Canada: A National Approach to Corporate Governance Disclosure in Canada

Last Updated: November 29 2004

By Andrew MacDougall, Stan Magidson, Donna Price, Janet Salter, Julie Walsh and Robert Yalden

Canadian securities regulators have overcome their earlier differences and agreed on a national proposal respecting disclosure of corporate governance practices and a joint proposed policy on corporate governance best practices.

Canadian securities regulators across Canada are seeking comments on a proposed new national instrument NI 58-101 (the "Disclosure Instrument"), mandating disclosure of corporate governance practices, and national policy NP 58-201 (the "Best Practices Policy"), setting out corporate governance guidelines that reflect recommended best practices.

The Disclosure Instrument replaces the alternative proposals released earlier this year, multilateral instrument 58-101 issued in January 2004 by all securities regulators other than British Columbia and Québec (the "January Disclosure Instrument") and multilateral instrument 51-104 issued in April 2004 by securities regulators in B.C., Québec and Alberta.

(See "Taking Corporate Governance Disclosure to the Next Level in Canada" for details about MI 58-101 and "Canadian Securities Regulators Disagree on Approaches to Corporate Governance Disclosure" for more on MI 51-104, both on osler.com.)

The harmonized national approach to regulating corporate governance matters is a significant and welcome achievement that will benefit issuers and those who review and monitor corporate governance disclosure.

At the same time, amendments have been proposed to multilateral instrument 52-110 respecting audit committees (the "Audit Committee Instrument"). These amendments affect the definition of "independent director" and disclosure of the financial expertise of audit committee members of Venture Issuers.

The deadline to submit comments on both the Disclosure Instrument and the Best Practices Policy is December 13, 2004 (December 28, 2004 in Manitoba). The deadline to submit comments on the draft amendments to the Audit Committee Instrument is January 27, 2005.

The proposals do not specify an effective date and issuers will continue to be subject to applicable corporate governance disclosure obligations of the TSX and the TSX Venture Exchange. However, issuers should consider voluntarily complying with the additional disclosure items contemplated in the Disclosure Instrument for the upcoming 2005 proxy season. Voluntary compliance with the Disclosure Instrument will satisfy the corporate governance disclosure requirements of the TSX and the TSX Venture Exchange.

In this commentary, we provide:

For your reference, we also provide:

Key Implications

  • The disclosure requirements generally incorporate existing TSX corporate governance guidelines, but expand the extent of required disclosure.

  • The Disclosure Instrument will apply to non-corporate reporting issuers including partnerships and income trusts, although income trusts have been given latitude to determine how best to allocate corporate governance functions among the trust and its underlying entities.

  • All Venture Issuers will be required to make disclosure respecting their corporate governance practices, although the nature and extent of required disclosure will be less than for other issuers.

  • The TSX has proposed amendments to its Company Manual, which will replace its existing corporate governance disclosure requirements with a requirement that listed issuers comply with the Disclosure Instrument once it comes into effect.

  • Compliance with corporate governance disclosure requirements under the Disclosure Instrument will be subject to continuous disclosure reviews and enforcement by securities regulators.

  • Issuers will need to disclose whether they have adopted codes of business conduct and ethics, and file on SEDAR copies of any code adopted.

  • The definition of "independent director" for purposes of audit committee regulation as well as corporate governance regulation will be modified.

  • Controlled companies will be affected by the definition of "independent director" and an employee of a parent who is a director on the board of a subsidiary will not be considered an "independent director" for audit committee or other corporate governance purposes.

  • Implementation of the Disclosure Instrument and the Best Practices Policy may cause Industry Canada to reconsider whether to proceed further with the proposed corporate governance reforms set out in the federal government consultation paper released in May, 2004, "Towards an Improved Standard of Corporate Governance for Federally Incorporated Companies: Proposals for Amendments to the Canada Business Corporations Act."

Proposed Corporate Governance Best Practices

The Best Practices Policy sets out recommended corporate governance best practices. The recommended best practices are not mandatory and issuers will not be required to disclose their corporate governance practices in comparison to the best practices set out in the policy. However, the Disclosure Instrument will require issuers to make certain disclosures relating to corporate governance matters. Not surprisingly, the categories for which disclosure is required under the Disclosure Instrument generally correspond to the categories outlined in the Best Practices Policy.

While many of the recommended corporate governance best practices are similar to the existing TSX corporate governance guidelines, additional new practices have been added that reflect the recommendations of the Saucier Committee and recent U.S. initiatives arising under the Sarbanes-Oxley Act of 2002 and new corporate governance rules of the NYSE and NASDAQ. Additionally, the recommendations incorporated in the draft policy issued in January 2004 – that the board mandate set out (i) which decisions require prior board approval and (ii) the board’s expectations of management – have been deleted. The Best Practices Policy recommends that the board mandate set out the expectations and responsibilities of directors. In addition, the Best Practices Policy does not propose the development of a position description for directors.

Here, we provide a summary of the key elements of the Best Practices Policy, which highlights as "New" those recommended practices that are not currently reflected in the TSX corporate governance guidelines.

Proposed Corporate Governance Disclosure

Virtually all Canadian public issuers, including income trusts, limited partnerships and other non-corporate issuers, will be required to comply with the corporate governance disclosure obligations under the Disclosure Instrument. However, "Venture Issuers" will have fewer disclosure obligations. (A Venture Issuer is an issuer that does not have any securities listed or quoted on the TSX or a marketplace outside of Canada.)

The Disclosure Instrument will not apply to designated foreign issuers, SEC foreign issuers, investment funds, issuers of asset-backed securities and issuers of certain guaranteed and exchangeable securities. Additionally certain wholly owned subsidiaries of a public company will be exempt if the issuer does not have equity securities (other than non-convertible non-participating preferred securities) traded on a marketplace and the issuer’s owner is subject to the Disclosure Instrument or the corporate governance requirements of a U.S. stock exchange.

Disclosure Requirements
As was the case under the proposals in the January Disclosure Instrument, the disclosure requirements under the new Disclosure Instrument continue to be informed by the recommended best practices set out in the corresponding corporate governance policy. However, the nature of the disclosure required to be made where an issuer does not comply with a particular recommended best practice has changed. In the January Disclosure Instrument, where the issuer did not comply with a particular recommended best practice, the board of the issuer had to explain why it considered it appropriate for the issuer not to comply with the recommended best practice. Under the new Disclosure Instrument, however, the issuer is simply required to explain how the issuer addresses the functional objective the recommended best practice is intended to address.

Disclosure will be required from all issuers to whom the Disclosure Instrument applies, although fewer requirements will apply to Venture Issuers. (Click here to refer to a summary of the new corporate governance disclosure requirements.)

During the upcoming proxy season, issuers will need to comply with the current corporate governance disclosure requirements under the existing rules of the TSX and the TSX Venture Exchange. However, in light of investor expectations and the impact of corporate governance ratings agencies, issuers should consider whether to voluntarily comply with the additional disclosure items reflected in the Disclosure Instrument.

Enforcement
Limitations in the TSX’s ability to police corporate governance disclosure will be overcome when the Disclosure Instrument becomes effective. Corporate governance disclosure required by the Disclosure Instrument will continue to be reviewed by the TSX and also will be subject to continuous disclosure reviews by securities regulators. Inadequate disclosure will be subject to potential enforcement proceedings and sanctions under securities laws.

Filing Codes of Business Conduct and Ethics
Issuers that have adopted a written code of business conduct and ethics will be required to file a copy on SEDAR.

Issuers will not be required to issue press releases disclosing every explicit or implicit waiver from the code granted in favour of an officer or director, as had been contemplated in the January Disclosure Instrument. The Best Practices Policy states that issuers must consider whether conduct by a director or executive officer of the issuer that constitutes a material departure from the issuer’s code will likely constitute a material change giving rise to an obligation to issue a press release and file a material change report.

In their responses to comments raised in the January Disclosure Instrument, the securities regulators express their view that conduct of a director or executive officer that constitutes a material departure from the code will also constitute a material change.

Proposed Amendments to the Audit Committee Instrument

As noted above, contemporaneously with the release of the Disclosure Instrument and Best Practices Policy, the Canadian securities regulators (other than B.C.) issued proposed amendments to the Audit Committee Instrument and its companion policy. (Click here to see the definition of "independent director" for purposes of the Disclosure Instrument and Best Practices Policy. )

Meaning of "Independent Director"
The amendments propose to more clearly separate various deeming provisions, which will disqualify an individual from being considered an "independent director." The change is intended to enhance consistency in the definition of "independent director" used in the Audit Committee Instrument and in the Disclosure Instrument and Best Practices Policy by more clearly identifying which deeming provisions will apply solely for audit committee purposes. As proposed, the fact that a director:

i. has a relationship with the issuer under which the director may accept, directly or indirectly, any consulting, advisory or other compensatory fee from the issuer or any subsidiary entity (except for service as a director, or part-time chair or vice chair of the board or any committee); or
ii. is an "affiliated entity" with respect to the issuer,

will not preclude the board from determining that the director is independent for all purposes other than membership on the audit committee.

The amendments also propose changes to conform to proposals made in August, 2004 by the NYSE to its definition of "independent director." The effect of the changes is to narrow the basis under which a director will be deemed to not be an "independent director" based on a relationship between the director or a member of the director’s family with the external auditor of the issuer as follows:

  • It will no longer be necessary to consider if the director or family member is "an affiliated entity" of the external auditor;

  • A former relationship with the external auditor will disqualify a director only if the director or the family member (as applicable), while a partner or employee of the external auditor, personally worked on the issuer’s audit within the last three years;

  • A director will not be deemed to be not independent because he or she has a family member employed at the external auditor unless the family member is employed in the external auditor’s audit, assurance or tax compliance (but not tax planning) practice; and

  • The range of family relationships with the director to be considered has been narrowed and the deeming provision will only apply where the director’s family member is a spouse, minor child or adult child sharing a home with the director (although the board may consider other family relationships in reaching its determination).

The day before the release of the amendments, the NYSE withdrew its proposal to narrow the range of family relationships with the director that are to be considered for purposes of deeming a director to be not independent based on a relationship with the issuer’s external auditor. The NYSE’s changes have now been published in final form by the SEC and it is likely that further amendments to the definition of independent director for purposes of the Audit Committee Instrument (and the Disclosure Instrument and Best Practices Policy) will be made to conform to the new definition adopted by the NYSE.

Disclosure of Expertise of Audit Committee Members of Venture Issuers
The amendments to the Audit Committee Instrument will require Venture Issuers to provide the same disclosure respecting the education and experience of audit committee members required of other issuers.

Implications for Controlled Companies

The definition of "independent director" relevant to the Disclosure Instrument and Best Practices Policy constitutes a significant departure from the TSX rules as applied to controlled companies. Under the TSX rules, relationships arising from shareholdings do not disqualify a director from being considered an "unrelated director."

Under the new proposals, especially in light of the change to the definition of "independent director" in the proposed new section 1.4(8), it is clear that an employee of a parent cannot be considered to be an "independent director" on the board of the subsidiary for purposes of determining whether the subsidiary has a board comprised of a majority of independent directors, nominating and compensation committees comprised solely of independent directors, a chair or lead director who is independent (although, it is not clear what constitutes a "parent" as the term is not defined in the Disclosure Instrument).

Controlled companies will have to identify all such individuals as not independent. In addition, to the extent that a controlled company is unable to satisfy any of the above best practices due to the participation of such directors on the board or board committee or in the position of chair or lead director, it will have to provide additional disclosure. By contrast, a controlled company listed on the NYSE need only disclose that it is a controlled company, the basis for such a determination and that it wishes to rely on the controlled company exemption from the requirements to have a majority of independent directors on the board and independent nominating and compensation committees.

Given that there are proportionately more controlled companies in Canada than in the U.S, it is surprising that the proposals reflect less, rather than more, sensitivity to the treatment of controlled companies than current U.S. requirements.

Application to Income Trusts

The companion policy to the Audit Committee Instrument has been amended with a view to harmonizing the treatment of income trusts under the Audit Committee Instrument with that in the Disclosure Instrument and Best Practices Policy. The companion policy recognizes that income trusts should be accorded flexibility in how they apply the requirements of the Audit Committee Instrument to their particular structure and acknowledges that audit committee responsibilities of a reporting issuer may be performed by entities within the trust structure other than the issuer itself.

Although the changes have not been incorporated in the Audit Committee Instrument, they do indicate a willingness on the part of securities regulators to permit income trusts to allocate audit committee oversight responsibilities among the board of trustees of the trust, the board or management of a subsidiary of the trust, or the board, management or employees of a management company.

A Summary of the Proposed Corporate Governance Best Practices

Here, we summarize key elements of the proposed national policy NP 58-201, released by Canada’s securities regulators on October 29, 2004, which sets out corporate governance guidelines that reflect recommended best practices.

We highlight as [New] those recommended practices that are not currently reflected in the TSX corporate governance guidelines.

Board Composition

  • The board should have a majority of independent directors.

  • Either the chair of the board should be an independent director or an independent director should be appointed as lead director. [New]

Meetings of Independent Directors

  • The independent directors should hold regularly scheduled meetings in the absence of management.

Board Mandate

  • The board should have a written mandate [New] in which it explicitly assumes responsibility for stewardship of the issuer, including responsibility for:

    (a) satisfying itself as to the integrity of the CEO and senior management and that such officers create a culture of integrity throughout the organization, [New]
    (b) strategic planning,
    (c) identifying the principal risks of the issuer’s business and ensuring the implementation of systems to manage them,
    (d) succession planning,
    (e) adopting a communication policy,
    (f) the issuer’s internal controls and management information systems, and
    (g) developing the issuer’s approach to governance, including developing the issuer’s own corporate governance guidelines.

  • The written mandate should also set out:

    (a) measures for receiving feedback from securityholders, and
    (b) the board’s expectations of management.

Position Descriptions

  • The board should develop position descriptions for directors, the chair of the board and each committee chair.

  • Together with the CEO, the board should develop a position description for the CEO which delineates management’s responsibilities. The board should approve the goals and objectives the CEO is responsible for meeting.

Orientation and Continuing Education

  • New directors should receive a comprehensive orientation and understand the role of the board and its committees, the contribution (including commitment of time and energy) individual directors are expected to make, and the nature and operation of the issuer's business.

  • The board should provide continuing education opportunities for all directors. [New]

Code of Business Conduct and Ethics

  • The board should adopt a written code of business conduct and ethics applicable to directors, officers and employees of the issuer designed to deter wrongdoing and addressing:

    (a) conflicts of interest,
    (b) protection and proper use of corporate assets and opportunities,
    (c) confidentiality of corporate information,
    (d) fair dealing with the issuer's securityholders, customers, suppliers, competitors and employees,
    (e) compliance with laws, rules and regulations, and
    (f) reporting of any illegal or unethical behaviour. [New]

  • The board should monitor compliance with the code. Waivers from the code in favour of directors or executive officers may be granted only by the board or a board committee. [New]

Nomination of Directors

  • The board should appoint a nominating committee composed entirely of independent directors.

  • The committee should have a written charter [New] setting out its responsibilities and manner of reporting to the board. The nominating committee should have authority to engage and compensate outside advisors. If an issuer is legally required by contract or otherwise to provide third parties with the right to nominate directors, the nominating committee need not approve the selection and nomination of these directors.

  • Before nominating or appointing individuals as directors, the board, with advice and input from the nominating committee, should:

    (a) first consider the competencies and skills the board, as a whole, should possess, and
    (b) then assess the competencies and skills of each existing director. [New]

    (In making its recommendations, the nominating committee should also consider the competencies and skills of each new nominee.)

  • The board should also consider the appropriate size of the board.

  • The nominating committee should be responsible for identifying individuals qualified to become new board members and recommending to the board the new director nominees for the next annual meeting of shareholders.

Compensation

  • The board should appoint a compensation committee composed entirely of independent directors. [New]

  • The committee should have a written charter setting out its responsibilities and manner of reporting to the board. [New] The compensation committee should have authority to engage and compensate outside advisors.

  • The compensation committee should be responsible for

(a) reviewing and approving corporate goals and objectives relevant to CEO compensation, evaluating the CEO's performance in light of those corporate goals and objectives, and making recommendations to the board with respect to the CEO's compensation level based on this evaluation,
(b) making recommendations to the board with respect to non-CEO compensation, incentive-compensation plans and equity-based plans and
(c) reviewing executive compensation disclosure before the issuer publicly discloses this information. [New]

Regular Board Assessments

  • The board should regularly assess the effectiveness and contribution of the board, its committees and each individual director in light of the board's written mandate, the committee charters, the position descriptions applicable to each director and the competencies and skills each individual director is expected to bring to the board.

A Summary of the Proposed Corporate Governance Disclosure Requirements

Here, we summarize the new corporate governance disclosure requirements reflected in the proposed Disclosure Instrument (NI 58-101, released by Canada’s securities regulators on October 29, 2004) that are applicable to all issuers and the extent to which they apply to Venture Issuers.

All Issuers Other Than Venture Issuers

Applies to Venture Issuers?

1. Board of Directors

  • The identity of directors who are independent and those who are not and for non-independent directors, the basis for concluding that the director is not independent;

Yes

  • Whether a majority of the directors are independent, and if not, what the board does to facilitate its exercise of independent judgement;

No

  • For each director, the names of the public issuers for all other directorships held;

Yes

  • Whether the independent directors meet without management and the number of meetings held within the preceding 12 months, and if such meetings are not held what the board does to facilitate open and candid discussion among independent directors;

No

  • Whether there is an independent director as Chair of the board or as lead director, his or her name and a description of his or her role and responsibilities and, if there is no such individual, what the board does to provide leadership for its independent directors.

No

2. Board Mandate

  • The text of the board’s written mandate or, if it does not have one, a description of how the board delineates its role and responsibilities.

No

3. Position Descriptions

  • Whether there are position descriptions for the roles of Chair of the board, Chair of each committee and CEO, and if not describe how the board delineates the role and responsibilities for each position. (In response to comments to the January Proposals, the CSA state that in a committee’s charter it may set out an adequate position description for its Chair.)

No

4. Orientation and Continuous Education

  • The measures taken to orient new directors respecting the role of the board, its committees and directors and the nature and operation of the issuer’s business, and provide continuing education for directors;

Yes

  • If continuing education is not provided, describe how the board ensures that its directors maintain the skill and knowledge needed to meet their obligations as directors;

No

5. Ethical Business Conduct

  • Whether there is a code of business conduct and ethics and, if so:

(a) how copies may be obtained by interested parties,
(b) a cross-reference to any material change report filed within the preceding 12 months that pertains to a director or executive officer whose conduct departed from the code,
(c) how the board monitors compliance with the code (or, if the board does not monitor compliance, how the board ensures compliance with the code), and
(d) cross-reference any material change reports filed within the preceding 12 months respecting any waivers from the application of the code in favour of a director or executive officer;

No

  • Steps taken by the board to ensure directors exercise independent judgment in considering transactions and agreements in which a director or executive officer has a material interest;

No

  • Other steps the board takes to encourage and promote a culture of ethical business conduct.

Yes

6. Nomination of Directors

  • The process by which the board identifies new candidates for nomination to the board;

Yes

  • Whether there is a nominating committee comprised solely of independent directors and, if not, the steps the board takes to encourage an objective nomination process;

No

  • If there is a nominating committee, a description of its responsibilities, powers and operation.

No

7. Compensation

  • The process by which the board determines compensation for directors and officers;

Yes

  • Whether there is a compensation committee comprised solely of independent directors and, if not, the steps the board takes to encourage an objective process for determining compensation;

No

  • If there is a compensation committee, a description of its responsibilities, powers and operation.

No

8. Other Board Committees

  • A description of any committees in addition to the audit, nominating and compensation committees.

Yes

9. Assessments

  • Whether regular assessments are conducted of the performance of the board committees and each director and, if so, a description of the process used or, if not, a description of how the board satisfies itself that it, its committees and individual directors are performing effectively.

Yes

The Meaning of "Independent Director" for Corporate Governance Purposes

Here, we set out the meaning of "independent director" for purposes of the Disclosure Instrument and Best Practices Policy, which incorporate by reference the proposed new section 1.4 of the Audit Committee Instrument released by Canada’s securities regulators on October 29, 2004. (Note that additional restrictions apply in the case of determining independence for purposes of audit committee composition).

1.4 Meaning of Independence —

(1) An audit committee member is independent if he or she has no direct or indirect material relationship with the issuer.

(2) For the purposes of subsection (1), a "material relationship" is a relationship which could, in the view of the issuer's board of directors, be reasonably expected to interfere with the exercise of a member's independent judgement.

(3) Despite subsection (2), the following individuals are considered to have a material relationship with an issuer:

(a) an individual who is, or has been within the last three years, an employee or executive officer of the issuer;
(b) an individual whose immediate family member is, or has been within the last three years, an executive officer of the issuer;
(c) an individual who:

(i) is a partner of a firm that is the issuer's internal or external auditor,
(ii) is an employee of that firm, or
(iii) was within the last three years a partner or employee of that firm and personally worked on the issuer's audit within that time;

(d) an individual whose spouse, minor child or stepchild, or child or stepchild who shares a home with the individual:

(i) is a partner of a firm that is the issuer's internal or external auditor,
(ii) is an employee of that firm and participates in its audit, assurance or tax compliance (but not tax planning) practice, or
(iii) was within the last three years a partner or employee of that firm and personally worked on the issuer's audit within that time;

(e) an individual who, or whose immediate family member, is or has been within the last three years, an executive officer of an entity if any of the issuer's current executive officers serves or served at that same time on the entity's compensation committee; and
(f) an individual who received, or whose immediate family member who is employed as an executive officer of the issuer received, more than $75,000 in direct compensation from the issuer during any 12-month period within the last three years.

(4) Despite subsection (3), an individual will not be considered to have a material relationship with the issuer solely because he or she had a relationship identified in subsection (3) if that relationship ended before March 30, 2004.

(5) For the purposes of clauses (3)(c) and (3)(d), a partner does not include a fixed income partner whose interest in the firm that is the internal or external auditor is limited to the receipt of fixed amounts of compensation (including deferred compensation) for prior service with that firm if the compensation is not contingent in any way on continued service.

(6) For the purposes of clause (3)(f), direct compensation does not include:

(a) remuneration for acting as a member of the board of directors or of any board committee of the issuer; and
(b) the receipt of fixed amounts of compensation under a retirement plan (including deferred compensation) for prior service with the issuer if the compensation is not contingent in any way on continued service.

(7) Despite subsection (3), an individual will not be considered to have a material relationship with the issuer solely because the individual or his or her immediate family member

(a) has previously acted as an interim chief executive officer of the issuer; or
(b) acts, or has previously acted, as a chair or vice-chair of the board of directors or of any board committee of the issuer on a part-time basis.

(8) For the purpose of section 1.4, an issuer includes a subsidiary entity of the issuer and a parent of the issuer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

 
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The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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