Master Services Agreement pdficon_large

Terms and Conditions of Service
October 1, 2014
1. This Master Services Agreement (“MSA”) governs your use of all Services IT Networked Systems Inc. (“IT”) provides to you, as identified in the Orders you place with us for Services (each, an “Order”).
2. By using the Services, you and your Users agree to be bound by all the terms and conditions of this Agreement (as defined below) including the agreed limitations of liability. If you do not agree with the provisions of this Agreement, do not use, and do not authorize any User to use, the Services.
3. Agreement and Definitions:
3.1 Terms of Service: The Services are governed by these terms and conditions together with, and subject to, the “Additional Service Terms and Conditions” applicable to a particular Service which are annexed to this Agreement.
3.2 Conflict: In the event of a conflict or inconsistency between any applicable Additional Service Terms and Conditions and either this Master Service Agreement, the Service Level Objectives or the Acceptable Use Policy, the Additional Service Terms and Conditions will govern to the extent required to resolve the conflict or inconsistency.
3.3 Definitions: In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning given to them elsewhere in this Agreement.
3.3.1 “Acceptable Use Policy” or “AUP” means IT’s Acceptable Use Policy found on our website.
3.3.2 “Agreement” means collectively; the Acceptable Use Policy, the terms of each Order accepted by IT and any applicable Additional Service Terms and Conditions.
3.3.3 “Business Hours” are Monday to Friday, 9:00 am to 5:00 pm, in the time zone of the supported locations, excluding public holidays.
3.3.4 “Customer”, “you” or “your” means the customer identified on the Order.
3.3.5 “Fees” means the fees for Services as specified in your Order.
3.3.6 “Order” means either an online order you submit to IT via a IT website, or any other written order (either in electronic or paper form) provided to you by IT for signature, which describes the Services you are purchasing, and that is signed by you, either manually or electronically.
3.3.7 “Parties” means Customer and IT.
3.3.8 “Services” means all services provided to Customer by IT and more specifically outlined in your Order.
3.3.9 “Users” means Customer and its employees, contractors, agents, lawyers, auditors or end users of the Services, including any persons who you provide with access to, or on whose behalf you access, the Services or IT’s Confidential Information.
3.3.10 “Website” means the IT website, currently located at
4. Customer’s Obligations.
4.1 Customer agrees;
4.1.1 to comply with the terms and conditions of the AUP;
4.1.2 to comply with all applicable laws in connection with the provisioning, ordering, use and payment of any Services;
4.1.3 that you will use the Services only for lawful purposes and in accordance with this Agreement and the IT policies and guidelines notified to you;
4.1.4 that you will reasonably cooperate with IT’s investigations of outages, security problems and any suspected breach of this Agreement;
4.1.5 that you will immediately notify IT of any unauthorized use of the Services, or any other breach or suspected breach of the security of the Services;
4.1.6 that you will promptly pay the fees for all Services and applicable charges when due together with all applicable federal, state, provincial, local, national or regional taxes including sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege or any other taxes assessed with respect to the Services; and
4.1.7 that you will provide IT with all the information IT requires to determine if tax is chargeable in connection with the provision of Services to you including providing evidence satisfactory to IT confirming you are exempt from any applicable tax.
4.2 Users: You are responsible for the all Users compliance with the obligations under this Agreement, including the terms of the AUP.
4.3 Indemnity: You agree to defend, indemnify and hold harmless IT, its affiliates, subsidiaries, personnel and representatives, jointly and severally, from and against any and all third party claims, damages, losses, liability, causes of action, judgments, costs or expenses (including reasonable legal fees) directly or indirectly arising from, connected with or relating to any breach of this Agreement by you, your Users or your customers.
5. Term and Termination:
5.1 Term: The term of your Services is specified on the applicable Order.
5.2 Termination: This Agreement and all Services, or a single Service provided to you by IT, may be terminated in one of the following ways:
5.2.1 subject to Section 5.3 below, by you for any reason by providing IT with a Cancellation Request sixty (60) days prior to the date you wish to cancel your Services;
5.2.2 by IT for any reason by providing you with notice at least sixty (60) days prior to the date we intend to terminate this Agreement, the Services, or a Service;
5.2.3 subject to Section 5.3 below, by IT immediately if you fail to pay any fees for Services later than 10 days after they are due, or if IT determines that you have used fraudulent information to order or pay for your Services;
5.2.4 by either you or IT, if the other Party commits a material breach or fails to perform any obligations under this Agreement, and has not remedied the breach within thirty (30) days after receipt of a notice from the non-breaching Party identifying the breach or failure; or
5.2.5 As otherwise provided in this Agreement, including as set forth in the AUP.
5.3 Early Termination Fees:
5.3.1 If you terminate this Agreement or a Service before the end of its Initial Term (the “Terminated Services”) by providing a Cancellation Request to IT, then in addition to paying the Fees for your Services provided by IT through the effective date of termination, you will pay to IT an early termination fee equal to 100% of the total Fees payable for the Terminated Services for the remainder of your Initial Term.
5.4 Fees and Payment:
5.4.1 Customer agrees to pay all fees specified in the Order. IT may invoice in advance for any recurring service.
5.4.2 Invoices are payable upon receipt.
5.4.3 IT reserves the right to adjust the fees if (i) the supported environment materially changes, such as a change in the number of end users, workstations, servers, network elements supported, warranty or hardware maintenance coverage or other changes in the infrastructure, or (ii) the level of support required by the Customer changes.
5.4.4 IT anticipates that its costs for providing services will increase annually. Accordingly, IT reserves the right to increase its fees on the anniversary date of the Order. IT shall provide at least thirty (30) days prior notice of any fee increases.
5.4.5 IT reserves the right to charge Customer for the time utilized in the development of quotes for hardware or software not ultimately purchased through IT at the then-current hourly rate for contracted Customers therein within thirty (30) days after written notice of such breach.
5.5 Service Responsibilities.
5.5.1 Customer Data: IT is not aware of and does not monitor the type, nature or value of your data either passing over our network or being stored in our hardware, nor can we audit, view or manipulate your data in the ordinary course of business. The following provisions explain how we operate and your responsibilities: Data Retention: IT will remove and permanently delete any data stored on its systems or servers following the termination of any Services in accordance with its internal procedures. You will not have access to the systems or hardware following termination of a Service; therefore it is your responsibility to retain a copy of the data prior to termination. Where you request a copy of such data prior to termination, IT will use reasonable efforts to provide you with a copy of your data, subject to your payment of any reasonable fees quoted by IT in association with your request. Regulations: You are responsible for understanding the regulatory requirements applicable to your particular use or business and for selecting services that meet such requirements. Data losses: Some of our services are designed to minimize and/or mitigate the risk of data losses, to the extent possible. You are responsible for selecting services appropriate to your needs.
5.5.2 Interruption of Service: IT does not guarantee that (i) access to any Service will be uninterrupted or completely error-free; (ii) that defects can or will be corrected; or (iii) that any Service will be completely secure. You agree that: except as expressly provided, IT will not be liable to you, a User or any other third party for any temporary delay, outage or interruption of a Service; and IT is not liable for any delay or failure to perform its obligations under this Agreement where the delay or failure results from an act of God or other cause beyond IT’s reasonable control.
5.5.3 Customer Requirements: You acknowledge and agree that it is your responsibility to ensure that the Services are appropriate and suitable for your requirements. Where IT provides advice in reference to your Service requirements or the configuration of any equipment used in connection with your Service, such advice is provided in a good faith basis using reasonable skill and care. Professional services are subject to separate agreement between the Parties.
5.6 Confidentiality.
5.6.1 Any Confidential Information disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”) in connection with this Agreement that is marked confidential will be protected and held in confidence by the Recipient. You and IT agree that Confidential Information will be used only for the purposes of this Agreement and related internal administrative purposes.
5.6.2 Disclosure of Confidential Information will be restricted to the Recipient’s employees, contractors, affiliates or agents (including auditors, lawyers and consultants) on a “need to know” basis in connection with the services, each of whom are bound by confidentiality obligations no less stringent than these prior to such disclosure. Each Party may disclose Confidential Information relating to the Services to providers of goods and services to the extent such disclosure is necessary and reasonably anticipated.
5.6.3 A Recipient may disclose Confidential Information to the extent required by law, but the disclosure does not relieve the Recipient of its confidentiality obligations with respect to any other party.
5.6.4 You agree that any audit, compliance, certification or security reports provided to you by IT are for your internal use only and are not to be disclosed or distributed by you to any third party. You agree that the terms of any Order you may place with IT are the confidential information of IT and you will maintain the strict confidentiality of this information.
5.7 Limited Warranty.
5.7.1 IT warrants for a period of thirty (30) days from invoice date (the “Warranty Period”) that all services shall be performed in a professional manner in accordance with generally applicable industry standards. IT’s sole liability, and Customers exclusive remedy, for any breach of this warranty shall be for IT to re-perform any deficient services, or, if IT is unable to remedy such deficiency within the Warranty Period, to void the invoice for the deficient services. IT shall have no obligation with respect to a warranty claim (i) if notified of such claim after the Warranty Period or (ii) if the claim is the result of third-party hardware or software failures, or the actions of Customer or a third party.
5.7.2 This Section is a limited warranty, and sets forth the only warranties made by IT. IT makes no other warranties, conditions or undertakings, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, fitness for a particular purpose or any warranties regarding the performance of any software or hardware provided or installed by IT. Customer may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.
5.8 Limitation of Liability.
5.8.1 The provision of the Services by IT is subject to the limitations on liability outlined in this Section and sets out the Parties’ entire liability arising out of or in connection with this Agreement. You acknowledge and agree that the Fees for the Services under this Agreement are based upon this allocation of risk.
5.8.2 Neither party shall be liable to the other for any indirect, incidental, special, or consequential damages including, without limitation, damages for interruption of services, loss of business, loss of profits, loss of revenue, loss of data, or loss or increased expense of use, whether in an action in contract, warranty, tort including, without limitation, negligence, or strict liability, even if the parties have been advised of the possibility of such liabilities. IT shall not be responsible for problems that occur as a result of the use of any third-party software or hardware.
5.8.3 In no event shall the amount either party may recover under any schedule exceed in the aggregate (and not per occurrence) the total payments made by Customer to IT in the three (3) months immediately preceding the occurrence of the event giving rise to such liability.
5.8.4 The limitations set forth in this Section shall not apply to personal injury or damage to tangible property caused by the willful misconduct or gross negligence of either party.
5.9 Governing Law.
5.9.1 This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the laws Canada applicable therein, and all disputes arising out of or related to this Agreement will be brought exclusively in the courts located in the Province of Ontario; provided however that neither Party will be prevented from enforcing any related judgment against the other Party in any other jurisdiction.
5.10 Dispute Resolution.
5.10.1 You and IT agree to use reasonable efforts to resolve any breach of this Agreement through good faith discussions prior to either Party taking any legal action with respect to such breach, except that either Party may seek immediate injunctive relief for any alleged or perceived violation of the other Party’s obligations with respect to Confidential Information, your breach of the AUP, or any use of the Services by you or your Users which violates applicable law. Such discussions will involve senior representatives nominated by each Party and, if reasonably required, ultimately include the executive management of each Party if necessary. Only if such aforementioned dispute cannot be resolved through such good faith discussions within thirty (30) days may legal action be taken by either Party to enforce its rights under this Agreement.
5.11 Miscellaneous Provisions.
5.11.1 Changes to Our Online Terms: We may from time to time make changes to the Master Service Agreement, or any of the AUP, the Service Level Objectives, the Additional Terms and Conditions or the descriptions of our Services, by making changes to those terms on our Website. Any such changes will take effect upon posting of the changes on the Website. If you add additional Services under this Agreement during a term (either the Initial Term or during a renewal Term), then the version of the Agreement (if any) in place on the Website at the commencement of that Term will govern any such additional Services, unless otherwise agreed in writing. If you do not agree to our changed terms, you may terminate this Agreement by providing a Cancellation Request to IT within thirty (30) days of the posting of any such changed terms. Your continued used of the Services following IT’s posting of the changed terms constitutes your acceptance of those changed terms.
5.11.2 Modifications. Subject to the Section 5.11.1 above, this Agreement may be amended only by a formal written agreement signed by both parties. A description of Services may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence, including via electronic mail or online, provided correspondence includes the express consent of Customer and IT.
5.11.3 Relationship: You and IT are independent contractors and this Agreement does not establish any partnership, joint venture, agency, employment, franchise or other relationship between you and IT.
5.11.4 Waiver: The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not amend or negate the rights of the waiving Party.
5.11.5 Assignment: You may not sell, assign or transfer for rights or delegate your duties under this Agreement in whole or in part without the prior written consent of IT, and any attempted assignment or delegation without IT’s consent will be void.
5.11.6 Third Party Beneficiaries: You and IT agree that, except as expressly provided in this Agreement or the terms and conditions of use of any Third Party Products, there will be no third party beneficiaries to this Agreement.
5.11.7 Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, that provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect.
5.11.8 Survival: Any provision of this Agreement that, by its nature, is applicable to circumstances arising after the termination or expiration of this Agreement will survive such termination or expiration and remain of full force and effect. No termination or expiration of this Agreement will relieve either you or IT from any liability arising out of any breach of this Agreement occurring prior to the termination or expiration.
5.11.9 Notice: Unless otherwise specified in this Agreement, all notices, demands, requests or other communications required or permitted under this Agreement will be deemed given, in the case of notice to IT, when delivered personally or upon delivery of overnight or first class mail, or, in the case of notice to you, by email to a designated contact email address or upon delivery of overnight or first class mail to your designated contact address.