Matrix Networks' Equipment Purchase & Services Terms & Conditions
This Equipment Purchase - Matrix Terms and Conditions, (“Terms and Conditions”), together with the attached Sales Quote, constitute the agreement ("Agreement") between Matrix Networks ("Matrix") and the customer executing this Agreement ("Customer"). This Agreement will be effective as of the date the Sales Quote incorporating these Terms and Conditions is signed by both parties (“Effective Date”).
Recitals
Matrix offers to sell to its customers hardware and equipment required for the provision of managed internet connectivity services. Customer wishes to purchase the hardware and equipment (the “Equipment”) identified on the Sales Quote attached to and incorporated into this Agreement (the “Quote”) for the price and upon the payment terms set forth in the Quote.
Terms
In consideration of the terms, representations, warranties, covenants and conditions below, the parties agree as follows:
1. Purchase and Sale of Equipment. Matrix will acquire and sell to Customer the Equipment described in the Quote in accordance with the pricing terms and estimated delivery dates set forth in the Quote.
2. Delivery of Equipment. Matrix will arrange for shipping the Equipment directly to Customer, or to Matrix for delivery to Customer, as provided in the Quote, and will invoice Customer for all shipping expenses. All title to, and all risk of loss, damage to or destruction of, the Equipment shall belong to the Customer upon the delivery of the Equipment at Customer’s premises. Customer shall inspect the delivered Equipment within two (2) business days following its delivery and immediately notify Matrix in writing if Customer determines that the shipment is incomplete, incorrect or in a damaged condition (a “Rejection Notice”). If Matrix does not receive a Rejection Notice within three (3) business days following the delivery date, the delivered Equipment shall be conclusively deemed to be complete, correct and undamaged at the time of delivery, and Customer shall be deemed to have accepted the Equipment in the condition in which it was delivered and to have waived any objection thereto.
3. Delivery Delays.
a. The parties understand and acknowledge that due to supply chain and inventory issues, certain purchased Equipment may experience delayed deliveries. Matrix will use commercially reasonable efforts to advise Customer of any delivery delays, but shall not be responsible for any harm or injury arising from such delays. In the event a delivery delay results in a projected delivery date that is more than ninety (90) days later than the estimated delivery date set forth in he Quote, Customer may cancel its order for the delayed Equipment by providing Matrix with written notice of such cancellation.
b. If the Equipment has been delivered to the Customer, and the Customer has not installed the Equipment within ninety (90) days of the delivery date, Matrix reserves the right to invoice the Customer for the installation and configuration project as described in the Quote, and close the project with no obligation to provide further installation and configuration services. In such event, Matrix may, in its sole discretion, finalize billing and project closure.
c. If Equipment has been delivered to Matrix, and Matrix is required to store the Equipment for more than ninety (90) days from the date Matrix provides the Customer with written notice of its receipt of the Equipment, due to delays in installation scheduling by the Customer, Matrix reserves the right to charge the Customer a monthly storage and maintenance fee (“Storage and Maintenance Fee”). The Storage and Maintenance Fee, as specified in the Quote, shall cover Matrix’s associated Equipment storage, inventory management, security, maintenance, handling, insurance, and general opportunity costs. Such charges will continue until the Customer schedules and completes the installation.
4. Returns. Matrix may, in its sole discretion, accept or reject Equipment returns proposed by Customer. All accepted returns shall be subject to a twenty percent (20%) restocking fee.
5. Installation and Configuration.
a. Any Equipment installation and configuration services specified in the Quote shall occur at the Customer’s location(s) designated in the Quote, and shall be performed within the estimated time frame specified in the Quote; provided, however, that such services may be delayed by a delayed Equipment delivery date. The installation and configuration services will require that the Customer provide the appropriate installation environment and timely make its installation site(s) available to Matrix. Matrix shall not be liable for any delays in the installation and configuration services due to Customer’s failure to provide such access and installation environments. If Customer fails to provide a suitable installation environment and access to the installation site(s) within sixty (60) days following the estimated installation date set forth in the Quote, then Matrix may, in its sole discretion, terminate this Agreement without liability. Customer shall be responsible for any Equipment failures arising from Customer’s failure to preserve an appropriate Equipment environment, including any cost to replace Equipment.
b. Any prepaid installation and configuration service hours purchased by the Customer must be utilized within twelve (12) months from the date of purchase. Any unused service hours beyond this period will expire, and Matrix will have no further obligation to issue refunds or credits to Customer for expired hours.
6. Lease Financed Equipment. As will be specified in the Quote, some Equipment provided to Customer may be provided through Matrix on a lease finance program offered by a third-party lease financing company (a “Lessor”). In such event, the Lessor will require Customer to execute an Equipment lease directly with such Lessor (a “Lease”), and the Lease between Customer and Lessor shall govern all matters related to the Equipment lease, Equipment delivery, payments under the Lease, protection of Equipment, the purchase or return of such Equipment, and all other matters associated with such Lease. In such event, Matrix will not be a party to the Lease and will not be responsible for any matters arising under the Lease.
7. Change Orders. In the event the parties agree to change the nature or specifications of the Equipment set forth in the Quote, such changes shall be documented in a written change order, signed by the parties, indicating any resulting changes in fees or performance deadlines.
8. Payment, Taxes, Interest.
a. Customer shall pay Matrix for all Equipment and associated installation and configuration services in accordance with the fee structure set forth in the Quote.
b. All fees to be paid by Customer are exclusive of all taxes, and Customer shall be solely responsible for withholding and/or paying any such taxes, whether they are federal, state or local taxes, foreign taxes, sales use or excise taxes, or any similar tax; provided, however, that Matrix shall be solely responsible for paying income taxes on its own income.
c. Interest shall accrue on any past-due balances for any fees or other amounts owed by Customer under this Agreement at a rate equal to the lesser of: (i) twelve percent (12%) per annum; or (ii) the maximum rate of interest allowed by applicable law.
9. Financing Statements. Customer authorizes Matrix and any applicable Lessor 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 any continuing security or ownership interests they may have in the Equipment.
10. Software Licensing. Some Equipment Matrix provides to Customers may be configured with embedded or loaded software or firmware belonging to Matrix or the Equipment manufacturers, in which case Customer may be required to execute one or more appropriate End User License Agreements (a “EULA”) in connection with its possession and use of such Equipment-based software or firmware. Whether or not a Customer is required to execute a EULA, Customer represents, warrants and covenants that it will not, except as specifically required to use the Equipment: (i) execute, use, copy, alter or modify the software or firmware; (ii) decompile, reverse assemble, reverse engineer the software or firmware or reverse engineer any hardware or firmware implementation of the Software; (iii) sell, assign or otherwise transfer in any manner the software or Customer’s right to use the software or firmware with the Equipment; or (iv) take any action inconsistent with third-party intellectual property rights in the software or firmware.
11. Term of Agreement, Termination. The Agreement shall be effective on the Effective Date set forth above, and shall continue until the delivery, installation and configuration of the Equipment is complete. Matrix may terminate this Agreement at any time during the term of the Agreement if Customer fails to pay any charges within five days after their due date or fails to timely perform any other obligations Customer has under this Agreement. Either party may terminate this Agreement if the other party fails to cure any other breach of this Agreement within 30 days after its receipt of a written notice of default describing in reasonable detail the nature of the breach.
12. Customer’s Representations, Warranties and Covenants. Customer represents, warrants and covenants as follows:
a. Customer warrants that it has accurately represented to Matrix its connectivity requirements and the environments in which any Matrix-provided Equipment will be located, and acknowledges that the Quote provided by Matrix is predicated on those representations.
b. Customer covenants to timely cooperate with Matrix and to perform its obligations to Matrix with respect to implementing the installation and configuration of the Equipment. In the event Matrix reasonably determines that Customer has failed to cooperate and perform as required, Matrix may terminate this Agreement and may retain, without setoff or refund, all prior payments made by Customer for Matrix’s pre-termination installation and configuration services provided in the performance of the Agreement.
c. Customer acknowledges that it will be solely responsible for obtaining and using its own anti-virus, anti-Trojan, anti-malware and internet security software and appliances in connection with its use of the Equipment. Matrix does not warrant that Customer’s use of the Equipment will be safe or free of viruses, worms, Trojan programs or other malware or destructive mechanisms. Customer covenants to use appropriate internet security devices and/or software to ensure that no third parties (e.g., hackers) take advantage of the fact that Customer’s Equipment is connected to the internet.
13. Matrix’s Representations, Warranties and Covenants. Matrix represents, warrants and covenants as follows:
a. The Equipment will be provided in a commercially reasonable fashion, substantially in accordance with the specifications set forth in the Quote.
b. Any Equipment sold to Customer will be free of defective parts or workmanship during the term of this Agreement. The Equipment warranty shall be contingent upon Customer’s prompt written notification advising Matrix of any Equipment defects, and Customer’s sole remedy under the Equipment warranty is that Matrix will, in its sole discretion, repair or replace defective Equipment. This warranty shall be void if Customer or any unauthorized third-party attempts to access, modify or repair the Equipment or any software running on the Equipment.
c. EXCEPT AS SPECIFICALLY SET FORTH ABOVE: (I) THE EQUIPMENT AND ANY SOFTWARE PROVIDED WITH THE EQUIPMENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; (II) MATRIX DISCLAIMS, TO THE FULLEST EXTENT ALLOWED BY LAW, ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUIET ENJOYMENT OR NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES UNDER THE UNIFORM COMPUTER INFORMATIONAL TRANSACTIONS ACT, AS MAY BE ADOPTED BY ANY JURISDICTION FROM TIME TO TIME; AND (III) MATRIX DOES NOT GUARANTEE OR WARRANT THAT USE OF THE EQUIPMENT TO ACCESS THE INTERNET WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM MALWARE, HACKING, RANSOMWARE OR OTHER MALICIOUS ACTIVITIES.
14. Limitation of Remedies. IN NO EVENT SHALL MATRIX BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THE AGREEMENT, OR TO THE PERFORMANCE OR BREACH THEREOF, EVEN IF MATRIX HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. MATRIX’S MAXIMUM LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS BASED UPON STATUTES, PRODUCT LIABILITY, NEGLIGENCE OR OTHER TORT CLAIMS, SHALL BE LIMITED TO THE AMOUNT RECEIVED BY MATRIX FROM CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH LIABILITY IS PREDICATED. THE REMEDY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHERS, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. CUSTOMER ACKNOWLEDGES THAT THE LIMITATION OF WARRANTIES AND REMEDIES CONTAINED IN SECTION 12 AND THIS SECTION 13 ARE AN ESSENTIAL BASIS FOR THE RIGHTS AND OBLIGATIONS AGREED TO UNDER THIS AGREEMENT, AND THAT MATRIX WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS. CUSTOMER WAIVES ALL DEFENSES BASED UPON THE DOCTRINE THAT ITS REMEDIES FAIL THEIR ESSENTIAL PURPOSE.
15. Indemnification. Each party shall indemnify, defend and hold the other party, and its officers, directors, employees and agents, harmless against any third party claims, demands, expenses, losses, damages or other liability, including, without limitation, attorney’s fees, arising from: (i) the indemnifying party’s misrepresentation, breach of covenant, breach of warranty, or failure to perform under this Agreement; or (ii) the indemnifying party’s gross negligence or willful misconduct.
16. Force Majeure. Neither party shall be in breach of this Agreement by reason of its delay in the performance of, or failure to perform, any of its obligations hereunder if such delay or failure is caused by acts of God or any event beyond its reasonable control, including, without limitation, the failure of the other party to cooperate as contemplated in this Agreement, natural disasters, acts of government, power failures, supply chain failures or delays, fire, floods, labor disputes, riots, acts of war, epidemics and pandemics (a AForce Majeure Event@). In the event a Force Majeure Event arises, Matrix shall have the right, in its sole discretion, to either terminate this Agreement and take possession of (or be fully paid for) the Equipment.
17. Notices. Any notice, request, demand, or other communication to be provided under this Agreement shall be in writing, and shall be delivered to the parties at the addresses designated in the Quote, or at such other address as a party may later designate by written notice to the other parties. All notices shall be effective upon hand delivery or when placed in the United States mail, properly addressed, with postage prepaid as certified mail.
18. Notice of Breach. Except for a default in payment, for which no notice shall be required, neither Matrix nor Customer shall be deemed in breach of this Agreement until the party claiming the breach has given written notice of the alleged breach to the other party, and the claimed breach has not been remedied within 30 days after such notice is delivered.
19. Remedies Upon Breach. In the event a party breaches any covenant, warranty or term of this Agreement, the non-breaching party may pursue any legal or equitable remedies available to it under this Agreement and the laws of the state of Oregon.
20. No Third Party Beneficiaries. The parties agree that this Agreement is entered into strictly for the benefit of the parties hereto and that there are no third part beneficiaries intended.
21. Non-Waiver. The failure or delay of any party to require performance of, or to otherwise enforce, any condition or other provision of this Agreement shall not waive or otherwise limit that party's right to enforce, or to pursue remedies for the breach of, any such provision or condition. No waiver by any party of any particular condition or provision of this Agreement, including this non-waiver provision, shall constitute a waiver of or limitation on that party's right to enforce performance of, or to pursue remedies for the breach of, any other condition or provision of this Agreement. Any waiver of a party’s rights under this Agreement must be contained in a writing signed by the waiving party.
22. Successor Interests. This Agreement is not voluntarily assignable or transferable by any party to this Agreement without the express written consent of the other party or parties, which shall not be unreasonably withheld, conditioned or delayed. Subject to this restriction, this Agreement is binding upon, and shall inure to the benefit of, the successors, assigns, and bankruptcy estates of each of the parties.
23. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon without regard to, or application of, Oregon's conflict of law provisions.
24. Jurisdiction, Venue. The parties agree that any suit, action or arbitration proceeding arising out of or relating to this Agreement shall be brought in Multnomah County, Oregon, and the parties expressly consent to the personal jurisdiction over them of any state or federal court in Multnomah County, Oregon. The parties reserve their rights under the Federal Rules of Civil Procedure to remove an action to federal court.
25. Dispute Resolution/Arbitration. In the event a dispute arises between the parties relating to or arising out of this Agreement, the parties agree to work in good faith to resolve such dispute informally. If the parties are incapable of resolving such dispute informally, any party may submit the dispute to mediation with the Arbitration Service of Portland, located in Portland, Oregon ("ASP"), and such mediation shall occur under the ASP's then current mediation rules. All parties shall participate in good faith in such mediation. In the event such mediation does not result in a resolution of the dispute, the dispute shall be resolved by binding arbitration, and a party may then, but only then, initiate an arbitration proceeding with the ASP under ASP's then current arbitration rules. In such arbitration, the arbitrator's fees shall be shared equally by the parties during the arbitration, but shall be recoverable as costs to the prevailing party. The arbitrator will control the scheduling of all events and will resolve all disputes, including disputes regarding pretrial procedure and discovery. The decision of the arbitrator (or arbitration panel) will be binding, and any party may submit the decision as an enforceable judgment with any court of competent jurisdiction. Nothing herein shall preclude a party from seeking declaratory or injunctive relief in a court of competent jurisdiction.
26. Attorney’s Fees. If a party to this Agreement breaches any material term of this Agreement, then the non-breaching party or parties shall be entitled to recover all expenses of whatever form or nature, costs and attorney’s fees reasonably incurred to enforce the terms of the Agreement, whether or not suit is filed, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal. In addition, in the event either party to this Agreement becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorney’s fees, incurred in connection with enforcing his, her or its rights against the debtor party, whether those rights arise under this Agreement or involve matters arising solely under the Bankruptcy Code.
27. Further Actions. The parties agree to execute such documents and to take such other actions as may reasonably be requested by any party to carry out the purposes and provisions of this Agreement, and shall use their own best efforts to carry out the terms and conditions of the Agreement.
28. Confidentiality. The parties agree that, except as otherwise required by law, court order or the exceptions listed in this paragraph, the terms and conditions of this Agreement shall remain confidential between the parties to this Agreement, and shall not be disclosed to any other person or entity. Notwithstanding the above, the terms of this Agreement may be disclosed to the extent specifically required to perform the provisions of this Agreement, to file federal or state tax returns, and to report to professional organizations, insurers, reinsurers, auditors, and accountants.
29. Severability. If any court or arbiter of competent jurisdiction finds any term of this Agreement, or of any other document or instrument referred to or contemplated in this Agreement, to be invalid or unenforceable, such determination shall not affect the validity and enforceability of the remainder of the Agreement, and the court shall enforce the Agreement in such a manner as to give substantial effect to the intent of the parties as expressed in the Agreement.
30. Survival. All provisions of this Agreement that by their nature are intended to survive the expiration or termination of this Agreement shall survive and remain in full force and effect.
31. Paragraph Headings. All paragraph headings in this Agreement appear for convenience of reference, and shall not affect the meaning or interpretation of the Agreement.
32. Entire Agreement, Amendments. This Agreement, consisting of the attached Sales Quote and these Terms and Conditions, constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement, and supersedes all prior discussions, negotiations, understandings, representations, and agreements pertaining to the subject matter of the Agreement, whether oral or written. No provisions contained in any purchase orders, order confirmations or similar types of documents used by or provided by Customer shall have any legal effect on this Agreement, and shall be deemed void. All terms of this Agreement, including its Recitals, are contractual. This Agreement may be amended or modified only by a written instrument executed by the parties that expressly states the intent of the parties to modify or amend this Agreement.
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