Master Services Agreement

Digital Connection Inc DBA NextGen Automation

Master Services Agreement

Thank you for choosing Digital Connection Inc DBA NextGen Automation (“NextGen Automation”, “NextGen”, “we”, “us”, “our”) for your information technology needs. This Master Services Agreement (“Agreement”) governs our relationship. It is recommended to read this document carefully and keep a copy for future reference.

SCOPE

In this Agreement, “Client”, “you”, or “your” refers to the entity accepting any quote, proposal, service order, or similar documents from NextGen Automation, collectively termed as “Quote” regardless of their specific titles. This Agreement mandates arbitration for most disputes and contains key terms about your financial commitments, automatic renewal of services, liability limits, and other significant matters. Please ensure you have read these terms carefully before accepting a Quote.

1. Services: Services offered to you will be detailed in the Quote provided. Our commitment is confined to those services listed in the Quote, with anything else considered out of scope unless agreed in writing. The Services are further detailed in our Services Guide, which covers service delivery, levels, payment terms, and auto-renewal policies. Please review the Quote and Services Guide carefully. If you have questions, contact us before signing the Quote.
2. Version History: Each Quote is subject to the terms of this Agreement as of the “last updated” date shown at the bottom of this document. It is advisable to retain a copy of this Agreement and note the date when accepting a Quote.
3. Conflicts: If there is a conflict between this Agreement, the Services Guide, and a Quote, the terms of the Quote take precedence. This ensures we can tailor solutions in the Quote to meet your needs. In case of discrepancies between the Services Guide and this Agreement, the Services Guide will be favored.
4. Third-Party: Third-Party Providers (an industry term for upstream providers) may be utilized for portions of the Services provided which will be referred to as “Third-Party Services”.
5. As your managed IT provider, we’ll choose Third-Party Providers suited for your environment and arrange their services for you. Not all Third-Party Services will be explicitly labeled as such, and we reserve the right to switch providers at our discretion, provided it does not (in our sole opinion) reduce the quality of services outlined in a Quote.
6. As facilitators of Third-Party Services, we do not directly provide these services. As such, we cannot be held liable for any defects, omissions, security breaches, or failures pertaining to any Third-Party Service or Provider. Third Party Services are offered “as is.” In case of issues with a Third-Party Service, we will attempt to provide a reasonable workaround, but we do not guarantee the availability or effectiveness of such solutions, nor do we ensure uninterrupted operation of Third-Party Services.
7. We retain the right to transfer any increases in costs or fees imposed by Third-Party Providers for Third-Party Services to you (“Pass Through Increases”). Given our lack of control over Third-Party Providers, we cannot foresee potential price changes. However, in such instances, we commit to providing you with reasonable advance notice.

IMPLEMENTATION

1. Advice and Compliance: Occasionally, we may provide you with specific advice and recommendations concerning the Services (“Advice”). For instance, our Advice might suggest enhancing server capabilities, replacing outdated equipment, or advising against actions that could disrupt or compromise the security of the Environment. It is highly recommended that you adhere to our Advice promptly, which may necessitate additional purchases or investments in the Environment at your expense. We shall not be held accountable for any issues (such as service interruptions or security vulnerabilities) that arise due to your delay in implementing our Advice. Should your non-compliance with our Advice render the provision or facilitation of any part of the Services economically or technically infeasible, we reserve the right to discontinue the affected Services For Cause (as detailed later) by issuing a termination notice to you. Alternatively, we may modify the scope of the Quote to exclude any impacted sections of the Environment. Unless explicitly stated by us in writing (for example, in a Quote), any services required to address problems resulting from your non-adherence to our Advice, or unauthorized alterations to the Environment, as well as services needed to achieve or maintain the Minimum Requirements (to be defined later), are considered beyond the scope of this agreement.
2. Co-Management: In instances of collaborative oversight, such as when you have engaged other vendors or personnel, termed “Co-Managed Providers,” to offer services that might intersect or interfere with our Services, we commit to delivering the Services with efficiency and efficacy. However, (a) we shall bear no responsibility for the conduct or neglect of Co-Managed Providers, nor for resolving any resultant complications, errors, or operational interruptions, and (b) in scenarios where a Co-Managed Provider’s decision on a Service-related matter diverges from our viewpoint, we will respect their decision and bring the discrepancy to your notice. In such co-management arrangements, you concur to indemnify and shield us from any and all issues pertaining to the Environment, encompassing errors, downtime, intrusions, and susceptibilities (collectively, “Environment Issues”), along with any associated damages, expenses, costs, fees, charges, commitments, claims, and legal proceedings emanating from Environment Issues, on the condition that these Environment Issues cannot be definitively and indisputably linked to any malfeasance by us.
3. Prioritization: The implementation and/or facilitation of all Services will adhere to a schedule and prioritization deemed reasonable and necessary by us. The actual initiation dates for Services may fluctuate or deviate from the projected dates communicated to you, contingent upon the nature of the Services provided and the completion of any prerequisites, such as transition or onboarding activities.
4. Modifications: To mitigate any potential delays or adverse effects on the Services, we strongly advise against altering or relocating the Environment, or installing any software within the Environment, without our explicit authorization. In all circumstances, including those where we co-manage the Environment with your designated Co-Managed Providers as previously outlined, we will not assume responsibility for any unauthorized modifications to the Environment or for any problems or errors that emerge as a result of such modifications.
5. Third Party Support: Should we determine that a hardware or software issue necessitates vendor or Original Equipment Manufacturer (OEM) intervention, we reserve the right to engage with the vendor or OEM on your behalf and will bill you for all associated fees and expenses incurred during this process (“OEM Fees”). If we anticipate OEM Fees, we will seek your consent prior to incurring such costs, except in urgent situations where immediate action is required. While we will facilitate this support, we do not assure or guarantee that the payment of OEM Fees will resolve the specific issue at hand, as the resolution process may sometimes involve OEM Fees to narrow down or potentially rule out certain problems.
6. Authorized Contact(s): We will consider any instructions or approvals provided by your designated personnel or representatives, known as ‘Authorized Contacts,’ as valid and binding. If an Authorized Contact is not specified in a relevant Quote, or if a previously designated Authorized Contact becomes unavailable, then your Authorized Contact will default to the individual (i) who approved the Quote, and/or (ii) who is typically authorized by you to give us direction or advice throughout our partnership. We will rely on the directives and advice from your Authorized Contact until we are formally notified of any change in their status. A change should be submitted in writing via email to vcio@nxga.ca. We reserve the right, though not the obligation, to postpone Services until we can verify the Authorized Contact’s legitimacy within your organization.
7. Access: You grant us and our authorized Third Party Providers the right to monitor, diagnose, change, communicate with, retrieve information from, and otherwise access the Environment, strictly as necessary to enable us or those providers to deliver the Services. Service provision may necessitate the installation of one or more software agents into the Environment to facilitate such access. You are responsible for securing, at your own expense and before the start of any Services, all necessary rights of entry, licenses (including software licenses), permits, or other permissions required for us or applicable Third Party Providers to render the Services. You must always ensure proper and safe environmental conditions. We are not obligated to perform any tasks or provide Services in situations that pose a safety or health risk to our personnel, or that would demand extraordinary or non-standard industry efforts.
8. Ongoing Requirements: All components within the Environment, including hardware and software, must be authentic and licensed. Upon request, you are obliged to provide proof of such authenticity and/or licensing. If we specify certain minimum hardware or software standards (“Minimum Requirements”), you agree to adopt and maintain these Minimum Requirements as a continuous condition for our provision of the Services to you.
9. Response: Our approach to addressing issues related to the Services will align with the terms outlined in the Quote or, where relevant, the Services Guide. We will not be held accountable for any response delays or for the timing of Service delivery during (i) the periods specified under the Transition Exception (to be defined), or (ii) times of delay resulting from Scheduled Down Time, Client-Side Downtime, Vendor-Side Downtime (all to be defined), or (iii) intervals when we must pause the Services to safeguard the security or integrity of the Environment, our equipment, or network, or (iv) delays brought about by force majeure events.
10. Scheduled Downtime: For the purposes of this Agreement, Scheduled Downtime will mean those hours, as determined by us but which will not occur between the hours of 8:00 AM and 6:00 PM Mountain Time, Monday through Friday without your authorization or unless extraordinary circumstances exist, during which time we will perform scheduled maintenance or adjustments to the Environment. We will use our best efforts to provide you with at least twenty-four (24) hours of notice prior to scheduling Scheduled Downtime.
11. Client-Side Downtime: We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions, or by your Co-Managed Provider’s acts or omissions (“Client-Side Downtime”). Client-Side Downtime includes, but is not limited to, any period of time during which we require your participation, or we require information, directions, or authorization from you but cannot reach your Authorized Contact(s).
12. Vendor-Side Downtime: We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by Third Party Providers, third party licensors, or “upstream” service or product vendors.
13. Transition Exception: You acknowledge and agree that for the first sixty (60) days following the commencement date of any Service, as well as any period of time during which we are performing off-boarding ­related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), the response time commitments provided to you will not apply to us, it being understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

Fees and Payment

1. Fees: Fees, costs, and expenses charged by us for the Services will be charged in accordance with the amounts, methods, restrictions, and schedules described in each Quote and the Services Guide (“Fees”). In addition to the Fees, you are responsible for any miscellaneous costs and expenses (not to exceed $250/month without your prior consent) that we incur in providing or facilitating the Services to you (“Miscellaneous Expenses”). Miscellaneous Expenses will generally appear on your next monthly invoice(s) and may include, for example, small device purchases, shipping costs, or registration fees charged by Third Party Providers. You are responsible for sales tax and any other taxes or governmental fees associated with the Services. If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption.
2. Nonpayment: Fees that remain unpaid for more than thirty (30) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 2% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all of the Services without prior notice to you in the event that any portion of undisputed fees are not timely paid. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension. Notice of disputes related to Fees must be received by us within sixty (60) days after the applicable Service is rendered or the date on the invoice, whichever is later; otherwise, you waive your right to dispute the Fee thereafter. We reserve the right to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees) if we suspend the Services due to your nonpayment.
3. Minimum Monthly Fees: The initial Fees indicated in Quote for recurring services are the minimum monthly fees (“MMF”) that will be charged to you during the term. You agree that the amounts paid by you under the Quote will not drop below the MMF regardless of the number of users or devices to which the Services are directed or applied, unless we agree to the reduction. All modifications to the amount of hardware, devices, or authorized users under the Quote (as applicable) must be in writing and accepted by both parties.
4. Increases: We reserve the right to increase our monthly recurring fees per seat unless otherwise agreed in writing for specific circumstances that warrant so. Your payment of such is deemed acceptance of this new rate, while all other terms and conditions remain in effect.   You have the right to not accept these terms and cancel the agreement as outlined in this document. Pass Through Increases (described in the “Scope” section, above) are independent of any increases to our monthly recurring fees and will not be included in the five percent calculation described in this paragraph.
5. Schedule of Payments: We require payment for all invoiced fees via EFT, check or by your credit card number that we keep on file. If you authorize payment by credit card and EFT, then the EFT payment method will be attempted first. If that attempt fails for any reason, then we will process payment using your designated credit card.
6. Electronic Funds Transfer (EFT): When enrolled in an EFT payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the Quote. This authorization will continue until otherwise terminated in writing by you. We will apply a $25.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic funds restrictions.
7. Cheque: We will apply a $25.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any cheque that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.
8. Credit Card: When enrolled in a credit card payment processing method, you authorize us to charge your credit card, as designated by you in our payment portal, for any payments due under the Quote. For each credit card transaction, we reserve the right to add a convenience fee not to exceed 3% to the applicable invoice which will not exceed the actual costs we incur to accept your credit card.
9. Expenses: Any costs or expenses that we incur while providing the Services during a national or local emergency or during a period in which there are fuel, manpower, or other national or local shortages (“State of Emergency”) will be invoiced and payable by you. By way of example, such expenses may include incremental increases in the cost of gasoline or electrical power, or the purchase of health or safety equipment reasonably necessary to provide the Services to you.

LIMITATIONS OF LIABILITY/Limited Warranties

1. Hardware / Software Purchases: All equipment, machines, hardware, software, peripherals, or accessories purchased through us (“Third Party Products”) are generally nonrefundable once the item is ordered. If you desire to return a Third-Party Product, then the third-party provider’s or reseller’s return policies will apply. We do not guarantee that Third Party Products will be returnable, exchangeable, or that re­stocking fees can or will be avoided, and you agree to be responsible for paying all re-stocking or return-related fees charged by the third-party provider or reseller. We will use reasonable efforts to assign, transfer and facilitate all warranties (if any) and service level commitments (if any) for the Third Party Products to you, but will have no liability whatsoever for the quality, functionality, or operability of any Third Party Products, and we will not be held liable as an insurer or guarantor of the performance, uptime or usefulness of any Third Party Products. You will be responsible for all fees and costs (if any) charged for warranty-related service. All Third-Party Products are provided “as is” and without any warranty whatsoever as between Digital Connection Inc DBA NextGen Automation and you (including but not limited to implied warranties).
2. Liability Limitations: Digital Connection Inc DBA NextGen Automation can not provide any Services, or enter into any Quote or this Agreement, unless we could rely on these limitations. You acknowledge and agree that in no event:
3. will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Digital Connection Inc DBA NextGen Automation), savings, or other indirect or contingent event­ based economic loss arising out of or in connection with the Services, this Agreement, any Quote,
4. or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Quote, even if a party has been advised of the possibility of such damages.

Note: Fees due and payable under this Agreement, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation.
 
Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages from any and all claims or causes. Any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence will not exceed the fees paid by you with a maximum limit of the greatest value below.

1. the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to Digital Connection Inc DBA NextGen Automation for the specific Service upon which the applicable claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued,
2. or $10,000,
3. or the amounts that are actually paid out under a Responsible Party’s insurance policy.

Limitations shall remain in effect even if the remedies specified in this Agreement do not fulfill their fundamental purpose. However, these limitations shall not apply where prohibited by applicable law, or in instances where Claims arise due to a Responsible Party’s deliberate or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability shall be proportionately reduced in cases where a Claim is attributable to the Aggrieved Party’s willful or intentional misconduct, gross negligence, or if the Aggrieved Party did not reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall Digital Connection Inc DBA NextGen Automation be held liable for any claims or causes of action stemming from or associated with Services that are outside the agreed-upon scope.
Note: This paragraph limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you.

   3.  Waiver of Liability for Admin/Root Access: Digital Connection Inc DBA NextGen Automation requires Administrative (or “root”) access to the Environment to provide Services. It is not recommended to grant this access to any additional parties. You agree to hold us harmless from any Environment-related issues, damages, or other outcomes that may have resulted from disclosing administrative access to any non-Digital Connection Inc DBA NextGen Automation employees.

   4.  Waiver of Liability for Legacy Devices:  For the purposes of this agreement, a “Legacy Device” is defined as any equipment, device, hardware, or software that is considered end-of-life, obsolete, incompatible with current industry standards, or no longer supported by its original manufacturer. The presence of Legacy Devices may introduce vulnerabilities into your network, cause intermittent failures, or lead to improper operation or failure of other parts or processes within the Environment. Digital Connection Inc DBA NextGen Automation shall bear no responsibility for resolving issues that stem from or are related to the presence or utilization of any Legacy Device within the Environment. Digital Connection Inc DBA NextGen Automation shall be indemnified from all issues, claims, and causes of action that arise from or are related to the presence or use of any Legacy Device within the Environment. Additionally, you are encouraged to examine your company’s insurance policies to ascertain whether the presence of Legacy Devices within the Environment could result in an exclusion of coverage in the event of a security-related incident.

INDEMNIFICATION

Each party (referred to as the ‘Indemnifying Party’) shall indemnify, defend, and hold harmless the other party (referred to as the ‘Indemnified Party’) from any losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees (collectively known as ‘Damages’), that arise from or are related to the Indemnifying Party’s breach of this Agreement. The Indemnified Party retains the right, but not the obligation, to manage the defense and resolution of any claim or action for which indemnity is sought under this section. The Indemnifying Party is allowed to have their own counsel participate in the defense of the claim(s); however, such counsel will be at the Indemnifying Party’s sole expense, and the Indemnified Party’s counsel will have final say over the defense strategy. No claim for which the Indemnified Party seeks indemnity will be settled without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed.

TERM and TERMINATION

Please note: This section contains important provisions relating to the automatic renewal of managed services; please review this section, as well as the terms of your Quote, carefully. There are several dates of which you should be aware, including the effective/termination dates of this Agreement and the effective/termination dates of the Services under a Quote. Each Quote will have its own term and will be terminated only as provided in this Agreement or as provided in the Quote or Services Guide.

1. Agreement: This Agreement applies to all Services and the date it takes effect (“Effective Date”) is the date on which you accept a quote or on which we provide any Service to you, whichever is earlier. This Agreement can be terminated For Cause (described below). Upon termination, all services will immediately cease. Any fees that accrued and/or were payable to us prior to the date of termination shall be payable in full. Any offboarding services will require the account to be in good standing with no outstanding payables unless otherwise approved by Digital Connection Inc DBA NextGen Automation. This agreement shall not be terminated by either party without cause if Services are being rendered.
2. Term: The applicable Quote and Services Guide will dictate the term of Services. Unless explicitly stated or cancelled, Services in each Quote will be configured for Auto-Renewal (described below) at the end of their term. The termination of Services under one Quote shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties.
3. Auto-Renewal: The term of any managed Service that is provided to you on an ongoing and recurring basis and which is invoiced monthly (a “Managed Service”) shall automatically renew for a period equal to the initial term unless otherwise specified in a Quote or terminated early as per this Agreement. Auto-renewal will be negated if either party notifies the other of its intention to not renew the Managed Service no more than ninety (90) and no less than thirty (30) days before the end of the current Managed Service term. For the purposes of clarity, the term of non-Managed Services (such as one-time projects, break/fix assignments, temporary, non-recurring services, etc.) are not subject to auto­renewal.
4. Resource Removal: Upon termination of this Agreement or applicable Quote for any reason, Digital Connection Inc DBA NextGen Automation will be required to remove all provided resources (hardware, software, etc.) from the environment. You agree you must provide us with access, during normal business hours, to your premises or any other locations at which Digital Connection Inc DBA NextGen Automation Resources are located. If access is not granted or if any of the Digital Connection Inc DBA NextGen Automation Resources are missing, broken or damaged (normal wear and tear excepted), we will have the right to invoice you for, and you hereby agree to pay immediately, the full replacement value of all missing or damaged items. Certain services may require the installation of software agents in the Environment (“Software Agents”). You agree not to remove, disable, circumvent, or otherwise disrupt any Software Agents unless we explicitly direct you to do so.
5. Data Transition: it is understood and agreed that the transition of data to a new provider, including the provision of passwords, administrative server information, or preparation of data requires additional out-of-scope work and would be considered transition services. If requested, Digital Connection Inc DBA NextGen Automation can provide assistance in transitioning away from our services. The following conditions must be met prior to proceeding with requested support:
6. All fees due and owing to us are paid to us in full.
7. You agree to pay our current hourly rate for such assistance which may include up-front amounts to be paid.
8. You understand and agree that any software configurations that we custom create or program for you are our proprietary information and shall not be disclosed to you under any circumstances.
9. You understand and agree that in some cases, removing our support tools may not reverse the applied policies.
10. You agree that unless otherwise expressly stated in a Quote, Services Guide, or prohibited by applicable law, we will have no obligation to store or maintain any Client data in our possession or control following the termination of this Agreement or the applicable Services.

CONFIDENTIALITY

1. Defined: For the purposes of this Agreement, Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that:
2. Has become part of the public domain through no act or omission of the Recipient.
3. Was developed independently by the Recipient.
4. Was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
5. Use: The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except:
6. To fulfill its obligations under this Agreement.
7. As expressly authorized by the Discloser in writing.
8. As required by any law, rule, or industry-related regulation.
9. Due Care: The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
10. Compelled Disclosure: If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. The Recipient will use its best efforts, as directed by the Discloser and at the Discloser’s expense, to obtain or assist the Discloser in obtaining any such protective order. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose.
11. Additional Non-Disclosure Agreement: In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information.

OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights, and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement, any Quote, or a Services Guide conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you, and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Quote, (iii) written directions supplied to you by us, and (iv) any applicable EULA; no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

ARBITRATION

Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitrator will be experienced in contract, intellectual property and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

MISCELLANEOUS

1. Changes to Services Guide: Services we provide and/or facilitate may be further described and governed under our Services Guide (described above). We reserve the right, and you hereby agree that we are permitted, to modify our Services Guide (and the Services themselves) from time to time, in our discretion, to accommodate changes in the industry and relevant services required under a Quote. You will be notified of any changes that materially and negatively impact the Services by email.
2. End User Agreements: Portions of the Services may require you to accept the terms of one or more third party end user license agreements (EULAs), third party customer agreements, and/or third-party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required for you to receive any Services, then you hereby grant us permission to accept the applicable agreement(s) on your behalf. You may request a list of all End User Agreements into which we have entered on your behalf by sending your written request to us (email is sufficient for this purpose). If an End User Agreement deviates materially from industry-standards (i.e., contains terms that are different than those generally offered by similarly situated companies to end users on an industry-wide basis), then we will bring that situation to your attention. End User Agreements may contain service levels, warranties and/or liability limitations that are different than those contained in this Agreement. You agree to be bound by the terms of all applicable End User Agreements. If, while providing the Services, you or we are required to comply with an End User Agreement and that agreement is modified or amended, we reserve the right to modify or amend any applicable Quote with you to ensure your and our continued compliance with the terms of the applicable End User Agreement.
3. Devices: You hereby represent and warrant that we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased or otherwise controlled by you. Unless otherwise stated in writing by us, Devices managed under a Quote will not receive or benefit from the Services while the devices are detached from, or unconnected to, the Environment. Client is strongly advised to refrain from connecting Devices to the Environment where such devices are not previously known to us and are not expressly covered under a managed service plan from us (“Unknown Devices”). We will not be responsible for the diagnosis or remediation of any issues in the Environment caused by the connection or use of Unknown Devices in the Environment, and we will not be obligated to provide the Services to any Unknown Devices.
4. Equipment: The information on equipment returned to us at the end of the Services will be deleted; however, we cannot and do not guarantee that deleted information will be rendered irrecoverable under all circumstances. For that reason, we strongly recommend that you permanently delete any personal, confidential, and/or highly-sensitive information from such equipment before returning that equipment to us.
5. Insurance Forms: If we assist in the preparation or completion of any insurance-related forms, questionnaires, or similar third-party documentation (collectively, “Forms”), you understand and agree that our responses are provided to you on a “best efforts” basis only and are based on our knowledge of your managed IT environment as of the date on which we provide our responses. We will not engage in an audit of your information technology (IT) environment prior to providing our responses to you. For that reason, we cannot and do not warrant or guarantee that our responses will be error-free, or that our responses will fully or accurately describe your information technology environment. You agree that we will be held harmless from and against all claims, expenses, costs, or fees arising from your use or reliance upon our responses to all Forms.
6. Compliance; No Legal Advice: Unless otherwise expressly stated in a Quote, the Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, or requirement that may be applicable to your business or operations. Depending on the Services provided, the Services may aid your efforts to fulfill regulatory compliance; however, unless otherwise explicitly stated in the Quote, the Services are not (and should not be used as) a compliance solution. Neither the results of any Service nor any proposed or suggested remediation, action, or response plan (“Plan”) are legal advice and shall not be construed as such. Client is responsible for obtaining its own legal representation related to any of Client’s industry, regulatory, and/or statutory-related requirements (“Applicable Laws”). Client is advised to consult its own legal resources before relying on any advice or recommendations made by Digital Connection Inc DBA NextGen Automation that pertain to or impact Applicable Laws. Client understands that any Plan provided to Client will be based on the status of the applicable rules/laws in place at the time that the Plan is delivered, and subsequent changes to the status or content of any applicable laws/rules may render the Plan obsolete.
7. Disclosure: You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law, then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.
8. No Fiduciary: The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.
9. Virtual Security: You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malware, such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that any security-related product or solution implemented or facilitated by us will be capable of being detecting, avoiding, quarantining or removing all malicious code, spyware, malware, etc., or that any data deleted, corrupted, or encrypted by any of the foregoing (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Quote, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a Quote or Services Guide, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents. You are strongly advised to:
10. Educate your employees to properly identify and react to “phishing” activity (i.e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and
11. Obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario.
12. Physical Security: You agree to implement and maintain reasonable physical security for all managed hardware and related devices in your physical possession or control. Such security measures must include:
13. physical barriers, such as door and cabinet locks, designed to prevent unauthorized physical access to protected equipment.
14. An alarm system to mitigate and/or prevent unauthorized access to the premises at which the protected equipment is located.
15. Fire detection and retardant system.
16. Periodic reviews of personnel access rights to ensure that access policies are being enforced, and to help ensure that all access rights are correct and promptly updated.
17. Updates: Patches and updates to hardware and software (“Updates”) are created and distributed by third parties, such as equipment or software manufacturers, and may be supplied to us from periodically for installation into the Environment. If Updates are provided to you as part of the Services, we will implement and follow the manufacturers’ recommendations for the installation of Updates. Due to the unpredictable nature of these updates, you agree to the following conditions:
18. We do not warrant or guarantee that any Update will perform properly.
19. We will not be responsible for any downtime or losses arising from or related to the installation, use, or inability to use any Update.
20. We will not be responsible for the remediation of any device or software that is rendered inoperable or non-functional due to the Update.
21. We reserve the right, but not the obligations, to refrain from installing an Update until we have determined, in our reasonable discretion, that the Updates will be compatible with the configuration of the Environment and materially beneficial to the features or functionality of the affected software or hardware.
22. Non-Solicitation of Employees: Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of two (2) years following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or solicit, induce or influence any Restricted Employee to discontinue or reduce the scope of their business relationship with the other party, or recruit, solicit or otherwise influence any employee of the other party with whom the Restricted Party worked to discontinue his/her employment or agency relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Quote immediately For Cause.
23. Collections: If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
24. Assignment: Neither this Agreement nor any Quote may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, we may assign our rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of our business or any other transaction in which ownership of more than fifty percent (50%) of our voting securities are transferred; provided, however, that the assignee expressly assumes our obligations hereunder.
25. Amendment: This Agreement and any Quote may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Quote being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.
26. Time Limitations: The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within 30 days six (6) months after the cause of action accrues or the action is forever barred.
27. Severability: If any provision in this Agreement, any Quote, or the Services Guide is declared invalid by a court of competent jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegibility or unenforceability so that the remainder of that provision and all remaining provisions will be valid and enforceable to the fullest extent permitted by applicable law.
28. Other Terms: We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
29. No Waiver: The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
30. Merger: This Agreement coupled with the Quote and the Services Guide sets forth the entire understanding of the parties and supersedes any and all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements unless they are explicitly set forth in this Agreement or in a Quote or Services Guide. Our marketing materials, including those that are located at our website, are provided to you for illustrative or educational purposes only and are not intended (and will not be interpreted as) creating additional duties, requirements, service levels, or promises or guarantees of specific services or specific service results.
31. Force Majeure: Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
32. Survival: The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
33. Governing Law; Venue: This Agreement shall be governed by and construed in accordance with the laws of the Province in which the Client primarily resides or maintains its operations—either the Province of Alberta or the Province of British Columbia. The parties agree that all non-arbitrable claims or causes of action arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in Edmonton, Alberta, or Vancouver, British Columbia, as appropriate based on the Client’s location. The Client hereby irrevocably consents to such jurisdiction and venue.
34. No Third-Party Beneficiaries: The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
35. Usage in Trade: It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
36. Independent Contractor: Digital Connection Inc DBA NextGen Automation is an independent contractor, and is not your employer, employee, legal partner, or affiliate.
37. Contractors: Should we elect to use contractors to provide onsite services to you (such as the installation of equipment or the installation of software on local devices), we will guarantee that work as if we performed that work ourselves. For the purposes of clarity, you understand and agree that Third-Party Services are resold to you and, therefore, are not contracted or subcontracted services; and Third Party Providers are not our contractors or subcontractors.
38. Data & Service Access: Some of the Services may be provided by persons outside of  Canada the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of Canada the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
39. Access Licensing: One or more of the Services may require us to purchase certain “per seat” or “per device” licenses (often called “Access Licenses”) from one or more Third Party Providers. (ie. Microsoft “New Commerce Experience” licenses or Cisco Meraki “per device” licenses). Access Licenses cannot be canceled once they are purchased and often cannot be transferred to any other customer. For that reason, you understand and agree that regardless of the reason for termination of the Services, fees for Access Licenses are non­ mitigatable and you are required to pay for all applicable Access Licenses in full for the entire term of those licenses. Provided that you have paid for the Access Licenses in full, you will be permitted to use those licenses until they expire.
40. Critical Vendor Status: In the event that you declare bankruptcy, or there is an assignment for the benefit of creditors, then you agree that we are a “critical vendor”, and you will take all steps necessary to have us designated as a “critical vendor” entitled to payment and all other statuses and priorities afforded to any of your other critical vendors.
41. Counterparts: The parties intend to sign, accept and/or deliver any Quote, this Agreement, or any amendment in any number of counterparts, and each of which will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Quote, this Agreement, or any amendment electronically (e.g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).

Last Updated: September 2024