Date: October 2024
This MSP Master Agreement (“Agreement”), effective as of the Effective Date, is entered into and between Birch Grove Software, Inc. dba ActivTrak, a Delaware corporation, with its principal place of business at 1501 South MoPac Expressway, Suite 155, Austin, Texas 78746 (“ActivTrak”) and the MSP Partner XYZ, with its principal place of business XYZ and its Affiliates as provided on the Order Form (“MSP Partner”), and is subject to the terms set here in. In the event of conflict between the terms an Order Form and the terms of this Agreement, the terms of the MSP Master Agreement shall control.
1. DEFINITIONS
“Affiliate” means with respect to any party to this Agreement, any entity that is controlling, controlled by, or under the common control with such party. As used in this definition, the term “control” means the possession, directly or indirectly or the power to direct, or cause the direction of the management and policy of the controlled entity.
“Application Services” means the services purchased by MSP Partner and provided by ActivTrak, as specified on an Order Form. “Application Services” excludes Non-ActivTrak Applications.
“Derivative Works” means a revision, modification, translation, abridgment, condensation or expansion of or addition to any Application(s) or Documentation or any work that employs pre-existing code from the Applications or, if prepared in violation of this Agreement or without the consent of ActivTrak, would infringe the intellectual property rights of ActivTrak.
“Documentation” means ActivTrak’s user guides and other end user documentation for the Service available on the online help feature of the Application Services, as may be updated by ActivTrak from time to time, including without limitation the materials available at www.ActivTrak.com.
“Non-ActivTrak Application” means a web-based, offline, mobile, or other software application functionality that is provided by MSP Partner or a third party and interoperates with the Application Services.
“Users” means the Users that MSP Partner sells services to utilizing the Application Services.
“User Subscription” means a License to use the applicable Application Services granted to a User pursuant to this Agreement.
“Effective Date” shall mean the effective date set forth in the Order Form or, if no effective date is specified, the date of MSP Partner signature on the Order Form.
“Fees” means the fees payable by MSP Partner to ActivTrak as set forth in the Order Form.
“License” means a license granted by ActivTrak to MSP Partner or User, as the case may be, that allows MSP Partner to use the Application Services in strict accordance with this Agreement and the Documentation.
“Services” means Application Services and Support Services.
“Order Form” shall mean the authorized ActivTrak Order Form ordering document for purchases of Services hereunder, which incorporates the terms of this MSP Master Agreement.
“Subscription Term” for each User Subscription means the period that MSP Partner has the right to use such User Subscription and associated Documentation as set forth in the applicable Order Form.
“Support Services” means the support services provided by ActivTrak in accordance with ActivTrak’s support practices made generally available to Users and as identified in the Order Form.
“MSP License Pool Model” means licensing that is charged by ActivTrak to MSP based on the total purchased licenses for a defined given period providing the ability to the MSP Partner to repurpose purchased licenses within the pool to new or existing end users, governed by the terms and conditions set here in.
“MAP” means minimum advertised price policy unilaterally established by ActivTrak.
2. INTELLECTUAL PROPERTY RIGHTS
A. Ownership. Title to the Application, Documentation, Updates, and all patents, copyrights, trade secrets, and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of ActivTrak and its licensors. MSP Partner may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Application Services or Documentation and will not acquire any rights in the Application Services or Documentation, except the limited license specified in this Agreement. ActivTrak and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Application, including any improvement or development thereof. ActivTrak retains all rights not expressly granted to MSP Partner in this Agreement. MSP Partner shall promptly notify ActivTrak in writing upon discovery of any unauthorized use of the Application Services or Documentation or infringement of ActivTrak’s proprietary rights in the Application Services or Documentation.
3. LICENSE GRANT
A. Application Services License. Subject to the terms of this Agreement, MSP Partner is granted a limited, non-exclusive, non-transferable, non-assignable license to: (a) incorporate, but not modify, the Application Services into its own services offering used for monitoring services. (“MSP Partner Offering”), (b) market the Application Services only as integrated into and combined with the MSP Partner Offering; (c) allow Users to access and use the Application Services, solely as part of the MSP Partner Offering; and (d) include Documentation with the Application Services.
B. License Restrictions. No distribution or license of the Application Services by MSP Partner shall be made except pursuant to a valid written agreement that governs the Users right to use the Application Services (“User Agreement”). Such User Agreement shall include (at a minimum) substantially the same restrictions as are contained in ActivTrak’s then current standard Master Subscription Agreement located at (a) Master Services Agreement currently located at https://activtrak.com/msa-agreement/. MSP Partner is responsible for ensuring (i) that each User enters into the User Agreement, and (ii) the User Agreement is legally binding upon the User. MSP Partner may also appoint Authorized Partners to license, sublicense, and distribute the MSP Partner Offering incorporating the Application Services in the same manner as MSP Partner is permitted to do so, as specifically set forth above.
The License granted herein is subject to the following limitations: (a)MSP Partner shall provide the Application Services to User only in combination with MSP Partner Offering and not on a stand-alone or re-sale basis; and (b) MSP Partner may not allow access and use of the Application Services by any User which ActivTrak reasonably considers to be a competitor.
C. Restrictions on Use. MSP Partner shall not and will not permit or authorize third parties to (i) allow third parties or develop methods for third parties to use the Application Services; (ii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Application Services, in whole or in part, and MSP Partner shall not attempt to obtain in any other manner any Application Services source code, and shall not carry out any action to the detriment of ActivTrak’s intellectual property rights or those of its suppliers; (iii) make copies, execute, publish, or reproduce Application Services or Documentation, unless expressly authorized in this Agreement (and all copies must maintain ActivTrak’s copyright notices); (iv) develop any Derivative Works or any type of software program based on Application, the Documentation, or any other Confidential Information (as defined in Section 8(a)) of ActivTrak; (v) make available, reveal, disclose, offer, or allow the use of Application Services by third parties except as authorized herein, without the prior written consent of ActivTrak; (vi) alter or modify the Application Services without the prior written consent of ActivTrak; (vii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Application, including without limitation any mechanism used to restrict or control Application Services functions; (viii) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by ActivTrak for downloading Application Services; (ix) disclose to any third party any benchmarking or comparative study involving the Application Services or Documentation; or (x) use the Application Services or Documentation in any manner not authorized by ActivTrak.
4. FEES AND PAYMENT.
A. MSP Annual End User Subscription Fees . MSP Partner shall pay ActivTrak annual fees associated with total end user subscriptions as set forth in the Order Form for the Initial Term. These fees shall be non-cancellable and non-refundable. As such, MSP Partner shall have the right to use any products or services identified within the line item description of the ActivTrak Product List. The MSP Program Participation is for the exclusive use of MSP Partner and cannot be transferred, assigned, sold, or otherwise made deployable, in whole or in part, to any third party, including any User. For the avoidance of doubt, commencing upon Effective Date XZY, MSP Partner is obligated to pay the annual fees associated with total end user subscriptions, even if the MSP Partner has not deployed User Subscriptions.
Failure to pay the MSP annual agreement for end user subscription fees pursuant to the payment terms set forth in Section 5 shall constitute a breach of this Agreement.
ActivTrak shall invoice MSP Partner for each additional User Subscription Fee upon the execution of the Order Form, and such users will be added into overall license pool if applicable.
B. Services Pricing. Pricing for Services shall be ActivTrak’s then current pricing for the Services as provided by ActivTrak. ActivTrak reserves the right to modify Services pricing.
5. PAYMENT TERMS; TAXES AND SHIPPING
A. Pricing and Program Structure. Pricing for Services and program structure shall be as set forth in Exhibit A. MSP Partner shall be permitted to sell Services to its customers as determined by MSP in its sole discretion, provided that Partner is in compliance with the Minimum Advertised Pricing Policy set forth in Exhibit B.
B. Payment Terms. Fees must be paid in United States Dollars, or as otherwise stated in the Order Form, and are exclusive of out-of-pocket expenses. Any and all payments made by MSP Partner pursuant to this Agreement are non-refundable. MSP Partner will make payment within thirty (30) days of the date of the invoice. Late payments will incur monthly interest charges of 1.5% per month after forty-five (45) days, or the maximum interest rate permitted by law, whichever is less, together with any collection costs (including reasonable attorneys’ fees). Payment options may be credit card, wire/electronic transfer, company check or other pre-arranged payment method. ActivTrak may invoice parts of an order separately. ActivTrak is not responsible for pricing, typographical, or other errors, in any quotation or offer and reserves the right to cancel any orders resulting from such errors.
C. Taxes and Shipping. All payments under this Agreement shall be made free and clear and without deduction for any and all present and future Taxes. Payments due to ActivTrak under this Agreement shall be increased so that amounts received by ActivTrak, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement if no Taxes were due on such payments. For purposes of this Agreement, the term “Taxes” means all income withholding taxes, levies, imposts, duties, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a party’s net income or property. The MSP Partner shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority by delivering to ActivTrak receipts or notarized copies thereof within 30 days after the due date for such tax payments. Without prejudice to the survival of any other Agreement of MSP Partner hereunder, the obligations of MSP Partner contained in this section shall survive the payment in full of all payments hereunder.
Unless ActivTrak is provided with a valid and correct reseller permit or tax exemption certificate applicable to the purchase of Services, MSP Partner shall be responsible for sales and other taxes associated with the order. Shipping dates are estimates only. All terms are FOB Point of Shipment.
6. SUPPORT SERVICES, INFORMATION, REPORTING AND AUDITS
A. Support Services. Subject to MSP Partner paying any required Fees for Support Services as set forth in the Order Form, ActivTrak will provide Support Services in accordance with (a) ActivTrak’s standard terms and conditions located at https://activtrak.com/terms-and-conditions/. ActivTrak may amend terms and conditions for Support Services by posting notices on ActivTrak’s web site or, for material changes, by emailing MSP Partners of such changes. MSP is solely responsible for: (a) accessing and using the Offerings, and ensuring Beneficiaries access and use the Offerings, in accordance with the Documentation; (b) determining the suitability of the Offerings for MSP’s and Beneficiaries’ use; (c) configuring the Offerings appropriately; (d) complying with any regulations and laws (including, without limitation, export, data protection, and privacy laws) applicable to MSP Content and MSP’s and Beneficiaries’ use of the Offerings; (e) MSP’s access and use of the Offerings; (f) all activity occurring under MSP’s Offering and support accounts; (g) providing all reasonable information and assistance required for ActivTrak to deliver the Offerings or enable MSP’s or Beneficiaries’ access and use of the Offerings; (h) using reasonable means to protect the account information and Credentials (including passwords and devices or information used for multi-factor authentication purposes) used by MSP and Beneficiaries to access the Offerings; and (i) promptly notifying ActivTrak of any unauthorized account use or other suspected security breach, or unauthorized use, copying, or distribution of the Offerings, ActivTrak Materials, or MSP Content. MSP Content. MSP is solely responsible for all MSP Content, including but not limited to its accuracy, quality, and legality. MSP represents and warrants that it: (a) has the legal rights to provide MSP Content to ActivTrak; (b) has provided any required notices and has obtained any consents and/or authorizations (including any required from Beneficiaries and Users) related to its access and use of the Offering and the processing of and access to MSP Content by ActivTrak; and (c) will comply with all applicable laws and regulations for collecting and processing MSP Content, and transferring MSP Content to ActivTrak. MSP is responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of MSP Content, including but not limited to: (i) controlling access that MSP provides to Beneficiaries and Users; and (ii) backing up MSP Content.
B. Information. MSP Partner will keep and maintain commercially reasonable written records and accounts regarding MSP Partner’s use of Application Services for at least two (2) years after expiration of the applicable Application Services license term. Upon the request of ActivTrak, MSP Partner shall provide a written report to ActivTrak indicating the number of copies of the MSP Partner Offering Services incorporating the Application Services distributed during such term. MSP Partner shall not (and shall not permit third parties to) sell more subscriptions of the MSP Partner Offering Services incorporating the Application Services than the quantity for which Fees have been paid to ActivTrak.
C. Audits. ActivTrak, or a certified public accountant designated by ActivTrak, shall have the right, upon ten (10) days written notice to MSP Partner, to conduct an inspection and audit of all relevant facilities and records of MSP Partner relating to this Agreement including but not limited to the usage of the Application, the accounting of devices, and current User assigned to each specific User Subscription. Such audit shall be conducted during regular business hours at MSP Partner’s offices and data centers and in such manner so as not to unreasonably interfere with MSP Partner’s normal business activities. In no event shall audits be conducted more frequently than once every six (6) months. The audit shall be conducted at ActivTrak’s expense; provided, however, that if the audit reveals that MSP Partner has failed to comply with any material term of this Agreement, MSP Partner shall pay all reasonable costs and expenses incurred by ActivTrak in conducting the audit, and any applicable unpaid fees.
7. WARRANTY AND WARRANTY DISCLAIMERS
A. Warranties. ActivTrak warrants that during the Term: (i) the Application Services shall perform materially in accordance with the applicable Documentation, (ii) ActivTrak will employ commercially reasonable efforts to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Application Services, and (iv) it owns or otherwise has sufficient rights in the Service to grant to MSP Partner the rights to use the Application Services granted herein. As MSP Partner’s exclusive remedy and ActivTrak’s entire liability for a breach of the warranties set forth in this Section 6A, ActivTrak shall use commercially reasonable efforts to correct the non-conforming Application Services at no additional charge to MSP Partner. The remedies set forth in this subsection shall be MSP Partner’s sole remedy and ActivTrak’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Application Service has been utilized in accordance with the Documentation, this Agreement and applicable law.
MSP Partner represents that it shall be exclusively responsible for any User data maintained or stored by MSP Partner on behalf of a User, including ensuring the security and confidentiality of all such data, or for any loss of data that occurs due to use of the Application Services.
The Application agent is not designed, manufactured, or intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other Application Services in which the failure of the Application agent could lead directly to death, personal injury, or severe physical or property or environmental damage (collectively, “High Risk Activities”). ActivTrak and its suppliers expressly disclaim any express or implied warranty with respect to any High Risk Activities.
B. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ACTIVTRAK DOES NOT WARRANT THAT THE APPLICATION SERVICES WILL MEET MSP PARTNER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTIVTRAK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ACTIVTRAK OR ITS LICENSORS, AUTHORIZED PARTNERS, OR SUPPLIERS BE LIABLE TO MSP PARTNER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY MSP PARTNER TO ACTIVTRAK DURING THE TWELVE (12) MONTH PERIOD PROCEEDING ANY SUCH CLAIM(S). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND DO NOT APPLY TO BODILY INJURY TO A PERSON.
9. CONFIDENTIALITY, MSP PARTNER INFORMATION, AND COMMUNICATIONS
A. Confidentiality. MSP Partner acknowledges and agrees that the Application Services and Documentation incorporates confidential and proprietary information developed or acquired by ActivTrak including, but not limited to, technical and non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related to the Application, which constitutes the valuable intellectual property of ActivTrak and its suppliers (collectively, “Confidential Information”).
The parties may use Confidential Information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information. The parties will hold in confidence and not disclose, reproduce, distribute, or transmit the Confidential Information, directly or indirectly, in any form, by any means, or for any purpose, except to those of its employees, agents, consultants, or subcontractors who require access for MSP Partner’s authorized use of the Application Services in accordance with the terms of this Agreement. MSP Partner will implement reasonable security measures to protect such Confidential Information at a level no less restrictive than used to protect its own confidential information.
The parties shall not be restricted under this Section 8 with respect to Confidential Information that the receiving party affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of the receiving party or any of its employees, agents, subcontractors or consultants; (ii) was in the possession of the receiving party before receiving the information; (iii) is independently developed by the receiving party without use of the confidential information; or (iv) is required to be disclosed by law, court order or other legal process, provided that the receiving party shall first provide the disclosing party with prompt written notice thereof.
MSP Partner acknowledges that (i) any use or threatened use of the Application Services in a manner inconsistent with this Agreement, or (ii) any other misuse of the Confidential Information of ActivTrak will cause immediate irreparable harm to ActivTrak for which there may be no adequate remedy at law. Accordingly, MSP Partner agrees that ActivTrak shall be entitled to seek injunctive relief in the event of any such breach or threatened breach by MSP Partner. Nothing contained herein shall limit ActivTrak’s right to any remedies at law.
B. MSP Partner Information. ActivTrak may use any technical information MSP Partner provides to ActivTrak for any of ActivTrak’s reasonable business purposes, including product support and development. MSP Partner acknowledges that the Application Services may include a monitoring capability that sends anonymous statistics about performance, device utilization and network size remotely to ActivTrak. ActivTrak will not use technical information in a form that personally identifies the MSP Partner.
C. Notices. ActivTrak may send MSP Partner required legal notices and other communications about the Application, including special offers and pricing or other similar information, MSP Partner surveys or other requests for feedback (“Communications”). ActivTrak will send Communications via in-product notices or email to registered email addresses of MSP Partner (as provided in the Order Form) named contacts, or will post Communications on its Website. MSP Partner may notify ActivTrak of its desire not to receive any such Communications (which may have a technical impact on MSP Partner’s use of the Application Services and the provision of any Support Services) by writing to [email protected].
10. TERM AND TERMINATION
A. Initial Term. The term of this Agreement shall commence upon the Effective Date and remain in effect for the period of any MSP Program Participation commitment specified in the Agreement (“Initial Term”), unless earlier terminated as set forth herein. If no MSP Program Participation commitment is specified in the Agreement, the Initial Term shall be for a period of one (1) year.
B. Extension Period. Notwithstanding the foregoing, if the Subscription Term of a User Subscription extends beyond the Initial Term of this Agreement (“Extension Period”), this Agreement shall automatically be extended to be coterminous with such Subscription Term.
C. The term of this Agreement shall automatically renew for the period of any MSP Program Participation commitment specified in an applicable Agreement executed during the Initial Term or Extension Period.
D. Either party may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement to the other party and failure to cure within thirty (30) days following written notice specifying such breach. For avoidance of doubt, MSP Partner’s failure to pay any fee under this Agreement shall constitute a breach of this Agreement.
E. Program Termination. 90 day written notice is required from MSP Partner to terminate the Agreement from the annual renewal date. Upon receipt of written notice all outstanding fees must be paid in full or agreement will continue in perpetuity. It is the responsibility of the MSP Partner to notify end users in writing of termination. ActivTrak reserves the right to engage with said end users directly for continuation of ActivTrak services .
Upon expiration or termination of this Agreement, MSP Partner will cease all use of the Application Services and return to ActivTrak and/or destroy each copy of the Application Services and all Documentation and related materials as well as ActivTrak’s Confidential Information in MSP Partner’s possession or control, and so certify in writing to ActivTrak. Except as expressly provided herein, Sections 1, 2, 4, 5, 6B, 7, 8, 9, 10D, 11, and 13 of this Agreement shall survive termination.
F. End User Termination. 90 day written notice is required from MSP Partner to terminate end user licenses – as contracts are annual MSP is required to pay the full term of the end users licenses count from the start date of end users contract. Upon receipt of written notice all outstanding fees must be paid in full and only then can they be removed from MSP annual renewal.
11. INDEMNIFICATION
ActivTrak shall indemnify and hold harmless MSP Partner and its officers, employees, agents, and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Application Services infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third-party. MSP Partner may, at its own expense, assist in such defense if it so chooses, provided that ActivTrak shall control such defense and all negotiations relating to the settlement of any such claim. MSP Partner shall promptly provide ActivTrak with written notice of any claim which MSP Partner believes falls within the scope of this Section 10. In the event that the Application Services or any portion thereof is held to constitute an infringement and its use is enjoined, ActivTrak may, at its sole option and expense, (i) modify the infringing Application Services so that it is non-infringing; (ii) procure for MSP Partner the right to continue to use the infringing Application Services; or (iii) replace said Application Services with suitable, non-infringing services. Notwithstanding the foregoing, ActivTrak will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Application Services made by or for MSP Partner or any other party that were not provided by ActivTrak or authorized by ActivTrak in writing; (ii) use of the Application Services in combination with any other services, software, hardware or products not supplied by ActivTrak.
MSP Partner shall indemnify and hold ActivTrak harmless from and against all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) of any kind and nature that may be asserted, granted or imposed against Licensor, arising from or in connection with: (a) any claims that any Hardware, service, Application Services or other software supplied by MSP Partner (other than Application Services provided by Licensor) infringe any third party intellectual property rights; (b) any misrepresentation made by MSP Partner regarding ActivTrak or the Application Services; (c) any breach by MSP Partner of this Agreement, including any breach of warranty provided by MSP Partner herein; or (d) any warranty, representation or guarantee made by MSP Partner with respect to the Application Services in addition to the limited warranty provided by ActivTrak in Section 6 of this Agreement.
12. TRADEMARKS.
Subject to the provisions of this Section 13, during the term of this Agreement, MSP Partner will have the right to advertise the Services with ActivTrak’s trademarks, trade names, service marks, and logos of ActivTrak (“ActivTrak Trademarks”), solely in connection with the solicitation of orders for licenses, subject to ActivTrak’s prior inspection and written approval. All representations of ActivTrak Trademarks that MSP Partner intends to use will first be submitted to ActivTrak for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by ActivTrak. MSP Partner will fully comply with all guidelines, if any, communicated by ActivTrak concerning the use
of ActivTrak Trademarks. Except as set forth in this Section 12, nothing contained in this Agreement will grant or will be deemed to grant to MSP Partner any right, title, or interest in or to ActivTrak Trademarks.
13. GENERAL
A. Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent, provided that ActivTrak may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
B. Foreign Corrupt Practices Act and Anticorruption Laws. Each party agrees in connection with this Agreement to comply with the U. S. Foreign Corrupt Practices Act (the “FCPA”), and all other applicable anticorruption laws (i.e., U.K. Bribery Act of 2010 and local anticorruption laws). Each party further agrees that it, and its employees, officers, directors, principals, agents, brokers and affiliates shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment or an offer to pay, or offer a gift, promise to give, or authorize the giving of a bribe or, anything of value for the purpose of influencing an act or decision of any government official or other person (including a decision not to act) or inducing an official or other person to improperly use his/her influence to affect any such governmental act or business decision in order to assist in obtaining, retaining or directing any business, or securing any improper advantage. Each party shall have the right to audit the other party’s compliance with this provision during normal business hours no more than once per annum and upon at least fourteen (14) business days’ prior written notice. Each may be required to annually certify compliance with this provision upon written request by the other party. Failure to comply with this provision shall be considered a material breach of the Agreement.
C. Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile; (ii) on the date it was delivered by courier; or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.
D. Force Majeure. ActivTrak will not be held responsible for any failure, delay or interruption caused by circumstances outside of its control, such as network failure, network connection failure, earthquake, flooding, strikes, embargos or acts of government. If such event giving rise to force majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund.
E. Amendments. Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties.
F. Severability. If any provision of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed severed from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.
G. Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.
H. Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Texas without giving effect to the conflicts of law provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. MSP Partner hereby irrevocably consents to jurisdiction of both the state and federal courts located in Travis County, Texas.
–
| Company ______________________________
Signature ______________________________ Printed Name ___________________________ Name__________________________________ Title ___________________________________ Date __________________________________ |
Birch Grove Software, Inc.
Signature ______________________________ Printed Name ___________________________ Name__________________________________ Title ___________________________________ Date __________________________________ |
–
END OF AGREEMENT
–
Exhibit A
Pricing and Program Structure
PRICING AND PROGRAM STRUCTURE
A. Application Services. ActivTrak Application Services in the then current price list excluding (“Price List”).
B. Product List and SKU’s and Pricing. A list of ActivTrak available Application Services and prices is set forth at the following URL,which may be adjusted by ActivTrak along with SKU’s and pricing from time to time at www.activtrak.com/pricing
C. MSP Partner Discount Structure
Discounts apply to new Users, expansion of current User count and Upgrades in Support:
–
| USER COUNT | APPLICABLE DISCOUNT |
|---|---|
| 100 Users | 30% |
| 500+ Users | 35% |
| 1,000+ Users | 45% |
| Internal NFR’s up to 15 | 50% |
–
Partner Discount Structure Terms:
- Discounts above are on an individual sales transaction level and not on a cumulative basis.
- User counts must be maintained per License Pool for continued discount on expansion to apply.
- Program model is a license pool, cumulative across multiple User accounts.
- Pricing on renewal, including any discount or uplift, is at ActivTrak sole discretion.
D. Price Changes. ActivTrak reserves the right to modify Application prices listed on the Price List.
E. MSP Partner Responsibilities. Upon agreement with ActivTrak MSP Program requiring all documentation and contractual requirements and agreement to ActivTrak MSA, the MSP Partner shall be awarded full access to ActivTrak Managed Service Program. Said access shall delineate the below roles and responsibilities of the MSP Partner, up and not limited to
Sales & Marketing
-
The responsibility lies with MSP Partner to market, list and sell Application Services in accordance with ActivTrak sales best practices. ActivTrak will use commercially reasonable efforts to support MSP Partner where required in the initial 3 months of Effective Date.
- Monthly Forecast Reviews – upon ActivTrak request the MSP Partner agrees to engage with all necessary parties needed to review their sales forecast with ActivTrak.
- ActivTrak reserves the right to review how ActivTrak’s Application Services are being marketed within the addressable market – to include and not limited to market alignment on MSP Partner collateral and website.
- MSP Partner is responsible for leveraging ActivTrak’s onboarding methodology where applicable to provision and onboard respective Users. ActivTrak will use commercially reasonable efforts to provide onboarding collateral and updates as needed. Any changes required to ActivTrak products and services MSP Partner is required to solution with Users.
Support
- Monthly Forecast Reviews – upon ActivTrak request the MSP Partner agrees to engage with all necessary parties needed to review their sales forecast with ActivTrak.
-
The MSP Partner is responsible for providing product support to Users based on mutually agreed upon terms with ActivTrak. If MSP Reseller cannot provide product support to end user, ActivTrak support package must be sold to User.
Customer Success
-
The MSP Partner is responsible for providing customer success services to the Users. This should include but not be limited to advancement in end user knowledge of product features, enhancements and user enablement to drive adoption. It is also the responsibility of the MSP Partner to renew annual subscription of end user agreements.
–
Exhibit B
MINIMUM ADVERTISED PRICE POLICY
A. POLICY STATEMENT. ActivTrak, in its sole discretion, reserves the right to discontinue doing business with any authorized reseller of ActivTrak that advertises any ActivTrak products or services covered by this MAP policy at a price lower than set forth in the MAP.
B. GENERAL GUIDELINES. All ActivTrak products and services are covered by this Policy.
ActivTrak recognizes that authorized resellers are free to make their own decisions to advertise and sell any ActivTrak product and services at any price they choose, without consulting or advising ActivTrak. Similarly, ActivTrak will exercise its right to make its own decisions regarding the ActivTrak its reseller programs, including but not limited to supplemental marketing materials, new product availability, or future promotional, joint marketing, or sponsorship programs.
The MAP Policy applies to advertised prices, not the price at which ActivTrak products and services are actually sold or offered for sale.
ActivTrak believes in maintaining a well-regulated and fair marketplace for all its authorized resellers.
D. ADVERTISING GUIDELINES. The MAP Policy applies to all advertisements of ActivTrak products and services in any and all media, including but not limited to flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, television, radio, and public signage, as well as internet sites, social media sites, apps, or any other electronic media.
Website features such as “click for price,” automated “bounce-back” pricing e-mails, pre-formatted e-mail responses, forms, automatic price display for any items prior to being placed in a customer’s shopping cart and other similar features are considered to be communications initiated by the dealer /partner (rather than by the customer) and thereby constitute “advertising” under this MAP Policy.
It shall not be a violation of this MAP Policy to advertise that a customer may “call for price” or “email for price,” or to use similar language, specifically with respect to ActivTrak products, so long as no price is listed. This MAP Policy also applies to any activity which ActivTrak determines, in its sole discretion, is designed or intended to circumvent the intent of this MAP Policy, such as solicitations for “group purchases” and the like. It shall not be a violation of this MAP Policy to advertise in general that the reseller has “the lowest prices” or will match or beat its competitors’ prices, or to use similar phrases; so long as the reseller does not include any advertised price below MAP and otherwise complies with this MAP Policy.
From time to time, ActivTrak may authorize resellers to advertise MAP products and services at prices lower than the MAP retail price. In such events, ActivTrak reserves the right to modify or suspend the MAP retail price with respect to the affected products and services for a specified period of time by providing advance notice to all resellers of such changes.
From time to time, ActivTrak may offer a direct manufacturer’s rebate to customers. In such events, it shall not be a violation of this MAP Policy to advertise the availability of the manufacturer’s rebate, provided that:
i. the advertisement includes a MAP-compliant price, the rebate amount, and the net price after manufacturer’s rebate in the same type size and style.
ii. an asterisk is placed next to the net price after manufacturer’s rebate; and
iii. “after manufacturer’s rebate” appears in the same area of the advertisement as the advertised product.
E. BUNDLING GUIDELINES. “Bundling” or advertising ActivTrak products or services for sale together with other products will violate this MAP Policy when:
i. the effective or stated price of the bundle represents a discount of greater than 15% of the MAP; or
ii. the product(s) or services bundled with MAP products or services violate ActivTrak’s Intellectual Property rights; or
iii. the product(s) or services bundled with MAP products or services violate the ActivTrak’s Trademark & Brand Policy; or
iv. the product(s) or services bundled with MAP products or services include words, packaging, graphics, or other indicia which may create customer confusion as to the source of the product(s); or
v. the effective or stated discount is greater than 15% of the highest priced item in the bundle.
F. POLICY ENFORCEMENT. ActivTrak’s MAP Policy Administrator, or any executive of ActivTrak, are solely responsible for determining whether a violation of the MAP Policy has occurred, as well as determining appropriate remedies. Waivers to this MAP Policy may be granted in ActivTrak’s sole discretion by the MAP Policy Administrator in writing. In the event that the MAP Policy Administrator authorizes a waiver to the MAP Policy, the applicable authorized reseller must strictly adhere to the terms of the waiver letter. Deviation from the terms of a waiver letter is a violation of the MAP Policy.
ActivTrak reviews the advertised prices of resellers, either directly or via the use of third-party agencies or tools.
The MAP Policy will be enforced solely by ActivTrak in its sole discretion. Authorized resellers have no right to enforce the MAP Policy on behalf of ActivTrak. Violations of this Policy may result in termination of our business relationship to extent permitted by law.
16. NON SOLICITATION OF ACTIVE CLIENTS
A. Non-Solicitation of Direct Clients
The MSP Partner agrees that, during the term of this Agreement and for a period of 1 year following its termination or expiration, it will not directly or indirectly solicit, recruit, or attempt to engage any of ActivTrak’s active direct clients for the purpose of offering, selling, or providing services or products that are competitive with the ActivTrak’s offerings.
B. Definition of Active Direct Clients
For the purposes of this Agreement, “Active Direct Clients” refers to any current clients of ActivTrak with whom the ActivTrak has an ongoing business relationship at the time of this Agreement and during its term, excluding clients introduced to ActivTrak by the MSP Partner.
C. Avoidance of Channel Conflict
The MSP Partner shall ensure that all business development and sales efforts for ActivTrak’s products or services are directed toward prospective clients or end users that are not already direct clients of ActivTrak, in order to avoid any potential channel conflicts.
D. Remedies for Breach
In the event of a breach of this section, ActivTrak reserves the right to seek all available remedies, including but not limited to injunctive relief and recovery of any damages incurred as a result of the MSP Partner’s actions.