mNET Terms & Conditions
These mNET Services Agreement 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.
Recitals
a. Matrix offers its customers a LAN network support service consisting of monitoring and maintaining the operations of the customer’s LAN (the “mNET Services”). In addition, Matrix may provide customers with certain equipment, on a sale or rental basis, related to the customer’s LAN (“Equipment”). In addition, customers may engage Matrix on special projects related to the customer’s LAN (“Project Services”).
b. Customer wishes to acquire from Matrix the mNET Services, Equipment and Project Services described in 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 of Services and Equipment.
a. Agreement Execution, Payment of Subscription Fee. Upon Customer’s execution of this Agreement and its payment of the initial auto-renewing subscription fee and any other setup or configuration fees stated in the Quote, Matrix will evaluate Customer’s existing LAN infrastructure, set up monitoring protocols, install a LAN health monitoring agent, and recommend any new Equipment it deems advisable.
b. mNET Services. Matrix will actively monitor Customer’s LAN, switches, firewalls, access points and routers to evaluate the LAN for malfunctions. Matrix will advise Customer of any major or critical software or firmware updates required to keep the LAN operational, and will facilitate the installation of such major software or firmware updates. Matrix will not be responsible for: (i) any minor, routine updates; (ii) the operation or maintenance of IoT devices or other devices on the LAN not specified above; or (iii) Customer’s network security. Matrix will respond promptly to Customer reports of any LAN issues, and will promptly and diligently work to resolve any such issues.
c.Project Services. Matrix and Customer may, from time to time, agree upon special Project Services that are not provided as part of the routine mNET Services for LAN troubleshooting and maintenance (e.g., “add, move or change” requests). The nature and scope of such services, to the extent they are not already stated in the Quote, shall be confirmed in a new Sales Quote or in a ticket request documented and tracked on the Matrix CRM portal. The Quote may provide and charge for a fixed number of hours of Project Services to be available toCustomer each calendar month (“Monthly Project Allowance”). Unused hours from any specific Monthly Project Allowance may be carried over for use by Customer in subsequent calendar months, but in no event shall the total number of Project Services hours carried over into any new calendar month exceed six (6) times the Customer’s Monthly Project Allowance. Customer shall not be entitled to any credit for unused Project Services hours upon the expiration or termination of the Agreement.
d. Equipment. Matrix may recommend that Customer obtain or replace certain equipment to optimize Customer’s LAN operations. To the extent such Equipment is not already specified in the Quote, the purchase or rental of such Equipment will be documented under a separate Sales Quote and related documents.
e. Payment of Fees. mNET Services will be charged for on a “per managed device” basis in accordance with the Quote. Each calendar month Matrix will evaluate whether the number of LAN devices has changed during such calendar month, and will adjust its fees for the upcoming calendar month in accordance with such changes. The fees for all mNET Services, Project Services and Equipment shall be paid in accordance with the terms set forth in the Quote, and in any subsequent Sales Quote or change order. 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. 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.
2. mNET Services Subscription Term, Termination.
a. Customer’s subscription term for mNET Services will be on an annual or multi-year basis, as specified in the Quote, and will be automatically renewed for successive one-year renewal terms absent Customer’s written notice to Matrix of its intention to terminate the mNET Services no less than thirty (30) days prior to the end of the then-current subscription term. A subscription term will be deemed to have commenced on the date Matrix installs the LAN monitoring agent on Customer’s LAN. Matrix may terminate this Agreement and the mNET Services at any time for any reason or no reason; provided however, that if Matrix terminates the mNET Services prior to the end of a pre-paid subscription period, Matrix shall, within 30 days following such termination date, remit a pro rata refund to Customer for the terminated portion of the paid-for subscription period.
b. Suspension of Service. In addition to any other remedy available to Matrix, in the event Customer fails to timely pay for the mNET Services, Project Services or Equipment, or violates any terms, conditions or obligations applicable to Customer under the Agreement, Matrix shall have the right to immediately suspend mNET Services to Customer until Matrix determines, in its reasonable judgment, that such violations have been cured.
3. Change Orders. In the event the parties agree to change the nature of, or specifications for, any Project Services, such changes shall be documented in a written change order, signed by the parties, indicating any resulting changes in fees or other specifications.
4. Equipment. Matrix will provide to Customer, on a sale or rental basis, any Equipment Customer elects to acquire for its LAN. Such Equipment shall be provided in accordance with the specifications, pricing, payment terms, rental period (if applicable) and estimated delivery dates set forth in the Quote. Matrix will arrange for shipping the Equipment to Customer and will invoice Customer for all shipping expenses. Customer shall bear all risk of loss, damage to or destruction of the Equipment upon 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. All attachments, accessories, replacements, replacement parts, substitutions, additions and repairs to the Equipment shall form part of the Equipment under this Agreement. The parties understand and acknowledge that due to supply chain and inventory issues, certain Equipment, whether purchased or rented, 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 such delays result in a projected delivery date that is more than 90 days later than the estimated delivery date set forth in the Quote, Customer may cancel its order for the delayed Equipment by providing Matrix with written notice of such cancellation. Any Equipment installation and configuration services specified in the Quote or any subsequent Sales 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, Matrix may, in its sole discretion, terminate the Equipment purchase without liability, and Customer will return the Equipment to Matrix, at Customer’s sole expense, in a commercially reasonable manner. Customer shall use commercially reasonable care to protect the any rented Equipment from loss or damage, and shall be liable for any damage to or loss of such Equipment. Customer will, at Customer's expense and in the manner directed by Matrix, promptly return any rented Equipment to Matrix upon the expiration or earlier termination of this Agreement for any reason. If Customer fails to return such rented Equipment within 30 days following its receipt of Matrix's return instructions, Customer authorizes Matrix to enter the premises where the Equipment is located, to take possession of all or any part of the Equipment and remove the Equipment from those premises, or to invoice Customer for current cost of replacing such Equipment, at Matrix’s sole discretion. Customer authorizes Matrix (or its vendor, as applicable) 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 or its vendor’s ownership of any rented Equipment.
5. Software Licensing. In the event Customer acquires Equipment from Matrix, Customer may be required to execute an End User License Agreement (a “EULA”) in connection with its use of such Equipment. 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) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Equipment or its software or firmware available to any third party in any way; (ii) reverse engineer, modify or make derivative works based upon the Equipment’s firmware or software or (iii) use the Equipment for any purpose other than the operation of its LAN.
6. Customer’s Obligations. Customer shall at all times: (i) use its LAN in full compliance with all applicable laws and regulations; (ii) promptly notify Matrix of any LAN issues it experiences and timely communicate with Matrix regarding same at service@matrix.com or at (503) 654-3000; (iii) keep Matrix informed of any network changes being contemplated by Customer; (iv) pay when due all undisputed fees for the mNET Services, Project Services and Equipment; and (v) promptly cooperate with Matrix’s investigation of any LAN problems.
7. Export Controls. All Equipment Matrix provides to Customer may be subject to U.S. export control laws and may be subject to export or import requirements in other countries. Customer acknowledges its obligation under, and agrees to comply strictly with, at its own expense, all such laws, including, without limitation, the U.S. Export Administration Regulations. Customer shall not directly or indirectly export, reexport, or transship the Equipment without the express written permission of Matrix and, when necessary, a U.S. government license. In particular, Customer agrees that it is not subject to U.S. economic sanctions, and will not directly or indirectly export, reexport or transship the Equipment to countries or regions subject to U.S. economic sanctions (e.g., Cuba, Crimea, Iran, North Korea, Sudan, and Syria). Customer represents and warrants that: (i) the Equipment will not be used in connection with any prohibited end-use, including, without limitation, use in rocket, missile or unmanned-aerial vehicle systems, chemical or biological weapons proliferation, any nuclear activities, or any other military use; and (ii) the Equipment is not destined for any prohibited end-user, including, without limitation, a military end-user, or an individual or entity identified on the U.S. List of Specially Designated Nationals and Blocked Parties, Denied Persons List, Entity List or similar U.S. government lists.
8. Ownership Of Materials And Rights. All rights not granted to Customer by Matrix herein are expressly reserved. The mNET Services and the protocols, agents and associated equipment are proprietary to Matrix or its providers and are protected by intellectual property laws and international intellectual property treaties. Except for the mNET Services provided to Customer in this Agreement, nothing in this Agreement shall convey, transfer, or assign to Customer any right, title, or interest in any tangible property or intellectual property of Matrix.
9. Risks of Internet Connectivity. Customer acknowledges that it will be solely responsible for obtaining and using its own anti-malware and internet security software and appliances. Matrix does not warrant that the mNET Services will ensure that Customer will be safe from viruses, worms, Trojan programs, phishing schemes, ransomware or other malware or destructive mechanisms. Customer shall 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 computer is connected to the internet. Customer acknowledges that access to the internet through its LAN will be dependent upon multiple factors outside of Matrix’s control, including general internet failures and the failure of any carrier to provide connectivity. Customer acknowledges that Matrix is not promising uninterrupted or unimpaired access to the internet, and agrees not to seek damages against Matrix or its providers for interruptions to, or impairment of, its LAN arising from matters outside of Matrix’s reasonable control. Customer acknowledges and agrees that mNET Services may become periodically unavailable due to scheduled or emergency maintenance and upgrade requirements.
10. Matrix’s Representations, Warranties, and Covenants. Matrix represents, warrants and covenants as follows:
a. The mNET Services will be provided in a commercially reasonable fashion, substantially in accordance with the specifications set forth in the Quote and any applicable documentation.
b. Any Equipment provided by Matrix for Customer’s use in connection with the mNET Services 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 will be void if Customer or any unauthorized third-party attempts to access, modify or repair the Equipment or any software running on the Equipment.
11. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH ABOVE: (I) THE MNET SERVICES, PROJECT SERVICES AND 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; (III) MATRIX DOES NOT GUARANTEE OR WARRANT THAT ACCESS TO THE INTERNET THROUGH CUSTOMER’S LAN WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM MALWARE, HACKING, RANSOMWARE OR OTHER MALICIOUS ACTIVITIES; AND (IV) MATRIX DOES NOT WARRANT THAT ANY SPECIFIC RESULTS WILL BE OBTAINED THROUGH USE OF THE MNET SERVICES OR PROJECT SERVICES. MATRIX DISCLAIMS ALL LIABILITY ARISING FROM: (I) CUSTOMER’S USE OF EQUIPMENT OR MATRIX SERVICES IN A MANNER NOT RECOMMENDED BY MATRIX; (II) A CHANGE TO THE CONFIGURATION OF EQUIPMENT OR SOFTWARE NOT AUTHORIZED BY MATRIX; OR (III) CUSTOMER’S FAILURE TO GIVE MATRIX THE ABILITY TO TIMELY PERFORM MNET SERVICES AND ANY ASSOCIATED MAINTENANCE AND UPDATE SERVICES.
12. Limitation of Remedies. IN NO EVENT SHALL MATRIX OR ITS PROVIDERS 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. THE MAXIMUM LIABILITY OF MATRIX OR ITS PROVIDERS FOR ANY CLAIM ARISING FROM 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 SECTION 11 AND12 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.
13. 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 any material misrepresentation, breach of covenant, breach of warranty, or failure to perform under this Agreement.
14. 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 paid for) its rented Equipment installed in connection with the mNET Services, or to continue with its performance under the Agreement following the end of the Force Majeure Event and to receive the benefit of Customer’s performance under the full Term as though such Force Majeure Event had not occurred.
15. 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.
16. 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.
17. 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, including, without limitation, injunctive relief and damages.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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. THE PARTIES ACKNOWLEDGE THAT AGREEING TO BINDING ARBITRATION IS A WAIVER OF THE RIGHT TO A JURY TRIAL, AND IS A MATERIAL CONCESSION.
23. 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 its rights against the debtor party, whether those rights arise under this Agreement or involve matters arising solely under the Bankruptcy Code.
24. 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.
25. 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, accountants and potential merger or acquisition entities.
26. 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.
27. 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.
28. Paragraph Headings. All paragraph headings in this Agreement appear for convenience of reference, and shall not affect the meaning or interpretation of the Agreement.
29. 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. 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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