TERMS AND CONDITIONS
1. Term and Termination
1.1 This Agreement shall be effective as of the date first written above and shall continue for one (1) year (the “Term”), after which time, subject to earlier termination as hereinafter provided, this Agreement will be automatically renewed, unless at least sixty (60) days written notice of termination is given by either party. In the event of such renewal (12 month term), the terms of this Agreement shall continue to apply.
1.2 Shift IT Solutions may immediately terminate this Agreement in the event of a breach of any provision of this Agreement by the Client if the party in breach fails to remedy same within ten (10) days of having been notified in writing by Shift IT Solutions alleging such failure.
2. Notice
2.1 All notices, requests and communications under this Agreement shall be in writing. Notice shall be deemed to have been given on the date of service if personally served or served by facsimile on the party to whom notice is to be given. If notice is mailed, it shall be deemed to be given within seventy-two (72) hours after mailing, if mailed to the party to whom notice is to be given, by first-class mail, registered or certified, postage prepaid, and addressed to the party at the address set out below, or any other address that any party may designate by written notice from time to time.
3. Alterations to Services or Equipment
3.1 If Client makes alterations to any of the Supported Devices or any services supplied in relation thereto without the express written consent of Shift IT Solutions, Client does so at its own risk and expense. Shift IT Solutions shall not be liable or responsible for problems arising from or any way related to Client’s alteration of such services, the Supported Devices and/or Client’s network or system, and the Client hereby releases Shift IT Solutions, its shareholders, directors, officers, employees, agents, contractors, and those whom Shift IT Solutions is in law responsible for any damages, losses, claims, actions, demands, liabilities or expenses arising from or any way related to such alteration. If Client wishes Shift IT Solutions to correct or fix its alterations or problems relating thereto, such Services by Shift IT Solutions will be considered project work and will be handled at rates to be agreed by the parties.
4. Obligation to Back-up Software
4.1 Where Shift IT Solutions offers data backup services for your critical data files, Shift IT Solutions aims to ensure the reliability of this process, however Shift IT cannot guarantee the backup process or any backed up data or files. Provided the Client has followed the reasonable recommendations of Shift IT Solutions with regards to the backup of their critical data files, Shift IT shall use commercially reasonable efforts to recover any critical files lost as a result of a failed backup or recovery process. The Client hereby releases Shift IT Solutions from any and all claims resulting from or any way related to a failed backup and/or restore procedure of any Client data or files. The Client shall defend, indemnify, hold harmless Shift IT Solutions and its officers, directors, shareholders, employees, contractors, agents and those for whom Shift IT Solutions is in law responsible from and against any and all causes of action, claims, judgement, damages, penalties, fines, costs, liability and losses (including attorney’s fees, consultant’s fees, and expert fees) arising out of, resulting from or in connection with any failed backup or restore of any Client data or files.
5. Reimbursement for Supplies
5.1 On occasion, Shift IT Solutions may need to purchase spare parts, other equipment, supplies, accessories or software; in that case, Client shall be responsible to and agrees to reimburse Shift IT Solutions for all such costs or expenses incurred under this Agreement. No purchases will be made without prior Client approval.
6. Client Warranty – Software Licensing
6.1 Client represents and warrants:
- that all software it provides to Shift IT Solutions for installation, configuration or use in any way, has been legally obtained and is properly licensed;
- that it has legally purchased sufficient number of copies of such software and that it has not violated any licensing laws; and
- that the provision of services pursuant to this Agreement shall not infringe upon any intellectual property or other rights of any third parties.
7. Limitation of Liability and Indemnity
7.1 Shift IT Solutions makes no representations or warranties relating to this Agreement, other than those found herein. Shift IT Solutions disclaims all implied warranties to the maximum extent permitted by law.
7.2 Shift IT Solutions aims to ensure the security of its systems, however Shift IT cannot guarantee such security. The Client hereby releases Shift IT Solutions from any and all claims resulting from or in any way related to a breach of the security of its systems. The Client shall defend, indemnify, hold harmless Shift IT Solutions and its officers, directors, shareholders, employees, contractors, agents and those for whom Shift IT Solutions is in law responsible from and against any and all causes of action, claims, judgement, damages, penalties, fines, costs, liability and losses (including attorney’s fees, consultant’s fees, and expert fees) arising out of, resulting from or in connection with a breach of the security of its systems.
7.3 In no event shall Shift IT Solutions, or its officers, directors, shareholders, employees, contractors, agents, or those for whom Shift IT Solutions is in law responsible be liable for any special, indirect, incidental, punitive or consequential damages, (including without limitation, for breach of contract, warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits (even if Shift IT Solutions was advised of the possibility of any of the foregoing), arising out of or in connection with this Agreement. Notwithstanding any provisions of this agreement, Shift IT Solutions’, its officers, directors, shareholders, employees, contractors, agents, and those for whom Shift IT Solutions is in law responsible total aggregate liability arising from or related to this Agreement shall not, under any circumstance, exceed the lesser of the actual amount of loss or damage suffered by the Client or the amount payable by the Client to Shift IT Solutions for three (3) months of service under this Agreement.
7.4 The Client shall defend, indemnify, hold harmless Shift IT Solutions and its officers, directors, shareholders, employees, contractors, agents and those for whom Shift IT Solutions is in law responsible from and against any and all causes of action, claims, judgement, damages, penalties, fines, costs, liability and losses (including attorney’s fees, consultant’s fees, and expert fees) arising out of, resulting from or in connection with any breach or non-fulfilment by the Client of its obligations under this agreement or any incorrectness in or breach of any representation or warranty of the Client, including without limitation any negligent act or omission by any employee, agent or subcontractor or anyone else for whom it the Client is in law responsible.
8. Relationship
8.1 Company provides Services to Client hereunder as independent contractor, and this Agreement shall not be construed as an employment agreement, partnership or joint venture.
9. Non-Solicitation of Employees
9.1 Client agrees not to solicit any employee of Shift IT Solutions involved in the provision of services to the Client for employment, or encourage any such employee of Shift IT Solutions to leave his or her employment with Shift IT Solutions, without the expressed written consent of Shift IT Solutions. The above limitation shall be effective for the term of this Agreement and for a period of one (1) year following the termination of this Agreement or any extension or renewal hereto. Solicitation does not include advertisements in the general media and, except to the extent an individual was specifically encouraged to respond to such advertisements, there shall be no restriction on the hiring of individuals so responding.
10. Severability
10.1 Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting in any way the remaining provisions hereof or, to the extent permitted by law, rendering that or any other provision invalid, illegal or unenforceable.
11. Entire Agreement
11.1 This Agreement contains the entire agreement between the parties regarding the subject matter herein, and supersedes any prior agreements or representations, whether oral or written.
12. Attorneys Fees & Costs
12.1 In any action involving the enforcement or interpretation of this Agreement, the prevailing party, whether Client or Shift IT Solutions, shall be entitled to its reasonable attorneys’ fees and costs, including such fees and costs incurred in connection with any appeals, in addition to such other relief as may be provided by law.
13. Arbitration & Governing Law
13.1 All disputes, claims, and other matters between the Parties arising from or relating to this Agreement, which the Parties are unable to resolve between themselves amicably, shall be submitted and resolved by binding arbitration pursuant to the provisions of the Arbitration Act, 1991, S.O. 1991, c. 17, as amended or any successor legislation thereto, and in accordance with the following provisions: (i) the reference to arbitration shall be to one (1) arbitrator if the parties to this Agreement are able to agree to the appointment of same, failing which the reference to arbitration shall be to three (3) arbitrators, one of whom shall be chosen by each of the parties to this Agreement, and the third shall be chosen by the two (2) so chosen, and the third so chosen shall be the chairman of the arbitration and any decision or award shall be made by a majority of the arbitrators. In the absence of an agreement between the two arbitrators chosen by the parties regarding the third arbitrator, within ten (10) business days after the appointment of an arbitrator by each of the parties, the third arbitrator shall be appointed in accordance with the provisions of the Arbitration Act; (ii) the arbitrator or arbitrators, as the case may be, shall resolve the dispute by majority vote which shall be binding upon the parties; (iii) there shall be no appeal from any award or decision of the arbitrator(s) and the costs of the arbitration shall be in the discretion of the arbitrator(s).
13.2 Ontario provincial law shall govern the construction, validity, and interpretation of this Agreement and the performance of its obligations.
14. Alterations to Terms and Conditions
14.1 This Agreement may be modified at any time by Shift IT Solutions. Shift IT Solutions will take appropriate measures to inform the Client of modifications and will provide the Client the right and an appropriate window of time to review any proposed change, discuss it with Shift IT Solutions, and terminate this Agreement without penalty if all Parties cannot abide by the revisions. This Agreement supersedes any previous managed services agreements.
15. Temporary Service Suspension
15.1 The Client agrees that Shift IT Solutions shall be entitled to temporarily suspend services for technical reasons or non-payment to maintain Shift IT Solutions’ network, equipment or any other facilities, the timing of which will be as determined by Shift IT Solutions in its sole discretion.
16. Force Majeure
16.1 Notwithstanding any other provision contained herein, in the event that either Shift IT Solutions or the Client should be delayed, hindered or prevented from the performance of any act required hereunder by reason of any unavoidable delay, including strikes, lockouts, unavailability of materials, inclement weather, acts of God or any other cause beyond its reasonable care and control, but not including insolvency or lack of funds, then performance of such act shall be postponed for a period of time equivalent to the time lost by reason of such delay.
17. Assignment
17.1 The Client may not assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the Shift IT Solutions.
18. NCE Cost
18.1 Should the Managed Service Provider (MSP) elect to purchase a 12-month commitment for the Customer of a Microsoft New Commerce Experience (NCE) license, it is hereby agreed that in the event the business relationship between the MSP and its client is terminated before the end of the said 12-month period, the MSP reserves the right to pass on any and all termination costs associated with the early termination of the Microsoft NCE license to the client.
19. Network and Telco Cost
19.1 In the event that the Managed Service Provider (MSP) purchases a term-based telecommunications or network solution on behalf of a client, it is expressly stipulated that, should the business relationship between the MSP and the client be terminated prior to the conclusion of the term for any reason, the MSP reserves the exclusive right to pass on to the client any and all costs incurred as a result of such termination, including but not limited to early termination fees, remaining service charges, and any other related costs.
20. True Ups
20.1 In accordance with the terms of this Managed Service Provider (MSP) contract, an audit of the managed user count will be conducted every 90 days. Should this audit reveal an increase in the number of users, the MSP reserves the right to adjust (‘true up’) the service fees to reflect the costs associated with the additional users, with the option to back bill the client for these extra costs. Conversely, should the audit indicate a decrease in the number of managed users, the MSP agrees to provide a credit to the client, corresponding to the reduction in users, applicable to future billing cycles. This ensures that billing accurately reflects the current user count and services provided.
21. Invoices
21.1 Shift IT Solutions will provide the Client with invoices every month. The Client will make payments to Shift IT Solutions within (30) days after receiving an invoice. Any amounts which are payable to Shift IT Solutions pursuant to the terms of this Agreement which are not paid on the date due shall bear interest at the rate of (18%) per annum from the date due until paid in full.
In no event shall charges constituting interest payable by the Client to Shift IT Solutions exceed the maximum amount or the rate permitted under any applicable law or regulation, and in any part of provision of this Agreement is in contravention of any such law or regulation, such part or provision shall be deemed amended to conform thereto.
The Company and the Client hereby agree to the above terms and conditions.
