INFINITE GROUP INC. MANAGED SERVICE PROVIDER AGREEMENT Effective Date

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 14534
Attn: Scott Provvidenza
Phone: 585.385.0610 x210
Email: sprovvidenza@igius.com
Invoicing Information:
Attn: Monica Rodgers
Title: Accounts Payable
Phone: 585.385.0610
Email: 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.
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
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
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
25th of each month. MSP agrees to pay all
invoiced amounts prior to the 1st 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
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
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
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 11.3. 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.
11.2 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
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.
11.3 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.
12.2 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.
12.3 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.
12.4 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.
12.5 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.
12.6 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.
12.7 Force Majeure. Any delay in the
performance of any duties or obligations of
either party (except the payment of money
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.
12.8 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.
12.9 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.