© 2022 Aegisys Inc. – MSA – 15 Jan 2022 – Revision – MSA# 27681
This MSA is between Aegisys and Customer, each a “party” and together the “parties”.
1. DEFINED TERMS. The defined terms in Schedule 1 (attached) shall be applicable to the Agreement.
2. SERVICES. Aegisys shall provide the Services in accordance with the Agreement, and all laws applicable to Aegisys. The parties shall comply with the SPP Terms, and any additional security specifications identified in the Service Order and Product Terms. Customer agrees that its use of Services shall comply with the AUP and any Aegisys Configuration Requirements.
3.1. Payment. Customer shall pay the Fees due within 30 days from the invoice date, in the currency identified on the Service Order, and without withholding (except as expressly permitted in section 3.3), setoff, counterclaim, or deduction. If Customer has arranged for payment by credit card or automated clearing house, Aegisys may charge Customer’s card or account on or after the invoice date. If Customer’s undisputed payment is overdue by at least 15 days, Aegisys may at it’s discretion immediately suspend the Services on written notice.
Aegisys shall undertake collection efforts prior to suspension for non-payment. Invoices that are not disputed by Customer in good faith and in written detail within 120 days of the invoice date are conclusively deemed to be accepted by Customer as accurate. Aegisys may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Customer for any cost or expense arising out of Aegisys collection efforts. Aegisys may charge its then-current rates if Customer continues to use any Services following termination of the Agreement or applicable Service Order. Customer is responsible for keeping its billing, account permissions, and other account information up to date.
3.2. Fee Increases. Unless otherwise stated to the contrary in the Agreement, there will be no Fee increases during the Initial Term or any Renewal Term. However, Aegisys may increase Fees following expiration of the Initial Term, any Renewal Term, or during any Auto-Renewal Term on giving at least 90 days advance written notice. In the event of a Third Party Fee Increase at any time, Aegisys may also increase Customer’s Fees by the same percentage amount on 90 days advance written notice.
3.3. Taxes. All amounts due to Aegisys are exclusive of Tax. Customer shall pay Aegisys any Tax that is due. Customer shall provide Aegisys with timely, accurate, and adequate information and documentation sufficient to:
(i) permit Aegisys to determine if any Tax is due;
(ii) evidence any Customer exemption from Tax, in advance of invoicing; and
(iii) evidence Customer’s payment of any Local Withholding Taxes. All payments to Aegisys shall be made without any withholding or deduction for any taxes, except for Local Withholding Taxes. Subject to receipt of sufficient evidence of Customer payment of any Local Withholding Taxes, Aegisys shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance.
4. TERM AND TERMINATION.
4.1. Term. This MSA shall continue until terminated in accordance with its terms. Service Orders for Recurring Services shall be subject to the Auto Renewal Term unless:
(i) otherwise stated in the Agreement;
(ii) the parties enter into an agreement for a Renewal Term; or
(iii) either party provides the other with written notice of termination at least 90 days prior to the expiration of the then-current term.
4.2. Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, Customer may terminate all or part of any Service Order for convenience at any time by giving Aegisys at least 90 days advance written notice, subject to an early termination fee equal to the monthly recurring Fee times the number of months remaining in the then-current term of the Service Order for the Services that have been terminated. If Aegisys permits Customer to cancel or delay the scheduled termination date, Customer must provide 90 days written notice of any rescheduled termination date.
4.3. Termination for Cause.
(A) Either party may immediately terminate the Agreement and/or the affected portions of a Service Order for cause on written notice if the other party materially breaches the Agreement and, if the breach is remediable, does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.
(B) Aegisys may immediately terminate the Agreement and/or the affected portions of a Service Order for breach on written notice if, following suspension of Customer’s Services for non-payment, any invoiced and undisputed amount remains overdue for a further ten days.
(C) Subject to applicable law, either party may immediately terminate the Agreement and/or any Service Order on written notice if the other party enters into compulsory or voluntary liquidation, or ceases to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. Aegisys obligation to provide Services is contingent on verification that Customer at all times satisfies Aegisys credit criteria.
(D) Notwithstanding anything to the contrary in the Agreement, subject to applicable law, the Fees for the Services through the conclusion of all Service Orders shall immediately become due in the event Aegisys terminates the MSA in accordance with this section 4.3.
5. CONFIDENTIAL INFORMATION. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law, and shall use reasonable care to protect Confidential Information from unauthorized disclosure.
Each party agrees not to disclose the other’s Confidential Information to any third party except:
(i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in the Agreement;
(ii) as required by law;
(iii) in response to a subpoena, court order, or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information, unless the law forbids such notice; or
(iv) with the other party’s consent.
6. INTELLECTUAL PROPERTY.
6.1. IP Ownership. Unless otherwise specifically stated in the applicable Service Order, as between the parties,
(i) Aegisys owns all Intellectual Property in the Services and any Deliverables (excluding Customer IP); and
(ii) each party otherwise owns Intellectual Property it creates, authors, or invents.
6.2. Aegisys IP License. If Customer’s use of the Services or any Deliverables requires Customer to use Aegisys IP, Aegisys grants to Customer a limited, worldwide, non-exclusive, non-sublicensable, nontransferable, royalty-free right and license (for Customer’s and permitted end user’s internal use) to Aegisys IP:
(i) in the Services, as necessary to use the Services in compliance with the Agreement for the duration of the Services; and
(ii) in any Deliverables, in perpetuity.
6.3. Customer IP License. If Aegisys provision of the Services or any Deliverables requires Aegisys to use Customer IP, Customer must provide access to the Customer IP and grants to Aegisys a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license (with right of sublicense where required to perform the Services, but otherwise without the right to sublicense) to Customer IP solely for the purpose of providing the Services and any Deliverables.
6.4. Service Modification. Aegisys may modify the Services or Deliverables in response to any claim of third party Intellectual Property infringement, and if Aegisys determines that it is not reasonably or commercially practicable to modify or obtain the right to use the allegedly infringing element, Aegisys may terminate the Services and/or Deliverables on 90 days’ notice without liability except to refund amounts paid for unused Services (prorated as to portions of the Services and/or Deliverables terminated).
7.1. If Aegisys, its Affiliates, or any of its or their respective Representatives (collectively, the “Indemnitees” or “Indemnified Parties”) are faced with a claim by a third party arising out of Customer’s breach of
(i) a TPS Agreement or agreement with Customer’s end user, or
(ii) the AUP, then Customer shall hold Aegisys harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fines, or other penalties imposed on or incurred by the Indemnitees as a result of the claim. Customer’s obligations under this section 7 include claims arising out of the acts or omissions of Customer’s employees, agents, end users, any other person to whom Customer has given access to any portion of the Customer Configuration, and any person who gains access to any portion of the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
7.2. If Aegisys receives notice of a claim that is covered by this section 7, Aegisys shall give Customer prompt written notice thereof. Aegisys shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Customer. Customer shall comply with Aegisys reasonable requests for assistance and cooperation in the defense of the claim. Aegisys may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed, or conditioned. Customer shall pay costs and expenses due under this section 7 as Aegisys incurs them.
8. LIMITATIONS ON DAMAGES.
8.1. Notwithstanding anything in the Agreement to the contrary:
(A) Aegisys liability arising from:
(i) death or personal injury caused by negligence;
(ii) fraudulent misrepresentation; or
(iii) any other loss or damages for which such limitation is expressly prohibited by applicable law, shall be unlimited.
(B) Subject to section 8.1(A), the maximum aggregate liability of Aegisys and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the actual damages incurred, up to the greater of:
(i) an amount equal to six times the Fees payable by Customer for the Services that are the subject of the claim in the first month in which Fees are charged under the Agreement, or
(ii) the total amount paid by Customer to Aegisys for the Services that are the subject of the claim in the 12 months immediately preceding the event(s) that first gave rise to the claim.
8.2. Neither party (nor any of its Representatives) is liable to the other party for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is liable for any loss or damages that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages, or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
8.3. Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if failure to perform an obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.
8.4. As an essential part of the Agreement, the liquidated damages payable under an SLA shall be the credits stated in the applicable SLA, which are Customer’s sole and exclusive remedy for Aegisys failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair, and represent a reasonable estimate of loss that may be anticipated from any breach.
The maximum credit(s) for failures to meet an applicable SLA will be limited to
(i) the greater amount, when more than one SLA applies to the same occurrence, and
(ii) for any calendar month, 100% of the then current monthly recurring Fee for the Services. Customer is not eligible to request a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Customer has remedied the breach. No credit shall be due if the credit would not have accrued but for Customer’s act or omission.
9.1. Aegisys and its Representatives disclaim all warranties and conditions which are not expressly stated in the Agreement to the maximum extent permitted by law (including implied warranties and conditions such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement). Customer is solely responsible for determining the suitability of the Services. To the maximum extent permitted by law, Aegisys disclaims all representations, warranties, conditions, and liability arising from:
(i) acts or omissions of Customer and/or third parties;
(ii) Open Source Software, Third Party Services, and Third Party Software (except that Aegisys warrants its right to use or provide these items, as applicable);
(iii) software provided by Customer;
(iv) any actions taken by Aegisys which are requested by Customer, and not based on the advice or recommendation of Aegisys; and
(v) services provided at Customer’s request, but not required by the Agreement.
9.2. If Customer chooses to use Services that Aegisys has expressly designated in writing as:
(i) Unsupported Services, the Unsupported Services shall be provided without representation, warranty, condition, and liability (except that Aegisys warrants that it shall use reasonable efforts expected of technicians having generalized knowledge and training in information technology systems to provide Unsupported Services);
(ii) Test Services, the Test Services are subject to the Test Terms; or (iii) a Deprecated Service, those Services are subject to the EOL Terms.
10. GOVERNING LAW & DISPUTES.
10.1. Governing Law. This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the Province of Ontario and the laws of Canada applicable therein, without respect to its conflict of laws principles. Any legal action of whatever nature by or against the Parties arising out of or related in any respect to the Agreement shall be brought solely to that jurisdiction.
10.2. Dispute Resolution Procedure. Should any Dispute arise between the Parties, the Parties agree that: representatives from both Parties shall meet to review such Dispute and to arrive, if possible, at an amicable and negotiated resolution thereto. Such meeting shall be held at the head office of AEGISYS or another venue agreed upon by the Parties and shall be held within 10 days after either Party has called for such a meeting in writing. Such written notice shall include details of the Dispute and copies of all relevant correspondence and documentation. In the event the dispute is not resolved to the satisfaction of both parties, the agreement may be terminated within the terms and conditions set forth in Section 8 of this agreement.
11.1. Relationship. The relationship between the parties is that of independent contractors and not business partners. Except as expressly stated in the Agreement, neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Aegisys is not a party to and is not responsible for the performance of any TPS Agreements. Other than Representatives for the purposes of sections 7, 8, and 9, or as otherwise specifically designated a “Third Party Beneficiary”, there are no third party beneficiaries to the Agreement. Customer may permit Customer’s end users to use the Services, but Aegisys shall provide support only to those individuals designated by Customer in the customer portal and is not required to provide any support directly to Customer’s end users. Customer is liable for the acts and omissions of Customer’s end users.
11.2. Interpretation. The headings or captions in the Agreement are for convenience only. The use of the word “including” means “including without limitation”. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order of precedence: the Service Order, the Product Terms, the MSA, and any other terms incorporated in the MSA. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement, signed by both parties, that expressly refers to the Agreement. A Service Order 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 the Aegisys ticketing system) that includes the express consent of an authorized individual for both parties. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect. Some terms are incorporated into the Agreement by reference to pages on the Aegisys website and Aegisys may revise those terms from time to time (including the MSA). Except where otherwise designated, such revisions are effective and supersede and form part of the Agreement as of the time:
(i) Customer enters into a new Service Order referencing the revised terms;
(ii) a Service Order automatically renews pursuant to the Agreement; or
(iii) the parties enter into an agreement for a Renewal Term or account transfer (in which case Customer acknowledges that it has reviewed and accepted the then-current version of the terms). If over time Customer enters into multiple agreements for a given Customer Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) shall govern the entirety of the Services for the given Customer Configuration.
11.3. Assignment & Subcontractors. Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Unless otherwise expressly authorized by Aegisys in writing, Customer may not
(i) sell, resell, lease, or provide the Services as a service, or
(ii) assign, grant, or transfer any interest in Third Party Services or Third Party Software to another individual or entity. Aegisys may use its Affiliates or subcontractors to perform all or any part of the Services, but Aegisys remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Aegisys performed the Services itself.
11.4. Notices. Customer’s communications to Aegisys regarding the Services should be sent to Customer’s account team using the customer portal; except that, Customer must send legal notices (including termination notices) by electronic mail to firstname.lastname@example.org; and by overnight postal service to:
7-598 Falconbridge Road,
Sudbury, Ontario, Canada P3A 5K6.
Aegisys communications regarding the Services and legal notices shall be posted on the customer portal or sent by email or post to the individuals Customer designates as contacts on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in English.
11.5. Publicity. Customer agrees that Aegisys may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement, use the Aegisys name or logo or other identifying indicia, or publicly disclose that it is using the Services without Aegisys prior written consent.
11.6. Enforceability & Waiver. If any part of the Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
11.7. Survival. The following provisions shall survive expiration or termination of this MSA: sections 5, 6, 7, 8, 9, 10, and 11; all terms of the Agreement requiring Customer to pay Fees (inclusive of any early termination fees); and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
11.8. Entire Agreement. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s), or understanding(s), written or oral.
“AAA” means the American Arbitration Association.
“Affiliate” as to Customer means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists; and as to
Aegisys means Aegisys Inc. and any entity that is directly or indirectly controlled by Aegisys, Inc. As used in this definition “control” means control of more than a 50% interest in an entity.
“Agreement” means, collectively, the MSA and any terms incorporated by reference in the MSA, and any applicable Service Order, Product Terms, or other addenda which govern the provision of Services.
“AUP” means Aegisys Acceptable Use Policy (presently found at the following URL as periodically updated by Aegisys.
“Auto Renewal Term” means the automatic renewal period following expiry of the Initial Term, for consecutive rolling 30 day terms.
“Business Day” means Monday through Friday, excluding public holidays in the country whose laws govern the Agreement.
“Confidential Information” means non-public information disclosed by one party to the other in any form that:
(i) is designated as “Confidential”;
(ii) a reasonable person knows or reasonably should understand to be confidential; or
(iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
“Customer”, “Client”, or “you” means the entity ordering the Services.
“Customer Configuration” means an information technology system (hardware, software, and/or other information technology components) which is the subject of the Services or to which the Services relate.
“Customer Data” or “Client Content” means all data which Customer receives, stores, or transmits on or using the Customer Configuration.
“Customer IP” means Customer’s pre-existing Intellectual Property.
“Deliverables” means the tangible or intangible materials, specifically identified and described in a Service Order as Deliverables, which Aegisys delivers to Customer as a result of any professional Services.
“Deprecated Service” means a Aegisys-provided product or Service, or any element thereof, which is identified as “End of Sale”, “End of Support”, or “End of Life”.
“EOL Terms” means the End of Life Terms) as periodically updated by Aegisys.
“Fees” means the fees payable under the applicable Service Order.
“Hosted System” means a Customer Configuration provided by Aegisys for Customer’s use at a Aegisys data center.
“Initial Term” means the initial term of the applicable Service Order.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Local Withholding Taxes” means withholding (or similar) taxes imposed on income that may be attributable to Aegisys in connection with its provision of the Services that Customer is legally required to withhold and remit to the applicable
governmental or taxing authority.
“MSA” or “GSA” means this Master Services Agreement.
“One Time Services” means Services which are provided on a one-off basis.
“Open Source Software” means open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses.
“Product Terms” or “Service Schedule(s)” means additional terms and conditions incorporated in a Service Order which contain product-specific obligations.
“Aegisys” or “we” means the Aegisys Affiliate
identified in the Service Order, or if none is identified:
(i) Aegisys, Inc. if Customer’s primary billing address is located in the Canada; or
(ii) Aegisys if Customer’s primary billing address is located outside of the Canada.
“Aegisys Configuration Requirements” means those specifications identified by Aegisys as required to perform the Services, such as a required reference architecture or software version, as described in Customer’s Service Order or Product Terms.
“Aegisys IP” means Aegisys Intellectual Property, not otherwise generally licensed to the public under an Open Source Software license.
“Recurring Services” means Services which are provided on an on-going basis.
“Renewal Term” means a fixed term extension of the Service Order term.
“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
“Sensitive Data” means any:
(i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII, or other like term under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person;
(ii) financial records; and
(iii) other sensitive or regulated information. “Services” means the Aegisys services identified in a specific Service Order.
“Service Order” or “Order Form” or “Statement of Work” means the document describing the Services Customer is purchasing, including any online order, process, API, statement of work, or tool through which Customer requests or provisions Services.
“SLA” means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
“Tax” means any value added, goods and services, sales, use, property, excise, and like taxes, import duties and/or applicable levies arising out of the provision of the Services.
“Test Services” means those Services designed by Aegisys as “Test”, “Beta”, “early access”, or with like designation in a Service Order.
“Test Terms” means the Test Terms (presently found at the following URL: https://www.aegisys.com/information/legal/testterms) as periodically updated by Aegisys.
“Third Party Fee Increase” means the direct or indirect increase of fees by a third party vendor charged to Aegisys for Customer’s use of Third Party Services, Third Party Software, or both, which may occur at any time.
“Third Party Services” means services provided by a third party and used in connection with the Services.
“Third Party Software” means software provided by a third party and used in connection with the Services.
“TPS Agreements” means agreements for products and services provided by third parties, which are entered into directly between Customer and such third party.
“Unsupported Services” means Services designated by Aegisys as “best efforts”, “nonstandard”, “reasonable endeavors”, “unsupported”, or with like designation in a Service Order.