MCaaS

Matrix Networks' MCaaS Terms & Conditions

The terms and conditions set forth herein govern Customers ordering and use of Services and Equipment (as defined below) provided by Matrix Networks (“Matrix”).

Payment

Buyer shall be obligated to begin making payments at the Commencement of Services.  Commencement of Services means that Buyers purchased Data Services have been installed, tested and are ready for use. The requirement for Buyers to make payments is not dependent on the Services being installed in ALL purchased locations. Each site shall be pro-rated according to the date of “Commencement of Services” for that site.

Changes

Any changes to the original Agreement either requested by the “Buyer”, or proposed by “Seller”, must be approved by the “Buyer” and “Seller” through a signed Change Order Form.

Taxes

“Buyer” shall pay all taxes related to the Services that are being provided in the signed Sales Quote(s), including, but not limited to: Federal, State and Local Sales or Use taxes, whether domestic or foreign.

Premises Requirements

“Seller” shall deliver and install the Services at the Premises set forth in each Sales Quote, and “Buyer” agrees to accept delivery; and to permit “Seller” access to the Premises, as “Seller” shall require, for the purpose of installing Services.  If any given Premises are not available to “Seller” and ready for the installation of the Equipment within sixty days after the estimated date installation is to commence, “Seller” will have the option to terminate any given Sales Quote without liability to “Seller” for such termination.

Installation Requirements

“Buyer” will provide the items and environmental conditions required by “Seller”, including but not limited to a dedicated electrical outlet, proper cooling and ventilation for the Equipment, and items outlined in the Implementation Agreement.  A temperature-controlled environment with a temperature range of 50° to 75° Fahrenheit is recommended. Premature failure of the listed Equipment will not be covered by the manufacturer’s warranty or a Matrix Networks warranty if the recommendations regarding environmental conditions are not followed. The expense of such conditions shall be the sole responsibility of the “Buyer”.

Installation Definition

Services are considered installed when a of minimum one circuit and the associated Software Defined Wide Area Networking (SDWAN) device are connected and providing internet to defined location.

Risk of Loss

The risk of loss or any damage to or destruction of the Equipment or any portion thereof from and after the time of delivery thereof to the Premises shall be on Buyer except with respect to damage or destruction resulting from the negligence or willful conduct of the Seller.

Security Interest

Seller owns, and will at all times retain title to, any router(s), switches, or other hardware that Seller delivers or otherwise provides to Buyer (the "Equipment"), and Buyer grants Seller full access to Buyer's Internet circuits so that Seller can connect the Equipment to Seller's network (including without limitation providing Seller a user name and login information.  Buyer will, at Buyer's expense, promptly return the Equipment to Seller upon the expiration or earlier termination of this Agreement for any reason.  Upon expiration or earlier termination of this Agreement for any reason, Buyer will return the Equipment to Seller as Seller instructs. Buyer authorizes Seller to file with the appropriate governmental entity in the state where Buyer is incorporated or organized one or more Uniform Commercial Code Financing Statements reflecting Seller's ownership of the Equipment. If Buyer fails to return the Equipment within 30 days of Seller’s instruction, Seller shall request, in writing, access and entry to the premises where the Equipment is located to take possession of all or any part of the Equipment.  Should Buyer fail to respond within 15 days to Seller’s written request, Seller may invoice Buyer for the current cost to replace.

Warranties

Seller hereby warrants the Services against defective parts or workmanship for the term of the agreement and/or during the time in which Buyer is continuing to make ongoing monthly payments. Seller’s liability under this warranty is conditioned upon the receipt of prompt notice of defects from Buyer and is limited to repairing or, at Seller’s sole option, to replacing the Equipment.  SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES, FOR INJURY TO PERSONS OR PROPERTY OR FOR COMMERCIAL LOSS OR OTHERWISE.  THIS WARRANTY SHALL BE VOID AS TO THE EQUIPMENT DAMAGED OR RENDERED UNUSABLE BY THE WILLFUL ACT, NEGLIGENCE AND/OR TAMPERING OF PERSONS OTHER THAN SELLER.  SELLER HEREBY ASSIGNS TO BUYER (TO THE EXTENT IT HAS THE RIGHT TO DO SO) THE BENEFITS OF ANY WARRANTIES OR GUARANTEES PROVIDED TO SELLER BY THE MANUFACTURER (S) OF THE EQUIPMENT.  THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) INCLUDING WARRANTY OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY SET FORTH HEREIN AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

Force Majeure

Seller shall not be liable for failure to perform its part of the Agreement when such failure is due to fire, flood, strikes or similar labor disturbances, industrial disturbances, war, riot, insurrection and/or other causes beyond its reasonable control. In the event Seller’s performance hereunder is prevented due to one or more such causes, at its sole option, Seller shall have the right to either terminate this Agreement and reclaim or be paid for the Equipment installed to date of such termination or to continue with its performance hereunder following the cessation of such causes and receive the benefit of Buyer’s performance hereunder as though such causes had not occurred.

Liability of Termination of Contract

This Agreement will be effective beginning on the Requested Delivery and Service Start Date in the Order and will remain in force for the time period specified in the Order (the "Initial Term").  After the Initial Term, this Agreement will automatically renew for successive 36-month periods (each a "Renewal Term" and together with the Initial Term, the "Term") unless one party notifies the other party at least 30 days before the end of the then current Term that this Agreement will not renew at the end of that Term.  In addition, (a) Seller may terminate this Agreement at any time during the Term if Buyer fails to pay any monthly recurring charge within five days after its due date; (b) either party may terminate this Agreement if the other party fails to cure any other breach of this Agreement within 30 days of its receipt of written notice describing in reasonable detail the nature of the breach. Buyer is not responsible for fees otherwise due and owing if it terminates the Agreement due to Seller’s breach and failure to cure after notification.

Delays

Seller is not responsible for any delays, changes, modifications, or additional charges incurred in the installation of service on the part of the local or inter exchange carrier or utility (i.e. AT&T, CenturyLink, Comcast, Verizon, and Integra etc.). Should any utility or carrier delays outside of the control of the Seller hold up the Installation of the hardware, or require changes in equipment or project scope (whether temporary or permanent), actual costs incurred by Seller will be reimbursed by Buyer. Such costs may include, but are not limited to delivery costs, labor costs, standby costs, and special equipment orders.

Illegal use of Services

The Buyer shall not use the Service for any illegal activity. This includes but is not limited to illegal transactions or illegal entry to unauthorized sites anywhere on the Internet. Illegal transactions include the use of the Service in credit card fraud, all forms of trafficking (e.g. child and drug trafficking), uploading or downloading of copyrighted material, on the internet. The Buyer acknowledges and is cognizant of the fact that the consequences of illegal usage could result in the Buyer’s domain being blacklisted. The Buyer shall not use the Service to transmit unsolicited spam and shall not forge email headers. The Buyer shall indemnify the Seller against any actions brought against it in respect of the Buyer's acts, omissions, including, but not limited to, defamation or breach of copyright arising from such acts or omissions and against all costs, charges, claims, demands, damages and expense which the Seller may incur in any such action.

Sub-licensing

Seller hereby grants to Buyer a non-exclusive, paid-up license to use the manufacturer’s copyrighted software subject to terms and conditions concerning restrictions on its use as follows: Buyer agrees not to execute, use, copy, alter or modify the Software (except for making an archival back-up copy as provided in the U.S. Copyright Law) or take any action inconsistent with the manufacturer’s intellectual property rights in the Software. Buyer agrees not to decompile or reverse assemble the Software, or analyze or otherwise examine it for reverse engineering the Software or for reverse engineering any hardware or firmware implementation of the Software.  Buyer agrees not to resell the Software. Buyer agrees to use the Software only in conjunction with the equipment configuration on which Software may be executed and at the originally installed site without first obtaining written permission otherwise from Seller.

Indemnification

Buyer shall defend, indemnify and hold harmless Seller, its officers, agents and employees, from any and all claims, liabilities, demands, damages, actions or proceedings arising from or relating to the negligence, wrongful acts, or omissions of Buyer in connection with the performance of any services under this contract. Seller shall defend, indemnify and hold harmless Buyer, its officers, agents and employees, from any and all claims, liabilities, demands, damages, suits, actions or proceedings arising from or relating to the negligence, wrongful acts, or omissions of Seller in connection with the performance of any services under this agreement Seller shall not be deemed an agent of Buyer under the Oregon Tort Claims Act.

Miscellaneous

This Agreement shall be construed and performed in accordance with the laws of the State of Oregon.  In the event that any term or condition of this Agreement is determined to be contrary to law or unenforceable for any reason whatsoever, such determination shall not in any way affect the validity or enforceability of any other term or condition thereof.  The prevailing party in any legal action brought to enforce this Agreement or any portion thereof shall be reimbursed by the other party for its reasonable costs and attorney’s fees relating to such action.

Entire Agreement

This Agreement, constitute the entire Agreement between Buyer and Seller with respect to the subject matter, and no waiver, modification or amendment of any of the terms and conditions hereof shall be effective unless set forth in writing duly signed by Seller and Buyer. 

 

 

Matrix Networks' Equipment Purchase & Services Terms & Conditions 

The terms and conditions set forth herein govern Customers ordering and use of Services and Equipment (as defined below) provided by Matrix Networks (“Matrix”).The terms and conditions set forth herein govern Customers ordering and use of Services and Equipment (as defined below) provided by Matrix Networks (“Matrix”). 

Definitions

Definitions. The following definitions apply to these terms and conditions:

  • "Account" means the account established by Customer with Matrix for the use of the Service and/or Equipment described in the Service Order and/or Equipment Sales Order.
  • “Customer” or “you” or “your” means the firm, corporation, or other entity which orders Matrix’s Service and/or Equipment and executes a Service Order or Equipment Sales Order.
  • "Customer Equipment" means any Customer-provided equipment or wiring used in conjunction with and/or is connected to the Service. Customer Equipment includes, without limitation, all customer premises equipment (e.g., Private Branch Exchange (PBX), Key System, telephones, handsets, and computers). Customer Equipment also includes all equipment purchased by Customer from Matrix or any third party.
  • "Equipment” means all hardware at Customer’s location(s) that is directly provided and maintained by Matrix.
  • "Service" or “Services” means the services provided to Customer by Matrix, including voice, data, and all other types of communications services. The specific services to be provided by Matrix to Customer are listed in the Service Order and/or Equipment Sales Order executed by Customer.
  • "User" means any person or entity that obtains or uses Matrix's Service and/or Equipment provided under this Agreement, regardless of whether such person or entity is authorized by Customer.
  • "Voice over Internet Protocol" or "VoIP" means a technology that enables callers to use IP networks (e.g., the internet or private IP network) as the transmission medium for telephone calls by sending voice data in packets using IP rather than by traditional circuit switched technology.
  • "Website" means the Matrix website identified by the domain name www.mtrx.com, along with any content set forth therein, as updated from time to time by Matrix in its sole discretion.

Terms and Conditions

Acceptance. By executing the Equipment Sales Order and/or Service Order or by ordering, activating, using, or paying for the Service or Equipment, Customer agrees to be bound by these terms and conditions.

Use. Customer is responsible for all use of the Service and Customer Equipment, and Equipment associated with the Account. Customer accepts full responsibility and liability for such use. Customer and all Users shall not utilize the Service or Equipment for any unlawful purpose. Customer shall not use Service for transmitting or receiving any communication or material of any kind when the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national, or international law, or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national, or international law. Illegal transactions included, but are not limited to credit card fraud, trafficking (including but not limited to child and drug trafficking) and uploading or downloading copyrighted material). Customer acknowledges that such activities can result in Customer’s domain being blacklisted. Customer shall not use the Equipment or Services provided by Matrix to transmit unsolicited SPAM and shall not forge email headers. Matrix, in its sole discretion, may terminate Service immediately and without advance notice if Customer violates any of the above restrictions, leaving Customer responsible for any and all charges due and owing at the time of termination under this paragraph.

Fraud. Customer is responsible for ensuring that all Customer premises equipment, regardless of whether such equipment is provided by Customer or Matrix, is protected from fraudulent or unauthorized access. Customer is responsible for payment of all charges on Customer’s monthly billing statement, including any charges resulting from any fraudulent or unauthorized access to any User account. Customer agrees to notify Matrix promptly if it becomes aware of any fraudulent or unauthorized use of the Service and/or Equipment. Matrix shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s Account and the payment of all charges to Customer’s Account shall be and remain the responsibility of Customer.

Limitations of E911 Service. (i) Customer agrees and acknowledges that due to the unique nature of VoIP services (including, but not limited to mobility and portability of dial-tone service), there is potential for inaccurate Customer provided physical address information, thus emergency E911 operator services cannot be provided to Customer by Matrix with certainty. Customer shall defend, indemnify and hold Matrix, its officers, directors, employees, agents, and contractors harmless from any and all losses, damages, claims, allegations, causes of action, liabilities, penalties, fines, costs and expenses, and any other liabilities, including, without limitation, reasonable attorneys’ fees and court costs, (collectively, “Claims”), arising out of or related to the inaccuracy of any information, the inadequacy of any procedure, and/or the act, error, or omission of any Customer employee, agent, or contractor or any User, relating to the activation, implementation, use, or provision of E911 service. Neither Matrix nor any Matrix employee, agent, or contractor shall be liable for damages to any person, corporation, or entity relating to or arising from the provision or unavailability of E911 service other than an act or omission constituting gross negligence or willful misconduct. Additionally, if Customer uses a PBX Key System or any other multiline telephone system in connection with the Service provided by Matrix, Customer is responsible for programming the telephone system to ensure that agencies receiving E911 emergency calls through the telephone system will receive accurate information about the location of the caller. During a power outage at any Customer location, normal phone service, including E911 calling, may be unavailable. Matrix uses the termination address of Customer telephone service to identify Customer calling location for E911 calls/service. To ensure that E911 authorities receive Customer’s correct address, the Matrix telephone services should not be moved without advance written notification to Matrix. Customer must provide at least five (5) business days prior written notice to Matrix to move or relocate any telephone service. (ii) By using the Service and/or Equipment, Customer acknowledges the limitations of E911 service as described in the E911 Disclosure, as well as those set forth in this Section 2(d). Customer agrees and acknowledges that while some individual services offer access to E911 Matrix Networks may not. Customer is advised to thoroughly understand the E911 service. Customer further acknowledges that it has received the information regarding the limitations of E911 services, has read, understands, and agrees to the terms and conditions of the E911 Disclosure, and assumes the risks associated with the E911 service limitations. Matrix Networks may disclose to the Federal Communications Commission that Customer has acknowledged the E911 Disclosure by virtue of Customer having accepted this Agreement.

Availability. The Service and Equipment are offered subject to the availability of the necessary facilities, power, services, and equipment, and subject to the provisions of the terms and conditions set forth herein. Matrix shall not be responsible or liable for any reasonable delay(s) in installing or providing any Service or Equipment ordered by Customer.

Limitations of Service and Equipment. Customer or any User may not be able to utilize the Service or Equipment, if: (i) the Customer Equipment fails; (ii) the power required to operate Customer’s or any User’s computer, router, modem, or any other equipment, if applicable, fails; (iii) Customer’s or any User’s computer experiences hardware or software problems and/or viruses; (iv) Customer’s or any User’s internet service provider fails to provide adequate services for any reason; (v) Customer’s or any User’s hardware or software is improperly installed. By using the Service and Equipment, Customer and its Users acknowledge that the Service and/or Equipment may be limited in certain circumstances and may not be available 100% of the time. Matrix will not be liable for errors in transmission or for failure to establish connections. In addition, Customer acknowledges and agrees that the Service and/or Equipment may not be compatible with certain fax machines or firewalls.

Customer Responsibilities. By using the Service and/or any Equipment, Customer, on behalf of itself and all Users, agrees to abide by all rules and regulations, including the exportation of data from the U.S. or other applicable jurisdictions. With respect to Customer’s use of the Service and/or any Equipment as well as any Customer Equipment, Customer shall be responsible for any claim or damages arising from or related to: libel; slander; invasion of privacy; infringement or unauthorized use of any copyright, trademark, trade name, service mark, or any other intellectual property right; interference with or misappropriation or violation of any proprietary or creative right; any injury to any person, property, or entity arising out of the material, data, information, or other content used, received, or transmitted by Customer or any User; and any act, error, or omission by Customer or any User. Unless caused by the gross negligence or willful misconduct of Matrix, Customer shall also be responsible and liable for any personal injury, property damage, or death of any person caused, directly or indirectly, by Customer, any User, or any Customer employee, agent, or contractor, arising from or related to the installation, maintenance, location, condition, operation, failure, presence, use, or removal of the Service, Equipment, or any Customer Equipment.

Additional Responsibilities. Customer is also responsible for all internal wiring, Customer Equipment, installation of hardware and software on Customer Equipment, and arrangement of access rights for Matrix including space for cables, conduits, and equipment as necessary for Matrix-authorized personnel to install, repair, inspect, maintain, replace, or remove any and all facilities and equipment provided by Matrix. Upon request by Matrix, Customer will work directly and in good faith with its building owner or property management firm and Matrix to secure a written building access agreement. Customer shall provide a secured space with electrical power, climate control and protection against fire, vandalism, and other casualty for equipment. Required Maintenance. Matrix reserves the right to perform maintenance on or upgrade the Service, and/or Equipment, without prior notice or liability, even if such actions cause a partial or full disruption of the Service; however, Matrix will use commercially reasonable efforts to perform maintenance on and upgrades the Service and Equipment in a manner so as to avoid unduly interfering with Customer’s use of the Service.

Equipment. Unless otherwise agreed to in writing between Customer and Matrix or purchased and fully paid for by Customer from Matrix as set forth in the Equipment Sales Order or other written agreement between Matrix and Customer, all Equipment provided to Customer by Matrix or a Matrix-designated vendor and used for the provision or support of any voice and/or data service shall at all times remain the property of Matrix. Upon discontinuance or termination of Service for any reason, all Equipment shall be promptly returned, at Customer’s expense, by Customer to Matrix as Matrix instructs. If Buyer fails to return the Equipment within 30 days of Seller’s instruction, Seller shall request, in writing, access and entry to the premises where the Equipment is located to take possession of all or any part of the Equipment.  Should Buyer fail to respond within 15 days to Seller’s written request, Seller may invoice Buyer for the current cost to replace.

Delivery and Installation. Matrix shall deliver and install the Equipment at the Premises set forth in the Equipment Purchase Order prepared by Matrix, and Customer agrees to accept delivery and to permit Matrix access to the Customer’s Premises as Matrix shall require for the purpose of installing the Equipment. If the Premises are not available to Matrix and ready for the installation of the Equipment within sixty days after the estimated date installation is to commence, Matrix shall have the option to terminate this Agreement without liability to Matrix for such termination. Customer grants Matrix full access to Customer’s internet circuits so that Matrix can connect Equipment to Matrix’s network (including without limitation, providing Matrix a user name and log in information.

Installation Requirements. Customer will provide the items and environmental conditions required by Matrix, including but not limited to a dedicated electrical outlet, proper cooling and ventilation for the Equipment and items outlined in the Implementation Requirements provided by Matrix to Customer. A temperature controlled environment with a temperature range of 50° to 75° Fahrenheit is recommended. Premature failure of the listed Equipment will not be covered by the manufacturer’s warranty or a Matrix Networks warranty if the recommendations regarding environmental conditions are not followed. The expense of such conditions shall be the sole responsibility of Customer. Customer grants Matrix full access to Buyer's Internet circuits so that Matrix can connect the Equipment to Customer's network (including without limitation providing Matrix a user name and login information).

Risk of Loss. The risk of loss or any damage to or destruction of the Equipment or any portion thereof from and after the time of delivery thereof to the Premises shall be on Customer except with respect to damage or destruction resulting from the negligence or willful conduct of Matrix.

Security Interest. Matrix owns, and will at all times retain title to all Equipment. Customer hereby grants to Matrix a security interest in the Equipment to secure payment of the unpaid portion of the Price, notwithstanding installation of the Equipment in the Premises or its attachment to real property, and hereby authorizes Matrix to file financing statements signed only by Matrix in any and all places such financing statements may be filed by Matrix to perfect the security interest in the Equipment herein granted in accordance with the Uniform Commercial Code. In addition, Customer shall execute and deliver to Matrix such documents, as Matrix shall request in order to perfect such security interest in the Equipment upon default in payment of the Price. Matrix may declare the entire unpaid balance of the Price due and payable and shall be entitled to exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Failure to pay is considered a material breach.

Equipment Warranty. Matrix hereby warrants the Equipment against defective parts or workmanship for the term of the applicable Equipment Sales and/or Service Order between Matrix and Customer. Matrix’s liability under this warranty is conditioned upon the receipt of prompt notice of defects from Customer and is limited to repairing or, at Matrix’s sole option, to replacing the Equipment. MATRIX SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES, FOR INJURY TO PERSONS OR PROPERTY OR FOR COMMERCIAL LOSS OR OTHERWISE. THIS WARRANTY SHALL BE VOID AS TO THE EQUIPMENT DAMAGED OR RENDERED UNUSABLE BY THE WILLFUL ACT, NEGLIGENCE AND/OR TAMPERING OF PERSONS OTHER THAN MATRIX. MATRIX HEREBY ASSIGNS TO CUSTOMER (TO THE EXTENT IT HAS THE RIGHT TO DO SO) THE BENEFITS OF ANY WARRANTIES OR GUARANTEES PROVIDED TO MATRIX BY THE MANUFACTURER (S) OF THE EQUIPMENT. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES (WHETHER WRITTEN, ORAL OR IMPLIED) INCLUDING WARRANTY OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY SET FORTH HEREIN AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

Delays. Matrix is not responsible for any delays, changes, modifications, or additional charges incurred in the installation of service on the part of the local or inter exchange carrier or utility (i.e. AT&T, CenturyLink, Comcast, Verizon, and Integra etc.). Should any utility or carrier delays outside of the control of the Matrix hold up the Installation of the hardware, or require changes in equipment or project scope (whether temporary or permanent), actual costs incurred by Matrix will be reimbursed by Customer. Such costs may include, but are not limited to delivery costs, labor costs, standby costs, and special equipment orders.

Term and Termination. The term of the executed Service Order is stated therein and shall control as to the commencement date and duration of the same Agreement. Service Orders cannot be cancelled, transferred or terminated by the Customer during the term because fees have been directly paid to the carrier for license updates and keys. The terms and conditions set forth herein shall remain in effect for as long as Matrix is providing any Service or Equipment to Customer or until the expiration of the applicable Partner Support Agreement, whichever occurs last. Notwithstanding any other provision of this Agreement, Matrix has the right to suspend Service, and terminate this Agreement for Customer’s material breach, immediately upon written notice if any amount owed by Customer is delinquent for more than thirty (30) days from the invoice date.

Effect of Termination. Matrix shall have no liability from any termination of this Agreement provided that it is conducted in accordance with the terms of this Agreement.

III. Limitation of Liability. Matrix's liability for damages arising out of any mistake, interruption, omission, delay, error, or defect which occurs in the course of installing, providing, maintaining, or modifying Service and/or Equipment or for any other reason, shall in no event exceed the amount paid to Matrix by Customer for the services and/or Equipment giving rise to such liability.

NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS AND CONDITIONS OR ANY AGREEMENT BETWEEN MATRIX AND CUSTOMER, IN NO EVENT WILL MATRIX, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND CONTRACTORS, BE LIABLE TO CUSTOMER, ANY USER, OR ANY THIRD PARTY FOR ANY CLAIM, LOSS, EXPENSE, OR DAMAGE DUE TO LOSS OF REVENUES, PROFITS, SAVINGS, BUSINESS, OR GOODWILL, NOR WILL MATRIX, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES AGENTS, AND CONTRACTORS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY, WITHOUT LIMITATION, TO ANY CLAIM, LOSS, EXPENSE, OR DAMAGE, RELATING TO OR ARISING FROM: (I) ANY MALFUNCTION OF ANY SERVICE, EQUIPMENT, NETWORK PROVIDED BY MATRIX; (II) MATRIX’S SUSPENSION OR TERMINATION OF SERVICES IN ACCORDANCE WITH THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO ALL CLAIMS, DAMAGES, AND ALLEGATIONS WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCTS LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY.

EXCEPT FOR THIRD PARTY MANUFACTURERS’ WARRANTIES WHICH MAY BE APPLICABLE TO THE EQUIPMENT, THE EQUIPMENT AND SERVICE ARE PROVIDED BY MATRIX ON AN “AS IS” BASIS, AND CUSTOMER’S AND ANY USER’S USE OF THE EQUIPMENT AND SERVICE ARE AT CUSTOMER’S OWN RISK. WITHOUT LIMITING THE FOREGOING, MATRIX DISCLAIMS ANY WARRANTY OR CONDITIONS ON THE PRODUCTS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FUNCTION AND NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED. MATRIX MAKES NO WARRANTY THAT THE SERVICE OR EQUIPMENT WILL OPERATE UNINTERRUPTED OR ERROR FREE.

Use of Internet. Matrix makes no representation that the internet or any third party network used by Matrix will adequately protect the privacy of Customer’s or any User’s personal information, and Matrix expressly denies any liability associated therewith.

Financial Terms

Payment. All Matrix invoices are due within thirty (30) days of the invoice date and all payments must be made in U.S. currency. Matrix may terminate all agreements with Customer in the event that Customer fails to pay any invoice within 5 days after its due date. Customer is solely responsible for any and all charges incurred as the result of the use of the Services associated with Customer’s Account, whether or not such charges were authorized or intended. All professional services shall be paid by Customer once rendered by Matrix. Matrix may suspend, restrict, or cancel use of the Service and Equipment, if Customer does not make full payment of all billed charges by the due date. Any amounts not paid to Matrix within thirty (30) days of the date of the applicable invoice shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount allowed by law, whichever is less. Customer shall also reimburse Matrix for all attorneys’ fees and other costs incurred by Matrix in connection with bringing any action to collect any payments or arising from any Customer breach of this Agreement.

Invoice Delivery. Unless otherwise agreed to in writing, all invoices shall be delivered electronically via the email address on file for Customer’s Account. Customer is obligated to keep its Account information accurate and current. An incorrect or obsolete email address shall not release Customer from any of its payment obligations.

Add-On Purchases. Support for all add-on purchases will be billed at the time of shipment of the addition products, and will be pro-rated for the remaining term of the agreement, at the same rate as the Support agreement in effect at the time of purchase.

Taxes. Federal, state, local, county, municipal, and other government or regulatory agencies may assess taxes, including, without limitation, excise, franchise, sales, value-added, use, personal and real property taxes, surcharges and/or fees (“Taxes”) on Customer’s purchase and/or use of the Service and/or Equipment. These Taxes may change from time to time, with or without notice to Customer. Except for Taxes on Matrix’s net income, Customer is responsible for the payment of all applicable Taxes now in force or enacted in the future. Such amounts are in addition to the charges paid for the Service and Equipment contracted for in the executed Service Order and/or Equipment Sales Order between Matrix and Customer. The imposition of or increase in any Taxes shall not constitute a rate increase and shall not give Customer a right to terminate this Agreement or any Service Order.

Fees. In addition to any Taxes imposed by governments or regulatory agencies, Matrix reserves the right at any time to charge or increase various fees (“Fees”), including, and without limitation, activation fees, universal service fees, and regulatory recovery fees as well as recover costs associated with complying with government or regulatory programs. The imposition of or increase in any Fees shall not constitute a rate increase and shall not give Customer a right to terminate this Agreement or any Service Order.

Sub-Licensing. Matrix grants to Buyer a non-exclusive, paid-up license to use the manufacturer’s copyrighted software subject to terms and conditions concerning restrictions on its use as follows: Customer agrees not to execute, use, copy, alter or modify the Software (except for making an archival back-up copy as provided in the U.S. Copyright Law) or take any action inconsistent with the manufacturer’s intellectual property rights in the Software. Customer agrees not to decompile or reverse assemble the Software, or analyze or otherwise examine it for reverse engineering the Software or for reverse engineering any hardware or firmware implementation of the Software. Customer agrees not to resell the Software. Customer agrees to use the Software only in conjunction with the equipment configuration on which Software may be executed and at the originally installed site.

Billing Errors. Matrix’s obligation with respect to any errors resulting in Customer overpayment for Service and/or Equipment is limited to granting invoice credits equal to the dollar amounts of the overpayment. Under no circumstances will any billing error affect Customer’s obligation to pay for Services and/or Equipment provided by Matrix.

Service Suspension, Termination and Restoration. Matrix may suspend or terminate Customer’s Service, and may terminate its’ Agreement(s) with Customer if Customer fails to meet any of its payment obligations or if Customer or any User uses the Service in violation of this Agreement or in violation of any law. If Service is suspended for non-payment of charges, it will only be restored when all charges are paid in full. However, Matrix may, at its sole option, choose to restore or reestablish Customer’s Service prior to the payment of all charges due. Such restoration or re-establishment shall not be construed as a waiver of Matrix’s right to receive full payment for all charges due or as a waiver of any rights to suspend or disconnect Service for nonpayment of any such charges due and unpaid or for the violation of any provision of this Agreement; nor shall the failure to suspend or disconnect Service for non-payment of any past due amount operate as a waiver or estoppel to suspend or disconnect Service for non-payment of any invoice or of any other past due amount.

Indemnification. Customer shall, at its expense, indemnify, defend and hold harmless Matrix, its officers, directors, employees, agents, and contractors, from and against any and all Claims arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any User of the Service or Equipment; (ii) any breach by Customer of any term or condition of any Service Order or this Agreement; (iii) any claim by any employee or invitee of Customer or User other than a claim based on the gross negligence or willful misconduct of Matrix; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Service and/or Equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent. Matrix shall defend, indemnify and hold harmless Customer, its officers, agents and employees, from any and all claims, liabilities, demands, damages, suits, actions or proceedings arising from or relating to the negligence, wrongful acts, or omissions of Matrix in connection with the performance of any services under its Partner Support or Equipment Sales Order(s) with Customer.

Governing Law. These terms and conditions and any updates thereto, the Sales Order and any addendums or exhibits thereto, Equipment Purchase Order and any addendums or exhibits thereto, shall be governed by and enforced according to the laws of the state of Oregon without giving effect to any conflicts of laws rules. words “include” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”

Entire Agreement and Merger. The executed Sales Order and/or Equipment Purchase Order and any addendums or exhibits thereto between Matrix and Customer, along with the terms and conditions set forth herein, constitute the entire Agreement between Customer and Matrix with respect to the subject matter hereof. These terms and conditions are to be considered fully integrated with any Sales Order or Equipment Purchase Order (and any amendments thereto) between Matrix and Customer.

Basis of Bargain. Customer acknowledges and agrees that Matrix has established its prices and entered into Agreements with Customer in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in these terms and conditions and are an essential basis of the bargain between the parties and are material terms of the Agreement(s) between Matrix and Customer. Matrix and Customer agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.

No Third Party Beneficiaries. These terms and conditions and all executed Partnership Support and Equipment Sales Order(s) between Matrix and Customer do not extend to any third party and there are no third party beneficiaries.

Force Majeure. Matrix shall not be liable for failure to perform its part of the Agreement when such failure is due to fire, flood, strikes or similar labor disturbances, industrial disturbances, war, riot, insurrection and/or other causes beyond its reasonable control. In the event Matrix’s performance hereunder is prevented due to one or more such causes, at its sole option, Matrix shall have the right to either terminate this Agreement and reclaim or be paid for the Equipment installed to date of such termination or to continue with its performance hereunder following the cessation of such causes and receive the benefit of Customer’s performance hereunder as though such causes had not occurred.

Interpretation of Agreement. These terms and conditions and all Partnership Support and Equipment Sales Order(s) between Matrix and Customer will be construed and interpreted fairly, in accordance with the plain meaning of their terms, and there will be no presumption or inference against the party drafting this Agreement or any Service Order in construing or interpreting any of the provisions contained in this Agreement or any Service Order. In the event of any inconsistency between or among any Partnership Support Agreement, Equipment Sales Order or terms and conditions contained in the main body of this document, the terms and conditions contained in the main body of this document shall take precedence and apply. Acknowledgment.

Entire Agreement. These terms and conditions (and any updates hereto), the Sales Order and/or Equipment Purchase Order (and any amendments thereto) provided by Matrix and signed by the Customer constitute the entire agreement between Matrix and Customer with respect to the purchase of Equipment and the support services provided by Matrix and supersedes any other verbal or written communications or advertisement.

THESE TERMS AND CONDITIONS MATERIALLY AFFECT CUSTOMERS’ LEGAL RIGHTS. CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD AND AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN WITHOUT LIMITATION AND HAS HAD SUFFICIENT TIME TO SEEK LEGAL COUNSEL CONCERNING THE SAME.