INFINITE GROUP INC. MANAGED SERVICE PROVIDER AGREEMENT

Transcription

1 INFINITE GROUP INC. MANAGED SERVICE PROVIDER AGREEMENT This MANAGED SERVICE PROVIDER AGREEMENT (this Agreement ) is entered into as of (the Effective Date ), between Managed Service Provider (MSP) and Infinite Group, Inc., a Delaware corporation (IGI), for the purpose of granting MSP a limited license to use certain products and/or service offerings furnished by IGI for the purpose of providing managed services. Exhibit A Infinite Group Contact Information: 60 Office Park Way Pittsford, NY Attn: Scott Provvidenza Phone: x210 sprovvidenza@igius.com Invoicing Information: Attn: Monica Rodgers Title: Accounts Payable Phone: mrodgers@igius.com General: MSP may use IGI Products furnished by IGI solely to provide managed services to Beneficiaries in the Territory as set forth herein. IGI Products: The following generally available IGI Products, as made available by IGI to the MSP from time to time: Webroot SecureAnywhere Business products. Webroot SecureAnywhere Web Security Service. Territory: United States, Canada Pricing: Pricing of the IGI Products may change periodically. Purchases of Seats shall be at the then current MSRP or at such other price as mutually agreed between IGI and MSP. Pricing will be made in USD. Marketing Development Funds (MDF): To be agreed between the parties on a case-by-case basis. Support: IGI will provide support to MSP in English only. Marketing: IGI will provide the MSP marketing materials for the IGI products through the Webroot Partner Sales Portal. Marketing materials that are not readily available on the Webroot portal must be mutually agreed upon and approved by IGI.

2 Terms and Conditions This Agreement sets forth the terms and conditions under which IGI grants MSP a limited license to use IGI Products for the purpose of providing Managed Services. The parties agree as follows: 1. DEFINITIONS. As used in this Agreement: 1.1 Beneficiary means a third party organization for whom MSP is providing Managed Services in accordance with this Agreement for such organization s own internal business use. 1.2 Documentation means the user documentation, if any, furnished to MSP by IGI in connection with the IGI Products. 1.3 Intellectual Property means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, design rights, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author's rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any jurisdiction. 1.4 Managed Services means the managed services provided by MSP to Beneficiaries through the use of IGI Products for the number of Seats specified in the applicable order documentation. 1.5 Seat means a device for which MSP provides Managed Services. 1.6 Territory means the geographic area specified in Exhibit A. 1.7 IGI Marks means the names of IGI products and services, the IGI logos, any text or graphical material incorporating such names or marks, service marks, trade names, indicia of origin or design marks IGI provides from time to time. 1.8 IGI Products means the security service(s) or program(s) described in Exhibit A and any modified, updated, or enhanced versions of such service or program(s) that IGI may provide to MSP pursuant to this Agreement. 1.9 Effective Date means the date of receipt of funds (deposit) and a signed quote. 2. GRANT OF LICENSE 2.1 License Grant. Subject to the terms and conditions of this Agreement, IGI grants to MSP a royalty free, revocable, nonexclusive, non-transferable, non-sub licensable license to: (a) Use the IGI Products and Documentation solely as part of IGI s provision of Managed Services to Beneficiaries in the Territory for such Beneficiaries internal business use. (b) Use and display the most current version of the IGI Products and Documentation made available to IGI, solely for the non-production purposes of conducting demonstrations of the Managed Services for potential Beneficiaries in the Territory. 2.2 Territory Restrictions. MSP agrees not to: (a) engage in any advertising or promotional activities relating to the IGI Products directed primarily to Beneficiaries outside of the Territory; or (b) solicit orders from any prospective Beneficiaries with a principal place of business or residence located outside of the Territory. If MSP receives an order from any Beneficiary with a principal place of business or residence, as

3 applicable, located outside of the Territory, MSP will not accept such order and will promptly notify IGI. 2.3 License Restrictions. MSP acknowledges that the IGI Products and their structure, organization, and source code constitute valuable trade secrets of IGI. Accordingly, except as expressly allowed under Section 2.1 (if at all), MSP agrees not to: (a) modify, adapt, alter, translate, or create derivative works from the IGI Products; (b) merge the IGI Products with other software or services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the IGI Products; (d) knowingly permit any Beneficiaries to do any of the foregoing; or (e) use the IGI Products for the provision of any services, other than the Managed Services, for the benefit of any third party. MSP and Beneficiaries must not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of IGI on or within the IGI Products and the Documentation, if any. 2.4 Support. MSP will be provided sales and service support will by IGI. Product support will be provided by the Webroot Business Group. 2.5 IGI Trademark License. Subject to the terms and conditions of this Agreement, IGI grants to MSP a nonexclusive, nontransferable, non-sublicensable, revocable license to use and reproduce the IGI Marks solely in connection with marketing the Managed Services in the Territory. IGI grants no rights in the IGI Marks other than those expressly granted in this Section 2.5. MSP acknowledges IGI s exclusive ownership of the IGI Marks. MSP agrees not to take any action inconsistent with such ownership and to cooperate, at IGI s request and expense, in any action which IGI deems necessary or desirable to establish or preserve IGI s exclusive rights in and to the IGI Marks. MSP will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the IGI Marks or in such a way as to create combination marks with the IGI Marks. For the avoidance of doubt, MSP will not be entitled to incorporate IGI or into MSP s domain names without IGI s prior written approval which may be obtained requesting approval from IGI. MSP will use the IGI Marks in accordance with such guidelines as IGI may provide to MSP from time to time. At IGI s request, MSP will immediately modify or discontinue any use of the IGI Marks. 2.6 Ownership of IGI Products. The IGI Products, IGI Marks, and Documentation, and all existing and future worldwide rights in Intellectual Property therein and related thereto, are the exclusive property of IGI. All rights in and to the IGI Products, IGI Marks, and Documentation not expressly granted to MSP in this Agreement are reserved by IGI. Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of IGI s Intellectual Property rights. MSP will use its best efforts to assist IGI in the protection of IGI s Intellectual Property rights in the IGI Products. MSP will cooperate fully with IGI in any action or proceeding to enforce IGI s Intellectual Property rights in the IGI Products. MSP will promptly notify IGI if MSP becomes aware of any breach of any of IGI s Intellectual Property rights. 2.7 IGI Rights Reserved. Without limitation and notwithstanding any other provision of this Agreement, IGI will continue to have the right, without incurring any liability or obligation to MSP, in the sole discretion of IGI, to: (a) Distribute the IGI Products in the Territory; (b) Enter into a worldwide or territorial managed service provider agreement with another entity in the Territory; and (c) Grant other entities the right use the

4 IGI Products and Documentation as part of the provision of managed services to Beneficiaries worldwide or in any territory, including within the Territory. 2.8 IGI Rights Reserved. Without limitation and notwithstanding any other provision of this Agreement, IGI will continue to have the right, without incurring any liability or obligation to MSP, in the sole discretion of IGI, to: (a) Distribute the IGI Products in the Territory; (b) Enter into a worldwide or territorial managed service provider agreement with another entity in the Territory; and (c) Grant other entities the right use the IGI Products and Documentation as part of the provision of managed services to Beneficiaries worldwide or in any territory, including within the Territory. 3. UPDATES. MSP will utilize the most recent version of the IGI Products in providing Managed Services. 4. DELIVERY 4.1 Ordering. MSP may order additional Seats for Beneficiaries by submitting written purchase orders to IGI (which includes facsimile or electronic mail transmission). All such orders must refer to this Agreement and specify the number of Seats ordered. 4.2 Delivery. For purchase orders accepted by IGI, IGI will activate such Seats electronically within a reasonable amount of time after IGI s receipt and acceptance of such purchase order. 5. FEES AND PAYMENTS 5.1 Pricing. Pricing is as set out in Exhibit A. In the event that IGI raises the list price, all orders placed prior to the effective date of such price increase will be invoiced at the lower price. 5.2 MSP Pricing. MSP s prices to Beneficiaries will be at MSP s sole discretion and control. IGI will make no pricing commitments to any Beneficiaries or other third parties which otherwise obligate MSP. 5.3 Reports and Records. At all times during the Term, and for at least one (1) year after any termination of this Agreement, the parties will maintain complete and accurate records of all data reasonably necessary for verification of amounts to be paid, and MSP s compliance, under this Agreement. 5.4 Invoicing and Payment Schedule. Invoices to MSP will be sent to MSP on the 25 th of each month. MSP agrees to pay all invoiced amounts prior to the 1 st of the next month. Any amount not paid by MSP will accrue interest at the rate of one and onehalf percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Failure to remit timely payments will subject MSP to service interruption or termination. 5.5 Taxes. MSP will be responsible for payment of all taxes (other than taxes based on IGI s income), including but not limited to VAT, fees, duties, import duties and other governmental charges, and any related penalties and interest, arising from the payment of fees to IGI under this Agreement. MSP will make all payments of ees to IGI free and clear of, and without reduction for, any withholding taxes. 5.6 Audits. IGI will have the right, at its expense and no more often than annually, upon fifteen (15) business days written notice and during MSP s normal business hours, to inspect and audit any portion of the books and records of MSP that are relevant for the purpose of verifying: (a) any reports, information or payments provided by MSP under this Agreement; and (b) MSP s

5 compliance with this Agreement. In the event any material understatement (five percent (5%) or more) of payments due hereunder is found, in addition to paying the understated amounts, MSP will pay IGI s reasonable costs of the audit. 6. MSP S OTHER OBLIGATIONS 6.1 IGI Branding. MSP will use the IGI Marks to identify the IGI Products, the Managed Services, and in all materials used to market and promote the Managed Services in a manner acceptable to IGI and subject to the limitations and requirements in Section 2.5. MSP will at all times conduct business in a manner that reflects favorably on the IGI Products, the Managed Services, and the good name, goodwill, and reputation of IGI. 6.2 Publicity. IGI and MSP will communicate and cooperate with respect to advertising and publicity regarding this Agreement and their relationship, and each will obtain the written consent of the other before publishing or releasing any advertising or publicity. 6.3 Compliance with Laws. MSP will at all times comply with all applicable laws and regulations in performing hereunder, including without limitation all laws related to the protection of Beneficiary and/or personal data acquired by MSP in the course of its provision of Managed Services. 6.4 Webroot Agreements. MSP acknowledges having read and executed the Webroot Business Master Service Agreement and/or the Webroot Secure Anywhere Business Agreement during the IGI sign up process. MSP grants IGI permission to execute these agreements on MSP s behalf during the onboarding process or at any time required by Webroot in order to perform the delivery of the IGI service and/or IGI product. 7. CONFIDENTIALITY 7.1 Confidential Information. The parties agree and acknowledge that, as a result of negotiating, entering into and performing this Agreement, each party has and will have access to certain information regarding the business of the other party and its suppliers, including without limitation, technical, marketing, sales, financial, employee, planning, and other confidential or proprietary information, and information that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party ( Confidential Information ). Each party also understands and agrees that misuse and/or disclosure of that information could adversely affect the other party s business. Accordingly, the parties agree that each party will use and reproduce the other party s Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party s Confidential Information to its employees or agents with a need to know and will not disclose the other party s Confidential Information to any third party without the prior written approval of the other party. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party to the extent compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided the other party has been given prior written notice to permit such other party a reasonable opportunity to object to the judicial or governmental requirement to disclose. The provisions of this Section 7 will survive the expiration or termination of this Agreement. Each party acknowledges and agrees that violation of this Section 7.1 will cause the other party irreparable harm, and the total amount of monetary damages for any injury to such non-breaching party will be impossible to calculate and therefore

6 an inadequate remedy. Accordingly, the non-breaching party may: (a) seek temporary and permanent injunctive relief against the other party; or (b) exercise any other rights and seek any other remedies to which such non-breaching party may be entitled at law, in equity and under this Agreement for any violation of this Section. 7.2 Return of Confidential Information. Both parties will promptly return to the to the other party all of the other s Confidential Information in tangible form, including without limitation all copies thereof and photographs, videotapes, printouts, notes and working papers provided to it in connection therewith, including all such items, materials and information in its possession or control or in the possession or control of any person permitted access to the Confidential Information; provided, however, that the receiving party will be entitled, pursuant to the terms of this Agreement, to retain the Confidential Information, or copies thereof, to the extent required by applicable law or regulation, to establish the extent of disclosure of Confidential Information by the disclosing party or to the extent such Confidential Information is preserved pursuant to the receiving party s automatic archiving and backup procedures related to electronic files. Alternatively, each party will certify in a writing signed by an authorized officer or representative that the foregoing have been destroyed and disposed of in a secure manner upon the expiration or termination of this Agreement. 8. WARRANTIES 8.1 Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party s behalf has been duly authorized and empowered to enter into this Agreement. 8.2 IGI s Warranties. IGI warrants that the IGI Products, when used as permitted under this Agreement, will operate in accordance with the Documentation. IGI will, at its own expense and as its sole obligation and MSP s exclusive remedy for any breach of this Section 8.2, use commercially reasonable efforts to correct any reproducible error in the IGI Products reported to IGI by MSP. 8.3 Disclaimer of Warranty. THE EXPRESS WARRANTIES IN SECTION 8.2 ARE IN LIEU OF ALL OTHER WARRANTIES BY IGI REGARDING THE IGI PRODUCTS OR DOCUMENTATION, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND IGI HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ITS SUPPLIERS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IGI DOES NOT WARRANT THAT USE OF THE IGI PRODUCTS WILL BE ERRORFREE, UNINTERRUPTED, VIRUS-FREE OR SECURE. MSP ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT. 8.4 Warranties Made by MSP. MSP will not make or publish any false or misleading representations, warranties, or guarantees concerning the IGI Products that are inconsistent with any warranties made by IGI concerning the IGI Products. 9. INDEMNIFICATION. IGI will indemnify, defend and hold harmless MSP against any action brought by a third party to the extent that the action is based upon a claim that the IGI Products infringe any copyrights or that the IGI Marks, when used in accordance with this Agreement, infringe any trademark rights of a third party and IGI will pay those costs and damages finally awarded against

7 MSP in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on MSP notifying IGI promptly in writing of such action, MSP giving IGI sole control of the defense thereof and any related settlement negotiations, and MSP cooperating and, at IGI s reasonable request and expense, assisting in such defense. If the IGI Products or any of the IGI Marks becomes, or in IGI s opinion is likely to become, the subject of an infringement claim IGI will, at its option and expense, either: (a) procure for MSP the right to continue exercising the rights licensed to MSP in this Agreement; (b) replace or modify the IGI Products or such IGI Mark so that it becomes non-infringing; or (c) terminate this Agreement by written notice to MSP, subject to Section Notwithstanding the foregoing, IGI will have no obligation under this Section 9 or otherwise with respect to any infringement claim based upon: (i) any unauthorized use, reproduction, or distribution of the IGI Products by MSP or any of MSP s Beneficiaries; (ii) any use of the IGI Products in combination with other products, equipment, software, or data not supplied by IGI; (iii) any use, reproduction, or distribution of any release of the IGI Products other than the most current release made available to MSP; or (iv) any modification of the IGI Products by any person other than IGI. THIS SECTION 9 STATES IGI S ENTIRE LIABILITY AND MSP S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS. 10. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO MSP S OBLIGATIONS PURSUANT TO SECTIONS 2, 7, AND 12.1, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THAT LIABILITY ARISES IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, AND REGARDLESS OF WHETHER THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT WITH RESPECT TO MSP S OBLIGATIONS PURSUANT TO SECTIONS 2, 7, AND 12.1, TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL FEES PAID TO IGI BY MSP UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY. The foregoing limitations will be enforceable to the maximum extent permitted by applicable law but will not apply to fraudulent misrepresentation. MSP agrees that IGI s suppliers will have no liability of any kind under or as a result of this Agreement. The foregoing limitations of liability are independent of any exclusive remedies for breach of warranty set forth in this Agreement. 11. TERM AND TERMINATION 11.1 Term. For MSP s that have agreed to 6 month terms, unless earlier terminated pursuant to Section 11.2, the initial term of this Agreement will begin on the Effective Date and continue for a period of (6) months. This Agreement will then automatically renew for one month terms, unless either party provides written notice of its intention to terminate at least forty five (45) days prior to the commencement of each month. IGI will have the right at any time to terminate this Agreement for reasonable cause upon forty-five (45) days prior written notice to MSP Material Breach. Either party may terminate this Agreement immediately on written notice to the other party if the other party commits a material breach of this Agreement and fails to cure that breach

8 within fifteen (15) days after receiving written notice from the other party stating the nature of the breach with reasonable particularity. Failure to pay fees when due will constitute a material breach Effects of Termination. Upon termination or expiration of this Agreement for any reason, all licenses, including without limitation the use license and related rights granted to MSP will immediately revert back to IGI and MSP must promptly discontinue all further use of IGI Marks and all further use of the IGI Products. Notwithstanding the foregoing, MSP may continue to provide Managed Services pursuant to the terms of this Agreement for the remainder of the term associated with each Seat purchased pursuant to this Agreement. Notwithstanding any other section of this Agreement, the provisions of Sections 1, 2.2, 2.3, 2.5, 2.6, 5, 7, 8.3, 10, 11.3 and 12 will survive any termination or expiration of this Agreement. 12. GENERAL 12.1 Export and Import Laws. MSP will comply with all applicable export and import control laws and regulations in its use of the IGI Products. MSP will defend, indemnify, and hold harmless IGI from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by IGI as a result of any violation of such laws or regulations by MSP or any of its agents or employees Assignments. MSP may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the IGI Products) to any third party without IGI s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void and of no effect. IGI may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on Exhibit A, and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party Governing Law and Venue. For any action relating to this Agreement, MSP agrees to the following governing law (without regard to conflicts of laws principles) and exclusive jurisdiction and venue, according to MSP s location. United States or Canada: State of New York governing law, and jurisdiction and venue in the courts of Rochester, NY. Outside of the United States or Canada (except Japan): Republic of Ireland governing law, jurisdiction and venue. Japan: Japan governing law, jurisdiction and venue in the Tokyo District Court. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money

9 owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible Independent Contractors. MSP s relationship to IGI is that of an independent contractor, and neither party is an agent or partner of the other. MSP will not have, and will not represent to any third party that it has, any authority to act on behalf of IGI Entire Agreement. This Agreement and the applicable IGI Product license agreement constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral. Notwithstanding the foregoing, the terms and conditions of this Agreement will prevail over any conflicting terms and conditions in such applicable IGI Product license agreement. This Agreement may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by MSP to IGI will have no effect.

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