Master Services Agreement
By this Service Agreement (“Agreement”), 1568358 Ontario Limited o/a IT Force (“IT Force”), an Ontario Corporation, and the Client, as identified at the top of this page of this Agreement, agree as follows:
- In this agreement:
“Agreement” shall mean the agreement in effect from time to time between IT Force and the Client, which is subject to the present Standard Terms and Conditions and any other document or form that may be designated by IT Force from time to time in accordance herewith as forming part of this Agreement.
“Client” shall mean a corporation, a partnership, an individual over the age of 18 or other legal entity, acting for commercial or business purposes, named on the invoice and responsible, unless otherwise agreed with IT Force, for paying the charges for the Services provided under the Agreement and entitled to receive any notice and information relating to this Agreement or the Services.
- CLIENT’S OBLIGATIONS. In addition to the Client’s other obligations set forth in this Agreement, the Client agrees not to use the Services in a manner that is contrary to applicable laws or regulations. Any breach of applicable laws or regulations may result in the termination of this Agreement and/or any of the Services used wrongfully being disconnected or suspended.
- IT FORCE SERVICES. IT Force reserves the right to propose to change, modify, add or remove any provision of this Agreement at any time. Such changes may include, without limitation, modifications, additions to or removals from the Services, their features and charges, or the terms and conditions upon which IT Force distributes and the Client receives the Services. IT Force will provide written notice to the Client, which notice may be sent via email, mail or by posting such changes on its www.itforce.ca website. The Client’s continued use of the Services thirty (30) days after the implementation of such a change shall be deemed to be the Client’s acceptance of any such change.
- The Client shall pay IT Force all fees due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable under this Agreement are exclusive of Harmonized Sales Tax, excise, and any other applicable transaction taxes, which the Client is responsible to pay. If payment is not received on or before any invoice due date, interest shall begin to accrue and be payable at the lesser of the maximum rate permitted under the applicable law or at the rate of one and one-half percent (1.5%) per month from the date due until paid in full. The Client shall pay all expenses, including any solicitor’s fees, incurred by IT Force or its representatives in enforcing its rights under this Agreement provided that IT Force is successful on the merits.
Any disputes about any charges to the Client under this Agreement must be submitted to IT Force in writing within sixty (60) days of the date such charges are incurred. The Client agrees to waive all disputes not brought within the sixty (60) day period and all such charges will be final and not subject to challenge.
Overdue accounts may result in suspension or cancellation of any or all of the Services provided by IT Force. If a service call is required to restore any Client’s Services which have been suspended or terminated for non-payment, a reconnection charge will apply.
- UNAUTHORIZED USAGE. The Client shall be responsible for the payment of all charges, costs, damages, losses and liabilities suffered by IT Force in respect of any of the Services as a direct or indirect result of the unauthorized use, misuse, or abuse by the Client, any of its employees, agents or representatives or any third party at the request of the Client, of the Client’s System, the Services and/or any software used in connection therewith.
- SUSPENSION/REACTIVATION. IT Force may cancel or suspend any, or all of the Services without notice if the Client:
- does not pay any amount owing to IT Force when due;
- does not follow this Agreement;
- gives IT Force false or misleading information; or
- uses the Services fraudulently or unlawfully.
If IT Force suspends or cancels the Services, the Client will still be required to pay any amount owing to IT Force. If the Client has prepaid their account, the amount paid will be forfeited.
During temporary suspension of the Services, the monthly fees still apply. If IT Force suspends or terminates the Services for non-payment or excessive balance, including unbilled usage and pending charges, fees and adjustments, IT Force shall have the right to charge the Client a fee for the reactivation or restoration of the Services. Reactivation of the Services will result in a reactivation charge payable by the Client as established by IT Force. Payments for the Services which are returned by banks or credit card companies for insufficient funds will result in a charge to the Client of $50.00 or such higher amount as is charged by the applicable bank(s) relating to such returned payment.
- In addition to the other rights given to IT Force under this Agreement, IT Force may:
- terminate this Agreement if the Client fails to pay any applicable fees due in accordance with section 7 hereof within thirty (30) days of receipt of such written notice from IT Force;
- terminate this Agreement if the Client breaches any material term or condition of this Agreement and fails to remedy such breach within thirty (30) days of receipt of written notice of such breach;
- at any time, upon at least five (5) days prior notice to the Client, cancel this Agreement or any Services provided under this Agreement upon the occurrence of any act of bankruptcy on the part of the Client, or if the Client becomes insolvent, relies upon any law governing insolvency, bankruptcy or arrangements with creditors or upon the commencement of bankruptcy proceedings against the Client; and
- terminate this Agreement at any time without cause on sixty (60) days written notice.
IT Force shall have no liability to the Client or any third party because of such termination or action, save and except that IT Force will refund a pro rata portion of any prepaid amounts if IT Force terminates the Client’s contract without cause.
Upon any termination of the right to use the Services, the Client shall immediately uninstall and cease to use the terminated Services and, upon IT Force’s written request, immediately return any products or documentation related to the Services.
IT Force will also assist the Client in the orderly termination of its Services, including the timely transfer of the Services to another designated provider. The Client agrees to pay IT Force the actual costs of rendering such assistance.
- The Client shall defend and indemnify IT Force, its successors, affiliates and agents from any claims, damages, losses or expenses (including without limitation legal fees and costs) incurred by IT Force in connection with all claims, suits, judgments, and causes of action
- for infringement of patents or other proprietary rights arising from combining the Services with or using any system or service in connection with the Services;
- for libel, slander, defamation or infringement of copyright or other proprietary right with respect to material transmitted by the Client over the Services; or
- injury, death or property damage arising in connection with the presence, use or non-use of the Services.
- LIMITATION OF LIABILITY. IT FORCE, ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS (IT BEING ACKNOWLEDGED BY THE CLIENT THAT FOR THE PURPOSES OF THIS SECTION ONLY, IT FORCE IS CONTRACTING AS AGENT ON BEHALF OF ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS) SHALL NOT BE LIABLE TO THE CLIENT, ANY END USER OR ANY OTHER PERSON (EXCEPT FOR PHYSICAL INJURIES AS A RESULT OF IT FORCE’S NEGLIGENCE) FOR (1) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, LOSS OF DATA, LOSSES RESULTING FROM A THIRD PARTY’S UNAUTHORISED ACCESS TO DATA, LOSS OF PROFIT, LOSS OF EARNINGS, FINANCIAL LOSS, LOSS OF BUSINESS OPPORTUNITY, PERSONAL INJURY, DEATH OR ANY OTHER DAMAGE OR LOSS HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY, OR RELATING, IN ANY MANNER, TO THE TERMS AND CONDITIONS HEREIN, THE IT FORCE SERVICES, OTHER EQUIPMENT OR THE CLIENT’S SYSTEM; (2) DEFAMATION OR COPYRIGHT INFRINGEMENT THAT RESULTS FROM MATERIAL TRANSMITTED OR RECEIVED OTHER THAN THE IT FORCE SERVICES; OR (3) INFRINGEMENTS OF PATENTS ARISING FROM COMBINING OR USING THE CLIENT’S OWN FACILITIES WITH THE IT FORCE SERVICES. THESE LIMITS APPLY TO ANY ACT OR OMMISION OF IT FORCE, IT FORCE’S EMPLOYEES, OR AGENTS, WHICH WOULD OTHERWISE BE A CAUSE OF ACTION IN CONTRACT, TORT OR ANY OTHER DOCTRINE OF LAW AND IN NO EVENT SHALL IT FORCE’S LIABILITY TOWARD THE CLIENT EXCEED THE TOTAL AMOUNT PAID TO IT FORCE BY THE CLIENT FOR ANY AFFECTED SERVICE, DURING THE 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THIS SECTION SHALL CONTINUE TO APPLY NOTWITHSTANDING EXPIRATION OR TERMINATION OF THE AGREEMENT.
- NO WARRANTY. THE CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES AND ANY OTHER EQUIPMENT ARE PROVIDED BY IT FORCE “AS IS” AND “AS AVAILABLE” AND, TO THE EXTENT PERMITTED BY LAW, WITHOUT WARRANTY BY IT FORCE OR ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OF USAGE OR TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT FORCE SHALL HAVE NO LIABILITY WHATSOEVER TO CLIENTS FOR: (1) ANY INTERRUPTIONS OR DISRUPTIONS TO THE SERVICES OR ANY OTHER DAMAGES SUFFERED BY THE CLIENT WHICH ARE CAUSED DIRECTLY OR INDIRECTLY BY ANY FAILURES OF THE SERVICES OR OTHER EQUIPMENT; (2) ANY POWER FAILURES; (3) ANY ACTS OR OMISSIONS OF THE CLIENT OR ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS INCLUDING, WITHOUT LIMITATION, DEFAMATION OR COPYRIGHT INFRINGEMENT; (4) ANY DISRUPTION OF ANY PART OF THE EQUIPMENT USED TO PROVIDE THE SERVICES BY PARTIES OTHER THAN IT FORCE; (5) ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING FROM OR IN CONNECTION WITH THE CLIENT’S USE OF THE SERVICES OR OTHER EQUIPMENT; (6) ANY EVENT OF FORCE MAJEURE, AS DEFINED IN SECTION 27 OF THIS AGREEMENT; OR (7) ANY SUSPENSION OR TERMINATION OF THE SERVICES.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY.
- Proprietary Rights. IT Force, or its affiliates or licensors, retain all rights, title, and interest in any and all intellectual property, informational and industrial property in the Services, and copies thereof. IT Force neither grants nor otherwise transfers any rights of ownership in the Services to the Client. The Services are protected by applicable copyright and trade secret laws, and other forms of intellectual property, informational and industrial property protection.
- The Client may only use and disclose the Services in accordance with the terms of this Agreement. IT Force reserves all rights in and to the Services not expressly granted in this Agreement. The Client may not disassemble or reverse engineer any software product, or decompile or otherwise attempt to derive any software product’s source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Services, without IT Force’s prior written approval. Except as expressly authorized in this Agreement, the Client may not (a) distribute the Services to any third party (whether by rental, lease, sublicense, or other transfer), or (b) operate the Services in an outsourcing or service provider business to process the data of third parties. Additional usage restrictions may apply to certain third party files or programs embedded in the Services.
- Services Deliverables Licensed under this Agreement.
- Pre-Existing License Agreements. Any software product provided to the Client by IT Force as a reseller for a third party, which is licensed to the Client under a separate software license agreement (“SLA”) with such third party will continue to be governed by the SLA. The fulfillment of the Services will not relieve or alter the obligations or responsibilities of either party or of any third party in regard to the software product licensed under the SLA.
- IT Force owns all rights, title and interest in the Deliverables, including all intellectual property rights embodied therein. Nothing in this Agreement is intended to or will have the effect of vesting in or transferring to the Client rights in IT Force’s or its affiliates’ or its or their suppliers’ software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used or first reduced to practice or tangible form in the course of performance of the Services, whether solely by IT Force or jointly with the Client.
- Confidential Information. The term “Confidential Information” means all proprietary or confidential information that is disclosed to IT Force by the Client, and includes, among other things (a) any and all information relating to products or services provided by the Client, its Client-related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; (b) the Product; and (c) the terms of this Agreement. Confidential Information does not include information that IT Force can show: (A) was rightfully in its possession without any obligation of confidentiality before receipt from the Client; (B) is or becomes a matter of public knowledge through no fault of IT Force; (C) is rightfully received by IT Force from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for IT Force.
- Disclosure Restrictions. IT Force may not disclose Confidential Information of the Client to any third party without the prior written consent of the Client.
- Proprietary Legends. IT Force may not remove, obscure, or alter any proprietary legend relating to the Client’s rights on or from any form of Confidential Information of the Client, without the prior written consent of the Client.
- CONFIDENTIALITY OF CLIENT INFORMATION. Unless a Client provides express consent or unless disclosure is directed by a Court of law, all information kept by IT Force regarding the Client, other than the Client’s name, address and listed telephone number, is confidential and may not be disclosed by IT Force to anyone other than: the Client;
- a person who is seeking the information as an agent of the Client; or
- an agent retained by IT Force in the collection of the Client’s account, provided the information is required for and is to be used only for that purpose.
Express consent to disclosure may be taken to be given by a Client where the Client provides:
- written consent;
- oral confirmation verified by an independent third party; or
- electronic confirmation via the Internet.
By entering into this Agreement, the Client hereby expressly consents to IT Force requiring, collecting from and providing to third parties, including but not limited to, credit reporting agencies, credit history information regarding the Client and associated account.
- CONFIDENTIALITY OF IT FORCE INFORMATION. Unless IT Force provides express written consent or unless disclosure is so directed by a Court of law, the Client agrees not to disclose any proprietary or confidential information or any information regarding rate(s), term(s) or any other information pertaining to this Agreement.
- The Client shall not import or incorporate into any contract lists, messages, surveys, event registrations, social campaigns or uploads to IT Force’s servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.
For the purposes of applicable national implementing laws in the Client’s jurisdiction, and with respect to the Client’s personal data, the Client acknowledges and agrees that it is a data controller and IT Force is a data processor. The Client also acknowledges and agrees that it is responsible for complying with all obligations of a data controller under applicable law. IT Force agrees that it shall process the Client’s personal data on their behalf in accordance with the Client’s instructions, as set out in the within Terms and Conditions and any instructions received from time to time and that IT Force has taken and will continue to take adequate technical and organizational measures against unauthorized or unlawful processing of accidental loss or destruction of, or damage to, the Client’s personal data.
- NO RIGHTS IN SOFTWARE. This is an Agreement for Services and access to IT Force’s website and the Client is not granted a license to any software by this Agreement. The Client will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. If the Client is using the Services in any jurisdiction which restricts the ability of a software provider to restrict the Client’s right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Services, then the Client hereby covenants that, prior to engaging in such activities, the Client will first request that IT Force perform such work at its standard professional services rate. IT Force can then decide either: (i) to perform the work in order to achieve such interoperability and change its then standard rates for such work to the Client; (ii) to permit the Client to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability; or (iii) provide the Client with the information needed regarding the Software for such purpose for which applicable law permits the Client to engage in such activities despite a contractual prohibition on such activities.
- PREVAILING TERMS AND CONDITIONS FOR AGREEMENTS. In the event that conflict arises between the provisions of the Specific Terms and Conditions of any IT Force Service Agreement and the IT Force Standard Terms and Conditions set out in Engagement Agreement to any Service Agreement, the provisions of the Specific Terms and Conditions will prevail.
- SPECIFIC TERMS AND CONDITIONS. The Specific Terms and Conditions of any IT Force Service Agreement and the IT Force Standard Terms and Conditions, as set out in Engagement Agreement to any Service Agreement are incorporated into and form part of any IT Force Service Agreement.
- Any dispute between the parties whether arising during the period of this Agreement or at any time thereafter which attaches upon the validity, construction, meaning, performance or effect of this Agreement or the rights and liabilities of the parties or any matter arising out of or connected with this Agreement shall be subject to arbitration and pursuant to the Arbitration Act (Ontario) and the decision shall be final and binding upon the parties hereto and shall not be subject to appeal.
The arbitration shall be carried out by a single arbitrator if the parties can agree upon one, failing which, such arbitrator as shall be appointed by a judge of the Superior Court of Justice (Ontario) at Burlington, ON, upon the application of any of the parties and the said Judge shall be entitled to act as such arbitrator if he or she shall so desire. The arbitration shall take place in the City of Burlington and the arbitrator shall fix the time and place in such Municipality for the purpose of hearing such evidence and representation as the parties or any of them may present.
The decision of the arbitrator both in procedure and the conduct of the parties during the proceedings and the final determination of the issue shall be binding upon the parties hereto and no appeal shall lie therefrom. The costs of the arbitration shall be borne by the parties hereto as may be specified in the decision of the arbitrator. Submission to arbitration pursuant to the provisions of this section 16 shall be a condition precedent to bringing of an action with respect to this Agreement.
- SURVIVAL OF OBLIGATIONS. The provisions of sections 7, 8, 9, 10, 11, 14 and the General provisions including sections 17 to 35 shall survive the termination of this Agreement.
- All notices given under this Agreement shall be in writing and shall be sent to the identified contact person by registered mail, email or fax as set forth on page one (1) of the Agreement if intended for the Client. Any notices sent by fax or email shall be deemed to have been delivered the day they were sent. Any notices sent by registered mail will be deemed to have been duly delivered three (3) business days following the date of mailing. All notices intended for IT Force shall be sent by registered mail to 501-1100 Walkers Line, Burlington ON L7N 2G3; or by fax at 905-938-8463. Any notices sent by fax shall be deemed to have been delivered the day they were sent.
Any party may at any time give notice in writing to the other party of any change of address of the party giving such notice and from and after the giving of such notice the address therein specified shall be deemed to be the address of such party for the giving of notices hereunder.
- ENTIRE AGREEMENT. This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and there are no representations, warranties, covenants, agreements or collateral understandings, oral or otherwise, expressed or implied, affecting this instrument which are not expressly set forth herein.
- GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada, as applicable.
- WAIVER OF DEFAULT. Waiver by either party of any default by the other party shall not be deemed a continuing waiver of such default or a waiver of any other default.
- In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Agreement.
- The parties hereto have required that this Agreement and all documents or notices resulting therefrom or ancillary thereto be drawn up in the English language.
- FORCE MAJEURE. Other than with respect to the payment of fees to IT Force, in no event shall either party have any liability for failure to comply with this Agreement, if such failure results from the occurrence of any contingency beyond the reasonable control of the party including, without limitation, strike or other labour disturbances, riot, theft, flood, lightning, storm, any act of God, power failure, war, national emergency, interference by any government or governmental agency, embargo, seizure, or enactment of any law, statute, ordinance, rule, or regulation.
- THIRD PARTY BENEFICIARIES. Except as otherwise specifically stated in this Agreement, the provisions of this Agreement are for the benefit of the parties hereto and not for any other person.
If there are any questions regarding this master service agreement you may contact us using the information below.
Burlington, Ontario L7N 2G3
Last Edited on 2021-04-26