Matrix Networks' Bigleaf Networks SD-WAN Terms & Conditions

 

This Service Agreement (“Agreement”) is between the company subscribing to the services described in this Agreement ("Customer"), and Matrix Communications Corp, dba Matrix Networks. (“Matrix”). Matrix provides Internet optimization and redundancy services (the “Services”) that provides high-performance internet connectivity over multiple last-mile ISP circuits. Customer must agree to the terms and conditions in this Agreement in order to use the Services. The individual accepting this Agreement on behalf of Customer represents and warrants that he/she has the authority to bind Customer.

1. Payment

Customer will pay Matrix the setup fee(s) and the monthly fee(s) (collectively, the "Fees") described in the Matrix Services Order that Customer completes (the "Order"). Those Fees will not change during the Initial Term (defined below). The setup Fees are payable at the time Customer submits the Order. The monthly Fees are payable monthly in advance. All Fees are payable by credit card or Electronic Funds Transfer (EFT) unless an officer of Matrix expressly agrees in writing otherwise. Customer authorizes and instructs Matrix to charge the Customer credit card or bank account provided during the registration process. Customer will immediately notify Matrix of any change in that account. Following any such change, Customer authorizes and instructs Matrix to charge that new, replacement, or updated account. Any sums not paid when due will bear interest at 18% per annum and, in addition, (a) if Customer fails to pay any Fees or other amount owing under this Agreement when due, Matrix may suspend the Services and, in addition, if Customer fails to pay any Fee or other amount within five days of its due date, Matrix may terminate this Agreement as described in Section 7 below; and (b) Customer will reimburse Matrix for all collection agency commissions and attorney fees and costs that Matrix incurs in the collection of any Fees or other amounts due and payable by Customer under this Agreement

2. Taxes

The Fees described in the Order, and on Matrix's website, are exclusive of taxes. Customer will pay all sales, use, value added and similar taxes on the Services and will pay any personal property and similar taxes on the Equipment.

3. Use

Customer represents, warrants and covenants that (a) it intends to use the Services for its internal business purposes (and will not resell the Services or provide them to others for a fee); (b) it will not use the Services for personal, family, or household purposes; and (c) it will comply with the Matrix Acceptable Use Policy (“AUP”) on the Matrix website. The AUP is subject to change from time to time.

4. Services Level Agreement

BigLeaf Networks will provide the Services in accordance with the BigLeaf Networks Services Level Agreement ("SLA") on the BigLeaf Networks website. The SLA describes Customer's rights and obligations, including Customer's right, under certain circumstances, to receive a service credit for outages.

5. No Other Warranty, Limited Liability

EXCEPT AS DESCRIBED IN THE SLA, THE SERVICES AND EQUIPMENT ARE PROVIDED AS IS, MATRIX EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND COVENANTS RELATED TO THE SERVICES AND THE EQUIPMENT, INCLUDING WITHOUT LIMITATION THAT THE SERVICES WILL BE ERROR-FREE, TIMELY, SECURE, OR UNINTERRUPTED. MATRIX EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WILL MATRIX, ITS AFFILIATES, OR THEIR SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR (A) AN AMOUNT GREATER THAN THE MONTHLY FEE CUSTOMER PAID MATRIX FOR THE MONTH IN WHICH THE FIRST EVENT GIVING RISE TO THE CLAIM OCCURS (I.E., NOT MORE THAN ONE MONTH'S MONTHLY

FEE), AND (B) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, OR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT, OF OR RELATED IN ANY WAY TO, THIS AGREEMENT OR CUSTOMER'S USE OR INABILITY TO USE THE SERVICES, THE EQUIPMENT, OR ANY OTHER GOODS OR SERVICES PROVIDED BY MATRIX, AND THESE EXCLUSIONS WILL APPLY EVEN IF MATRIX HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE TYPES OF DAMAGES. THIS ARTICLE 5 APPLIES TO ALL LOSSES AND DAMAGES, WHETHER UNDER CONTRACT, NEGLIGENCE OR ANY OTHER TORT, STRICT LIABLITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT CUSTOMER'S REMEDY FAILS OF ITS ESSENTIAL PURPOSE. ONLY AN AUTHORIZED OFFICER OF MATRIX CAN AMEND THIS ARTICLE 5, AND THEN ONLY IF THE AMENDMENT IS REFLECTED IN A WRITTEN DOCUMENT THAT HAS BEEN SIGNED BY THAT OFFICER. THE DISCLAIMERS AND LIMITATIONS IN THIS ARTICLE 5 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.

6. Equipment

Matrix owns, and will at all times retain title to, any router(s), switches, or other hardware that Matrix delivers or otherwise provides to Customer (the "Equipment"), and Customer grants Matrix full access to Customer's Internet circuits so that Matrix can connect the Equipment to Matrix's network (including without limitation providing Matrix a user name and login information). The rental amount for that Equipment (deemed to be two percent (2%) of the setup Fee) is included in the monthly Fee. Customer will, at Customer's expense, promptly return the Equipment to Matrix upon the expiration or earlier termination of this Agreement for any reason. Upon expiration or earlier termination of this Agreement for any reason, Customer will return the Equipment to Matrix as Matrix instructs. If Customer fails to return the Equipment within 30 days of Matrix's instruction, Customer authorizes Matrix to enter the premises where the Equipment is located, to take possession of all or any part of the Equipment, and to remove the Equipment from those premises. Customer authorizes Matrix to file with the appropriate governmental entity in the state where Customer is incorporated or organized one or more Uniform Commercial Code Financing Statements reflecting Matrix's ownership of the Equipment.

7. Term and Termination

This Agreement will be effective beginning on the Requested Delivery and Service Start Date in the Order and will remain in force for the time period specified in the Order (the "Initial Term"). After the Initial Term, this Agreement will automatically renew for successive 12-month periods (each a "Renewal Term" and together with the Initial Term, the "Term") unless one party notifies the other party at least 30 days before the end of the then current Term that this Agreement will not renew at the end of that Term. In addition, (a) Matrix may terminate this Agreement at any time during the Term if Customer fails to pay any Fee within five days after its due date; (b) either party may terminate this Agreement if the other party fails to cure any other breach of this Agreement within 30 days of its receipt of written notice describing in reasonable detail the nature of the breach; and (c) Customer may terminate this Agreement for convenience by giving Matrix notice of termination within the first 30 days of the Initial Term. If Customer terminates this Agreement for any reason other than as described in subsections (b) or (c) of this Article 7, Customer will pay Matrix the Fees that would otherwise be due and owing for the remainder of the Term.

8. Intellectual Property

Matrix owns all user manuals and other documentation, and Matrix owns or has rights to all other software, firmware, designs, content, trademarks, patents, copyrights, trade secrets and all other intellectual property related to or incorporated in the Services or the Equipment (the "Matrix IP"). Furthermore, Matrix will be the sole owner of (a) any developments, modifications, improvements or enhancements made by Customer, and (b) any developments, modifications, improvements or enhancements that Matrix makes for, or that are requested or suggested by, Customer. Customer will not copy, modify, delete, disclose, or distribute any Matrix IP except as contemplated by this Agreement. Customer understands that other than the right to receive the Services as described in this Agreement, Customer does not have any right, title, or interest in or to the Matrix IP. Customer assigns to Matrix any interest Customer has or may acquire in the Matrix IP, and upon Matrix's request, and at Matrix's expense, Customer will execute and deliver to Matrix any such assignments and otherwise cooperate with Matrix in order to perfect or further evidence those assignments.

9. Confidential Information

The Services and the Equipment contain Matrix's valuable proprietary and confidential information. Customer will not reverse engineer, decompile, gain unauthorized access to, create other works from, or disassemble the Services, the Equipment or any software included in the

Services or the Equipment, or otherwise attempt to discover the source code or any other confidential information. If Customer, its employees or its agents breach this Article 9, Matrix will have the right to seek injunctive relief in addition to all other legal or equitable remedies. Matrix will not be required to post a bond as a condition of receiving an injunction or other relief.

10. Indemnity

We agree to indemnify, defend and save you harmless from and against any and all losses or damages to tangible property or from any loss or damage arising from bodily injury, including death, when, and to the extent, such losses or damages are caused by our negligence or that of our agents or subcontractors provided that you give us prompt written notice of any such claim and allow us, with your full cooperation, to control the defense and all related settlement negotiations.

We further agree to indemnify and save you harmless from and against any mechanic's lien resulting from work performed by us or our agents or subcontractors and which have been paid by you. No costs or expenses shall be incurred for our account without our prior written consent.

11. Assignment

Customer may not assign or otherwise transfer this Agreement without Matrix's prior written consent, which Matrix may grant or withhold in its sole discretion, but any consent by Matrix will not release Customer from its obligations under this Agreement unless the consent signed by an authorized officer of Matrix expressly releases Customer from its future obligations under this Agreement. Matrix may subcontract any or all of its obligations under this Agreement and may assign this Agreement in whole or in part without notice to or the consent of Customer.

12. Legal Actions

Oregon law will govern the interpretation and enforcement of this Agreement. Customer consents to the jurisdiction of, and venue in, the federal and state courts located in Portland, Oregon, and Customer will not initiate any legal proceeding against Matrix in any other place. Each party waives its right to trial by jury.

13. Notice and Communications

Except as expressly stated otherwise in this Agreement, (a) all notices and other communications to Matrix required or permitted under this Agreement must be sent to the email address for Matrix at the address specified in the "Contact Us" tab on the Matrix website; and (b) all notices and other communications to Customer required or permitted under this Agreement will be sent to the email address for Customer in the Order. Those notices will be deemed given one business day after the email is sent. Matrix may also contact Customer for any other reason, including but not limited to offer new products and/or services. That contact will not be deemed to be "unsolicited".

14. General Terms

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. Matrix's failure to enforce any right or provision of this Agreement will not be deemed a waiver of that right or provision.

This Agreement may not be amended except in a writing that has been signed by the party to be bound by that amendment. Only an authorized officer of Matrix may amend this Agreement on behalf of Matrix.

Read and keep this Agreement with Customer's business records. By clicking the "Sign up now" button, the individual completing the Order on behalf of Customer acknowledges that he/she has received (electronically or otherwise) and read an exact, completely filled in, legible copy of this Agreement and that Customer agrees to its terms.

This Agreement contains the entire and final understanding and agreement of the parties with respect to its subject matter; it supersedes and cancels all prior and contemporaneous oral or written agreements or understandings between the parties with respect to that subject matter.