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Master Service Agreement

The Master Services Agreement is between Lexcom ("Lexcom", "Vendor", "we," "us" or "our") and the client who orders Lexcom products and services ("you," "your" or "Client").

This Master Services Agreement governs your purchase and use of all Services offered by Lexcom, as may be further described in this Agreement or any Order. This Agreement applies to you and your employees, agents, contractors, or other users who obtain Services from Lexcom (each such person or entity being a "User"). You must register with Lexcom and accept the terms of this Agreement in order to use the Services. BY REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE THAT YOU AND YOUR USERS WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.

This Agreement is the complete and exclusive agreement between you and Lexcom regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.

Your use of Lexcom Services is governed by this Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, and the terms of your Order. When we use the term "Agreement" in any of the Master Services Agreement, the Acceptable Use Policy, the Service Level Agreement, or an Order, we are referring to all of them collectively. If there is any inconsistency or conflict between the provisions of any these documents, then the documents will be given precedence in the following order: (a) the Master Services Agreement, (b) the Acceptable Use Policy, (c) the Services Level Agreement, and (d) the terms of your Order.

  1. Definitions

Acceptable Use Policy. means Lexcom's Acceptable Use Policy found at http://www.lexcom.ca/legal/acceptable-use-policy which Lexcom may update from time to time.

ACH. means Automated Clearing House.

Business Day. means 8:00 a.m. - 8:00 p.m. Central Standard Time (CST), Monday through Friday, excluding federal public holidays in the United States and Canada for Services provided in North America.

Cancellation Date. is defined based on the Cancellation Request, product line and contract term. Accordingly, for:

(a) Virtual Server Hosting Services - the Cancellation Date would be 30 days from the date the Cancellation Request was submitted to Lexcom;
(b) Dedicated Server Hosting Services - for month-to-month Agreements, the Cancellation Date would be 30 days after the Cancellation Request was submitted to Lexcom;
(c) Dedicated Hosting Services - for non-monthly Agreements, the Cancellation Date would be 30 days from the date that the Cancellation Request was submitted to Lexcom; and
(d) Colocation and Network Services - the Cancellation Date would be 30 days from the date the Cancellation Request was submitted to Lexcom.
(e) Managed Operational Services - the Cancellation Date would be 90 days from the date the Cancellation Request was submitted to Lexcom.

Cancellation Request. means a written based service cancellation request submitted via support ticket. To schedule your account for cancellation, please email Lexcom at tickets@lexcom.ca and submit a ticket with a heading of "Cancellation Request". This will ensure that your account is processed for cancellation and will generate an email that will be sent to you. Upon receiving the request we will determine the full details of the request, as well as the offline date of your server. Lexcom is not responsible for continued invoicing if the above method is not followed. The following sets the Cancellation Request requirements based on the product line and contract term:

a) Monthly contracts relating to:
   (i) Virtual Server Hosting Services - Cancellation Request should be submitted to Lexcom at least 30 days in advance of the requested Cancellation Date;
   (ii) Dedicated Server Hosting Services - Cancellation Request should be submitted to Lexcom at least 30 days in advance of the Cancellation Date for Non-monthly contracts (quarterly, semi-annually, annually, 24 months, and other terms);
   (iii) Colocation and Network Services - Cancellation Request should be submitted to Lexcom at least 30 days in advance of the Cancellation Date.
   (iv) Operational Services - Cancellation Request should be submitted to Lexcom at least 90 days notice in advance to the Cancellation Date.

Confidential Information. means all documents , data, information and other material of one party which is provided, obtained or accessed by the other party or its subcontractors, agents or employees as a result of the performance of its obligations under this Master Services Agreement, but does not include documents, data, information or material: a) which are in the public domain; or b) which are acknowledged in writing by the party who provided it, to not constitute confidential information.

EFT. means Electronic Funds Transfer.

Personal Information Privacy Policy. means Lexcom's Personal Information Privacy Policy found at http://www.lexcom.ca/legal/personal-privacy which Lexcom may update from time to time.

Runbook. means the scheduled maintenance tasks to be performed to proactively maintain the Services ordered by Client.

Services. means the products and services described in the Order.

Service Level Agreement. means Lexcom's Service Level Agreement found at http://www.lexcom.ca/legal/service-level-agreement which Lexcom may update from time to time.

Lexcom. Is defined conditionally as Lexcom Systems Group, Inc.

Lexcom's Website. means www.lexcom.ca.

  1. Obligations, Rights and Responsibilities
    1. Lexcom Obligations.
      For all Orders accepted by Lexcom and subject to the Master Services Agreement, Lexcom agrees to provide the Services and the applicable support listed on your Orders, subject to and in accordance with Lexcom's Service Level Agreement.
    2. Clients Obligations.
      You agree to do each of the following:
           (a) pay when due the fees for the Services and applicable charges;
           (b) use reasonable security precautions in light of your use of the Services;
           (c) cooperate with Lexcom's reasonable investigation of outages, security problems, and any suspected breach of the Agreement;
           (d) keep your billing contact, information, and other account information up to date;
           (e) immediately notify Lexcom of any unauthorized use of your account or any other breach of the security of the Services; provided, that in the event of a dispute between the parties regarding the interpretation of applicable law or the Acceptable Use Policy, then      Lexcom's reasonable determination will control;
           (f) pay all federal, state, and local sales, use, value added, surcharges, excise, franchise, property, gross receipts, license, privilege, and any other taxes assessed with respect to the Services; and
           (g) provide Lexcom with accurate factual information to help Lexcom determine if any tax is due with respect to the provision of the Services, and if Lexcom is required by law to collect taxes on the provision of the Services, then you must pay Lexcom the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax.
    3. Acceptable Use Policy.
      By agreeing to the terms and conditions of this Agreement, you agree to Lexcom's Acceptable Use Policy, which is expressly incorporated herein by reference.
    4. Intellectual Property Rights.
      You warrant, represent and covenant to Lexcom that:
           (a) you are at least 18 years of age if an individual;
           (b) you possess the legal right and ability to enter into this Agreement;
           (c) you and your Users will use the Services only for lawful purposes and in accordance with this Agreement, Lexcom's Acceptable Use Policy, and all applicable Lexcom policies and guidelines, as contained in this Agreement posted on the Lexcom Website; and
           (d) you and your Users have obtained all license or other rights necessary to install or use any software or products in conjunction with your use of the Services.
    5. Non-Solicitation.
      During the term of any Service Agreement, and for a period of Twenty-four (24) months thereafter, Client agrees not to, directly or indirectly, solicit, recruit or employ any employee of Lexcom without the prior written consent of Lexcom. Client agrees to pay to Lexcom a commission of $25,000 in the event Section 1(v) is breached.
    6. Confidentiality.
           (a) Keep Confidential The parties will keep confidential and secure all Confidential Information of each other party which is provided, obtained or accessed by one party or its subcontractors, agents or employees as a result of the performance of its obligations under this Agreement and shall not disclose such Confidential Information except as permitted under 6(iv).
           (b) Standards The parties will safeguard all Confidential Information of each other party in the same manner and to the same extent as it safeguards Confidential Information of its own.
           (c) Authorized Disclosure Confidential Information of one party may be disclosed by the other party:
                i) to its subcontractors, agents or employees, insofar as necessary for the performance of this Agreement, provided that such subcontractors, agents and employees are made aware of and agree in writing to comply with the provisions of this section;
                ii) with the written consent of the party which provided the Confidential Information; or
                iii) where the disclosure is required by law, provided that notice of such requirement is given to the party which provided the Confidential Information, prior to disclosure.
           (d) Notwithstanding anything else in this Master Services Agreement:
                (i) the parties acknowledge that the obligations of the Client are subject to The Local Authority Freedom of Information and Protection of Privacy Act (Saskatchewan) (the "Act") and the provisions of such Act shall override the terms of this Agreement in the event of any inconsistency or conflict; and
                (ii) to the extent Lexcom accesses, collects, uses or discloses any personal information (as defined in such Act) in the course of providing Services (which it shall only do with the authorization of Client), Lexcom shall comply with the terms of the Personal Information Privacy Policy.
           (e) Marketing Provided always that the prior written consent of Client is obtained, Lexcom may, for the purposes of marketing, disclose Client's name and a general description of the Services provided to Client pursuant to this Master Services Agreement; but shall not indicate in any way that Client endorses Lexcom's services.
           (f) Survival Subject to section 12.6(g), this section 2.6 shall survive the expiration or other termination of this Master Services Agreement for a period of five (5) years following such expiration or termination, or such longer period as is prescribed by applicable law.
           12.8. Survival Regarding Specific Matters This section 2.6 shall survive the expiration or other termination of this Agreement in perpetuity with respect to:
                (a) Confidential Information constituting personal, investment, portfolio, business, corporate or other information of one or more of Lexcom's Clients or clients, and
                (b) any obligations imposed on Lexcom and its employees, officers, directors, agents and permitted subcontractors pursuant to section 12.6(a).
    7. IP Addresses.
      Lexcom will maintain and control ownership of all Internet protocol numbers and addresses that it may assign to you. Lexcom may, in its sole discretion, change or remove any and all Internet protocol numbers and addresses.
    8. Third Party Products.
      For your convenience, Lexcom may provide you access to Third Party Products through certain Third Party Lexcoms. Neither Lexcom nor any Third Party Lexcom makes any representations or warranties of any kind, express or implied, regarding any Third Party Products. You agree that will not (a) copy any license keys or otherwise decrypt or circumvent any license key, (b) run Third Party Products on a second system or through any other hosting provider, (c) remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on or during use of any Third Party Product, or (d) reverse engineer, decompile, or disassemble any Third Party Product, except to the extent that such activity is expressly permitted by the Third Party Lexcom or applicable law. You agree to observe the terms of any license or applicable end user subscriber agreement for Third Party Products and Lexcom will not have any liability for your use of any Third Party Products or any violation of any license agreements or end user subscriber agreements that govern such Third Party Products. You will be solely responsible for any additional software of products that you install or use in conjunction with the Services.
    9. Additional Requirements for Using Microsoft Software.
      If Microsoft software is provided to you as part of the Services, then additional restrictions may apply, including but not limited to limits on the number of authenticated users of the Microsoft Windows Server Operating Systems under Microsoft Corporation's licensing terms.
    10. Security.
      Lexcom is not responsible for any security breaches affecting servers or accounts under your sole control. If your server is responsible for or involved in an attack on or unauthorized access into another server or system, then you will notify Lexcom immediately, and Lexcom will have the right to respond accordingly, including without limitation the right to identify, isolate, and block the source of the attack.
  1. Term and Payment For Services
    1. Credit Authorization.Client hereby authorizes Lexcom and gives consent to Lexcom under applicable privacy laws for Lexcom to obtain credit information and bank and other financial references regarding Client for the purpose of assessing Client's credit worthiness, and Client will promptly execute and deliver to Lexcom such further documents and assurances and take such further actions as Lexcom may from time to time reasonably request in order to carry out the intent and purpose of this section.
    2. Payment.All charges under this Agreement are due and payable on the due date of the invoices unless otherwise agreed to in writing.
           (a) For recurring billing, Services are billed one month in advance and payments are due 30 days of the date of invoice.
           (b) for non-recurring fees (such as fees for initial set-up, backup overages, bandwidth overages, paid for support request and any other non-recurring service) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at Lexcom's option; provided that Lexcom may wait to charge your credit card until the total aggregate fees due are at a minimum billable amount. Unless otherwise agreed in the Order or modified via request, your billing cycle will be monthly, beginning on the date that Lexcom first makes the Services available to you.
           (c) Unless you have made other arrangements, Lexcom will charge your credit card and/ or ACH or EFT on the due date. If you pay by credit card or ACH or EFT, then Lexcom will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account.
           (d) Charges that are not disputed within 30 days of the date charged are conclusively deemed accurate.
           (e) You also will be responsible for any costs Lexcom incurs in enforcing collection of any amounts due under this Agreement, including without limitation reasonable attorney's fees, court costs, or collection agency fees.
           (f) You will be responsible for costs due to insufficient funds and other charges that are incurred in connection with payment processing for your account.
           (g) Non Sufficient Funds Fees (NSF) - Lexcom has the right to charge you NSF fees if your payment method is check (cheque) and it was returned by the bank due insufficient funds. The fees are Thirty (USD$ 30), Thirty (CAD$ 30) in the United States, and Canada respectively.
           (h) If you pay by credit card or ACH or EFT, then Lexcom will charge your credit card or bank account (as applicable) to pay for any charges that may apply to your account. You agree that you will notify Lexcom of any changes to your account, your billing address, or any information that Lexcom may reasonably require in order to process your payments in a timely manner.
           (i) Payment for invoices that are not formally and rightfully deemed as disputed may be subject to interest at a rate of one and one-half percent (1.5%) per month accruing from date the invoice was due.
    3. Refunds and Disputes:Except where expressly provided in this Agreement, all payments to Lexcom are nonrefundable. This includes but is not limited to any applicable setup fees and subsequent charges, regardless of usage. You must report any overcharges or billing disputes to Lexcom within 30 days of the time on which you became aware, or should have become aware, of the existence of the overcharge or dispute.
    4. Term:This Agreement will be for the "Initial Term" as further described in Schedule 1. If no term is listed in the Order, then the Initial Term will be one month. At the end of the Initial Term, the Agreement will renew on a month to month basis. If you do not wish to renew, then you must provide Lexcom the Cancellation Request as provided in this Agreement.
    5. Termination:This Agreement may be terminated in one of the following ways:
           (a) by you without cause and for convenience by providing the Cancellation Request;
           (b) by Lexcom without cause by providing you with a written notice at least 60 days prior to the termination date.
           (c) by Lexcom in the event you do not pay any undisputed fees due hereunder within or after 10 days of the due date;
           (d) by you or Lexcom, if a party commits a material breach of or fails to perform any obligations under this Agreement and has not cured such breach or failure within 30 days of receiving written notice from the terminating party specifying such breach or failure; or
           (e) as otherwise provided in this Agreement or the Acceptable Use Policy.
    6. Termination Liability.
      If you terminate this Agreement before the end of the Initial Term other than for Lexcom's material breach, then you will be required to pay:
           (a) actual amounts that have been invoiced for the Services provided to the date the Agreement is terminated as determined by the Cancellation Date, and
           (b) for non-monthly Agreements, the difference between the monthly rate for the Services listed on the Order at the time of the Order, and any discounts the Lexcom will provide for the remainder of the Initial Term. For the discount calculation, your liability will be limited to the period from the commencement of the Initial Term to the Cancellation Date.
    7. If Client is in Default.If Client is in default of any of its obligations under this Agreement, then Lexcom may in its sole discretion do any of the following:
           (i) without notice suspend access to the Client's service,
           (ii) if Client's default is in non-payment of any sums due to Lexcom, exercise all the rights and remedies available under applicable law.
    8. Data Retention / Server Reclaim Policy.
      Lexcom makes no guarantees about retaining any data stored on Lexcom's systems or servers following expiration or termination of this Agreement. Lexcom will typically delete such data (a) seven days following termination of any Lexcom Managed Hosting Services by either you or Lexcom or (b) on your next billing date following termination of any Lexcom Dedicated Hosting Services by either you or Lexcom. You will not have access to your data stored on Lexcom's systems or servers during a suspension or following a termination.
  1. Modifications
    1. Lexcom may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion. Any modifications are effective upon posting of the revisions on the Lexcom Website. Your continued use of the Services following Lexcom's posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, you may terminate the Agreement without any further liability by providing written notice to Lexcom within 30 days of the posting of any modifications of this Agreement by Lexcom.