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Brightmark

Master Services Agreement

Last Updated: June 10, 2025

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

Brightmark Inc. (“Brightmark”) is in the business of providing software development, customization and training to certain platforms, including but not limited to Salesforce, and the party identified in the SOW (the “Client”) wishes to engage Brightmark to perform the Services as identified in the applicable SOW. All capitalized terms not defined in this Master Services Agreement (the “MSA”) shall take on the meaning as set out in the SOW.

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

1. Definitions and Interpretation

1.1 Definitions.

  • (a) “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible, now known or hereafter existing (a) rights associated with works of authorship worldwide, including but not limited to all exclusive exploitation rights, copyrights and neighbouring rights, (b) trade-mark and trade name rights, business styles and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) other intellectual property and proprietary rights, however designated (including, without limitation, moral rights, logos, character rights, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license or otherwise, and (f) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force worldwide.
  • (b) “Representatives” is defined in Section 4.1.

1.2 Interpretation.

  • (a) Headings. Headings of sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
  • (b) “Includes” or “Including”. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
  • (c) 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.
  • (d) 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.
  • (e) 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.
  • (f) “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.

2. Services

2.1 Brightmark agrees to provide Client with the services set forth in a statement of work incorporating this Agreement by reference (each a “Statement of Work”; the services described in the Statement of Work, the “Services”; the MSA and all Statements of Work together shall be referred collectively as the “Agreement”). In the event and to the extent of any inconsistency between the terms of this MSA and a Statement of Work, the terms of this MSA shall govern, unless the Statement of Work clearly states that it amends or prevails this MSA.

2.2 Client understands and acknowledges that Brightmark may subcontract some or all of its obligations under this Agreement. If any of the Services are performed by subcontractors of Brightmark, Brightmark shall be and remain responsible and liable for the performance of all of the Services identified in the Statement of Work.

3. Financial Terms

3.1 Schedule of Fees; Invoice. Each Statement of Work will set out the schedule of fees applicable thereto. Upon execution of the applicable Statement of Work, Brightmark will invoice in accordance with the schedule of fees and, subject to Section 3.2, Client agrees to pay such invoices within fifteen (15) days of receipt. If the Statement of Work does not set out a schedule of fees, then Brightmark shall invoice Client for actual time and expenses incurred monthly in arrears. An interest of 1.5% of the total outstanding amount will be applied for all undisputed overdue amounts for each outstanding month (that interest, the “Interest”). In addition to the Interest, Brightmark reserves the right to suspend the performance of the Services until all undisputed overdue amounts plus the accrued Interest have been paid by Client. Unless the applicable Statement of Work is terminated in accordance with this Agreement, suspension of Services shall not be deemed a termination of the applicable Statement of Work.

3.2 Retainer. If a Statement of Work contains a Retainer (as defined below), then upon execution of the Statement of Work by Client, Brightmark shall invoice Client for the Retainer and Client agrees to pay such invoice upon receipt. Client acknowledges that Brightmark will not commence the Services unless payment of the Retainer is received in full. During the performance of the Services, Brightmark shall keep track of hours worked and expenses incurred and when the Retainer is Depleted (as defined below), Brightmark will begin invoicing Client as set out in the Statement of Work. “Retainer” is a prepayment for a portion of the Services to be performed. “Depleted” means that the amount remaining in the Retainer is zero when fees incurred in performing the Services, up to the applicable date, is deducted from the Retainer.

3.3 Taxes. Any applicable sales, use, excise, value added, service and other similar taxes shall be in addition to the schedule of fees in the Statement of Work. Each invoice shall specifically itemize the amount of any taxes that are payable by Client.

3.4 Credit Card. If Client and Brightmark agree for all or some of the fees due hereunder to be paid by credit card, Client and Brightmark shall agree on a reasonable administrative fee to process the credit card.

3.5 Expenses. Subject to the terms of the applicable Statement of Work, Client shall reimburse Brightmark or its subcontractors for any and all actual reasonable expenses incurred by Brightmark and its subcontractors in the performance of the Services, including mileage, travel and for any tools or outside services deemed necessary by Brightmark for the effective performance of the Services, as may be provided in any Statement of Work or approved by Client. Any documentation requirements of Client related to expenses shall be specified in the Statement of Work.

3.6 Estimates. Unless expressly stated otherwise in a Statement of Work, the fees and/or expenses provided in a Statement of Work are estimates. Brightmark will charge Client based on actual time and materials required to perform the Services. While Brightmark has made reasonable efforts to provide an accurate estimate, Client acknowledges that estimation is difficult and that the actual fees and/or expenses for the Services may exceed those provided under the Statement of Work. If estimates in the Statement of Work may be exceeded, Brightmark shall contact Client to discuss a revised estimate of fees and/or expenses for the performance of the Services.

3.7 Delay. In the event that that there is a delay in providing the Services through no fault of Brightmark, which persists for more than 30 days, notwithstanding the schedule of fees in the applicable Statement of Work, Client agrees that Brightmark may invoice Client for all time and expenses incurred but not yet invoiced up to the date when such invoice is created. Client shall pay such invoice within fifteen (15) days of receipt. The remainder of the fees will be due in accordance with Section 3.1 upon resumption of the Services.

4. Confidentiality

4.1 The Parties acknowledge that in the course of performing their responsibilities under this Agreement, each may be exposed to or acquire information that is proprietary to or confidential to the other Party. The Parties agree to hold such information in confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever, without the prior written consent of the other Party, other than for the performance of obligations or the exercise of its permitted rights hereunder. Each Party shall be responsible for its employees, subcontractors, agents and representatives (the “Representatives”). All confidential and proprietary information of the Parties (including without limitation all business, financial, technical and other information and data, and the Deliverables provided hereunder) is hereinafter collectively referred to as “Confidential Information”. The Parties shall use reasonable efforts to assist each other in identifying and preventing any unauthorized use or disclosure of any Confidential Information, agree to inform each other as soon as possible in the event that either learns or has reason to believe that there has been a breach of this Section, and will reasonably cooperate in seeking injunctive relief against any such person.

4.2 A Party shall not be liable for the disclosure of Confidential Information if and to the extent only that:

  • (a) at the time of disclosure to the receiving Party the Confidential Information is published, known publicly or otherwise in the public domain;
  • (b) after disclosure to the receiving Party the Confidential Information is published, becomes publicly known or otherwise becomes part of the public domain other than as a result of a disclosure by the receiving Party;
  • (c) after disclosure by the disclosing Party, the Confidential Information becomes available to the receiving Party from a source other than the disclosing Party as shown by documentation maintained in the ordinary course of business, and such third party was not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such Confidential Information;
  • (d) such Confidential Information was known to or in the lawful possession of the receiving Party immediately prior to the time of disclosure by or on behalf of the disclosing Party as evidenced by the written records of the receiving Party at that time;
  • (e) such Confidential Information is independently developed by or on behalf of the receiving Party without use of or reliance upon the Confidential Information of the disclosing Party.

5. Non-Solicitation

5.1 In recognition of the access the Client may have to Brightmark’s processes, software, employees and/or customers, the Client hereby acknowledges and agrees that it shall not, either during the term of this Agreement or for a period of twelve (12) months following the termination of this Agreement, directly or indirectly, or in any way, contact any customer and/or employee of Brightmark with whom the Client had dealt with during the term of this Agreement, or induce or solicit, or attempt to induce or solicit, any such person to leave Brightmark, except with Brightmark’s prior express written consent.

6. Change Orders and Acceptance Testing

6.1 Change Orders. Any changes to the scope of a Statement of Work shall be effected through a change order executed by the Parties, outlining the changes to the original Statement of Work (that change order, “Change Order”). Client acknowledges that a Change Order may result in a change in the estimated fees and/or expenses, which shall be set out in the Change Order.

6.2 Acceptance Testing. Following the completion of the Services pursuant to a Statement of Work, Client shall have fifteen (15) days to test the Deliverables and determine whether the Deliverables comply with the acceptance criteria set forth in the applicable Statement of Work (that fifteen-day period, the “Acceptance Period”). If the Deliverables do not comply, Client shall give Brightmark written notice with details of the deficiencies within the Acceptance Period and subject to Section 6.3, Brightmark shall use best efforts to correct the deficiencies within a reasonable time period. If the Deliverables comply or Client fails to provide the written notice within the Acceptance Period, Client shall be deemed to have accepted the Deliverables and only the limited warranty set out in Section 7.1 shall apply thereafter.

6.3 Exceptions. Brightmark will not be responsible for correcting any deficiencies identified during the Acceptance Period that is caused by or related to: (i) any third-party product or solution; (ii) any data or procedures provided by Client or Client’s vendor; (iii) any changes made to the Deliverables by Client or a third party authorized by Client to make changes; (iv) any changes, deviations, or variations from the final specifications provided by Brightmark and approved in writing (including email) by Client; (v) Client’s own negligence; (vi) any work relating to the batch or real-time transfer of Client’s data in connection with the provision of the Services; or (vii) any defect which is outside the reasonable control of Brightmark. If Brightmark is able to fix any excluded deficiency, there may be additional costs associated therewith, which Brightmark and Client shall agree on prior to Brightmark commencing the fix.

7. Warranty and Disclaimers

7.1 Limited Warranty. Brightmark warrants to Client that the Services will be performed in a professional manner and that the Services will not infringe upon any intellectual property rights of a third party. Unless Client and Brightmark have entered into a Statement of Work for support services, Brightmark will not be responsible for supporting the Deliverables, including but not limited to systems integration or computer programming code, once the Deliverables have been accepted by Client.

7.2 Disclaimers. The warranty contained in Section 7.1 is the only warranty provided by Brightmark for the Services (including any Deliverables delivered therewith and any third party products incorporated or used with the Deliverables) provided under this Agreement. Brightmark expressly disclaims and Client hereby expressly waives all other representations and warranties (express or implied), including warranties of merchantability, fitness for a particular purpose, warranty of title, and freedom from infringement. Brightmark does not warrant and specifically disclaims any representations that the operation or use of the Deliverables will be uninterrupted or error-free.

7.3 Limitation of Liability. In no event shall either Party be liable with respect to its obligations under this Agreement or otherwise for any consequential, incidental, exemplary, punitive, special or indirect damages of any kind, including damages for lost profits, loss of revenue or failure to realize expected savings, even if it has been advised of the possibility of such damages. In any event, the total liability of Brightmark to Client, whether on a per claim or aggregate basis, shall be limited to the amount paid to Brightmark by Client with respect to the particular Statement of Work to which the claim or cause of action relates. The exclusions and limitations set out in this Section 7.3 apply to all causes of action or claims in the aggregate, including without limitation, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, claims for failure to exercise due care in the performance of services and other torts. Further, no cause of action which accrued more than one (1) year prior to the filing of a suit alleging such cause of action may be asserted against Brightmark. Both Parties understand and agree that the remedies, exclusions and limitations herein allocate the risks between the Parties as authorized by applicable laws. The fees herein reflect and are set in reliance on this allocation of risk and the exclusions and limitation of liabilities set forth in this Agreement. Notwithstanding anything to the contrary herein, the limitations set forth in this Section shall not apply in the event of either Party’s gross negligence or willful misconduct.

8. Intellectual Property

8.1 Brightmark Materials. Brightmark retains all right, title and interest (including Intellectual Property Rights) in any technology, software, material and information made available to Client and its Representatives (“Brightmark Materials”). For clarity, Brightmark Materials include Brightmark’s Confidential Information. During the applicable SOW Term, Brightmark grants Client a limited, non-exclusive, non-transferable, non-sublicensable and non-assignable right to access and use the Brightmark Materials for the sole purpose of receiving the Services and permits Client’s Representatives to access and use the Brightmark Materials, provided that (i) such Representatives need to access and use the Brightmark Materials for Client to receive the Services, and (ii) Client is responsible for its Representatives and shall cause its Representatives to comply with this Agreement.

8.2 Deliverables. Work that results from the Services will be hereinafter referred to as “Deliverables”. Unless otherwise agreed to in writing in the applicable Statement of Work, Brightmark retains own all right, title and interest (including Intellectual Property Rights) in the Deliverables and Brightmark shall be the sole owner of such Deliverables. Brightmark grants to Client a non-exclusive, non-transferable and non-sublicensable limited license to use the Deliverables solely for internal business purposes of Client. If Deliverables incorporate Brightmark Materials, Brightmark hereby grants Client a non-exclusive, non-transferable and non-sublicensable limited license to use the Brightmark Materials solely with the Deliverables. If Deliverables incorporate or use a third party product, such product may be subject to a separate agreement.

9. Publicity

9.1 Upon completion of a Statement of Work and written consent by Client, which may be provided in a Statement of Work, Client permits Brightmark to display the Client’s word mark and primary logo (the “Client Marks”) on website(s) controlled by Brightmark and dedicated primarily to Brightmark’s business, and grants Brightmark a non-exclusive, non-sub-licensable, non-transferable right and license to the Client Marks solely for this purpose. Brightmark agrees to characterize the relationship between the Parties only as a consultant and client relationship. Except as specifically set forth herein, no other rights are granted to Brightmark to any Client Marks. No press release or other public communication regarding the subject matter of this Agreement may be released without the prior written approval of both Parties.

10. Term and Termination

10.1 Term. Unless terminated earlier in accordance with this MSA, the term of this Agreement shall be as follows:

  • (a) The term of each Statement of Work shall be stated in the applicable Statement of Work (term of each Statement of Work, the “SOW Term”).
  • (b) The term of this MSA will commence on the date of the last Party to sign this MSA (the “Effective Date”) and shall continue until terminated in accordance with this Section 10.

10.2 Termination for Convenience. Unless stated otherwise in a Statement of Work, either Party may terminate the Statement of Work or this MSA, for any or no reason, upon providing fifteen (15) days’ written notice to the other Party.

10.3 Termination for Breach. If a Party materially breaches this Agreement, which remains uncured for fifteen (15) days after providing written notice detailing the material breach to the breaching Party, the other Party may terminate the applicable Statement of Work or this MSA.

10.4 Effect of Termination.

  • (a) If Client terminates a Statement of Work in accordance with Section 10.2 or Brightmark terminates a Statement of Work in accordance with Section 10.3, all fees for Services performed up to the date of termination shall be due immediately. If a Retainer was required under the terminated Statement of Work, and if the Retainer was not Depleted, Brightmark will apply the remaining Retainer to the Services performed up to the date of termination and any remaining amount in the Retainer will be retained by Brightmark as liquidated damages for terminating the Statement of Work prior to the Services being completed. If there was no Retainer required under the terminated Statement of Work or the amount remaining in the Retainer was insufficient to cover the fees due for the Services performed up to the date of termination, Brightmark will invoice Client for such fees and Client shall pay the invoice within fifteen (15) days of receipt.
  • (b) If Brightmark terminates a Statement of Work in accordance with Section 10.2, all fees for Services performed up to the date of termination shall be due immediately. Neither Party will have any further liabilities for the Services not yet performed and fees associated therewith. If a Retainer was required under the terminated Statement of Work, and if the Retainer was not Depleted, Brightmark will apply the remaining Retainer to the Services performed up to the date of termination and any remaining amount in the Retainer will be refunded to Client. If there was no Retainer required under the terminated Statement of Work or the amount remaining in the Retainer was insufficient to cover the fees due for the Services performed up to the date of termination, Brightmark will invoice Client for such fees and Client shall pay the invoice within fifteen (15) days of receipt.
  • (c) At Client’s request, Brightmark shall deliver the Deliverables completed up to the date of termination.
  • (d) If the MSA is terminated but one or more Statements of Work with SOW Terms extend beyond the term of this MSA, the term of this MSA shall be extended until all SOW Terms have expired. During this time of extension, unless agreed to otherwise in writing by both Parties, no new Statement of Work may be executed that incorporates this MSA by reference.

11. Miscellaneous

  • (a) Entire Agreement. This Agreement, which include this MSA, all Statements of Work, all Change Orders and any other agreements that incorporate this MSA by reference, supersedes and terminates all former agreements, arrangements, and understandings between the Parties with respect to its subject matter. This Agreement constitutes the entire agreement between the Parties and may not be changed except in writing signed by authorized representatives of both Parties.
  • (b) Severability. If any of the provisions contained in this Agreement is held invalid, illegal or unenforceable by competent judicial authority, the validity of the remainder of the Agreement shall be unaffected and such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect unless such enforceability materially affects the Parties’ rights under this Agreement.
  • (c) Notices. Any notice given pursuant to this Agreement shall be in writing and may be effectively given if delivered personally or sent by facsimile to the addresses outlined above. Any notice received by the recipient by personal delivery or facsimile transmission before 4:00 p.m. on a business day in the jurisdiction of the recipient shall be deemed to have been given on that business day. Any notice received by the recipient by personal delivery or facsimile transmission after 4:00 p.m. on a business day, or any other day, shall deemed to have been given on the next business day.
  • (d) Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
  • (e) Force Majeure. Neither Party will be liable for any failure or delay in performance of its obligations under this Agreement, if any, to the extent such failure or delay (i) is caused, without fault of the non-performing Party, by fire, flood, earthquake, elements of nature or acts of God; acts of war, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of such Party; and (ii) could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternative sources, work-around plans or other means; provided that the non-performing Party shall be excused from its non-performance of affected obligations only for so long as such circumstances prevail and such Party continues to attempt to recommence performance whenever and to whatever extent possible without delay. Any Party so delayed in its performance will immediately notify the other and describe reasonable detail the circumstances causing such delay.
  • (f) Amendments. This Agreement may only be modified and is only effective by mutual agreement of authorized representatives of the Parties in writing.
  • (g) No Waiver. No waiver of any rights under this Agreement will be effective unless in writing and signed by the authorized representative of the waiving Party. A delay or omission by either Party to exercise any right or power under this Agreement shall not be construed to be a waiver thereof. A waiver by either Party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach thereof or of any other covenant in this Agreement.
  • (h) Relationship. This Agreement does not create a relationship of partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. The Parties shall only be considered as independent contractors.
  • (i) Currency. Unless expressly stated otherwise, all references to currency shall be in Canadian dollars.
  • (j) No Assignment. Except as expressly permitted in this Agreement, Client may not assign, transfer or sub-license any of its rights or delegate any of its responsibilities without the written consent of Brightmark.
  • (k) Dispute Resolution and Governing Law. If any dispute arises between the Parties pertaining to this Agreement which the Parties are unable to resolve amicably, such dispute shall be submitted to mediation, excepting only any cause of action giving rise to a claim for equitable relief and/or claims related to or involving intellectual property. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without regard to conflicts of laws provisions, and the Parties attorn to the jurisdiction of the courts in Toronto, Ontario for the final resolution of any disputes.
  • (l) Counterparts. This Agreement may be executed in counterparts, which together shall be considered one and the same document. A Party may execute the counterpart on paper, digitally or by scanning a signed copy into a portable format (e.g. Adobe Acrobat PDF), which shall constitute an original signature.
  • (m) Survival. Sections 1, 4, 5, 7, 8, 10.4, and 11 shall survive termination or expiration of this Agreement.