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Note on Incorporation
The following Master Services Agreement (“MSA”) sets forth the general terms and conditions for IT Symmetry’s services. Additional operational details—including service levels, rates, Managed Services Requirements, Fair Use Policy, and related policies—are available through our secure Customer Portal and are incorporated by reference into this MSA. In the event of any conflict between this MSA and the incorporated operational details, the terms of this MSA will control, unless expressly stated otherwise in a signed Statement of Work.
Master Services Agreement
This Master Services Agreement (“Agreement”) by and between IT Symmetry, Inc., a Minnesota corporation (“IT Symmetry”) and the legal entity identified in any Statement of Work (“Customer”) (individually, a “Party,” and collectively, “Parties”) is entered into as of the date an order for Products or Services (the “Effective Date”) is placed by Customer. Any capitalized term which is defined in this Agreement shall have the same meaning when used in any Statement of Work, unless the language or context requires otherwise. SOW-specific definitions, if any, shall be included in the applicable SOW and shall apply only with respect to such SOW.
1. Definitions
As used in this Agreement:
“Agreement” means this Master Services Agreement and all Statements of Work, schedules and attachments attached hereto or to or otherwise made a part of this Agreement.
“Confidential Information” means any information furnished by Discloser to Recipient during the term of this Agreement, including, without limitation, pricing, methods, processes, financial data, lists, statistics, software, systems or equipment, programs, research, development, strategic plans, operating data, or related information of each of the parties and/or its or their customers and suppliers, concerning past, present, or future business activities of said entities. This Agreement is the Confidential Information of IT Symmetry. All other Confidential Information must be clearly designated as “Confidential.” Information provided orally will be considered confidential only if a written memorandum of such information clearly designated as marked “Confidential” is delivered to Recipient within thirty (30) days of the Disclosure. As to any particular Confidential Information, “Discloser” means the Party disclosing the Confidential Information and the “Recipient” means the Party receiving the Confidential Information.
“Content” means information, software, Customer Data and other data including, without limitation, HTML files, scripts, programs, recordings, sound, music, graphics, and images that Customer or any of its Users create, install, upload or transfer in or through the Hosting Environment.
“Customer Components” means the hardware, software, other products, and other Content including, without limitation, those specified in a SOW as being provided by Customer.
“Customer Data” means all data and information about Customer’s business(es), customers, employees, operations, facilities, products, markets, assets or finances that IT Symmetry obtains, creates, generates, collects or processes in connection with its performance of Services and is stored in any Hosting Environment.
“Disclosure” means the release, publication, or dissemination of Confidential Information by a Party and excludes the release, publication, or dissemination of Confidential Information by a third party.
“Hosting Environment” means cloud hosting environment for the delivery of Services, consisting of, but not limited to, network, storage and server devices, software programs, applications network management devices, and other items specified in any Statement of Work.
“PCR” means a project change request (change order) signed by both Parties authorizing a change in the scope of the Services.
“Product(s)" shall have the meaning ascribed to it in Addendum A Terms Specific to Product Sales Only attached hereto and incorporated herein by reference.
“Required Consents” means any consents, licenses, or approvals required to give IT Symmetry, or any person or entity acting for IT Symmetry under this Agreement, the right or license to access, use and/or modify in electronic form and in other forms, including, without limitation, derivative works, the Customer Components and Content, without infringing the ownership or intellectual property rights of the providers, IT Symmetry, or owners of such Customer Components and Content.
“Services” means the information technology services to be delivered by IT Symmetry under this Agreement as specified in any Statement of Work and does not include Third Party Services.
“Statement of Work” or “SOW” (which may also be titled a “Description of Services” or “DOS”) shall have the meaning ascribed to it in Section 2.a. For purposes of this Agreement, any reference to a SOW shall be deemed interchangeable with a DOS.
“Third Party Services” means the information technology services to be delivered by a third party under this Agreement as specified in any Statement of Work.
“User” A "User" is defined as any licensed account in Microsoft 365 that entitles the account to a "User Mailbox". If the customer is not using Microsoft 365, a "User" will be defined as any user account that has an associated email address and mailbox.
2. General
a. Agreement Structure. This Agreement contains general contractual terms for all information technology services to be provided by IT Symmetry. The specific information technology services that IT Symmetry will provide, applicable pricing and payment terms, service level agreement, if any, and other transaction-specific provisions will be agreed upon through statements of work to this Agreement (each a “Statement of Work” or “SOW”). Each SOW shall be signed by both Parties and will be deemed to incorporate all of the provisions of this Agreement by reference. Each SOW will be a separate agreement between IT Symmetry and Customer.
b. Order of Precedence. In the event of any inconsistencies between the terms of this Agreement and the terms of any Statement of Work, the terms of this Agreement shall control. The Parties may specify in the applicable SOW that a particular provision of the SOW is to supersede a provision of this Agreement, in which case the superseding SOW provisions shall be applicable only to such SOW and shall be effective for such SOW only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement.
3. Services
a. Scope of Services. Subject to the terms and conditions in this Agreement and the applicable SOW, IT Symmetry will use commercially reasonable efforts to perform the Services described in the applicable Statements of Work.
b. Changes. In the event Customer wishes to add additional programs, applications or data sources, systems servers, network devices of any kind, requests an expansion in the scope of the Services, or increases the network load in the Hosting Environment managed by IT Symmetry under this Agreement, then Customer shall present its request for such alterations of its network to IT Symmetry for scoping. No alterations will be permitted under this Agreement without a signed PCR.
4. Confidentiality
a. Restrictions on Use; Non-Disclosure. Recipient agrees that it will use the same care and discretion to avoid Disclosure of any Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate (but in no event less than a reasonable degree of care). Except as otherwise expressly permitted in writing by an authorized representative of Discloser, Recipient agrees that it will not: (a) use the Confidential Information of Discloser for any purpose other than the purpose for which Discloser disclosed the information; or (b) disclose or reveal Confidential Information of Discloser to any person or entity other than its employees, directors, officers, agents and consultants who (i) have a need to know to further the purpose of this Agreement; and (ii) are subject to legally binding obligations of confidentiality no less restrictive than those contained in this Agreement.
b. Exceptions. The obligations set forth in Section 4.a. shall not apply to Confidential Information that: (a) before the time of its Disclosure was already in the lawful possession of the Recipient; or (b) at the time of its Disclosure to Recipient is available to the general public or after Disclosure to Recipient by Discloser becomes available to the general public through no wrongful act of the Recipient; or (c) Recipient demonstrates to have been lawfully and independently developed by Recipient without the use of or reliance upon any Confidential Information of the Discloser and without any breach of this Agreement.
c. Disclosures Required by Law. If Recipient becomes legally compelled (by deposition, interrogatory, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, then Recipient shall notify Discloser of the requirement promptly in writing so that Discloser may seek a protective order or other appropriate remedy. If a protective order or other remedy is not obtained, or if Discloser waives in writing compliance with the terms hereof, then Recipient shall furnish only that portion of the information which Recipient is advised by written opinion of counsel is legally required and to exercise reasonable efforts to obtain confidential treatment of such information.
d. Disposal of Confidential Information. Upon termination of this Agreement or upon Discloser’s request at any time, Recipient agrees to promptly return to Discloser all copies of Confidential Information. If return is impossible as to any portion of the Confidential Information, then Recipient shall certify to Discloser promptly that all such Confidential Information of Discloser, including all copies thereof, has been totally and permanently destroyed. IT Symmetry will return to the Customer, all Customer Data in its possession at the date of termination in its then-existing format and on its Customer-supplied media, however, IT Symmetry may keep a copy in accordance with its record retention policy. Any conversion of format or media performed by IT Symmetry in order to discharge its obligations under this Section shall be at Customer’s expense.
e. Remedies. The Parties acknowledge and agree that a breach of this Agreement by either Party will cause continuing and irreparable injury to the other’s business as a direct result of any such violation, for which the remedies at law will be inadequate, and that Discloser shall therefore be entitled, in the event of any actual or threatened violation of this Agreement by Recipient, and in addition to any other remedies available to it, to seek to obtain a temporary restraining order and to injunctive relief against the other Party to prevent any violations thereof, and to any other appropriate equitable relief.
f. Duration. The obligations set forth in this Section 4 shall apply during the term of this Agreement and for a period of one (1) year thereafter.
5. Force Majeure
a. Except for Customer payment obligations, neither party shall be liable for any failure of or delay in performance of its obligations under this Agreement to the extent such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, natural disasters, acts of a public enemy, pandemics, fires, floods, wars, civil disturbances, sabotage, accidents, insurrections, terrorism, blockades, embargoes, storms, explosions, labor disputes (whether or not the employees' demands are reasonable and within the party's power to satisfy), acts of any governmental body, failure or delay of third parties or governmental bodies from whom approvals, authorizations, licenses, franchises or permits must be obtained, or inability to obtain labor, materials, equipment, or transportation or illness of IT Symmetry's technical staff (collectively referred to herein as "Force Majeure"). Each party shall use reasonable efforts to minimize the duration and consequences of any failure of or delay in performance resulting from a Force Majeure event provided however, that should any such delay or failure continue for more than thirty (30) days, the Agreement may be terminated without liability by the non-delaying Party
b. In the event of a Force Majeure, IT Symmetry is not required to have staff work during periods or at places where their safety or health could be in jeopardy and in any event will not require staff to go on site.
c. If the work for Customer is substantially changed due to a Force Majeure, IT Symmetry will evaluate the need for change to IT services to Customer and related change of Fees. Recognizing there are ongoing expenses to IT Symmetry of maintaining backups, remote monitoring, other vendor support software/licensing and availability of technicians to service on going needs, IT Symmetry will review with Customer the need for change of Fees if any. Late fees will not be charged under an agreed scenario below:
i. Change in number of users or reduction in the price per user. If reduction is on a per user, as staff returns to work the per user fee will be added back to the monthly fee and prorated as of the date of return if mid-month.
ii. A flat fee charge per month. If the change is a flat fee per month, then billing will resume upon Customer's resumption of services as mutually agreed between IT Symmetry and Customer. This may be an evaluation between the parties of a gradual resumption of workers and network activity or an immediate resumption of workers and network activity.
iii. Deferred billing by a set percentage over some months. Then beginning after 6-12 months the deferred amount to be added back in subsequent months by percentage of deferred amount or as mutually agreed. For example: if IT Symmetry defers $1000 per month. Then after the number of months passes 25% of the $1000 is added back each month until fully paid.
6. Limitation of Liability
a. Limit on Types of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL (AND IT SYMMETRY’S SUPPLIERS AND LICENSORS WILL NOT) BE LIABLE TO THE OTHER PARTY OR ANY OTHER THIRD PARTY CLAIMING THROUGH A PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOST OR DAMAGED DATA, INVESTMENTS MADE, AND LOSS OF BUSINESS OPPORTUNITY OR INTERRUPTION) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT, ANY SOW, OR THE SERVICES, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, STRICT LIABILITY AND NEGLIGENCE), EVEN IF (A) SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) DIRECT DAMAGES DO NOT SATISFY A REMEDY, OR (C) A LIMITED REMEDY SET FORTH IN THIS AGREEMENT OR ANY SOW FAILS OF ITS ESSENTIAL PURPOSE.
b. Limit on the Amount of Damages Recoverable. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IT SYMMETRY’S TOTAL CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT AND THE SERVICES, REGARDLESS OF THE NATURE OF THE OBLIGATION, FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, STRICT LIABILITY, AND NEGLIGENCE), SHALL BE LIMITED IN ALL CASES TO AN AMOUNT WHICH SHALL NOT EXCEED, IN THE AGGREGATE, FEES PAID BY CUSTOMER TO IT SYMMETRY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY FOR THE SERVICES THAT ARE THE BASIS OF THE PARTICULAR CLAIM AND UNDER THE APPLICABLE SOW.
c. Non-Managed Systems. IT Symmetry shall not be liable for any damages caused by services, systems, software, or other components that neither it nor its employees, agents or subcontractors furnish or manage pursuant to this Agreement.
d. Applicability. The terms in this Section 6 shall apply to the maximum extent permitted by applicable law. If applicable law precludes a party from excluding liability for certain types of damages for certain acts or omissions or capping its liability for certain acts or omissions, then the terms in this Section 6 shall apply to not limit liability for such acts and omissions, but will apply for all other acts and om issions.
e. Allocation of Risk. EACH PARTY ACKNOWLEDGES THAT THE FOREGOING DAMAGES EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6 REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGES THAT THE OTHER PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ABSENT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY OR THAT THE PRICES PAID BY CUSTOMER FOR THE SERVICES WOULD HAVE BEEN HIGHER.
7. Warranty
a. By Each Party. Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; (b) it is in compliance, and will continue to comply during the term of this Agreement, with all laws and regulations governing its possession and use of Customer Data and its provision or use of the Services; and c) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
b. By Customer. Customer represents and warrants to IT Symmetry that: (a) it owns, or is a licensee of, having the right to sublicense, the Content and that Customer has the right to grant IT Symmetry the rights that Customer purports to grant in this Agreement; (b) IT Symmetry’s possession or use of the Content or Customer Data does not and will not infringe on, violate, or misappropriate any patent, trademark, or copyright, or misappropriate any trade secret or other proprietary right of any third party; and (c) it will not use, nor will it allow any third parties under its control to use, the Services for high risk activities, such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
c. Industry Standards. IT Symmetry represents and warrants to Customer that the Services shall be performed in a good, workmanlike, professional and conscientious manner by experienced and qualified employees of IT Symmetry according to the generally accepted standards of the industry to which the Services pertain. For Services containing a deliverable, such Services will be deemed accepted by Customer if not rejected in a reasonably detailed writing within five (5) days of submission to Customer, or as otherwise identified in the applicable Statement of Work. In the event the Services provided by IT Symmetry are not in conformance with this warranty, Customer must provide written notice to IT Symmetry within five (5) days after the performance of the Services and such notice will specify in reasonable detail the nature of the breach. Upon confirmation of the breach, IT Symmetry will use commercially reasonable efforts to take the steps necessary to correct the deficiency at no charge to Customer. This is Customer’s sole and exclusive remedy for breach of this warranty.
d. Service Levels. IT Symmetry represents and warrants to Customer that the Services will meet the technical standards of performance or service levels, if any, set forth in the applicable SOW. Customer’s sole and exclusive remedy for any failure to meet the applicable technical standards of performance or service levels shall be as specified in the applicable SOW.
e. Customer is not authorized to make, and Customer shall not make, any representations or warranties on behalf of IT Symmetry to any third party. Customer shall be solely responsible and liable for any representations or warranties that Customer makes to any third party regarding IT Symmetry, the Hosted Environment, the Services, or any other aspect of this Agreement. IT Symmetry makes no representations or warranties with regard to the Third Party Services and passes through to Customer the terms and conditions for the services delivered by a third party.
f. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM THE USAGE OF TRADE OR COURSE OF PERFORMANCE. NO EMPLOYEE, AGENT OR REPRESENTATIVE OF IT SYMMETRY IS AUTHORIZED TO MAKE ANY ADDITIONAL OR OTHER REPRESENTATIONS OR WARRANTIES ON BEHALF OF IT SYMMETRY. CUSTOMER IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES. IN ADDITION, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE INTERNET IS NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY, FOR WHICH IT SYMMETRY CANNOT BE HELD LIABLE.
8. Indemnity
a. Indemnification by IT Symmetry. Subject to the terms and conditions in this Agreement, IT Symmetry will, at its cost, (i) defend Customer and its officers, directors, shareholders, employees, agents, successors and assigns (collectively the “Customer Indemnified Parties”) from and against any claim, suit, action, or proceeding (threatened or otherwise) (each a “Claim”) made or brought by a third party against Customer Indemnified Parties to the extent based upon (a) any breach by IT Symmetry of any of it representations and warranties under Section 7.a.; (b) real property damage or personal injury, including death, solely and directly caused by IT Symmetry’s employees or contractors in the course of performance under this Agreement; (c) any breach by IT Symmetry of Section 4 but only with respect to the Disclosure of Confidential Information and to the extent the Disclosure is the result of actions predominantly attributable to IT Symmetry; and (d) any allegation that Customer’s receipt of the Services under this Agreement infringes any of such third party’s copyrights, or any such third party’s patents issued in the United States as of the Effective Date, or misappropriates any of such third party’s trade secrets (each an “IP Claim”); and (ii) IT Symmetry shall pay any final award of damages (or settlement amount approved by IT Symmetry in writing and) paid to the third party that brought any such Claim.
b. Indemnification by Customer. Customer will indemnify, defend and hold harmless IT Symmetry and its officers, directors, shareholders, employees, agents, successors and assigns from any and all liabilities, damages, costs and expenses, including reasonable attorney’s fees and expenses, arising out of any claim, suit or proceeding (threatened or otherwise) made or brought by a third party against IT Symmetry or its officers, directors, shareholders, employees, agents, successors and assigns based upon (a) any breach by Customer of any of it representations and warranties under Section 7; (b) real property damage or personal injury, including death, directly caused by Customer; (c) any breach by Customer of Section 4 but only with respect to the Disclosure of Confidential Information and to the extent the Disclosure is the result of actions predominantly attributable to Customer; (d) any breach by Customer of its obligations under the SOW; and (e) any claim that IT Symmetry’s possession, storage, or transmission of the Content or possession or use of the Customer Components, infringes on, violates, or misappropriates any patent, copyright, trademark, service mark, trade secret or other intellectual property or proprietary rights of such third party.
c. Procedure. A Party (or other person) having a right to defense and indemnification under this Agreement (“Indemnified Party”) that desires such indemnification shall tender to the Party having an obligation to defend and indemnify under this Agreement (“Indemnifying Party”) sole control of the defense and settlement of the Claim for which indemnity is sought, provided that the Indemnified Party shall notify the Indemnifying Party promptly in writing of each Claim and the Indemnified Party shall give the Indemnifying Party information and assistance to defend and settle the Claim. The Indemnified Party, at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense against any claim for which indemnification is sought under this Section 8. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of any Claim. In no event shall either Party make any settlement of a Claim, including without limitation, any settlement that involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by the Indemnified Party without the other Party’s prior written consent, which consent will not be unreasonably withheld, delayed, or conditioned.
d. Mitigation for IP Claims. At any time after notice of an IP Claim, or if IT Symmetry believes there is a basis for an IP Claim, IT Symmetry has the right, at IT Symmetry’s sole option and expense, to either (a) procure the right for Customer to continue receiving the Services as provided in this Agreement, or (b) replace or modify the applicable Service with a service that has substantially similar functionality and that IT Symmetry believes would not be subject to the IP Claim. If IT Symmetry deems (a) or (b) not feasible or not commercially reasonable, IT Symmetry has the right to terminate the applicable SOW. In the event of any such termination, IT Symmetry will refund to Customer the unused portion of any amounts paid by Customer for the affected Service. In addition, upon any such termination, Customer shall cease the use of the applicable Service.
e. Limitations as to IP Claims. Notwithstanding anything to the contrary, IT Symmetry shall have no obligations or liability under Section 8.a (Indemnification by IT Symmetry) if the IP Claim is based upon, arises out of, or is related to, in whole or in part, or if any of the following apply: (a) the combination of the applicable Service with any product, software, solution, or service not entirely developed and provided by IT Symmetry, (b) use of the applicable Service outside the scope of the licenses or rights set forth in this Agreement or in violation of any law or any restriction or limitation set forth in this Agreement, (c) Customer’s failure to comply with IT Symmetry’s direction to cease any activity that in IT Symmetry’s reasonable judgment may result in an IP Claim, (d) any allegation by a third party that does not specifically reference a IT Symmetry Service, or that does not reference a feature of function of a IT Symmetry Service, or (e) any IP Claim for which Customer does not promptly tender control of the defense thereof to IT Symmetry.
f. Sole Remedy. THE TERMS IN THIS SECTION 8 (INDEMNIFICATION) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND IT SYMMETRY’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 (INDEMNIFICATION), IT SYMMETRY SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR THIRD PARTY CLAIMS.
9. Network Software Modifications
a. IT Symmetry is not responsible for maintaining or repairing errors or security breaches that occur due to software installations, modifications, or enhancements made by anyone other than IT Symmetry or made by Customer without IT Symmetry's agreement. If unauthorized modifications need to be corrected, IT Symmetry may, at its option, charge at an hourly rate to correct, or, if correction is not feasible, may terminate this Agreement upon notice.
b. Customer agrees to consult with IT Symmetry before changing technical aspects of servers, changes to backup, granting further privileged access, or any security related system configuration changes. Any remediation of changes made by Customer shall be billed at time and materials rates. IT Symmetry will not be responsible for any security compromise, loss of data, interruption of services, or negative affects resulting from technical work performed by Customer staff. Corrections of unauthorized modifications shall be at the rate of per hour and may be grounds for immediate termination by IT Symmetry of this Agreement.
10. Remote Access
a. If Customer transitions to a home or alternative network, IT Symmetry will make its best effort to establish connections and ensure serviceability. However, these networks may not have adequate internet connectivity and equipment to ensure effective work. IT Symmetry is not responsible for any inadequacies in these home or alternative networks or for securing those connections. The home equipment used may not be as secure and may lack IT Symmetry’s software and security features. Additionally, IT Symmetry is not responsible for the security of the home or alternative networks. Any work done on these networks is outside the scope of this Agreement and IT Symmetry may charge its hourly rate for such work. Any additional software required for work on home or alternative networks will be charged by IT Symmetry.
11. Payment
a. Charges. Customer shall pay to IT Symmetry all recurring base monthly charges and non-recurring additional charges, for services, hardware or software not covered by the base rate at the rates and charges set forth on the applicable SOW or Customer quotation (the “Fees”) and shall be invoiced monthly.
b. Reimbursable Expenses. Except as may otherwise be stated in the applicable SOW, Customer agrees to reimburse IT Symmetry all reasonable and customary out-of-pocket expenses, including, but not limited to, airfare, rental car, mileage, tolls, and lodging expenses, incurred by IT Symmetry in connection with the performance of services. Meal expenses shall be billed at IT Symmetry’s then-current per-diem amount. Travel time will be billed at onehalf the on-site billable rate each way. Reimbursable expenses shall be invoiced on a monthly basis. Upon request by Customer, IT Symmetry shall provide copies of documentation for such expenses.
c. If payment for the monthly recurring base charges is not received by the first day of the month, IT Symmetry may put a hold on rendering on-site and remote services until paid. However, IT Symmetry will give a five (5) business day notice of late payment before taking any action.
d. Any applicable Federal, State, or Local Taxes shall be added to each invoice for services or materials provided by IT Symmetry, and Customer shall be responsible for paying such taxes unless a valid exemption certificate is furnished to IT Symmetry.
e. All invoices shall be due and payable within thirty (30) days after the invoice date. If Customer fails to make payment for any undisputed Fees, and such failure continues for fifteen days beyond due date, as a non-exclusive remedy, interest shall accrue on any amount due at the rate of 18% per annum until paid in full. In the event collection processes are instituted to collect any amounts due from Customer, Customer shall pay the costs of collection plus reasonable attorney fees.
12. Security Incidents
a. Despite IT Symmetry’s implementation of security controls and best practices, the majority of security incidents arise from the actions or inactions of Customer personnel, including but not limited to: failure to follow security training or policies, use of weak or compromised credentials, falling victim to phishing or social engineering, improper data handling, or unauthorized installation or use of software or devices. Customer acknowledges and agrees that it retains primary responsibility for the conduct of its employees, contractors, and agents, and that IT Symmetry cannot prevent all incidents. Customer shall cooperate fully with IT Symmetry during any investigation or remediation activities, including promptly providing information, access, and personnel as reasonably requested.
b. In the event of a suspected or confirmed security breach or cyber incident, IT Symmetry will take commercially reasonable immediate steps under Managed Services to secure Customer accounts and mitigate imminent risk (e.g., disabling compromised accounts, enforcing password resets). These initial containment efforts will be charged at IT Symmetry's then-current emergency rates. Any additional incident response or forensic investigation services beyond this immediate containment are outside the scope of Managed Services and will be performed subject to Customer’s prior written authorization and at IT Symmetry’s then-current emergency rates, pursuant to a separate Statement of Work.
13. Termination
a. Termination of this Agreement: This Agreement shall commence on the Effective Date and remain in effect until terminated by either party as provided in this Section 12.
b. Term of the SOW: The term of each SOW shall be as specified in that Statement of Work.
c. Termination for Convenience: Either Party may terminate this Agreement for convenience by providing at least sixty (60) days’ prior written notice to the other Party. If there are any pending Statements of Work, termination shall be effective upon the later of (i) the expiration or termination of the last Statement of Work, or (ii) sixty (60) days following the date of such notice. If there are no pending Statements of Work, termination shall be effective sixty (60) days after receipt of such notice.
d. Termination for Breach with Cure: Either Party may terminate this Agreement or any individual SOW if the other Party breaches any material provision of this Agreement or any SOW and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the non-breaching Party (“Cure Period”). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of the breach and how the breach can be cured within the Cure Period. If the breaching Party fails to cure the breach within the Cure Period, then termination shall be effective on the thirtyfirst (31st) day following receipt of such notice by the breaching Party.
e. Termination for Breach without Cure: Either Party may terminate this Agreement or any individual SOW if: (a) the other Party breaches any representation or warranty in this Agreement; (b) any representation or warranty is inaccurate, incomplete, false or misleading in any material aspect; or (c) the breach is of a type or nature that is not capable of being cured within such time period (such as, by way of example and not limitation, an obligation relating to Confidential Information). The notice from the non-breaching Party shall specify the basis on which the Agreement or SOW is being terminated, including a description of any breach. Termination shall be effective immediately upon receipt of such notice by the breaching Party.
f. Termination for Financial Insecurity. Either Party may terminate this Agreement and all SOWs upon written notice if the other Party ceases conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership, or reorganization. Termination shall be effective upon receipt of the written notice.
14. Dispute Resolution
a. Except for routine collections action, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration. Before commencing any arbitration proceedings, the aggrieved party must first present the claim or dispute in writing to the other party. The parties shall have 30 days to resolve the claim or dispute. If not resolved, then the aggrieved party may commence arbitration proceedings. The arbitration shall be conducted by Arbitration Resolution Services, Inc. (ARS) or other mutually agreed upon dispute resolution service and the parties shall be bound by any and all rules of the American Arbitration Associations United States Commercial Resolution Dispute Resolution Procedures for Consumer–Related Disputes. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. Arbitration shall be conducted by an arbitrator experienced in Information Technology Services and experience required for arbitrator and shall include a written record of the arbitration hearing. An award of arbitration may be converted to judgment in a Court of competent jurisdiction. The location of arbitration shall be in the home city, county of IT Symmetry. The fees and expenses of the arbitrator and proceedings shall be paid by the losing party.
15. Ownership
a. Services. IT Symmetry retains all right, title, and interest in the Services and in all improvements, enhancements, modifications, or derivative works thereof including, without limitation, all rights to patent, copyright, trade secret, and trademark. The Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws, and Customer agrees not to disclose such information to any third party without IT Symmetry’s prior permission.
b. Content. IT Symmetry acknowledges and agrees that all Content, including copyrights, trademarks, database rights and other intellectual property contained in such Content are owned or licensed by Customer. Customer grants IT Symmetry a license to store, record, transmit and display the Content solely to perform IT Symmetry’s obligations under this Agreement.
16. Miscellaneous
a. Non-Solicitation. Customer and IT Symmetry agree to not solicit for hire, hire, or otherwise engage any of the employees or contractors of the other party, either directly or indirectly during any period Services are provided under this Agreement or in the 12-month period immediately following termination of this Agreement. This prohibition will not apply to job opportunities posted on recruiting websites or in other publications in which one Party seeks to find candidates for open positions (absent direct solicitation and/or recruitment).
b. Waiver. The failure of either Party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights and the obligations of the Party with respect to such future performance and shall continue in full force and effect.
c. Relationship of Parties. The Parties hereto are independent contractors and this Agreement shall not create or imply an agency relationship between the Parties. Pursuant to and during the term of this Agreement, IT Symmetry may, from time to time, request that the Customer execute such instruments and documents appointing IT Symmetry an agent of the Customer for a specific limited purpose. An officer of Customer shall, in a timely manner, execute and deliver to IT Symmetry or the third party requiring the same, such instruments designating IT Symmetry as Customer’s agent to the extent required by IT Symmetry to manage and perform to Services provided by it under this Agreement.
d. Attorney Fees. Customer shall reimburse IT Symmetry for any and all expenses including, without limitation, reasonable attorney fees and legal expenses, that IT Symmetry pays or incurs in protecting and enforcing its rights under this Agreement.
e. Insurance. Each Party will obtain and maintain in effect during the term of this Agreement, a policy or policies of comprehensive general liability, workers’ compensation, professional liability and other types of insurance each deems necessary to protect their individual interests from such claims, liabilities, or damages which may arise out of the performance of their respective obligations under this Agreement. For the avoidance of doubt, each Party is solely responsible for insuring its personal property wherever located and each Party acknowledges that neither of them will insure the property of the other while it is in transit or in the possession of the opposite Party.
f. Export Compliance. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer shall be solely responsible for such compliance with respect to Customer Data and the Content that it provides to It Symmetry.
g. Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination. Without limiting the generality of the foregoing statement, Sections 6 (Limitation of Liability); 7 (Warranty); 8 (Indemnity); and 14 (Ownership); shall survive any termination of this Agreement.
h. Subcontractors. IT Symmetry may engage subcontractors to perform services under any SOW. Except as provided herein, IT Symmetry shall be fully responsible for the acts of all subcontractors to the same extent it is responsible for the acts of its own employees.
i. Assignment. This Agreement is fully assignable by IT Symmetry. Immediately upon assignment the assignee’s name, address and contact information shall be provided to Customer. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.
j. Severability. In the event that any of the provisions of this Agreement are declared or held by a court of competent jurisdiction invalid, illegal or unenforceable, the unaffected portions of this Agreement shall be unimpaired and remain in full force and effect. In the event of such a ruling, the Parties shall negotiate in good faith a substitute for the provision declared invalid, illegal or unenforceable.
k. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing and shall be sufficiently given if hand delivered or sent by first-class certified or overnight delivery mail, postage prepaid:
If to IT Symmetry:
IT Symmetry, Inc.
567 Sterling St. S.
Saint Paul, MN 55119
If to Customer, then to the person executing this Agreement at the Customer’s last known address.
A Party may change its address for notices by sending a change of address notice using this notice procedure.
l. Errors. Neither Party shall be held accountable nor incur any additional costs due to discrepancies, errors, omissions in documentation or other information supplied by the other Party.
m. Active Negotiations. Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement.
n. Captions. The descriptive headings of the Sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation.
o. Amendments. No waiver of any right or remedy and no amendment, change or modification of the terms of this Agreement shall be binding on a Party unless it is in writing and is signed by the Party to be charged.
p. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement.
q. Publicity. Nothing contained in this Agreement shall be interpreted so as to permit IT Symmetry or Customer to publicize its business relationship with the other Party or the nature of the Services performed for Customer, without the other Party’s prior written consent.
r. Choice of law. This Agreement and any amendments and its validity, construction and performance shall be governed by the laws of the state of Minnesota. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be the state or federal courts in Hennepin County, State of Minnesota and the parties agree and consent to such jurisdiction and venue.
s. This Agreement does not create any rights in any third parties.
ADDENDUM A:
TERMS SPECIFIC TO PRODUCT SALES ONLY
This Addendum A: Terms Specific to Product Sales Only (“Addendum A”) applies to any order for software, hardware, or Services Sold by Part Number (“Products”) made by Customer, for its own internal use and not for resale, pursuant to a quotation issued by IT Symmetry (“Quotation”). As used in this Addendum A, the term “Services Sold by Part Number” refers to services, which although ordered from IT Symmetry, are procured from and supplied by a third party (i.e., IT Symmetry does not directly perform or control the work) and are therefore considered Product. Any such orders shall be subject to the terms and conditions of this Addendum A.
1. Product Returns and Warranty Assistance.
(a) Customer acknowledges that IT Symmetry is reselling all Products purchased by Customer and that Products are manufactured and/or delivered by a third party.
(b) To the extent available, IT Symmetry shall pass through to Customer the manufacturer’s warranties for each Product and agrees to facilitate the manufacturer’s return policies. In no event will IT Symmetry provide return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).
(c) Customer acknowledges that the terms and conditions governing the use of Products shall be solely between Customer and the manufacturer of such Products.
2. Product Use and Product Warranty Disclaimer. Customer will not use the Products for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. Customer agrees that IT Symmetry is not liable for any claim or damage arising from such use.
IT SYMMETRY MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PRODUCTS. IT SYMMETRY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
3. Shipment and Risk of Loss for Product Sales. All shipments of Products to Customer will be FOB point of shipment. Insurance coverage, freight charges, transportation costs, and all other expenses applicable to shipment to Customer’s identified point of delivery will be the responsibility of Customer. Risk of loss will pass to Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or Customer’s representative at the point of shipment.
4. Product Security Interest. Customer grants IT Symmetry a security interest in the Products detailed in each Quotation, as security for payment in full. Customer authorizes IT Symmetry to file and/or record any documents it deems necessary to perfect this security interest.
5. Permitting Compliance for Product Sales. Customer will obtain all licenses, permits, and approvals required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.
6. Price and Payment. The prices set forth in any Quotation are exclusive of all taxes, duties, licenses, and tariffs, payment of which shall be Customer’s obligation. Prices quoted are firm for Client Name Managed Services Agreement | Mar 3, 2023 the time period specified in the quotation. In the event Customer chooses to finance its purchase using a third party, Customer remains liable for payment to IT Symmetry until IT Symmetry receives complete payment from such third party. All payments will be made in US currency. Customer will pay interest in the amount of one and one-half percent (1.5%) per month, or the maximum allowed by law whichever is lower, on any outstanding balance owed.
7. Export. Customer agrees to comply with all export and re-export control laws and regulations as may be applicable to any transaction hereunder, including, without limitation, the Export Administration Regulations promulgated by the United States Department of Commerce, the International Traffic in Arms Regulations promulgated by the United States Department of State, and any of the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury. Customer covenants that it will not, either directly or indirectly, sell, (re)export (including, without limitation, any deemed (re)export as defined by applicable law), transfer, divert, or otherwise dispose of any Product, or related software or technology, to: (i) any country or region of a country (or nationals thereof) subject to antiterrorism controls, or a U.S. embargo, (ii) any destination prohibited (without a valid export license or other authorization) by the laws or regulations of the United States, or (iii) any person, entity, vessel, or aircraft identified on the Consolidated Screening List, a downloadable file of which is accessible at http://export.gov/ecr/eg_main_023148.asp (or utilize any such person, entity, vessel, or aircraft in connection with the activities listed above), without obtaining prior authorization from the competent government authorities, as required by the above-mentioned laws and regulations. Customer certifies, represents and warrants that no Product shall be used for any military or defense purpose, including, without limitation, being used to design, develop, engineer, manufacture, produce, assemble, test, repair, maintain, modify, operate, demilitarize, destroy, process, or use military or defense articles. Notwithstanding any sale of Products by IT Symmetry, Customer acknowledges that it is not relying on IT Symmetry for any advice or counseling on export control requirements. Customer agrees to indemnify, to the fullest extent permitted by law, IT Symmetry from and against any fines, penalties and reasonable attorney fees that may arise as a result of Customer’s breach of this Section.
8. Cancelation. The purchase of Products may be canceled by Customer only upon written approval of IT Symmetry and upon terms that indemnify IT Symmetry against all losses related to such cancelation.
9. Limitation of Liability. NO MONETARY RECOVERY IS AVAILABLE FROM IT SYMMETRY FOR WARRANTY CLAIMS. IN ADDITION, IN NO EVENT WILL IT SYMMETRY’S LIABILITY TO CUSTOMER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT THAT IS THE BASIS FOR THE PARTICULAR CLAIM. IT SYMMETRY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR IN ANY WAY CONNECTED TO THIS ADDENDUM A, EVEN IF IT SYMMETRY HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.
We call Minneapolis/St Paul home, but we serve customers throughout the region and the world. We spend an awful lot of time thinking about IT so you don't have to. After all you've got a lot better things to be doing. Fill out the form and a helpful, down to earth, pocket protected geek will get back to you soon.
2010 E Hennepin Ave Suite 7-205, Minneapolis, MN 55413
Serving Saint Paul, Minneapolis, and the greater Twin Cities area.
651.739.7770
hello@itsymmetry.com