XIRGO - Computer & Network Services Agreement - Montreal-Based IT Management & Support for SMB’s.

Computer & Network Services Agreement

Carefully read & agree to the terms listed in this agreement. Upon purchase of the service, we will email you a copy of your agreement.
THIS COMPUTER & NETWORK SERVICES AGREEMENT (the "Agreement") dated this 15th day of August, 2012 

BETWEEN

You (the "Customer") - AND - XIRGO of 16 Westminster Ave N, Suite 304B, Montreal-Ouest, Quebec, Canada, H4X1Z1 (the "Computer & Network Services Provider").

BACKGROUND:

A.The Customer is of the opinion that the Computer Services Provider has the necessary qualifications, experience and abilities to provide services to the Customer.
B.The Computer Services Provider is agreeable to providing such services to the Customer on the terms and conditions set out in this Agreement.

IN CONSIDERATION OF the matters described above and of the mutual benefits and obligations set forth in this Agreement, the receipt and sufficiency of which consideration is hereby acknowledged, the Customer and the Computer Services Provider agree as follows: 

1. DEFINITIONS

1.1. Effective Date – The term of this Agreement (the "Term") shall commence upon the Effective Date on this Agreement and shall continue for a period of twelve months and shall renew automatically for subsequent one-year periods if neither the Computer Services Provider, nor the Customer terminate this agreement (1) one month prior to the expiration of the then current term in written form. The date of expiration shall in any applicable case be the last day of a calendar month. With respect to this month, month 1 of the commitment table shall be first full month following the Effective Date hereof. (Example: Effective Date 14.10.2012; First Commitment month November 2012; Expiration / Renewal Date 31.10.2013). 

1.2. Minimum Charge - Charges payable by the Customer for the subscription to the Services for the minimum subscription period selected.

1.3. Equipment – Equipment and (or) software supplied, loaned, rented or sold to the Customer by Computer & Network Services Provider, as the case may be, including, without limitation, routers, "The Black Box", switches, cable modems and other telecommunications equipment.

2. PURPOSE

2.1. Services – Subject to the terms and condition of this agreement, Computer & Network Services Provider agrees to provide the following services to the Customer:

2.1.1. Supported Computers: The Customer undertakes and acknowledges that the term "Supported Computers", as used in the advertising of the IT Management Plans, refers to the amount of computers supported based on the IT Management Plans.

2.1.2. Support Tickets: The Customer undertakes and acknowledges that the term "Support Tickets", as used in the advertising of the IT Management Plans, refer to the amount of supported tickets which is included in their designated monthly IT Management Plan. 
If the Customer subscribes to the Small Business IT Management Plan, the service-related activities include limited usage of the support ticket system for 5 tickets per month.

If the Customer subscribes to the Medium Business IT Management Plan, the service-related activities include unlimited usage of the support ticket system per month.

If the Customer subscribes to the Fully Managed IT Management Plan, the service-related activities include unlimited usage of the support ticket system per month.

2.1.3. Common Application: Computer & Network Services Provider agrees to provide the Customer with support for Common Applications such as but not limited to: Windows Operating Systems, Microsoft Office, Browsers, Patches and updates. It is understood that Computer & Network Services Provider from time to time may support additional application however will not be obliged.

2.1.4. End User Ticket Creation: Computer & Network Services Provider agrees to provide the Customer and its user’s equal to the amount of Supported Computer’s access to a ticket creation system. This system may be provided in forms of email, web based and phone.

2.1.5. On-site Support: Computer & Network Services Provider agrees to provide the Customer On-site support to its facilities. The Customer is aware that such support included in the monthly IT Management Plans shall be at the sole discretion of Computer & Network Services Provider’s staff and will only be provided after all remote support capabilities have been exhausted. The Customer may request an On-Site visit at any time at the addition costs provided on its website as per subsection 2.2 of this Agreement.

2.1.6. Guaranteed Response Time: Computer & Network Services Provider agrees to achieve to the best of its abilities the maximum Guaranteed Response Time specified in the IT Management Plans during Computer & Network Services Provider’s regular support hours.

2.1.7. "The Black Box" Management: Computer & Network Services Provider agrees to provide full support of the "The Black Box" to its Customers. This includes but not limited to: Firewall Modification, Port Forwarding, Content Management and Report Generating.

2.1.8. Emergency! Requests: Computer & Network Services Provider agrees to provide on request of the Customer a number of Emergency support as specified on the Customers plan. Computer & Network Services Provider will automatically use the Emergency requests for tasks that require instant resolution in order to increase the priority of the request.

2.2. Additional Services – Computer & Network Services Provider also agrees to provide the Customer with any other services, rental or sale of additional equipment which, if required by the Customer, shall be governed by the terms and conditions set out in this agreement (the "Additional Services").

2.3. Other Services – The services shall also include:

2.3.1. On-line technical support to help the Customer with configuration and ensure that the network works properly.

2.3.2. Technical support, maintenance and repair services following installation of the Service, so the Customer can enjoy the Services and use the Equipment supplied by Computer & Network Services Provider.

2.4. Customer’s Account Payment – Payment by the Customer of its account constitutes confirmation that the Specifications in the statement comply with the agreement between the Customer and Computer & Network Services Provider.

3. PAYMENT OF SERVICE

3.1. Charges payable by the Customer – Starting on the Effective Date, in consideration of provision of Services to the Customer in accordance with the Specifications, the Customer undertakes to pay Computer & Network Services Provider the amount representing the Minimum Charges indicated on the account statement. The Customer further undertakes to pay Computer & Network Services Provider any other charges related to Additional Services required from time to time by the Customer in accordance with subsection 2.2 as well as the charges related to the support and installation Services required and rates may be modified by Computer & Network Services Provider from time to time upon (30) days’ prior notice to the Customer. The list of Computer & Network Services Provider charges and rates currently in effect is available on Computer & Network Services Provider’s Web Site or by contacting your account manager.

3.2. Taxes – All applicable taxes charges are in addition to the charges and rates described in section 3.1.

3.3. Billing – Charges shall be payable on the due date indicated on the account statement sent to the Customer (by mail or electronically), by authorized payment debited from the Customer’s account or by pre-authorized payment debited Customer’s credit card. If the charges remain unpaid following the due date, they shall bear interest at the rate of 1.5% per month (19.56% per annum) calculated and compounded daily as of the due date. As long as charges remain unpaid, Computer & Network Services Provider shall issue an account statement on a monthly basis. Any partial payment made by the Customer will first be applied to the accrued interest, then to the unpaid capital, starting with the overdue amounts due the earliest with respect to the payment date.

3.4. Minimum Charges – The Minimum Charges related to the Service shall be billed in advance for Services to be provided to the Customer, the whole in accordance with the Specifications. Subject to the provisions of subsection 3.5, the charges payable for the provision of Service for a portion of a period shall be pro-rated to the number of days of availability of Services to the Customer in proportion to the total number of days included in such period. Advance payment on a basis other than monthly is merely a method of payment and does not grant the Customer any advantages whatsoever or protection against any rate increase applicable to any portion of the period of which the Customer’s last payment was received. However, this subsection 3.4 does not apply the charges, rates and terms of payment applicable during certain promotions periods.

3.5. Additional Charges – The Customer undertakes to observe the usage limits set out in the subsection 2.1.2, as indicated for the type of subscription selected by the Customer. For Small Business IT Management Plan, usage in excess of the limits set out in the subsection 2.1.2 shall be invoiced to the Customer at a rate of $30 per excess support ticket, without billing limit for excess usage.

3.6. Overdue Account – In the event (i) the account sent by Computer & Network Services Provider to the Customer falls overdue or (ii) the Customer fails to comply with the provisions of this agreement, Computer & Network Services Provider may refuse to provide the Customer with additional Service or support Service pending complete payment of the overdue account and interrupt the Service in accordance with the provisions of subsection 10.7 of this agreement.

3.7. Overpayment – Any overpayment by the Customer shall be applied to the next account statement. In the event there remains an overpayment and Computer & Network Services Provider ceases to provide Services to Customer and said Customer does not owe Computer & Network Services Provider any amount, Computer & Network Services Provider shall reimburse the Customer within forty-five (45) days of the termination of Services.

4. CUSTOMER’S OBLIGATIONS

4.1. Equipment – The Customer undertakes to notify Computer & Network Services Provider promptly of any defects, failing which the Customer shall be deemed to have received the Equipment in good repair condition.

4.2. Utilization of the Equipment – The Customer shall use the Equipment with care, caution, and diligence. The Customer also undertakes to comply with the instruction manuals provided by Computer & Network Services Provider, where applicable, and with any instructions or requirements of Computer & Network Services Provider relating to the router, "The Black Box" or modem.

4.3. Prohibition – Except with prior written consent of Computer & Network Services Provider, the Customer may not use the "The Black Box", router or modem unauthorized by Computer & Network Services Provider for the purpose of using the Services. 

4.4. Access to Customer’s Offices - The Customer undertakes, to the extend reasonable, to allow free access to a duly authorized Computer & Network Services Provider representative, during normal business hours, to the premises where the Services are provided to the Customer and where the "The Black Box" or router are located and, where applicable, to ensure compliance with the Customer’s obligations under this agreement.

4.5. Connections – The Customer undertakes not to connect to the Services a number of computers greater than the number agreed in the Specifications, without the prior written consent of Computer & Network Services Provider.

4.6. Non-Solicitation - During the term of this Agreement and for the period of one (1) year after the termination of this Agreement, Customer shall neither solicit, discuss employment with, offer employment to, nor otherwise use, hire or utilize the service of any employee of Computer & Network Services Provider or any person who has been employed by Computer & Network Services Provider within one (1) year prior to the date of solicitation, hiring or other such activity.

5. CUSTOMER’S RESPONSIBILITY

5.1. Identification Element – The Customer shall be solely responsible for the use of the Service made using his or her assigned user name and password. Consequently, Computer & Network Services Provider assumes no liability with regards to acts or omissions of the Customer or any other person using the Customer’s user name or password. Without limiting the generality of the foregoing, the Customer shall be responsible for all expenses incurred at the time of purchases of any other transactions carried out using the Services.

5.2. Loss of Equipment – The Customer shall immediately notify Computer & Network Services Provider should the rented Equipment be lost, stolen, broken or destroyed. In such case, regardless of whether or not the Customer is at fault, and in case of Equipment not being returned at the end of this agreement, the Customer undertakes to pay Computer & Network Services Provider the compensatory indemnity set out in Schedule A hereto.

6. OWNERSHIP OF EQUIPMENT

6.1. Rented or Loaned Equipment – It is expressly understood by the parties that Computer & Network Services Provider shall remain the owner of the rented or loaned Equipment, as stipulated in subsection 2.2 of this agreement, and that such Equipment shall remain the sole and complete property of Computer & Network Services Provider.

6.2. Grant of Lease of "The Black Box" - Computer & Network Services Provider ensures that the Customer is granted with a non-exclusive, non-perpetual right and lease to have "The Black Box" integrated in its network, during the term of this Agreement.

7. EQUIPMENT PURCHASE

7.1. Final Sale – The sale of the Equipment shall be final and the Equipment may not be returned or refunded without Computer & Network Services Provider’s consent.

7.2. Work by Computer & Network Services Provider – Computer & Network Services Provider shall install or have installed the Equipment on the Customer’s company network, at Customer’s expense.

8. SERVICE & EQUIPMENT GUARANTEE

8.1. No Representation or Warranty – Computer & Network Services Provider makes no express or implied representation or warranty regarding the Services and Equipment, other than its obligations under this agreement. The Service and Equipment are supplied "as is", subject to availability.

8.2. Exclusions – Without limiting the generality of the foregoing, Computer & Network Services Provider does not warrant i) the uninterrupted functioning of the Service or their hardware and software components; ii) that the Service meet the Customer’s needs or that their use is free of bugs or viruses; or iii) the performance, availability, use or interrupted use of the Service and, where applicable, that all functional problems can be resolved.

9. LIMITATION OF LIABILITY

9.1. Obligations of Computer & Network Services Provider – Computer & Network Services Provider shall fulfill its obligations under this agreement with diligence and to the best of its ability.

9.2. Exclusion – Except in cases of gross negligence or deliberate fault on its part, Computer & Network Services Provider shall not be liable to the Customer or any other person for damages it or persons under its control may cause, regardless of their nature. Without limiting the generality of the foregoing, Computer & Network Services Provider shall not be liable for material loss (including loss relating to software) resulting from a change in software configuration, computer virus, content, use, validity or quality of the Services provided through the Internet, "The Black Box", loss or destruction of data due to intrusion or otherwise or unauthorized interception of communications or delay in their transmission or receipt. Should Computer & Network Services Provider nonetheless be found responsible for a loss or damage of any nature whatsoever, its liability shall be limited to crediting the Customer an amount equal to the monthly charges payable by the Customer for a maximum period of one month.

9.3. Other Exclusions – Computer & Network Services Provider shall under no circumstances be liable for any loss or expenses related to any allegation, claim, lawsuit or other proceeding based on the use of Computer & Network Services Provider’s Services by the Customer or a third party using a password or user name assigned by Computer & Network Services Provider to the Customer, to the effect that third parties’ intellectual property rights or contractual rights have been violated.

9.4. Service limits – Computer & Network Services Provider agrees to make an effort so that the Service offered to the Customer under this agreement are provided to the Customer’s satisfaction. However, Computer & Network Services Provider cannot, under any circumstances, guarantee that the Services offered are compatible with the Customer’s hardware and software.

9.5. Sales Promotion Services – Computer & Network Services Provider may offer certain Services to existing or new Customers free of charge for purpose of sales promotion (the "Sales Promotion Services"). In such an event, Computer & Network Services Provider shall under no circumstances owe any amount whatsoever to its Customers who do not enjoy the benefits of the Sales Promotion Services.

10. TERM AND TERMINATION

10.1. Term – Subject to the provisions set out below, this agreement shall come into force on the Effective Date and shall have a minimum term of twelve (12) months, which shall be automatically renewed for additional successive period of twelve (12) months unless Computer & Network Services Provider receives a notice of non-renewal from the Customer thirty (30) prior to expiry of the Subscription Period or any other renewal period, as the case may be.

10.2. Sales Promotion – If the subscription is part of a sales promotion offered by Computer & Network Services Provider whereby the Customer enjoys lower rates than would have been the case without such sales promotion, the subscription shall be for the period covered by the sales promotion (the "Sales Promotion Period") and may not be terminated before such period ends. Upon expiry of the Sales Promotion Period, the subscription shall be automatically with the conditions or at the regular rate in effect for this type of subscription in accordance with the conditions or rates applicable to such sales promotion, unless Computer & Network Services Provider receives a notice of non-renewal from the Customer ten (10) days prior to the expiry of the Sales Promotion Period.

10.3. Termination in the Context of a Sales Promotion – Notwithstanding the provisions of subsection 10.2, should the Customer terminate a subscription contracted as part of a sales promotion before the end of the Sales Promotion Period, the Customer shall pay Computer & Network Services Provider the following penalties, as damages:

10.3.1. For IT Management Plans: A penalty equal to 50% of the monthly payments remaining in the contact.

10.4. Default – Computer & Network Services Provider may terminate this agreement or interrupt the Services at any time without prior notice and without prejudice to any of its rights vis-Ã -vis the Customer in the event the latter fails to comply with one or more of the provisions of this agreement.

10.5. Interruption or Termination Due to Overdue Account – Computer & Network Services Provider may interrupt the Services or terminate this agreement if the Customer fails to pay an account on its due date, upon prior written notice of at least five (5) days to the Customer indicating the reason and scheduled date of interruption of the Services, the amount due by the Customer and, where applicable, the charges for restoring the Services, the charges for terminating the agreement if payment is not made by the Customer within such period of five (5) business days and any other charges payable to Computer & Network Services Provider. Termination charges mean: i) the amount owed by the Customer to Computer & Network Services Provider in accordance with this agreement; and ii) any amount payable by the Customer to Computer & Network Services Provider under this agreement for the remaining period of this agreement. Following termination of the agreement, Computer & Network Services Provider shall reimburse the Customer, where applicable, the portion paid in excess of the Customer’s monthly charges. The Customer may contact Computer & Network Services Provider’s Customer service for any comment or information to such effect.

10.6. Bankruptcy and Insolvency – This agreement shall be terminated as of right without any notice being required where the Customer becomes insolvent, makes a general assignment of his or her property for the benefit of his or her creditors or is declared bankrupt, if an order of receivership or liquidation is rendered against him or her, or if he or she attempts to rely upon any law governing insolvency, bankruptcy or arrangements with creditors.

10.7. Effects of Termination – Upon termination of this agreement, all obligations of Computer & Network Services Provider hereunder shall be extinguished.

10.8. Equipment Recovery Charges – In the event this agreement is terminated, the Customer undertakes to return the rented Equipment to Computer & Network Services Provider promptly. The Customer undertakes to pay Computer & Network Services Provider all charges incurred by the latter to locate the Equipment or obtain possession of same or to recover any amount due and unpaid under this agreement.

10.9. Return of Property - Upon the expiry or termination of this Agreement, the Computer Services Provider will return to the Customer any property, documentation, records, or Confidential Information which is the property of the Customer.

11. PERSONAL INFORMATION

11.1. Customer’s Personal Information – The Customer confirms that all personal information provided to Computer & Network Services Provider is accurate and acknowledges that he or she has been informed i) that such personal information will be used for management of his or her Customer file (credit, billing, collection); ii) that the information contained in the Customer file shall be accessible only if necessary in connection with the purpose of such record to employees or agents of Computer & Network Services Provider in the performance of their duties; and iii) that the Customer file shall be kept at Computer & Network Services Provider’s Customer service, at the address indicated on the Customer’s statement, to which the Customer shall send any request for access or correction to personal information. The Customer undertakes to inform Computer & Network Services Provider promptly of any changes of the personal information provided to Computer & Network Services Provider. Unless a Customer provides express consent or disclosure is pursuant to a legal power, all information kept by Computer & Network Services Provider regarding the Customer, other than the Customer’s name, address and listed telephone number is confidential, and may not be disclosed by Computer & Network Services Provider to anyone other than:

a) the Customer;
b) a person who, in the reasonable judgment of Computer & Network Services Provider, is seeking information as an agent of the Customer;
c) an agent retained by Computer & Network Services Provider in the collection of the Customer’s account, provided the information is required for and is to be used only for that purpose;
d) a public authority or agent of a public authority, for emergency public alerting purposes, if a public authority has determined that there is an imminent or unfolding danger that threatens the life, health or security of an individual and that the danger could be avoided or minimized by disclosure of information.

11.2. Name list – The Customer authorizes Computer & Network Services Provider to include his or her name, address and telephone number(s) on its list of Customer for business development purposes, and to forward such list to its affiliates for the same purposes, and the Customer shall have the right to withdraw this authorization at any time, by means of a verbal or written request to such effect to Computer & Network Services Provider’s Customer service, the address and telephone number of which are indicated on the Customer’s statement.

11.3. Protection of Personal Information – The personal information supplied by the Customer to Computer & Network Services Provider shall be treated in accordance with the Code of Computer & Network Services Provider with respect to the protection of personal information, which is available upon request at Computer & Network Services Provider’s Customer service, the address and telephone number of which are indicated on the Customer’s statement.

12. CONFIDENTIALITY

12.1. Confidential Information – (the "Confidential Information") refers to any data or information relating to the business of the Customer which would reasonably be considered to be proprietary to the Customer including, but not limited to, accounting records, business processes, and client records and that is not generally known in the industry of the Customer and where the release of that Confidential Information could reasonably be expected to cause harm to the Customer.

The Computer Services Provider agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which the Computer Services Provider has obtained, except as authorized by the Customer. This obligation will end on the termination of this Agreement.

All written and oral information and materials disclosed or provided by the Customer to the Computer Services Provider under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to the Computer Services Provider.

13. GENERAL PROVISIONS

13.1. Governing Law – This agreement shall be interpreted in accordance with the laws in force in the Province of Quebec and shall be subject to the jurisdiction of courts of the District of Montreal.

13.2. Customer Service – Any questions concerning the Services or the Customer’s account should be address to Computer & Network Services Provider’s Customer service.

13.3. Transfer – The Customer is not authorized to transfer this agreement or the Equipment without prior written consent of Computer & Network Services Provider. Any attempt by the Customer to transfer this agreement of the Equipment without prior consent of Computer & Network Services Provider shall be null and void. Computer & Network Services Provider is authorized to transfer its right or obligations under this agreement or its interests herein.

13.4. Entire Agreement – This agreement sets out all the terms agreed upon between the Customer and Computer & Network Services Provider pertaining to the subject matter hereof; and takes precedence over all agreements covenants, promises and representations relating thereto.

13.5. Effect if Waivers – No waiver of any provision or condition of this agreement or covering any breach or default thereof shall be effective unless it is set forth in writing and signed by the party making such waiver, and the latter shall not constitute a waiver of any other provision or condition of the agreement or any subsequent breach or default of the same or similar nature.

13.6. Severability – The invalidity, illegality or unenforceability of any of the provisions of this agreement shall not affect or invalidate any other provision hereof.
A copy will be
emailed to you upon
purchase of the service.
AGREE & CONTINUE IT Management Plans