MatrixIT, MANAGED SERVICES TERMS & CONDITIONS AGREEMENT
This Managed Services Terms & Conditions Agreement (“the Agreement”) is between MatrixIT (Division of 1514800 Ontario Inc)., an Ontario corporation (“MatrixIT”), and the entity that executes a Managed Services Agreement (“MSA”) or any other Agreement with MatrixIT into which this Agreement is incorporated by reference (“Client”). This Agreement is hereby attached and incorporated into each such MSA and/or other agreement executed by Client. By entering into an MSA or other agreement that incorporates this Agreement by reference, the Client hereby agrees to be bound by and abide by the terms and conditions of this Agreement. This Agreement is effective upon the execution by MatrixIT and Client of an MSA and/or other agreement which incorporates this Agreement by reference (the “Effective Date”), and shall remain in effect for so long as each such MSA and/or other agreement is in effect.
1. MANAGED SERVICES DEFINED IN THE MSA
A. MatrixIT shall provide the Managed Services (“Managed Services”) as defined and outlined in the Managed Services Agreement (“MSA”) executed by the Client.
2. MONITORING AND SUPPORT
A. MatrixIT monitors all systems and networked equipment that it manages under the Managed Services (“Managed Systems”) 24 hours per day, 365 days per year, barring cases of third-party hardware, software, or service failure and Force Majeure described in Section 14 of this Agreement, or other service interruptions that prevent monitoring, however, caused. In case of interruptions in monitoring, MatrixIT shall make commercially reasonable efforts to restore monitoring. The terms of MatrixIT’s technical support of Managed Systems, or any help desk or other support services that may be offered as part of the Managed Services are determined by the MSA, where applicable.
3. START DATE / SERVICE PERIOD
A. The Start Date is the date MatrixIT turns on its services covered hereunder. The Service Period and billing begin on the Start Date. At the end of the Service Period, this Agreement will automatically renew for consecutive terms of the same duration as the Service Period, unless terminated or new arrangements have been or in process of being made in writing at least sixty (60) days before the expiration of the then-current term. If one or more equipment-related charges (such as a hardware lease) are paid in full during any given Service Period, the monthly fees for the next period will decrease by the amount of the current monthly fees attributable to the said charges. Any changes made to the Managed Services by mutual consent during a Service Period shall be documented by executing a subsequent MSA during that Service Period, but such changes to Managed Services shall not affect the Service Period itself as outlined in the original MSA unless such subsequent MSA specifies a different Service Period. If MatrixIT or Client fails to execute a subsequent MSA after a change in Managed Services has been mutually agreed upon in writing in another (non-MSA) agreement executed by MatrixIT and Client (such as a Statement of Work), such failure shall not in any way affect Client’s
responsibility to pay the new and updated fees due and payable for the new Managed Services to which Client has agreed by executing such other (non-MSA) agreement.
4. START-UP FEES AND PAYMENT
A. Start-up fees and the first month’s service fees are due and payable with the signing of this Agreement. Monthly service fees are due during the Service Period and shall be paid monthly in advance by the first of each month, in advance for that month, without demand or invoice. Specifically, MatrixIT shall not be required to generate an invoice or make any demands for payment on or before the first of each month for the Client to be obligated to pay the monthly service fees specified by the MSA by the first of each month, in advance for that month. MatrixIT shall provide invoices for each Managed Services payment due hereunder and at reasonable times and shall not unduly delay such invoicing. The fees and payments due hereunder are defined in the MSA. Service is subject to interruption and disconnection by MatrixIT for nonpayment of monthly service fees or any other fees due and payable by Client, and MatrixIT reserves the right to seek all other remedies at law.
5. TAXES AND OTHER CHARGES
A. All amounts due and payable hereunder will be exclusive of applicable charges, fees, levies, imposts, duties, tariffs, or other assessments imposed by or payable to any federal, provincial, municipal or foreign tax or governmental authority, including without limitation sales, use, goods, services, value-added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. The client will be responsible for the payment of all such Taxes, excluding Taxes based on MatrixIT’s income. The client will indemnify and hold MatrixIT harmless from any current or future obligation, including due a change in legislation, to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes, or any other Taxes in connection with MatrixIT’s performance under this Agreement, and from any and all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom.
6. RESPONSIBILITY OF PARTIES
A. MatrixIT shall use commercially reasonable efforts to provide the Client with substantially uninterrupted services by means of MatrixIT’s systems, personnel, and other resources.
7. ACCEPTABLE USE POLICY (“AUP”)
A. The Client shall use MatrixIT’s services only in accordance with applicable law and for lawful purposes. The Client shall not use or permit others to use MatrixIT’s services (including by transmitting, posting, or storing content) in a manner that would violate any law or infringe any copyrights or trademarks. Once notified of any violation of this Acceptable Use Policy, the Client agrees to cooperate with MatrixIT and work promptly to cease the noted activities. MatrixIT reserves the right to interrupt or disconnect services for non-compliance with this AUP or in compliance with instructions from government authorities. The client shall be responsible for all authorized uses of services provided by MatrixIT. A more extensive AUP may be provided as an addendum to this Agreement in connection with certain services.
8. MatrixIT EQUIPMENT
A. In certain circumstances, MatrixIT may supply client premises equipment or cloud premises equipment that may consist of any third-party hardware and software not manufactured by MatrixIT (“CPE”) to the Client and retain ownership in such CPE. Unless otherwise specified through an SOW or other agreement, all CPE shall be purchased and owned by the Client, whether procured by MatrixIT and passed through to Client or purchased directly by Client from third-party hardware and software vendors. If any CPE is owned by MatrixIT, MatrixIT shall have the right to remove all CPE that it has supplied. The client agrees to allow MatrixIT personnel and subcontractors reasonable access to the Client’s premises and/or building (the “Client Site”) to install, configure, managing, maintaining, repairing, replacing and removing the CPE. If Client does not own the Client Site and access to portions of the Client Site other than the Client premises is needed (i.e. building phone room, data room, HVAC room, roof, etc.), Client shall obtain, with MatrixIT’s cooperation, all appropriate permissions from the owner or landlord for such activities.
9. NO WARRANTY
A. MatrixIT PROVIDES ALL SERVICES ON AN AS-IS BASIS. IN PROVIDING ITS SERVICES, MATRIXIT, ITS OFFICERS, DIRECTORS, PRINCIPALS, MEMBERS, MANAGERS, EMPLOYEES, SUBCONTRACTORS, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS MAKE NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY STATED HEREIN AND EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE OR MULTIPLE DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO FOR LOST PROFITS, LOST REVENUES, LOST DATA, LOSS OF SECURITY, LOSS OF PRIVACY, COSTS OF RECREATING LOST DATA, COST OF PROCURING OR TRANSITIONING TO SUBSTITUTE SERVICES, OR LOSS OF USE, RESULTING FROM ANY CLAIM OR CAUSE OF ACTION BASED ON MATRIXIT’S SERVICES OR THIRD PARTY SERVICES PROVIDED OR PASSED THROUGH BY MATRIXIT OR BY ANY OTHER PARTY IN CONJUNCTION WITH MATRIXIT’S SERVICES, BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE (INCLUDING STRICT LIABILITY), WHETHER IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY, EVEN IF EITHER CLIENT OR MATRIXIT KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
B. Without limiting the foregoing, MatrixIT shall not be liable for any damages resulting from the use or inability to use its services, reliance on its services or information obtained therefrom, interruptions of service, breach, compromise, unauthorized access to any records, files, data, systems, or other assets, valuables and resources; errors, defects, viruses, malware, delays in operation or transmissions or any other failure of performance or business function. Further, except in the event of willful misconduct by MatrixIT, MatrixIT shall not be liable for any direct damages resulting from the loss of any of Client’s data or third party data, breach of security, or loss of privacy of data on Client’s systems or third party systems that may occur on systems installed, serviced, and/or managed by MatrixIT, or any direct or indirect damages resulting therefrom; the malfunction, performance or compromise of any system, network or other resource related to or associated with in any capacity or by any theory with MatrixIT services, and any Client or third party damages, claims, losses or expenses resulting therefrom; any personal injury (whether of a physical or psychological nature) or death of any person, whether associated with Client or otherwise, that may in any capacity or by any theory be associated with services provided by MatrixIT, and any Client or third party damages, claims, losses or expenses resulting therefrom.
10. SERVICE LEVEL AGREEMENT
A. Depending on the nature of the services being supplied hereunder, a separate Service Level Agreement or Commitment Scope may be provided. If such Service Level Agreement or Commitment Scope is provided, it shall be executed separately.
11. LIMITATION OF LIABILITY
A. Both parties agree that it is impossible to guarantee the trouble-free performance of computer hardware, software, networks, environments, security and systems, the security, privacy, specific functionality or performance of any free-standing or integrated system or resource; the reliability, applicability, or performance of any technology or technology-related asset; the applicability, outcome or performance of any training or the behavior of any human resources; whether procured, provided, installed, managed, supported, administered, trained and/or supervised by MatrixIT, or in any way associated with MatrixIT services or otherwise. Therefore, Client and MatrixIT agree to certain further limitations of liability and damages.
B. To the extent not prohibited by applicable law, MatrixIT’s maximum aggregate and cumulative liability under this Agreement for any and all losses, claims, damages, expenses, attorney and expert fees or liability of any kind, including but not limited to claims of breach of contract, breach of warranty, negligence (including strict liability), whether in contract or tort, or under any other legal theory, is limited to the amount paid by Client hereunder for the two (2) months immediately preceding the event giving rise to such loss, damage, claim, or liability. In no event shall MatrixIT be liable for any consequential, incidental, special, exemplary, indirect, punitive or multiple damages in connection with or arising out of this Agreement, (ii) any accompanying or associated MSA, whether signed concurrently or not, and, (iii) any other agreement between Client and MatrixIT that incorporates this Agreement; including but not limited to claims or damages involving loss of business, revenue, profits, use, data, goodwill, reputation, or other economic advantages, however, caused, and regardless of the legal theory of liability, even if MatrixIT and/or Client knew, or should have known of the possibility thereof. Client and MatrixIT agree that the provisions of Section 9 (No Warranty) and this Section 11 (Limitation of Liability) of this Agreement shall constitute Client’s sole and exclusive remedy with respect to (i) MatrixIT’s services and any claims or actions arising therefrom, and, (ii) any third party services passed through or provided by MatrixIT or by any other party in conjunction with MatrixIT’s services, and any claims or actions arising therefrom; even if a mediator, arbitrator, or court of competent jurisdiction finds that such sole and exclusive remedy has failed its essential purpose.
A. The client agrees to indemnify, defend, and hold harmless MatrixIT, and its officers, directors, principals, members, managers, employees, subcontractors, agents, representatives, successors and assigns from and against any damage, claim, loss, expense (including reasonable attorneys’ fees and damage to any person or property), occurring as a result of (i) Client’s use or inability to use of MatrixIT’s services, or use or inability to use by those authorized by Client of MatrixIT’s services; (ii) Client’s handling, storage, transmission or possession of information, data, messages or other content or assets on MatrixIT’s systems or network, on Client systems or network that is installed, managed or otherwise serviced by MatrixIT, or on third party systems and networks that MatrixIT uses to provide its services, including but not limited to, claims: (A) for libel, slander, invasion of privacy, identity theft, infringement of
copyright, and invasion or alteration of private records or data; (B) for infringement of patents; (C) for security breaches of any kind; or (D) based on handling, storage, transmission, or possession of information that contains viruses, malware or other destructive code, media, or any unlawful content; (iii) Client’s or third parties’ reliance on MatrixIT’s services or information obtained therefrom; (iv) Client’s breach of any software licensing requirements of third parties; (v) Client’s failure to comply with any provision of this Agreement or MatrixIT’s Professional Services Agreement; or, (vi) Client’s failure to obtain permits, licenses, or consents that Client may be required to obtain to enable MatrixIT to provide its products or services (e.g., landlord permissions, wiring permits, etc.)
B. MatrixIT agrees to indemnify and defend Client, its directors, officers, employees, agents, and successors against the third party claims enforceable in Canada alleging that MatrixIT’s services as provided infringe any third party Canada’s patent or copyright or contain misappropriated third-party trade secrets. MatrixIT’s obligations under this section will not apply to the extent that the infringement or violation is caused by (i) functional or other specifications that were provided or requested by Client, or (ii) Client’s continued use of infringing services after MatrixIT provides reasonable notice to Client of the infringement. For any third-party claim that MatrixIT receives, or to minimize the potential for a claim, MatrixIT may, at its option and expense, either: (i) procure the right for Client to continue using the services in question; (ii) replace or modify the services with comparable services; or (iii) terminate the services. The provisions of this Section 12 state the entire liability and obligations of the indemnifying party, and the exclusive remedy of the indemnified party, with respect to any of the claims identified herein.
A. This Agreement, any addendum to this Agreement, the MatrixIT Professional Services Agreement (“PSA”) delineating the terms of the relationship, the MSA that describes the Managed Services to be provided hereunder, and, in the event MatrixIT provides Client with cloud services, a Cloud Services Availability Commitment Scope (“CSACS”), constitute the entire agreement of the parties and supersede all negotiations, proposals or purchase or other work orders, written or oral, provided that the Client shall also adhere to all policies and procedures established by MatrixIT. This Agreement can be amended only by a written agreement signed by duly authorized representatives of the parties. This Agreement may be assigned by either party without notice in the event of a merger or sale of substantially all of the assigning company’s assets or stock. The obligations under this Agreement shall be binding on and inure to the benefit of both Client and MatrixIT, their successors, and permitted assigns. Any purchase order issued by the Client shall be solely for the internal convenience of the Client, and no term or condition contained in the purchase order shall in any way modify this Agreement or any of the rights or obligations of either party hereunder.
14. FORCE MAJEURE
A. Neither party to this Agreement shall have liability or responsibility to the other party for any delay, failure to perform, service interruption, outage, damage, malfunction, or any consequence thereof or damage resulting therefrom, due to any circumstance beyond the party’s reasonable control including, but not limited to, inclement weather, climate change, resource shortages, all acts of nature and acts of God, strikes, civil disturbances, riots, terrorist acts, unavailability of or delays in goods or services needed from third parties including but not limited to third party hardware, software, data center, collocation, and cloud service providers, interruption or outage of or delay in telecommunications including the public
Internet, voice lines, data lines, or any telecommunications equipment or service, transportation, delivery, power outages, electrical or other utility services, failure of third-party hardware, software or services, or any acts or omissions of any third parties.
A. Termination by Client is permitted without charge only in the case where all of the services provided hereunder as defined by an MSA executed by Client are unavailable or out of service for a period of seven consecutive days from ticket open, other than due to Force Majeure, provided Client works in good faith with MatrixIT to correct the outage and does not contribute to the outage intentionally or not, by action, inaction, or omission. In such a case, service fees will be due up to the ticket-open date. All other terminations permitted under this Agreement by Client require a payment of all fees due and payable under this Agreement for the entire then-current Service Period as a lump sum within five (5) business days of such Termination, and the return of all MatrixIT equipment. Paragraphs 4, 5, 9, 11, 12, 13, 16, and 17 of this Agreement shall survive termination of this Agreement.
16. VENUE; GOVERNING LAW
A. Venue for the purpose of any disputes regarding this Agreement shall lie exclusively in Ottawa, Ontario and the province and federal courts of Ontario shall have exclusive jurisdiction over the parties and subject matter of this Agreement. Each party consents and submits to the in-person jurisdiction of any Province or federal court located within Ottawa, Ontario. Any party attempting to bring any suit concerning this Agreement in any province other than Ontario shall be deemed to have consented to that suit’s dismissal for improper venue and lack of jurisdiction and shall be liable to the other party for the other party’s reasonable and necessary attorney’s fees and costs incurred in moving to dismiss the suit. The interpretation of this Agreement is governed by Provincial law of Ontario (except for any conflicts of law rules, if any, that might make the laws of another jurisdiction govern).
A. Notwithstanding Paragraph 16 of this Agreement, as a material part of this Agreement, Client and MatrixIT agree that any and all disputes, claims, or controversies arising out of or relating to this Agreement or of MatrixIT’s services shall be determined by confidential, final, and binding arbitration in Ottawa, Ontario. Disputes, claims, and controversies subject to final and binding arbitration under this Agreement include, without limitation, all those that otherwise could be tried in a court to a judge or jury in the absence of this Agreement. By agreeing to submit all disputes, claims, and controversies to binding arbitration, both Client and MatrixIT expressly waive their rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal and shall agree to all discovery requests and submit to all depositions as if it is doing business in Ottawa, Ontario. The scope of any arbitral award shall be expressly limited by the terms of this Agreement. Any award shall be final, binding, and conclusive upon the parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any province or federal court having jurisdiction thereof. Notwithstanding the foregoing, both Client and MatrixIT agree that before undertaking the aforementioned arbitration, they shall submit all disputes, claims, or controversies to a mutually agreeable mediator in an attempt to informally resolve said disputes, claims, or controversies without the need for arbitration. Both Client and MatrixIT agree that before even engaging in mediation,
they will make every effort to resolve any disputes peacefully. Nothing in this Section shall be deemed to prohibit MatrixIT from seeking injunctive relief or to restrict MatrixIT from asserting or enforcing any collection action in court, other than as outlined in Section 16 and this Section 17 of this Agreement.
18. EXCLUSIONS FROM MANAGED SERVICES
A. The following is a list of costs, expenses, charges, or services explicitly excluded from the Managed Services listed in any MSA executed by the Client. The below is not meant to constitute a complete list, and any cost, expense, charge, or service that is not specifically listed and explicitly included in an executed MSA is excluded from Managed Services by definition:
- Any parts, equipment, or hardware costs, fees, or charges of any kind
- Any software, licensing, software assurance, renewal, or upgrade fees of any kindAny taxes of any kind
- Any shipping, handling, courier, or postage charges of any kind
- Any 3rd party vendor, OEM, or other manufacturer support fees or incident fees of any kind
- Any premise wiring services (voice/data/video cabling) of any kind
- Training of any person in any context, unless otherwise specified
Travel, travel time, gas or gas mileage, per diem or accommodations, when applicable, when visiting Client offices or any other third-party site on Client’s behalf
- Any non-IT materials needed to provide services or requested by Client, including but not limited to office supplies or media
Any type of service, repair, reconfiguration, maintenance or management occasioned or made necessary by the alteration of systems, devices, software, or other resources, with or without administrative access to such resources, by anyone other than authorized MatrixIT personnel. Includes any change or service occasioned by acts or omissions by the Client’s own employees, principals, consultants, subcontractors, third-party vendors, or any other third parties who may have or have had physical, logical, or remote access to Client’s resources
- Maintenance of third-party applications, software, software packages, or add-ons, whether acquired through MatrixIT or any other source. The only exception is software made or modified by MatrixIT to provide managed services.
- Any software programming or scripting (creation or modification of software code) and program (software) maintenance
- Any work, project, service, or support of any kind, whether one-time, periodic or ongoing, that involves a new resource that was not present at the time an MSA is executed
- Any work that does not qualify as a service ticket with respect to restoring the normal functioning of the resources being managed as per an MSA, i.e. any work that does not involve proactive management, routine administration, or troubleshooting (whether client-prompted/requested or otherwise) malfunctioning or non-functioning systems or resources under management as per an MSA. Any such work is defined as a Project. Projects include but are not limited to re-configuring resources by client request, integrating with newly acquired/introduced hardware, software, or networks, or with other formerly non-existent third-party resources, or otherwise making changes to managed resources, when such configuration, integration, or changes are not warranted nor necessary (a) to manage such resources, or, (b) to keep such resources in good working order. Such Projects are by definition not part of Managed Services, since Managed Services concern themselves with proactively managing, maintaining, troubleshooting, and keeping operational existing resources explicitly covered by an MSA.