

11.4 Customer shall cooperate with and assist Company by providing to Company such information and access to Customer’s facilities, equipment, databases, software (collectively, “CPE”), personnel and other resources as may be required and/or described in the applicable Related Agreement, or as Company may reasonably request that is required for Company to implement and/or perform the Services. Company will comply with Customer’s physical security and safety regulations at Customer’s site as provided to Company in advance. Unless provided as part of the Service pursuant to a Related Agreement, Customer shall solely be responsible for the supply (including obtaining necessary licenses and authorizations), installation and maintenance of any CPE that is necessary to receive the Services. Customer is solely responsible for ensuring that all CPE is compatible with Company’s equipment where required to provide the Services. Company is not responsible for any changes to the Services that render CPE incompatible or necessitate an update or upgrade to the CPE.

11.5 Customer is responsible for: (i) use of the Services by its authorized users and any unauthorized access that occurs other than as a result of Company’s negligence or wilful misconduct; (ii) ensuring its users use the Services in accordance with any acceptable use policy established by Company from time-to-time, any applicable EULA, and in compliance with all applicable laws and regulations; and (iii) providing the necessary power and other infrastructure at Customer’s locations as required to receive the Services.

11.6 Company is not responsible for its inability to provide the Services to the extent caused by Customer’s failure to comply with its obligations under this Agreement or any Related Agreement.

12.     Limitation of Liability.

12.1 To the maximum extent permitted by law, the limitations set forth in this Section 12 will apply to any and all claims and causes of action, regardless of whether such claims arise in contract, tort (including, without limitation, Company’s negligence), strict liability, indemnification or any other legal theory. Furthermore, Customer acknowledges that Company has agreed to the applicable pricing and negotiated this Agreement in reliance upon the limitations of liability and disclaimers of warranties contained in this Agreement and that such limitations and disclaimers form an essential basis of the bargain between the parties.

12.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY CLAIM OR CIRCUMSTANCE (INCLUDING WITHOUT LIMITATION ANY CIRCUMSTANCE INVOLVING A FINDING THAT A WARRANTY OR REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR INTERRUPTION OR LOSS OF USE, LOSS OF DATA, LOST PROFITS OR REVENUES, OR LOST GOODWILL) ARISING OUT OF OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.3 Notwithstanding anything contained herein or elsewhere, with respect to any claims or causes of action arising from any actual or alleged breach by Company of this Agreement or any Related Agreement or in any way related to any Services, Products, or Software, the recovery and damages available to Customer shall be limited to, and Company’s maximum exposure shall not exceed, the following: (i) for Technological Services, an amount equal to the monthly recurring charges paid by Customer during the preceding six (6) months for the Technological Services at issue, (ii) for Professional Services, an amount equal to the fees paid by Customer for the Professional Services at issue, and (iii) for Products or Software, an amount equal to the purchase price or license fees paid by Customer for the Products or Software at issue. This limitation of liability is cumulative and not per incident.

13.     Indemnification.

13.1 Any indemnification related to claims of infringement by Products or Software must come from the equipment manufacturer or software developer, as applicable.

13.2 If Customer is, or in Company’s reasonable judgment may be, the subject of a valid third party claim of infringement against Customer which relates to any Technological Service provided by Company then Company shall, in its sole discretion, do any of the following as Customer’s sole and exclusive remedy: (i) provide substantially similar substitute Technological Service(s); (ii) obtain, at Company’s expense, rights as required to continue to provide the Technological Service(s); or (iii) terminate Customer’s right to receive the Technological Service(s) and refund to Customer the monthly recurring charges paid for the infringing Technological Service(s) under the affected Related Agreement, pro-rated over the number of months which have elapsed since the effective date of the Related Agreement.

13.3 Customer shall indemnify, defend and hold harmless Company, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors (each a “Company Indemnified Party”), from and against, and Company shall have no obligation to perform any remedies enumerated in Section 13.2 for, any claims, damages or expenses (including reasonable attorneys’ fees) resulting from the improper use or modification by Customer of any Product, Software or other material supplied by Company, which use or modification results in a claim of infringement of any third party patent, copyright, trade secret, or trademark. Customer shall also indemnify, defend and hold each Company Indemnified Party harmless from and against any claims arising out of, resulting from, or relating to: (i) Customer Data (defined in Section 17.1.2), (ii) any CPE, or (iii) any Service to the extent the claim is based on instructions, design or specifications provided by the Customer.

13.4 Each party shall also indemnify, defend, and hold harmless the other party, its affiliates, directors, officers, employees, agents, licensors, vendors, or subcontractors from and against any third-party claims for  damages or expenses (including reasonable attorneys’ fees) relating to death, personal injury or damage to tangible personal  property resulting from the indemnifying party’s willful misconduct or grossly negligent acts or omissions, to the extent such damages do not result from or are not caused by the willful misconduct or gross negligence of the indemnified party, its employees or agents.

13.5 A party’s obligation to indemnify and defend the other with respect to any claim will be subject to: (i) the indemnified party providing the indemnifying party with prompt written notice of such claim; (ii) the indemnified party, at its expense, having the right to participate in the defense and settlement thereof; and (iii) the indemnified party providing the indemnifying party with the information and assistance necessary to defend or settle such claim as reasonably requested by the indemnifying party. The indemnifying party may settle such claim or proceeding with the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed provided that where the indemnified party is a named defendant or respondent, the indemnified party shall have the right to reject settlement or other disposition of the claim involving or requiring admission or acknowledgement of wrongdoing by or liability on the part of the indemnified party.

14.     Independent Contractor. Company shall perform its obligations under this Agreement and the Related Agreements as an independent contractor and not as an employee of Customer. Neither party will have, with respect to the other party or any of its employees, consultants or subcontractors, any obligation with respect to worker’s compensation, insurance, social security, withholding tax nor any other expense customarily paid by an employer with respect to an employee. Nothing contained herein shall create or be construed as creating a partnership, joint venture, agency, or any similar relationship between Company and Customer. Neither party shall have the authority to, nor shall any party attempt to, create any obligation on behalf of the other party.

15.     Non-Solicitation. Throughout the Term of this Agreement and for a period of one (1) year thereafter, Customer agrees not to directly solicit or hire any of the Company’s employees with whom it has had contact in connection with the performance of this Agreement, unless the Customer obtains the prior written consent of the Company. Should a party hire an employee or agent of the Company through employment or otherwise within this time period without the other party’s prior written consent, the Customer shall immediately pay as liquidated damages to the Company an amount equal to the employee’s or agent’s then current annual compensation. The restrictions in this Section will not preclude Customer from employing any such person who contacts the Customer through his or her own initiative, or pursuant to a generally circulated public advertisement or other employment search.

16.     Confidential Information. .During the term of this Agreement and for five (5) years thereafter, neither party shall disclose any terms or pricing contained in this Agreement or any Related Agreement or any confidential or proprietary information disclosed by the other party (“Confidential Information”). Confidential Information includes, information that ought to reasonably be deemed confidential, or that is labeled, marked or identified as either “Confidential” or “Proprietary”. Notwithstanding the foregoing, all information concerning Company’s pricing, technical, scientific, and financial information is hereby deemed to be Confidential Information regardless of whether it is marked as such. Confidential Information may not be disclosed to any person or entity except to the recipient’s employees, contractors, lenders and/or other advisors who have a need to know and who are bound in writing to protect the information from unauthorized use or disclosure. The recipient shall use the Confidential Information only for the purposes of this Agreement and shall protect it from disclosure using the same degree of care used to protect its own confidential or proprietary information, but in no event less than a reasonable degree of care. Confidential Information does not include any information which: (i) was already known to the receiving party free of any obligation to keep it confidential at the time of its disclosure; (ii) becomes publicly known through no wrongful act of the receiving party; (iii) is rightfully received from a third party without knowledge of any confidential obligation; (iv) is independently acquired or developed without violating any of the obligations under this Agreement; or (v) is approved for release by written authorization of the disclosing party. Further, the recipient may disclose Confidential Information pursuant to a judicial or governmental request, requirement or order. The recipient, however, shall take all reasonable steps to give the disclosing party sufficient prior notice to contest such request, requirement or order. Confidential Information shall remain the property of the disclosing party and shall be returned to the disclosing party or destroyed upon request of the disclosing party or termination of this Agreement.

17.     Customer Data; Personal Information; Consent to Use. To the extent that the Services require Company to have access to Customer Data or  Personal Information of Customer or its affiliates and subsidiaries (including any Customer Data or Personal Information concerning its or their respective employees and customers), the following provisions apply. Customer represents and warrants that it has secured the necessary consents and authorizations required under applicable law for Company to use such Customer Data or Personal Information in the context of the provision of the Services.

17.1 Definitions. Capitalized terms used in this Section 17 shall have the meanings set forth in this Section 17.1.