PROFESSIONAL SERVICES MASTER SERVICES AGREEMENT

     

    This Professional Services Master Services Agreement (the “Agreement”) is made the day of ticket submission (the “Effective Date”), between Forms Distribution Corp. dba Infoplus Commerce, (“Infoplus”), a Missouri corporation with offices located at 1160 Research Blvd., Saint Louis, MO 63132 USA, and the ticket submitter (“Client”). Infoplus and Client may each be referred to individually as a “Party” and collectively as the “Parties”.

     

    Recitals

    1. Infoplus is, among other things, engaged in the business of providing various data processing, programming, optimization and best practices consulting, training services, and specialized solutions programming using its proprietary warehouse management software system and associated applications (referred to herein as “Professional Services” or “Services”).
    2. Infoplus and Client are interested in entering into a business arrangement whereby Infoplus will provide the Client with the Professional Services and related deliverables set forth in Work Orders (defined in Section 2.1 below) pursuant to this Agreement.

     

    NOW, THEREFORE, in consideration of the Recitals and the mutual covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as of the Effective Date as follows:

     

    Section 1. Client’s Use of the Services:

     

    1.1. Client’s Obligations. Client’s obligations include, but are not limited to, the following:

    1.1.1 Client’s use of the services must comply with all applicable laws, regulations, and ordinances, including any laws regarding the export of data or software.

    1.1.2 Client will provide Infoplus with true and accurate information and responses in connection with Client’s use of the Services.

    1.1.3 Client will contact Infoplus immediately if Client believes an unauthorized party may be using Client’s account or if Client’s account information is lost or stolen.

    1.1.4 Client will not attempt to gain access to Infoplus’ internal administrative tools.

    1.1.5 Client will not attempt to disrupt the Services.

     

    1.2. Unauthorized Uses. Client will not, and will not allow third parties under Client’s control to:

    1.2.1 Use the Services to create, receive, maintain, or transmit protected health information, as defined in 45 C.F.R. § 160.103;

    1.2.2 Access the Services to bring an intellectual property infringement claim against Infoplus or any of Infoplus’ affiliates, customers, vendors, business partners, or licensors;

    1.2.3 Develop or create a competing product or service;

    1.2.4 Copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the Services or any component thereof;

    1.2.5 Sub-license, resell, or distribute the Services or any component thereof separate from any integrated application, or;

    1.2.6 Process or store any data that is subject to the International Traffic in Arms Regulations maintained by the Department of State;

    1.2.7 Use the Services for any illegal purpose or in violation of any local, state, national, or international law;

    1.2.8 Violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;

    1.2.9 Post, upload, or distribute any software, data, text, audio, video, images or digital media (“Content”) or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;

    1.2.10 Interfere with security-related features of the Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law;

    1.2.11 Interfere with the operation of the Services or any user’s enjoyment of the Services, including by: (a) uploading or otherwise any disseminating virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Services; (c) attempting to collect, personal information about another user or third party without their consent; (d) taking any action (directly or indirectly) that imposes or may impose (as determined by Infoplus in its sole discretion) an unreasonable or disproportionately large load on Infoplus’ or its third party providers’ infrastructure; or (e) interfering with or disrupting any network, equipment, or server connected to or used to provide the Services, or violating any regulation, policy, or procedure of any network, equipment, or server;

    1.2.12 Perform any fraudulent activity, including impersonating any person or entity or claiming a false affiliation; misrepresenting the source, identity or content of information transmitted via the Services; accessing any other Service account without permission, or falsifying your age or date of birth;

    1.2.13 Sell or otherwise transfer the access granted under this Agreement, or any right or ability to view, access, or use any Content; or

    1.2.14 Attempt to do any of the acts described in this Section 1.2, or assist or permit any person in engaging in any of the acts described in this Section 1.2.

     

    Section 2. Professional Services:

     

    2.1. Work Orders. Infoplus agrees to provide the Professional Services and associated deliverables through the administration of individual work orders (each a “Work Order”) for each project as agreed to in writing by the Parties. Individual Work Orders may be amended from time to time by mutual consent of the Parties, in accordance with the terms and conditions of this Agreement.

     

    Section 3. General:

     

    3.1. Compensation. In consideration for the Services to be performed by Infoplus, the Client shall pay Infoplus the fees, charges, expenses and other costs set forth in Section 17, hereto (“Charges”), as may be amended from time to time by mutual consent of the Parties. The amount, payment and other aspects related to the Charges shall be governed in accordance with the terms and conditions of this Agreement.

    3.2. Acceptance. The Client shall have ten (10) business days to accept or reject the results of the Professional Services and/or deliverables provided by Infoplus. The Client shall advise Infoplus if the Client rejects the results of the Services, or any significant portion thereof, with such rejection to be commercially reasonable, and will provide reasonable time for Infoplus to remedy any deficiencies to achieve Client acceptance. Upon acceptance by the Client, any outstanding Charges will be due and payable to Infoplus. After this 10-day acceptance period, if Infoplus has not received notification from the Client, the Services will be deemed accepted and Infoplus will commence billing for the Services.

    3.3. Post Acceptance Revision Period. Following completion and acceptance of the Professional Services and/or deliverables, Client is entitled to a ten (10) day period of reasonable revisions at no additional cost. Following this ten (10) day post acceptance revision period, any changes or modifications would require additional fees to be outlined in a new Work Order.

     

    Section 4. Location of Work: Infoplus shall perform the Services at any place or location and at such times as reasonably determined by Infoplus. If the nature of the Services is such that they must be performed at a place determined by the Client (“On-Site Services”), the Client shall arrange for access to such place.

     

    Section 5. Term and Termination:

     

    5.1. Term of Agreement. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for so long as Infoplus is providing any services or products to Client, including Professional Services pursuant to this Agreement, unless earlier terminated in accordance with the terms of this Agreement (“Term”).

    5.2. Termination. This Agreement may be terminated: (a) automatically in the event of bankruptcy or insolvency of either Party; (b) immediately, by either Party, upon written notice to the other Party, if such other Party commits or allows any breach of any provision of this Agreement which is incurable or which is curable but not cured within thirty (30) days after written notice thereof to such other Party; or (c) at any time by either Party, without cause, after written notice thereof to the other Party, with such termination being effective three (3) days from such notice. If termination by Client occurs while Infoplus is in process of performing Services pursuant to a Work Order, Client will be responsible for paying Infoplus the Charges for such Services performed up to the date of termination, with such payment due and payable upon the date of termination.

    5.3. Return of Materials. Upon termination of this Agreement for any reason, each Party shall deliver to the other Party or its designee: (a) all documents, media, or items containing, in whole or in part, any Confidential Information (as defined in Section 7); and (b) all equipment, tools, identification cards, security passes, and other materials owned by either Party and furnished to the other Party to facilitate the performance of the Services.

     

    Section 6. No Infringement: Infoplus warrants that its performance of the Services hereunder will not infringe the proprietary rights of any third party, and that no portion of any material prepared by Infoplus for the Client pursuant to this Agreement is derived from any copyrighted material not owned or licensed by Infoplus.

     

    Section 7. Confidential Information:

     

    7.1. Definition. For purposes of this Agreement, “Confidential Information” means information or material of a confidential or proprietary nature, whether written or oral, tangible or intangible, including by way of example only, trade secrets as defined in the Missouri Uniform Trade Secrets Act as amended from time to time, know-how, data, knowledge, designs, plans, drawings, specifications, reports, technical information, computer programs, software, source code, object code, algorithms, business plans, customer and supplier lists, pricing and financial information and records, marketing techniques and materials, and any other proprietary information. Information shall be protected as Confidential Information whether provided in written, graphical, electronic, oral or other tangible or intangible form, and regardless of whether any or all such information is protected by copyright, patent or similar process.

    7.2. Non-Disclosure and Non-Use. The Parties acknowledge that during the term of this Agreement, one Party (“Discloser”) may disclose to the other Party (“Recipient”) Confidential Information of either the Discloser or a third party where the Discloser is subject to a duty to maintain such third-party Confidential Information in confidence and trust. In consideration of the disclosure of Confidential Information by Discloser to Recipient, Recipient agrees: (a) to hold and protect the Confidential Information in confidence and trust; (b) not to use the Confidential Information in any manner whatsoever, directly or indirectly, except for the purpose of performing under this Agreement without the Discloser’s prior written consent; and (c) not to disclose the Confidential Information to any person or entity other than those officers, directors or employees of Recipient who need to know such Confidential Information in connection with their obligations (or in the case of Client to enjoy the benefits) under this Agreement and who have agreed in writing to maintain the confidentiality thereof.

    7.3. Compliance with Court Order. In the event Recipient is legally compelled to disclose in a judicial, administrative or governmental proceeding any Confidential Information of Discloser, it will give prompt written notice to Discloser so that Discloser may seek a protective order or other appropriate remedy if it desires to do so, and Recipient may disclose only such portion of the Confidential Information that in the written opinion of its counsel is legally required to be disclosed.

    7.4. No Ownership or License. Recipient acknowledges Discloser’s ownership of all right, title and interest in Discloser’s Confidential Information and, except as expressly set forth in this Agreement, no rights or licenses, express or implied, are granted to Recipient by this Agreement. Nothing in this Agreement limits any use a Party may make of its own Confidential Information.

     

    Section 8. Third Party Agreements: Infoplus acknowledges that the Client from time to time may have agreements with other persons, including the United States government or agents thereof, that impose obligations or restrictions on the Client with respect to work performed for such persons. Client shall disclose those obligations or restrictions to Infoplus and Infoplus shall maintain reasonable efforts to adhere and abide by those obligations and restrictions while performing the Services under this Agreement.

     

    Section 9. Work for Hire: The Parties acknowledge and agree that Infoplus will not produce any “work for hire”, as that term is defined under the United States Copyright Act (Title 17 United States Code) or any other law, rule or regulation governing intellectual property rights, under this Agreement or any Work Order hereto.

     

    Section 10. Assignment of Products Developed: Client hereby assigns and shall in the future assign, to Infoplus all right, title and interest in and to any products, processes or services that Infoplus may develop, invent, discover, author or otherwise create in the course of performing Services under this Agreement (collectively “Products”), including, without limitation any claims Client may have concerning the Products, whether or not any such inventions may be patented, copyrighted, registered or protected under any form or legal protection afford to intellectual property and whether or not reduced to practice. Client shall perform, during and after the Term of this Agreement, all acts deemed desirable by Infoplus to help Infoplus, at Infoplus’ expense, obtain and enforce the full benefits, enjoyments, rights and title throughout the world in the Products assigned to Infoplus pursuant to this Agreement. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings. Infoplus shall compensate Client at a reasonable rate for time actually spent by Client at Infoplus’ request on such assistance at any time after the term of this Agreement.

     

    Section 11. Cooperation of the Client: The Client shall comply with the reasonable requests of Infoplus and provide access to all Client personnel, documents and information reasonably necessary to the performance of the Services under this Agreement.

     

    Section 12. Communication: Infoplus will communicate with Client and the appropriate Client personnel throughout the project. At any time, either Party may request a discussion regarding project status. Project status materials will be readily available upon request by Client. To resolve any issues, the Client representative and Infoplus representative will meet to determine the resolution. The assigned Infoplus project lead will manage the Services activities and provide regular status updates and communications.

     

    Section 13. Entire Agreement of the Parties: This Agreement constitutes the entire agreement between the Parties, superseding any and all agreements, either oral or written, between the Parties hereto with respect to the rendering of the Services in any manner whatsoever. Each Party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement, statement or promise not contained in the Agreement shall be valid or binding. Any modification of the Agreement will be effective only if it is in writing signed by the Party to be charged.

     

    Section 14. Arbitration: Any controversy between the Parties involving the construction or application of any terms, covenants or conditions of this Agreement shall, on the written demand of one Party served on the other, be submitted to arbitration in St. Louis County, Missouri. The arbitration will comply with and be governed by Missouri law. An arbitration demand must be made within one (1) year of the date on which the Party demanding arbitration first had notice of the existence of the claim to be arbitrated, or the right to arbitration shall be considered to have been waived. The Parties shall each appoint one person to hear and determine the dispute and if they are unable to agree, then the two persons so chosen shall select a third impartial arbitrator whose decision will be final and conclusive on both Parties. The cost of the arbitration shall be borne in such proportions as the arbitrators decide.

     

    Section 15. Partial Invalidity: If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

     

    Section 16. Choice of Law: The rights and obligations of the Parties shall be governed by, and this Agreement shall be construed and be enforced in accordance with the laws of the State of Missouri, excluding the conflict of law rules to the extent such rules would apply the law of another jurisdiction.

     

    Section 17. Payments:

     

    17.1. Billing Schedule. Infoplus will invoice Client for the Charges: (a) with regard to On-Site Services, on the date of the applicable Work Order; and (b) for all other Work Orders, upon completion of the Services described in the applicable Work Order. All Charges are payable in United States dollars.

    17.2. Client Agreement to Pay. Client agrees to pay invoices: (a) applicable to On-Site Services, on the date of the applicable Work Order; and (b) applicable to all other Work Orders, within thirty (30) days of the invoice date. In the event payment of any Charges are not made by the applicable invoice due date, Infoplus reserves the right to delay the start of On-Site Services, or for any other Work Orders stop any current work pursuant to any active Work Order until payment is received. If Client in good faith questions a Charge on an invoice and after review by Infoplus and good faith discussions between the Parties, the Parties agree that all or a portion of the Charge in question was made in error, Infoplus will adjust the invoice, or if Client previously paid the disputed Charge, reimburse Client for the amount of the overcharge.

    17.3. Late Payment Charges. If Client does not pay all or any portion of an invoice (“Unpaid Balance”) by the due date applicable to such invoice, such Unpaid Balance will be subject to a late charge calculated at the rate of 1.50% per month from the due date. If Client has not paid an Unpaid Balance for more than thirty (30) days from the due date of the invoice, Infoplus may, at its sole discretion refer collection of the Unpaid Balance to an attorney or collections agency. If Client’s unpaid invoices are referred to an attorney or collections agency, Client shall pay all reasonable attorney’s fees or collections agency fees.

     

    IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date by Client submitting a Professional Services request.