1 SERVICES TERMS AND CONDITIONS
These Services Terms and Conditions (the “T&Cs”) apply to the purchase of professional services (the “Services”) for the delivery of consulting, installation, education, and training Services by MetroSys, Inc. (an Nevada corporation doing business as MetroSys) and its subcontractors (“MetroSys”). The Services shall be described in a Work Order and signed by both the buyer (“Customer”) and MetroSy prior to or upon receipt of a Purchase Order procuring Services. By ordering or otherwise proceeding with any Services related transaction with MetroSys, Customer agrees to these T&Cs. The T&Cs and the Work Order together constitute the entire agreement between Customer and MetroSys (the “Agreement”). Each Work Order may also specify, among other things (i) the time for performance of the Services, (ii) the applicable fees and expenses to be paid to MetroSys for performance of the Services (the “Fees and Expenses”), and (iii) any non-standard or exception to MetroSys’ payment terms. In the event of any conflicts between the terms of a Work Order and these T&Cs, the provisions of such Work Order shall govern.
Client acknowledges that MetroSys’ obligations and performance of the Services described in the Work Order are contingent upon Client complying with the responsibilities set forth below.
2 Scope of Services
2.1 Services provided under these T&Cs will be limited to Services specifically described in the Work Order.
2.2 MetroSys will provide personnel with the requisite qualifications, expertise and knowledge to perform the Services in a professional and timely manner.
2.3 MetroSys shall have sole discretion over the identity of the personnel delivering the Services and is entitled to replace personnel with equivalently qualified personnel as needed.
2.4 MetroSys reserves the right to change amend and alter the Services with equivalent or otherwise equal services without prior notice to Customer.
3 Standard Personnel Assumptions
3.1 MetroSys personnel have been successfully onboarded prior to the start of this engagement.
3.2 The Services shall be performed in a skilled and workmanlike manner. MetroSys shall assign only those employees or subcontractors who have the requisite experience, knowledge, training, and capability to provide the Services hereunder. If at any time Customer determines that an assigned individual can no longer contribute toward the successful completion of the Services, Customer may request MetroSys to immediately dismiss the individual from performing the Services and to supply a replacement with equal or better credentials within a reasonable time period.
3.3 Any personnel designated for skills transfer will be available on the schedule agreed upon between Customer and MetroSys during the engagement.
3.4 Customer will:
3.4.1 Provides a Project Lead and a Technical Lead as a point of contact for MetroSys during performance of the services. Changing of Customer Project Leads or other key personnel may result in additional fees will follow the change order process.
3.4.2 Empower selected individuals to make decisions on behalf of Customer and will ensure that a quorum of decision makers participate in the project and attend specific meetings where decisions making is required.
3.4.3 Provide MetroSys with access to appropriate Customer personnel (with the relevant skill and knowledge) and facilities of Customer and shall notify MetroSys personnel in writing of any special health and safety hazards of which Customer is or has become aware which may exist or arise at Customer site which may affect MetroSys personnel and or the performance of Services and Deliverable listed herein.
3.4.4 Provide a safe working environment free of any form of harassment, violence, retaliation, and follow OSHA, CDC, and/or any other health standards to protect the safety, health, and well-being of MetroSys personnel.
3.4.5 Supply MetroSys with a professional workspace and/or network access to provide the Services.
3.4.6 Provide MetroSys in writing with any restrictions or requirements regarding the MetroSys consultant’s use of personal equipment in advance of the commencement of the project.
3.4.7 Respond to all information requests within a reasonable period of time, so as not to delay the project which may result in additional fees.
3.4.8 Grant access to building(s) and room(s) as necessary to complete the Services, (which may include use of escort) are suitable and safe work areas for MetroSys personnel.
3.4.9 Complete prerequisites, responsibilities and dependent tasks within the agreed upon delivery schedule.
3.5 Customer is responsible for providing and scheduling any system maintenance window(s) as needed by MetroSys.
3.6 MetroSys may subcontract any or all portions of the Services provided that MetroSys shall impose on such subcontracted individuals or companies the same obligations as those under the Work Order.
3.7 All scheduling is dependent upon the availability of MetroSys resources.
3.8 MetroSys shall make reasonable efforts to meet Customer’s requested time schedule however MetroSys’ standard resource lead time is two (2) weeks from the later of the execution of the Work Order or Purchase Order.
3.9 If Customer delays, cancels, or reschedules Services less than ten (10) business days prior to scheduled dates, Customer may incur a delay of up to two (2) weeks to reschedule. The risk of delay can progressively increase if additional resources are required. Furthermore, Customer may incur additional consulting time and travel expenses for the canceled/rescheduled Services dates.
3.10 As it pertains to pre-paid future services, MetroSys reserves the right, if through no fault of MetroSys the Customer does not utilize Services within twelve (12) months of purchase, to terminate said services without notice, refund, or liability to MetroSys.
4 Standard Technical Assumptions
4.1 MetroSys will not be responsible for the loss or corruption of any Client data or for any system downtime.
4.2 Unless otherwise specified in this SOW, it is Customer responsibility to ensure that complete backups of any data have been made prior to the commencement of Services and will be done periodically throughout the lifecycle of the SOW. MetroSys assumes no responsibility for lost data.
4.3 Software specifications are not included in this SOW. Unless specifically addressed in this SOW, it is assumed that all software required to complete the Services will be on location prior to the start of Services. MetroSys may, at its discretion, provide any additional software not already in use.
4.4 MetroSys personnel will have access to all software and original product documentation required to perform the Services specified in this SOW.
4.5 Customer will provide all hardware and/or software and licensing required to perform the Services, including ensuring that all wiring, hardware, and software required to perform the Services are in working order.
4.6 Customer will supply MetroSys personnel with the necessary administrative usernames and passwords, including root access, to all systems required to successfully complete the Services.
4.7 If requested by MetroSys, Customer will provide a MetroSys resources remote access to Customer's IT environment with access to in-scope devices from a secure remote location. When appropriate, MetroSys will complete all Project work remotely (a) over desktop sharing sessions with Customer resources. or (b) over a VPN connection with MetroSys resources.
4.8 MetroSys personnel will have unfettered access to systems in-scope and Internet to successfully complete the Services.
4.9 All in-scope systems are in good health with no current fault conditions except if noted in work order.
4.10 All in-scope hardware and operation systems version combinations are supported by their respective manufacturers.
4.11 All in-scope systems must have an active and current maintenance and support contract.
4.12 Customer is responsible for decommissioning and data erasure for legacy systems in-scope unless noted in work order.
4.13 Project delays resulting from Customer’s custom configured or specialized hardware, software needing modification by the manufacturer, or from unforeseen issues with the customer’s infrastructure, hardware, backup/storage capabilities, third- party software, security settings, staff or vendors is the responsibility of the Customer and may result in additional fees.
4.14 Upon finalization and acceptance of solution architecture, subsequent changes or remediation to solution may incur additional fees and the Change Request process will be initiated.
4.15 Changes or remediation of the implemented for the agreed upon solution architecture may incur additional fees and the Change Request process will be initiated.
4.16 MetroSys personnel is responsible for all console activity for in-scope systems leveraging input devices such as mouse and keyboard to issues commands for project efficiency. At times, MetroSys personnel may request Customer or Partner to execute these tasks. If Customer elects take on these tasks leveraging system input devices, time allotted for Knowledge Transfer will be used. If there are no remaining Knowledge Transfer hours, additional fees may be incurred and the Change Request process will be followed.
4.17 Customer will use its best efforts to:
4.17.1 Provide documentation that is accurate, complete, and up-to-date.
4.17.2 Provide moving equipment at the time of implementation (i.e. dollies, carts, et. Al.)
4.17.3 Provide application ownership, outage windows and cutover scheduling requirements for all in-scope systems and data sets.
4.17.4 Establish its own backup policies.
4.17.5 Provide network name management such as DNS, DFS, embedded/hard coded paths, login scripts, and support for legacy host names.
4.17.6 Ensure data center environmental requirements are in-place at identified site(s) for system(s) in preparation for systems in-scope to include but not limited to:
Network connectivity
Necessary network bandwidth
Cabling
External port availability
External switch configurations
Adequate cooling, power &PDU connections
Adequate floor and rack space
5 Engagement Prerequisites
Following are the prerequisites that must be performed by Customer to allow MetroSys to successfully begin this engagement.
5.1 MetroSys is provided with a completed and signed copy of SOW.
6 Modification or Termination of Agreement
MetroSys reserves the right to renegotiate rates based on additions of locations, hardware, software, hardware support requirements, service adjustments, service enhancements, as well as modify this Agreement (or any portion thereof) with a thirty (30) day notice.
Customer may request, in writing to MetroSys, modifications to this agreement (or any portion thereof). MetroSys will implement any reasonable requested modifications within 30 days of receiving such written request from the Customer.
MetroSys reserves the right to refuse or suspend service under this Agreement in the event Customer has failed to pay any invoice within thirty (30) days of said invoice date, whether it be an invoice for services provided under this Agreement or any other agreement between the parties.
This Agreement may be terminated by Customer upon ninty (90) day’s written notice if the other Party:
I. Fails to fulfill in any material respect its obligations under this Agreement and does not cure such failure within ninety (90) days of receipt of such written notice.
II. Breaches any material term or condition of this Agreement and fails to remedy such breach within ninety (90) days of receipt of such written notice.
III. Terminates or suspends its business operations, unless it is succeeded by a permitted assignee under this Agreement.
If either party terminates this Agreement, MetroSys will assist Client in the orderly termination of services, including timely transfer of services to another designated provider. MetroSys acknowledges that all Customer data and information stored on Customer owned hardware is the sole property of Customer. If this agreement is terminated, all Customer data and information will be returned to Customer in a usable format. Customer agrees to pay MetroSys the actual costs of providing such assistance. MetroSys will also provide Customer with a final set of monthly reports on Customer’s IT environment.
7 Travel Terms
7.1 Travel expenses are not included in pricing unless specifically stated in SOW.
7.2 Travel expenses must be approved by Customer in advanced in writing.
7.3 Travel will be billed at passthrough rates.
7.4 Travel is defined as anything that requires an overnight stay or beyond 100-mile radius of the MetroSys resources’ home office.
7.5 Travel expenses shall be covered and based on MetroSys’ Travel & Expense Guidelines.
7.6 Travel time that required air travel is billable gate-to-gate.
7.7 Customer will be billed for any travel with prior approval from Customer.
7.8 For fixed-fee engagements, any related expenses are included unless otherwise outlined in the Work Order. If T&E fees are outlined and incurred for fixed fee engagements, MetroSys will invoice Customer monthly for the expenses and Customer will pay such fees in accordance with MetroSys’ payment terms.
9 Project Change Control
If any changes are required to the scope of the Services and/or Deliverables after the Commencement Date, then any such changes will be handled via the change control process set out in this section.
9.1 The parties will use a change request form as agreed between the parties to document requested
Changes (“Change Request”).
9.2 “Change” refers to any changes to the scope of the Services, Deliverables, Assumptions, Responsibilities, terms of acceptance, and or other sections of this SOW. A Change may or may not have impact on costs and/or schedules as originally defined. No work will be undertaken by MetroSys which has not been agreed in advance in accordance with the change control process outlined below. Until such time as a Change is agreed in accordance with the agreed change control procedure set out below, MetroSys and/or Customer shall, continue to deliver the Project, Deliverable or Service as if the Change Request had not been made.
9.3 At any time, Customer, Partner or MetroSys may request a Change. Neither party shall unreasonably withhold or delay processing or agreeing a specific Change. The process to be followed is defined in this section.
9.4 The requester of a Change must submit the Change Request including at least the information set out below through their project manager, to the counterpart project manager. The minimum information required is:
9.4.1 A description of the proposed Change including any additional work to be performed and identification of any specific changes to Deliverables.
9.4.2 The reason for the proposed Change
9.4.3 Any special conditions for acceptance of the Change.
9.5 Where Customer submits a Change Request, MetroSys will carry out a preliminary assessment of the Change Request and return a preliminary evaluation to the Customer project manager. This preliminary evaluation will contain:
9.5.1 An assessment preliminary assessment of the impact of the requested Change
9.5.2 A statement as to whether the requested Change can be included in the current scope. The assessment will include an initial estimate of the time required and he grade of personnel to be involved. Should additional charges be payable due to scope change, this will need to be agreed with Partner.
9.5.3 A preliminary estimate of the timetable to complete the Change process and the timetable to implement the Change.
9.6 If the Customer project manager agrees to proceed with the preliminary assessment provided by MetroSys, then MetroSys will complete a full assessment of the Change request as follows:
9.6.1 A statement of the impact of the Change including identification of all impact components of the Services and any other impacts to associated elements.
9.6.2 An estimate of the timetable to implement the Change
9.6.3 An estimate of the resultant changes
9.6.4 A statement of how acceptance of the Change will take place, if this is separate or different from the provisions already made
9.6.5 A statement of the validity period for the Change to be accepted and agreed.
9.7 The assessment of the Change Request will then be delivered to the Customer project manager. If any additional resources are needed or if any amendments to the project scope are requested, MetroSys will provide a Project Change Request (“PCR”), which will be submitted to Partner for approval. In addition, MetroSys will prepare budget and/or schedule change request and forward to Partner for approval.
10 Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS TO THE CONTRARY CONTAINED HEREIN OR IN THE APPLICABLE WORK ORDER, EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES TO THE OTHER PARTY IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES HEREUNDER, WHETHER IN CONTRACT OR IN TORT (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF SERVICES PAID BY CLIENT UNDER THE APPLICABLE WORK ORDER. IN NO EVENT, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS, LOST OR CORRUPTED DATA PUNITIVE LOSS, DAMAGE OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES UNDER THESE TERMS.
11 Indemnity.
11.1 Each party shall indemnify, defend and hold harmless the other party, its officers, directors, managers, employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused by the negligence or willful misconduct of the indemnifying party, its personnel or agents in connection with the performance of the Services hereunder.
11.2 Indemnity Claims. Either Party (the “Indemnitor”) will be responsible for indemnifying the other Party (the “Indemnitee”), only if: (a) the Indemnitee notifies the Indemnitor promptly in writing, not later than ten (10) days after the Indemnitee receives notice of the claim (or sooner if required by law); (b) the Indemnitor has sole control of the defense and any settlement negotiations; and (c) Indemnitee provides Indemnitor with information, authority, and assistance Indemnitor needs to defend against or settle the claim. When settling or compromising any claim, the Indemnitor will not, without the Indemnitees written approval, make any admissions of fact that expose the Indemnitee to the imposition of punitive damages or other claims that are not covered by the indemnification.
12 ENTIRE AGREEMENT
THE T&CS, THE WORK ORDER(s) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERCEDES ANY AND ALL OTHER PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN AGREEMENTS OR UNDERSTANDINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. ANY CHANGES TO THE PROVISIONS STATED HEREIN IN ANY OTHER WRITING MUST BE MUTUALLY AGREED UPON AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
13 CHOICE OF LAW
This Agreement shall be governed by and construed in accordance the laws of the State of California without regard to principles of conflicts of laws.
14 NO ASSIGNMENT
This Agreement shall be binding upon the parties and their respective successors and permitted assigns and may not be assigned by either party without the written consent of the other party which consent may be withheld in such party’s sole discretion.