Master Services Agreement
This Master Services Agreement (the "MSA") is between Provider ("Intega IT," "we," "us," "our") and the Client found on the applicable quotation, estimate, statement of work, proposal, or order (the "Order"), and, together with the Order, the Schedule of Services, and any Data Processing Agreement, forms the entire agreement between the parties (the "Agreement"). Client accepts the Agreement by signing an Order, using the Services, or continuing to use the Services after being notified of a change to the Agreement. If there is a conflict between the Order, this MSA, or the Schedule of Services, the Order will control.
1. Statement of Services
The services to be delivered by Provider (the "Services"), the fees for those Services ("Service Fees" or "Fees"), and the specific terms applicable to those Services are described in the Order and/or the Schedule of Services referencing this MSA.
Except for Supplemental Services or Project Services, and unless otherwise agreed in writing, the services Provider will deliver to Client are limited to those Services specifically identified in the Order and described in the Schedule of Services.
1.1 Help Desk Support
Help desk support is available during normal business hours. After-hours support is intended for critical systems outages and may incur additional charges as defined in the Order and the rate card in the Schedule of Services.
1.2 On-Site Support
It is Provider's intention to provide remote support whenever possible. On-site support is available once Provider determines that support cannot be provided remotely, typically due to hardware or network connectivity issues. On-site support may incur additional charges as defined in the Order.
2. Fees for Services | Payment Terms
Service Fees. Service Fees are set forth in an Order. Unless otherwise indicated in writing, Services outside the scope of a flat-rate Order will be performed on a time-and-materials basis at Provider's then-current hourly rates.
Billing and Payment Mechanics. Recurring service invoices are sent two weeks in advance of the due date, which is the 1st of each month. Payment is collected via pre-authorized debit (PAD); a PAD form will be sent to Client for completion prior to service commencement. True-ups on seat and service counts will be discussed with Client monthly, and billing amounts will vary month to month based on agreed numbers. Hardware and software purchases are due upon ordering. Out-of-scope project labour is billed in two phases: 60% down payment and 40% upon completion of the project. All taxes are paid by Client.
Adjustments to Service Fees. Except as may be specified in an Order, Provider may adjust the Service Fees charged under this Agreement as follows:
● End-User or Network Growth. During the term of an Order, if the number of Users or Devices in Client's environment, or the Service or Equipment types or quantities covered, exceeds the numbers previously ordered, Provider may automatically apply a pro-rata adjustment to the total Service Fees. Client shall pay all Service Fees owed as they become due following any such adjustment. Similarly, if the number of Users or Devices is less than previously ordered, upon written request Provider will apply a pro-rata adjustment, provided that no such adjustment will result in numbers below those ordered at the time Client signed the applicable Order.
"User" means Client's employees, consultants, contractors, or agents authorized to use the Service, excluding Client's own customers or other third parties. "Device" means any equipment included in the Services, whether owned by Client or provided by Provider.
● Surcharges. Provider may adjust its rates to recover tariffs or amounts required by governmental or quasi-governmental authorities.
● Fee Increases. Provider may increase Service Fees by up to five percent (5%) per year at its discretion, upon no less than thirty (30) days' written notice to Client. Any increase beyond 5% requires mutual written agreement between the parties. Increases may reflect changes in vendor pricing, currency fluctuations, inflation, or operational costs.
● Third-Party Services. Client understands that Provider uses third-party solutions and service providers to perform some or all of the Services ("Third-Party Service Providers"). Provider is not responsible for the acts or omissions of Third-Party Service Providers, and Client's rights regarding claims against them are governed by such provider's own end-user agreement or terms.
● Off-Boarding. Client's cancellation, termination, or transition of the Services to Client's control or to another provider ("Off-Boarding") may trigger a billable project, subject to a separate Order at Provider's then-prevailing rates.
● Client Delay. If Provider is unable to commence Services on the Service Start Date because of any failure on Client's part, Client nonetheless begins incurring Service Fees on the Service Start Date.
Reimbursable Expenses. Client shall pay Provider's reasonable out-of-pocket expenses, including incremental third-party service fees, travel, lodging, meals, or similar expenses incurred in performing Services.
Payment Terms. Client shall pay the full amount reflected on any invoice on or before the due date listed on the invoice (the "Payment Deadline"). Client shall pay a late charge of one and one-half percent (1.5%) per month, or the maximum lawful rate, whichever is less, for all invoiced amounts not paid by the Payment Deadline.
If Client disputes in good faith all or any portion of the amount owed, or otherwise requests an adjustment to an invoiced amount, Client must notify Provider in writing, prior to the Payment Deadline, of the nature and basis of the dispute and/or adjustment. If the parties are unable to resolve the dispute prior to the Payment Deadline, Client nevertheless shall pay the entire invoiced amount by the Payment Deadline. If Provider ultimately determines that such amount should not have been paid, Provider shall apply a credit equal to such amount against any Service Fees owed for the following month.
Special and Holiday Rates. Special rates may apply for services requested outside of Provider's normal business hours or on holidays observed by Provider. Unless indicated otherwise in an Order, special rates are one-and-one-half (1.5) times normal hourly rates, with a one-hour minimum (remote) or three-hour minimum (on-site), and Holiday rates are two (2) times normal hourly rates, with a one-hour minimum.
Suspension of Service. If Client fails to pay all amounts owed under this Agreement when due, then upon at least ten (10) business days' prior written notice, and in addition to any other remedies available to Provider, Provider may, at its sole discretion, suspend Services (with the exception of those necessary to fulfill Provider's obligations under applicable data protection and privacy laws with regard to personal information) until full payment is made. Following any suspension of service under this provision, and after Client makes full payment to Provider, Provider may restore the Services after validating that all components to be monitored and/or managed under any applicable Order comply with Provider's level of security, updates, and best practices.
Taxes. Unless otherwise indicated on an invoice, all charges and fees owed under this Agreement are exclusive of any applicable sales, use, excise or services taxes that may be assessed on the provision of the Services. In the event that any taxes are assessed on the provision of any of the Services, Client shall pay the taxes directly to the taxing authority or shall reimburse Provider for their payment.
3. Term and Termination
Term. This MSA and the Services under an Order commence on the Order's Effective Date and continue for an Initial Term of three (3) years, unless terminated as set out below.
Termination by Client. This Agreement may be terminated by Client at any time prior to the expiry of the term upon ninety (90) days' written notice, but only if Provider:
1. Fails to fulfill, in any material respect, its obligations under this Agreement and does not cure such failure within thirty (30) days of receipt of such written notice;
2. Breaches any material term or condition of this Agreement and fails to remedy such breach within thirty (30) days of receipt of such written notice; or
3. Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this Agreement.
Termination by Provider. Provider may terminate this Agreement for convenience upon ninety (90) days' written notice to Client. Provider may terminate immediately for illegal or abusive Client conduct, or suspend Services upon fifteen (15) days' notice if Client's action or inaction prevents Provider from delivering the Services.
Effect of Termination. If either party terminates this Agreement and Client is current on all Fees, Provider will assist Client in the orderly transition of Services to another provider, billed at Provider's then-prevailing rates. Termination immediately nullifies Client's access to the Services. Upon request, Provider may provide a copy of Client Data for a data-copy fee at Provider's then-prevailing rates. Thirty (30) days after termination, Provider has no further obligation to retain Client Data and will delete it unless legally prohibited from doing so.
4. Independent Contractor
Unless otherwise agreed, Provider will perform all Services solely as an independent contractor and not as an employee, agent or representative of Client.
5. Intellectual Property Rights
5.1 Provider Works
Unless specifically identified in an Order, any and all materials of a proprietary nature, including, but not limited to, material subject to protection as Confidential Information, trade secrets or material that is patentable or copyrightable regardless of medium, created or developed by Provider for Client, either solely or jointly with another or others during the Term in connection with the rendering of Services hereunder or which relates to or is capable of use in connection with any services or products owned, offered, performed, produced, used, sold or being developed by Provider is to be considered a "Provider Work," and is and will remain the sole, exclusive property of Provider. To the extent any Provider Work for any reason is determined not to be owned by Provider, Client hereby irrevocably assigns and conveys to Provider all of its rights in such Provider Work, including but not limited to all of its patent, copyright, trade secret, know-how and other proprietary and associated rights.
5.2 License to Provider Works
If any Provider Work is located on hardware or equipment owned by Client, Provider hereby grants Client a limited, non-exclusive, revocable, non-sublicensable, royalty-free license to use any Provider Work during the Term of this Agreement (the "Limited License"). The Limited License will be immediately and automatically revoked without the need for notice in the event that either party terminates the Services or this Agreement.
Separately, Provider grants Client the right to access and use only those software solutions and other information technology Services specified on the Order during the Term. Those Services may be hosted on servers operated by one or more third parties.
5.3 License Restrictions
Client shall not:
● Modify, copy or create derivative works based on the Services or on the Provider Works or Provider Materials;
● Build a product or service using similar ideas, features, functions, or graphics of the Services or Provider Works, or copy any such ideas, features, functions, or graphics;
● Create internet "links" to or from the Services, or "frame" or "mirror" any content forming part of the Services, other than on Client's own intranet(s) or otherwise for Client's own internal business purposes;
● Distribute, rent, sell, lease, or otherwise provide any third party with access to the Services, Provider Works, or Provider Materials, or use them for the benefit of a third party;
● Remove, modify, or obscure any copyright, trademark, or other proprietary-rights notice contained in or on any Provider Materials; or
● Reverse engineer, decompile, or disassemble the Services, Provider Works, or Provider Materials, except to the extent expressly permitted by applicable law.
For purposes of this Section, "Provider Materials" means any text, graphical content, techniques, methods, designs, software, hardware, source code, data, passwords, APIs, documentation, or any improvement or upgrade thereto, used by or on Provider's behalf to provide the Services. Additional license restrictions may be set forth in an Order.
5.4 Third-Party Software Components
Some components of the Services may be provided through or licensed from Third-Party Service Providers, including third-party software, products, or services. Provider (and not those third parties) will provide any technical support related to the Services, including support related to those third-party components, except that Provider may, under certain third-party license or services agreements, be obligated to provide certain information to those third parties regarding the Services and/or Client's identity. Client consents to such disclosures.
Third-party software publishers, including but not limited to Microsoft, are intended third-party beneficiaries of this Agreement, with the right to enforce provisions of the Agreement and to verify compliance. If a third-party software publisher believes in good faith that Client is not complying with its end-user terms ("End-User License"), Provider will cooperate in good faith with the publisher to investigate and remedy the non-compliance.
Within thirty (30) days of termination of this Agreement, Provider shall remove, or cause to be removed, all copies of Client's Services and/or Provider Materials from Client's devices, or otherwise render the software, Services, and/or Provider Materials permanently unusable. Client shall reasonably cooperate and assist with these activities.
5.5 No High-Risk Use
Client acknowledges that the Services are not fault-tolerant and are not guaranteed to be error-free or to operate uninterrupted. Client shall not use the Services in any application or situation where the Services' failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage ("High-Risk Use"). High-Risk Use does not include utilization of the Services for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. Client agrees to indemnify and hold harmless Provider from any third-party claim arising out of Client's use of the Services in connection with any High-Risk Use.
5.6 No Illegal Use
Client shall not use the Services in any application or situation where the Services would be used in any illegal manner, for any unlawful purpose, or to violate the rights of others.
5.7 Restorable Backup
Prior to installation, accessing, or using any Services specified on an applicable Order, Client shall create a full, complete, and restorable electronic backup of all systems which might be affected, in whole or in part, by the installation and/or maintenance of any software solution or other information technology service specified on the Order. Client shall, and does hereby, hold Provider harmless in the event of any damage to any system and applications software.
5.8 Improvements to Services
Client hereby assigns to Provider any and all right, title, and interest in any suggestions, ideas, concepts, improvements, modifications, enhancement requests, feedback, recommendations, or other information provided by Client or Client's Users relating to any proposed improvements of or modifications to the Services or Provider Work.
6. Non-Disclosure and Confidentiality
Confidential Information. During the course of performance under this Agreement, either party may be exposed to or may acquire the other's proprietary or confidential information. Each party shall hold all such "Confidential Information" in strict confidence and shall not disclose any such Confidential Information to any third party. The receiving party agrees to limit its internal disclosure of Confidential Information only to those employees or agents who need to know such information and who have signed a written agreement with the receiving party binding them to terms and conditions substantially similar to those of this Agreement.
Confidential Information includes but is not limited to: (a) with respect to Provider, Provider's unpublished prices for Services, audit and security reports, server/network configuration designs, firewall and other hardware configurations, passwords, all business plans, technical information or data, product ideas, methodologies, calculation algorithms and analytical routines, and other proprietary technology; (b) with respect to Client, content transmitted to or from, or stored by Client on, Provider's servers; and (c) with respect to both parties, any other information in any medium disclosed, including data, technology, know-how, inventions, discoveries, designs, processes, formulations, models, equipment, algorithms, software programs, documents, systems, specifications, research and development information, prices, proposed transaction terms, and other commercial information and/or trade and business secrets.
All obligations of the parties with respect to the Confidential Information shall survive any termination of this Agreement and shall remain in full force and effect for a period of five (5) years following disclosure, with the exception of information that constitutes a trade secret, which shall be kept confidential indefinitely until it ceases to be a trade secret.
Non-Confidential Information. Confidential Information does not include information that: is or becomes publicly available without fault of the recipient; was in the recipient's possession at the time of disclosure and not acquired directly or indirectly from the other party; was or is independently developed by the recipient without use of the disclosed information; was received from a third party with the right to transmit it; or must be disclosed pursuant to court order or law (subject to prompt notice to the disclosing party so it may seek to suppress or otherwise protect the disclosure).
Agreement Confidentiality. No copy of an Order, this MSA, or any description, discussions, negotiations, terms, or conditions relating to them may be disclosed to any third party, except by reason of legal, accounting, or regulatory requirements, without the prior written consent of the parties.
Information Releases. Provider may publicly refer to Client, orally and in writing, as a client of Provider. Any other reference to Client by Provider may be made only pursuant to a written agreement between the parties.
7. Provider-Supplied Equipment
"Equipment" means any computer, networking, or telephony equipment, racking, or associated hardware that Provider installs on Client's premises or ships to Client's location to facilitate delivery of the Services. Equipment does not include hardware Provider may sell to Client or procure on Client's behalf.
Provider is and remains the sole owner of any Equipment, provided on a rental or temporary basis only. This Agreement transfers no Equipment ownership rights to Client.
Provider retains sole discretion to determine the appropriate Equipment and associated software/technology to be used at Client's location, provided that determination does not materially impair the availability or delivery of the Services. Provider also retains sole discretion over the necessity of maintenance, repairs, and/or improvement of the Equipment.
Except as otherwise specified in an Order, Provider makes no independent representations or warranties with respect to the Equipment; any third-party warranties are Client's exclusive remedy. In the event of an Equipment malfunction, Provider will take commercially reasonable steps to ensure Client receives the benefit of any applicable manufacturer warranties.
Client shall take reasonable care of the Equipment, shall not damage, tamper with, move, remove, attempt to repair it, or attempt to install software on it, and is financially responsible up to full replacement value for all damage or loss other than that caused by Provider. Client shall maintain insurance for the full replacement value of the Equipment, naming Provider as an insured beneficiary, and shall produce evidence of such insurance upon demand.
Client shall not remove any sign, label, or marking identifying Provider as the Equipment's owner, and does not acquire any lien or similar right over the Equipment. On termination, Client shall allow Provider reasonable access to remove the Equipment, or, upon Provider's request, return it via the carrier of Provider's choice at Provider's expense.
8. Provider-Supplied Software
"Software" means all software installed on the Equipment or provided by Provider for installation on Client's computer equipment to facilitate delivery of the Services.
This Agreement does not transfer any right, title, or interest in the Software to Client. Client's use of the Software is contingent upon and subject to all applicable terms of any end-user license agreement pertaining to it, a copy of which will be made available to Client upon request.
Client shall not, and shall not permit any third party to: distribute copies of the Software; tamper with, remove, reproduce, modify, or copy the Software; rent, sell, lease, or transfer the Software or use it for the benefit of a third party; or reverse assemble, reverse compile, or reverse engineer the Software, except as permitted by law.
9. Client Covenants and Obligations
Assistance. Client shall provide, in a timely and professional manner and at no cost to Provider, assistance, cooperation, complete and accurate information and data, equipment, access to applicable locations, sites, computer and telecommunications facilities, networks, firewalls, servers, programs, files, documentation, passwords, a suitable work environment, and other resources requested by Provider to enable it to perform the Services ("Assistance"). Provider shall not be liable for any deficiency in performing the Services resulting from Client's failure to provide full Assistance. Assistance includes designating a responsive project manager or contact person to interface with Provider (the "Primary Client Contact").
Software Licensing. Unless otherwise agreed, Client represents and warrants it has title to, or a license or right to use or modify, the software it provides, and has the right to permit Provider to use, access, or modify any software Client requests Provider to use. It is Client's responsibility to ensure all software in use is properly licensed and to maintain records of applicable licenses. Assistance with software audits or licensing compliance is billable at Provider's then-prevailing rates.
Unsupported Software. Provider is not responsible or liable for any consequences from Client's use of software no longer under manufacturer or publisher support ("Unsupported Software"). Client agrees to hold Provider harmless from any loss, injury, or damage caused by use of Unsupported Software.
Provider Access. Client shall supply Provider necessary access to its information, data, personnel, documentation, records, and facilities in order for Provider to timely perform the Services. Broadband internet access, appropriate cabling, air conditioning/ventilation, and power surge protection must be provided for all covered Devices. Provider must be allowed convenient and timely access to Devices and equipment, adequate working space, and access to all information and resources determined necessary to service them. Client must assign one employee as liaison to Provider.
Remote Access. Provider must be provided remote access (via VPN or other reasonable means) to Devices and covered Equipment. Client grants Provider the explicit right to remotely access Client's network systems without needing to obtain express permission or consent each time remote access is established.
Third-Party Service Provider Fees. Unless expressly undertaken by Provider in writing, Client is responsible for any Third-Party Service Provider fees and for arranging disconnection, termination, and payment of charges related to current carriers or service providers.
Network Security and Malicious Events. Unless otherwise agreed, it is Client's sole responsibility to determine and take whatever actions are necessary to make Client's data and voice networks and circuits secure from unauthorized access. A hardware firewall must be in place, and wireless data traffic must be securely encrypted. Provider is not responsible for the security of Client's network, data, or circuits from third parties. Client has an affirmative obligation to protect its network environment and data, and to train its employees against spam, malware, phishing, and virus threats. Provider is not responsible for criminal acts of third parties, including hackers, phishers, or crypto-locker/ransomware activity. If a security system is included within the Services, Provider agrees to use commercially reasonable efforts to protect Client's network from malicious attack, but no security system can guarantee complete protection. Unless caused by Provider's negligence or willful misconduct, Client agrees to hold Provider harmless from any loss, injury, or damage caused by such malicious activities.
Third-Party Criminal Activity. Provider is not responsible for criminal acts of third parties, including intrusions, unauthorized access, hackers, phishers, or crypto-locker/ransomware activity. Client agrees to hold Provider harmless for any activity affecting network security related to third-party criminal activity, network security, or privacy. Costs to rebuild or service affected machines are billed at Provider's then-prevailing rates.
Theft of Service. Client shall notify Provider immediately if it becomes aware the Services are being stolen or used fraudulently. Client will be liable for all use of the Service using Equipment stolen from Client, and for stolen or fraudulent use resulting from Client's negligent or willful acts or those of an authorized user. Client agrees to hold Provider harmless from any related loss, injury, or damage.
Hardware Equipment. Client equipment must be maintained under a manufacturer's warranty or a current maintenance contract; Provider is not responsible for equipment that is not so maintained or is otherwise out of order. All Service Fees assume equipment is under warranty or maintenance contract. Provider may, in its reasonable opinion and supported by manufacturer information, designate certain equipment as obsolete or defective and exclude it from coverage.
Physical Security. Client is responsible for the physical security of its on-premises hardware and software systems.
Independent Backup. Unless otherwise agreed, Client must maintain an independent backup of all files and data sent to the cloud or a data backup service, with backup copies stored off-site, and is responsible for verifying that backups are made regularly and remain intact. Unless caused by Provider's gross negligence or willful misconduct, Provider shall not be held liable for data loss, backup software/hardware/media/system failure, even where Provider was tasked to perform the backups. Client is solely responsible for all lost data.
Malware. An anti-malware solution must be in place, updated, with a valid subscription. Provider is not responsible for harm resulting from Client's access to third-party APIs, or from malicious code, disabling devices, time bombs, trap doors, Trojan horses, worms, viruses, or similar mechanisms. Costs to rebuild or service affected machines are billed separately.
Hardware and Software Configurations. All hardware and software configurations implemented by Provider belong to Provider and constitute Provider's Confidential Information.
Client Data Security & Privacy. Provider shall not use, edit, or disclose to any party other than Client any Client Data, except as requested by Client or required by court order or applicable law. All data stored on virtualized machines assigned to Client, including locally stored personal data of individual employees, is considered Client Data. As between Provider and Client, all Client Data is owned exclusively by Client and constitutes Confidential Information. Provider may access Client's User accounts, including Client Data, solely to respond to service or technical problems or otherwise at Client's request.
Security and Regulatory Recommendations. Although under no obligation to do so, Provider may from time to time make recommendations regarding regulatory compliance, safety, and security related to Client's network and practices (e.g., multi-factor authentication). If Client fails to adopt or implement recommended protocols, Client is responsible for any damages related to regulatory, security, privacy, or data protection breaches, including fines, breach notification, malware/ransomware costs, restoration, forensic investigation, restoring backups, or other related costs.
Password-Management Services. If Provider provides password management services, Client is responsible and liable for any unauthorized use of passwords, and agrees to hold Provider harmless from related loss, injury, or damage, unless caused by the gross or intentional fault of Provider.
Artificial Intelligence. Client uses AI services or tools at its own risk; Provider is not responsible for Client's use of AI. Provider may, at its discretion, use AI tools, systems, or services in connection with delivery of the Services to enhance efficiency, automate tasks, analyze data, or support delivery. Client acknowledges AI outputs may not be accurate or reliable, and Provider is not responsible for the results or outcomes of AI use.
9.1 Credentials
● Network Administrative Credentials: Provider must have exclusive network administrative credentials for Client's network while delivering Services, and will not release them to Client or any third party without a signed release, except upon termination once Client has paid all required fees.
● User Credentials: User credentials are Client's property; Provider will not withhold individual user credentials.
● Third-Party Global Admin Credentials (e.g., Microsoft tenant credentials): Not released to Client or any third party while Services are being delivered, except upon termination once Client has paid all required fees.
● Third-Party Service Provider Credentials: Provider's own credentials for licensed tools used to deliver Services will never be released to Client.
9.2 Network Change Coordination
Client will notify Provider by email of all significant proposed network changes and provide a reasonable opportunity to comment. Evaluation of network change requests that requires significant research, design, or testing is not covered by standard Service Fees and will be billed at Provider's then-current rates.
9.3 Additional Client Obligations
● Minor On-Site Tasks: Client agrees to cooperate with reasonable requests to perform simple on-site tasks (e.g., powering down/rebooting a device).
● Server Upgrades or Repair: Provider authorizes all server upgrades or repairs; Client agrees not to perform these without notifying Provider.
● Software Media: Client shall supply necessary software media and installation keys upon request, and is responsible for all required software licenses except software provided by Provider.
10. Suitability of Existing Environment
To qualify for Provider's Agreement, Client's environment must meet the following requirements, or Client will obtain the necessary upgrades:
● Client provides existing IT infrastructure configuration documentation, including Windows domain admin passwords, security firewall/gateway passwords, website domain information, Exchange information, and all usernames/passwords for third-party applications in use.
● All servers running Microsoft Windows must run currently supported OS versions with the latest Microsoft Service Packs and Critical Updates installed.
● All hardware maintains a valid, up-to-date warranty.
● All desktop PCs and notebooks/laptops running Microsoft Windows must run currently supported OS versions with the latest Service Packs and Critical Updates.
● The environment must have a currently licensed, vendor-supported hardware firewall between the internal network and the internet.
● All wireless data traffic must be securely encrypted.
● There must be an outside static IP address assigned to a network device, allowing RDP or VPN remote access.
If Client's environment fails to satisfy these requirements at any time, Provider may suspend delivery of the Services and/or terminate the applicable Order upon five (5) business days' written notice. Requirements not currently met will be added to Client's future roadmap.
11. Exclusions
Services rendered under this Agreement do not include:
● Parts, equipment, or software not covered by vendor/manufacturer warranty or support.
● Hardware components, consumables, or accessories related to printers (e.g., toner, paper).
● Install/Move/Add/Change (IMAC) work; all charges agreed in advance.
● The cost of parts, equipment, shipping, or parking/travel charges of any kind.
● The cost of software, licensing, or software renewal/upgrade fees.
● The cost of any third-party vendor or manufacturer support or incident fees.
● The cost to bring Client's environment up to the minimum service standards in Section 10.
● Failures due to acts of God, building modifications, power failures, or other adverse environmental conditions.
● Service or repair made necessary by alteration or modification of equipment not authorized by Provider.
● If a device is not under warranty, required maintenance/repair/service is billed separately.
● Security audits and security audit questionnaires.
● Onsite support for non-covered locations.
● Responsibility for home internet connections.
● Cabling or moving equipment.
● Website hosting.
● Incident Response: Provider will assist Client in the hours immediately following a data breach to help identify the likely source and begin formulating a response. Assistance beyond the first twenty-four (24) hours (including breach-notification planning, in-depth forensic examination, and significant post-breach systems reconfiguration) is out of scope and will be quoted separately if requested.
12. Provider Representations and Warranty
Internal Network Security Compromise Policy. Provider monitors the availability and performance of its internal firewall and network security, including monitoring for intrusion attempts and potential security breaches. All services and applications exposed to the internet on Provider's servers are updated with commonly available security hotfixes and best practices. As appropriate, Provider proactively evaluates, investigates, and reports security-related incidents to the appropriate authorities, and monitors and manages the anti-virus protection of its own servers and applications.
Service Warranty. Provider warrants that the Services will be performed in a professional and workmanlike manner and as described in the applicable Schedule of Services. All Services will be deemed accepted unless Client notifies Provider in writing within ten (10) working days after performance that the Services did not conform to this warranty. Provider will promptly correct any non-conformities and notify Client in writing once corrected.
13. Disclaimer of Warranty
PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT PROVIDER WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CLIENT'S REQUIREMENTS OR EXPECTATIONS, OR THAT THE SERVICE WILL BE COMPLETELY SECURE. THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE TEMPORARY LOSS OF SERVICE AVAILABILITY. PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM CLIENT'S CONTENT OR THIRD-PARTY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. PROVIDER SHALL HAVE NO OBLIGATION WITH RESPECT TO A WARRANTY CLAIM (i) IF NOTIFIED OF SUCH A CLAIM AFTER THE WARRANTY PERIOD OR (ii) IF THE CLAIM IS THE RESULT OF THIRD-PARTY HARDWARE OR SOFTWARE FAILURES, OR THE ACTIONS OF CLIENT OR A THIRD PARTY.
FOR ANY BREACH OF THE SERVICES WARRANTY, CLIENT'S EXCLUSIVE REMEDY AND PROVIDER'S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES, OR, IF PROVIDER CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY END THE DEFICIENT SERVICES AND PROVIDER WILL REFUND THE PRE-PAID FEES FOR THE TERMINATED SERVICES FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
TO THE EXTENT NOT PROHIBITED BY LAW, CLIENT ACKNOWLEDGES THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS BY PROVIDER OR ANY THIRD-PARTY VENDORS, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND THAT PROVIDER AND THOSE THIRD-PARTY VENDORS DISCLAIM ANY AND ALL LIABILITY, WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL, ARISING FROM THE SERVICES.
PROVIDER MAY LINK TO OR OFFER THIRD-PARTY SERVICES FOR RESALE. ANY PURCHASE, ENABLING, OR ENGAGEMENT OF THIRD-PARTY SERVICES IS SOLELY BETWEEN CLIENT AND THE APPLICABLE THIRD-PARTY PROVIDER AND SUBJECT TO THAT PROVIDER'S TERMS. PROVIDER DOES NOT WARRANT THIRD-PARTY SERVICES AND IS NOT RESPONSIBLE FOR LOSSES RESULTING FROM CLIENT'S USE OF THEM. IF CLIENT ENGAGES A THIRD-PARTY SERVICE FOR USE IN CONNECTION WITH THE SERVICES, CLIENT ACKNOWLEDGES THAT PROVIDER MAY ALLOW THAT THIRD PARTY TO ACCESS CLIENT DATA AS REQUIRED FOR INTEROPERATION, AND THAT SUCH ACCESS AND CONSENT ARE OUTSIDE PROVIDER'S CONTROL. PROVIDER WILL NOT BE RESPONSIBLE FOR ANY DISCLOSURE, MODIFICATION, OR DELETION OF DATA RESULTING FROM SUCH ACCESS.
14. Compliance with Laws
Provider shall comply with all laws applicable to Provider in its role as a Managed IT Provider. Unless otherwise provided in a separate Data Processing Agreement, Provider is not responsible for complying with laws applicable to Client or Client's industry. Client shall comply with all laws applicable to Client or Client's industry.
Although under no obligation to do so, Provider may from time to time make recommendations regarding legal requirements and regulatory compliance protocols related to Client's network and practices. If Client fails to adopt or implement such recommendations, Client is responsible for any damages related to legal and regulatory compliance. Even if Client takes Provider's advice, Provider does not take responsibility for any legal requirements, regulatory compliance protocols, or audits.
15. No Hiring
During the Term and for twelve (12) months following termination, Client shall not solicit, hire, employ, or otherwise engage any employee or contractor of Provider with whom it has had contact in connection with the Services. In the event of a violation, Client shall pay Provider, as liquidated damages (not a penalty), an amount equal to one hundred percent (100%) of that individual's total remuneration from Provider over the preceding twelve (12) months (annualized on a pro-rata basis if employed less than twelve months).
16. Dispute Resolution
Arbitration Procedures. Each party shall attempt to settle amicably by mutual discussions any disputes, differences, or claims related to this Agreement within sixty (60) days of the date any such dispute arises. Failing amicable settlement, any dispute (including claims related to the existence, validity, interpretation, performance, termination, or breach of this Agreement) is to be settled by arbitration in accordance with the Arbitration Rules of the International Centre for Dispute Resolution (ICDR), conducted in English before one arbitrator. The arbitrator will not have authority to award punitive damages. Each party bears its own expenses. Any arbitration award is final and may be entered as judgment in any court of competent jurisdiction. Arbitration will be held in Ottawa, Ontario, or another location the parties agree upon.
Claims for preliminary injunctive relief, other pre-judgment remedies, and claims for Client's failure to pay for Services may be brought in a provincial or federal court in Canada with jurisdiction over the subject matter and parties.
Continued Service. Unless Provider is bringing an action for Client's failure to make payments not otherwise in dispute, Provider will continue to provide Services, and Client shall continue to make payments, during the period in which the parties seek resolution of the dispute.
Attorneys' Fees. In the event of any dispute resolved through arbitration or litigation, the prevailing party will be entitled to an award of reasonable attorneys' fees incurred in defending or prosecuting the dispute.
17. Indemnification
By Client. Client shall defend, indemnify, and hold Provider harmless against all costs and expenses, including reasonable attorney's fees, associated with the defense or settlement of: any claim that Provider's use, access, or modification of software Client requested infringes any patent, copyright, trademark, trade secret, or other intellectual property right; any claim related to software licensing and licensing compliance; or any claim related to any law or regulation involving data privacy, data protection, or data breach to which Client is subject. Client shall pay any judgments or settlements based on such claims.
By Provider. Subject to the Limitation of Liability below, Provider agrees to indemnify and hold Client harmless from and against all loss, liability, and expense, including reasonable attorney's fees, caused by Provider's grossly negligent act, error, omission, or misrepresentation; breach of any contractual term implied by law concerning necessary quality, safety, or fitness, or Provider's duty to use reasonable care and skill; or other act, error, or omission giving rise to civil liability arising out of business activities performed for Client. Provider shall pay any judgments or settlements based on such claims.
18. Limitation of Liability
EXCEPT AS MAY BE DESCRIBED IN AN APPLICABLE ORDER, PROVIDER'S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CLIENT AND WILL NOT EXCEED THE GREATER OF (1) THE PROCEEDS OF PROVIDER'S PROFESSIONAL LIABILITY INSURANCE MAINTAINED UNDER ITS APPLICABLE INSURANCE POLICIES, OR (2) THE AMOUNTS PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT AND ALL RELEVANT ORDERS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF ANY SUCH CLAIM. IN THE EVENT OF AN INSURANCE COVERAGE DISPUTE, PROVIDER IS NOT REQUIRED TO DISPUTE THE COVERAGE DETERMINATION AND IS NOT REQUIRED TO FILE A DECLARATORY JUDGMENT ACTION.
IN NO EVENT IS EITHER PARTY TO BE HELD LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES OR CLAIMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, LOST PRODUCTIVITY, LOSS OF DATA, LOSS FROM INTERRUPTION OF BUSINESS, OR LOSS OF PROGRAMS OR INFORMATION, RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, HARDWARE FAILURES, UNAVAILABILITY OF BACKUPS, ERRORS, DEFECTS, DELAYS, SECURITY BREACH, OR THIRD-PARTY SERVICE FAILURES, EVEN IF PREVIOUSLY ADVISED OF THEIR POSSIBILITY AND REGARDLESS OF THE FORM OF ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY HARM CAUSED BY CLIENT'S ACCESS TO THIRD-PARTY APIs OR THE EXECUTION OR TRANSMISSION OF MALICIOUS CODE, INCLUDING DISABLING DEVICES, TIME BOMBS, TRAP DOORS, TROJAN HORSES, WORMS, VIRUSES, HACKERS, PHISHERS, CRYPTO-LOCKERS, RANSOMWARE, AND SIMILAR MECHANISMS. THE TOTAL LIABILITY OF PROVIDER AND CLIENT'S SOLE REMEDY FOR ANY CLAIM FOR DAMAGES REGARDING THE SERVICES IS LIMITED TO THE INSURANCE PROCEEDS DESCRIBED ABOVE.
CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AND DAMAGES CONTAINED IN THIS AGREEMENT, AND THAT THE RIGHT TO RECEIVE THE SERVICES IN EXCHANGE FOR THESE LIMITATIONS CONSTITUTES A BARGAIN THAT IS FAIR AND REASONABLE.
19. Insurance
Client Obligations. Client shall maintain during the Term a minimum of One Million Dollars (CAD $1,000,000) in insurance coverage, including commercial general liability, workers' compensation coverage, and first-party cyber liability.
Provider Obligations. Provider agrees to maintain, during the Term, professional liability insurance including errors and omissions with aggregate limits of at least One Million Dollars (CAD $1,000,000). Client's insurance shall be primary over Provider's insurance. Client agrees to waive, and to require its insurers to waive, any rights of subrogation or recovery against Provider, its agents, officers, directors, and employees.
Upon request, Provider may assist Client with preparing insurance applications or provide technical assistance for underwriting information. Client is solely responsible for reviewing that information for accuracy and for any adverse actions taken by insurance carriers in connection with underwriting or claims administration.
20. Data Privacy & Protection
Provider agrees that any electronic data or personal information submitted by Client as part of the Service ("Client Data") remains the property of Client and/or its end user or other third party. Provider agrees to comply with all applicable Canadian data privacy and data security laws to which the Services are subject, including:
● Canada's Personal Information Protection and Electronic Documents Act ("PIPEDA"), S.C. 2000, as amended or replaced from time to time.
● Canada's Anti-Spam Legislation ("CASL"), S.C. 2010, c.23, as amended.
Client agrees not to provide any data to Provider subject to PIPEDA without first entering into an appropriate Order referencing PIPEDA. Client agrees not to provide any data regulated under the General Data Protection Regulation ("GDPR") or similar regulation without first entering into an appropriate Order referencing GDPR.
For Clients requiring processing under PIPEDA, GDPR, or a similar regime, Client must enter into an applicable Order and Data Processing Agreement referencing the regulation.
21. General
Observed Statutory Holidays. Provider reserves the right to identify observed statutory holidays and adjust its holiday schedules from time to time. After-hours emergency support remains available during these times, billed at Provider's then-prevailing Holiday support rates.
Notices. All notices, demands, or requests shall be in writing and deemed duly given on the date delivered in person, sent via fax, courier, electronic mail, or on the third business day after deposit, postage prepaid, with Canada Post, addressed as set forth on the applicable Order. Either party may change its notice address by written notice to the other.
Force Majeure. Provider will not be liable for any failure of performance due to causes beyond its reasonable control, including fire, flood, power interruptions, national or regional emergencies, epidemics, pandemics, public health emergencies, civil disorder, terrorism, riots, strikes, Acts of God, or governmental law, regulation, directive, or order (the "Affected Performance"). The affected party shall give written notice describing the Affected Performance, and the parties shall confer in good faith to minimize impact. If the delay lasts more than thirty (30) days, the parties shall attempt to negotiate an equitable modification; if unable to agree, either party may serve thirty (30) days' written notice of termination with respect to the affected portion. Client shall pay for the portion of Affected Performance completed or in progress through the effective termination date.
Waiver. No delay in exercising, no course of dealing with respect to, and no partial exercise of, any right or remedy will constitute a waiver of that right or remedy or its future exercise.
Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent, except that Provider may assign or transfer its rights, interests, and obligations without Client's consent in the event of a change in control of 50% or more of Provider's equity, a sale of substantially all its assets, or a restructuring or reorganization of Provider or its affiliates. An unauthorized assignment by Client is invalid, and Client remains responsible for all Fees regardless of continued benefit. Provider may contract with third parties to deliver some or all of the Services without that constituting an assignment. This Agreement binds the parties, their successors, and permitted assigns.
Marketing. Client grants Provider the right to use and reproduce Client's name, industry, logos, trademarks, and URLs in Provider's marketing literature, advertisements, press releases, website, and correspondence to identify Client as a customer of Provider. Such information is not considered Confidential Information.
Notifications and Alerts. Client grants Provider the right to use Client information to send alerts, notifications, news, and general correspondence necessary to provide the Services.
Survival. Duties and obligations with respect to proprietary rights, intellectual property rights, and non-disclosure/confidentiality survive termination or expiration. Other provisions that by their nature are intended to survive (including payment obligations, indemnification, and limitation of liability) shall likewise survive.
Amendment. Provider may, from time to time, in its sole discretion and for any reason, amend an Order, this MSA, or the Schedule of Services.
Governing Law. This MSA is governed by and construed in accordance with the laws of Ontario.
Litigation Holds, Testimony, and E-Discovery. If Client sends a clear, unambiguous litigation hold or requests assistance with litigation matters or e-discovery, Provider will make reasonable efforts to comply. Additional fees may apply, as none of this is included in the scope of Services. Provider takes no responsibility for ambiguous requests or for compliance with litigation holds, discovery requests, or court orders, which remain Client's sole responsibility.
Severability. If any term of this Agreement is declared invalid by a court of competent jurisdiction, the remaining terms remain unimpaired, and the invalid term is replaced by a valid term that most nearly fulfills the parties' original intent.
Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective successors and permitted assigns; nothing herein grants any other person or entity legal or equitable rights hereunder.
No Disparagement. Neither party, nor its respective partners, principals, shareholders, members, officers, directors, employees, affiliates, subsidiaries, agents, or representatives, shall initiate or participate in any action or conduct tending to injure, bring into disrepute, ridicule, damage, or destroy the goodwill of the other party. This does not prevent either party from exercising its rights under this Agreement, complying with a legal or professional obligation, or reporting/disclosing information to government agencies or officials in the ordinary course of business or as required by law. A breach of this section by one party relieves the non-breaching party of its obligations under this section.
Entire Agreement. This MSA, Orders, the Schedule of Services, and any other attachments set forth Provider's entire understanding with respect to the subject matter and are binding upon both parties, their successors, and permitted assigns. There are no understandings, representations, or agreements other than those set forth herein. Each party, along with its respective legal counsel, has had the opportunity to review this agreement. In the event of any ambiguity, such ambiguity will not be construed in favor of, or against, either party.