Executed Master Service Agreements and/or Contracts supersede the Infinitytechsystems.com Terms of Service listed on the website.
INFINITY TECHNOLOGY SYSTEMS LLC. AND/OR ITS AFFILIATES (“ITS”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND ITS MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND ITS. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1.1. Access and Use. Subject to payment of all applicable fees set forth in the SOW, and the terms and conditions of this Agreement, ITS grants Customer, during the Subscription Term, a non-exclusive, non- right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation. Customer will operate the SaaS Products in accordance with the Documentation and be responsible for the acts and omissions of its Authorized Users.
1.2. Access and Use Restrictions. Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable SOW; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or ITS Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive purpose; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or ITS Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products to infringe on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) send, store or process in the SaaS Products any personal health data, credit card data, personal financial data or other such sensitive regulated data.
1.3. Login Access to the SaaS Products. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) that such Authorized Users have been trained in proper use of the SaaS Products, and (iii) proper usage of passwords, tokens and access procedures with respect to logging into the SaaS Products. ITS reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in this Agreement, in which case ITS will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this Agreement, ITS may suspend Customer’s access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and ITS reasonably suspects or knows that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the SaaS Products. ITS will provide notice prior to such suspension if permitted by applicable law or unless ITS reasonably believes that providing such notice poses a risk to the security of the SaaS Products. ITS will promptly reinstate Customer’s access and use once the issue has been resolved.
1.4. Third Party Materials. The SaaS Products include Third-Party Materials subject to their respective , where applicable. ITS warrants that such Third-Party Materials will not diminish the license rights provided to Customer herein or limit Customer’s ability to use the SaaS Products in accordance with the Documentation, or create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any.
1.5. Support. As part of its provision of the SaaS Products, ITS shall make available technical support to Customer in accordance with ITS’ then applicable SaaS support terms. Upon notification from ITS, Customer shall promptly update any Agents on Customer systems that interact with the SaaS Products. Customer acknowledges and agrees that
1.6. Mobile Applications. With regard to SaaS Products that require the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users
2.1. Payment Terms. Customer shall pay all invoices within thirty (30) days of date of invoice, unless otherwise specified in a SOW or Framework Agreement, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by ITS or through an electronic funds transfer. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 ½ %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. ITS may invoice for purchases of SaaS Products upon delivery.
2.2. Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. ITS shall include the Indirect Taxes on its invoice to Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law.
For the avoidance of doubt, ITS will be responsible for direct taxes imposed on ITS’s net income or gross receipts in its tax jurisdiction.
3.1. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and ITS Intellectual Property are hereby reserved by ITS, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.
3.2. Customer Data. Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant ITS any rights in Customer Data beyond those expressly provided herein. Customer grants ITS and its Affiliates the limited, non-exclusive, worldwide right to view and use the Customer Data solely for the purpose of providing the SaaS Products.
3.3. Usage Data and Suggestions. ITS shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer’s benefit. In the event ITS wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be anonymized and presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way ITS’s confidentiality obligations pursuant to section 4 below. To the extent that Customer provides ITS with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon ITS pursuant to this Agreement, and may be implemented by ITS in its sole discretion. Customer acknowledges that any ITS products or materials incorporating any such Suggestions shall be the sole and exclusive property of ITS.
4.1. Confidential Information. The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other. The receiving Party may only use the disclosing Party’s Confidential Information to fulfill the purposes of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein.
5.1. Customer Data Content. As between ITS and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with ITS (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
5.3. Security of Customer Data. ITS shall: (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. ITS shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term.
6.1. SaaS Products Warranty. During the applicable Subscription Term, ITS warrants that the SaaS Products will perform in substantial conformity with the Documentation, and that the SaaS Products are not designed to contain viruses, worms, Trojan horses or other unintended malicious or destructive code. The foregoing warranties are void if the failure of the SaaS Products has resulted from negligence, error, or misuse of the SaaS Products by Customer, the Authorized User or by anyone other than ITS. Customer shall be required to report any breach of warranty to ITS within a period of the date on which the incident giving rise to the claim occurred. ITS’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties will be for ITS, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if ITS fails to correct the breach within such cure period,
Customer may terminate the affected SOW and, in such event, ITS shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Products.
6.2. Compliance with Law. Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
6.3. Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period in this Agreement. To the maximum extent allowed by applicable law, ITS disclaims all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. ITS will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by ITS.
7.1. Infringement Indemnity. ITS shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the SaaS Products in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.2. Customer Data and Use Indemnity. Customer shall defend and indemnify ITS and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity) resulting from: (i) an alleged infringement or violation by the Customer Data of such third-party’s patent, copyright, trademark, trade secret; or (ii) ITS’s use of the Customer Data, in accordance with the terms of this Agreement and (where applicable) with the terms of the DPA, violates applicable law; and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.3. Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.4. Exclusions. The above ITS obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the SaaS Products not in accordance with the Documentation and this Agreement; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification, alteration or conversion of the SaaS Products not created or approved in writing by ITS; (d) any combination or use of the SaaS Products with any computer, hardware, software, data or service not required by the Documentation; (e) ITS’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
7.5. Remedies. If the SaaS Products becomes, or ITS reasonably determines that the SaaS Products is likely to become, subject to a claim of infringement for which ITS must indemnify Customer as described above, ITS may at its option and expense: (a) procure for Customer the right to continue to access and use the SaaS Products, (b) replace or modify the SaaS Products so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SaaS Products, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected SOW and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Product. This section states the sole liability of ITS and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
8.1. Maximum Liability. Except for liability caused by ITS’s intellectual property infringement indemnification obligations in section 7.1, Customer’s data infringement indemnity in section 7.2, and Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to ITS under this Agreement during the twelve (12) month period preceding the date of initial claim.
8.2. No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
Customer may separately purchase from ITS professional services in relation to the SaaS Products as may be generally available by ITS to its customers, pursuant to ITS’s then applicable professional services terms.
11.1. Term. This Agreement will be effective upon signature by both Parties and shall remain in force during the applicable Subscription Term of the SaaS Products unless or until terminated by either Party pursuant to this section.
11.2. Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, a SOW, or a Schedule, in whole or in part, or cease provision of the SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. ITS reserves the right to suspend Customer’s access to the applicable SaaS Products upon 30 days’ written notice to Customer if: (i) an invoice is more than sixty (60) days past due; or (ii) if there is an uncured material breach of this Agreement. ITS will promptly reinstate Customer’s access and use of the SaaS Products/provision of the Professional Services once the issue has been resolved. Any accrued rights and obligations will survive termination.
11.3. Effects of Termination/Expiration. Upon termination or expiration of an applicable Subscription Term: (i) Customer will have no further right to access or use the SaaS Products; and (ii) each Party shall within thirty (30) days after written request return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products. Any Customer Data contained on the SaaS Products will be termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and ITS shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data after such sixty (60) day period. Following termination of the SaaS Products, ITS may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination.
12.1. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between ITS and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
12.2. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for ITS should be sent to the following addresses: (i) for physical Notices the address specified for ITS in section 13.4 “Governing Law and Jurisdiction” and; (ii) for electronic Notices to: email@example.com
12.3. Force Majeure. With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or SOW, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
12.4. Governing Law and Jurisdiction. Each Party agrees to the applicable governing law below without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts below with respect to any dispute, claim, action, suit or proceeding (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation. To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement.
ITS entity entering into Agreement:
Infinity Technology Systems LLC
With Principal Office at:
27 Hillside Avenue Wappingers Falls, NY 12590
12.5. Entire Agreement, Execution, and Modification. Customers will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term. ITS may make changes to these Terms of Service from time to time. If ITS makes a material change to any of the foregoing, ITS will inform Customer by e-mail to the e-mail address(es) noted on the SOW (or subsequently designated by Customer in writing as a contact for notifications from ITS), or through a banner or other prominent notice within the SaaS Products, or through the ITS support platform.
12.6. Severability and Waiver. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
12.7. Definitions and Interpretation. The following definitions and rules of interpretation apply in this Agreement:
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).
“Agents” means ITS’s proprietary software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by ITS in connection with the SaaS Products.
“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by Customer to use the SaaS Products solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“Channel Partner” means a third-party business entity that ITS has appointed as an approved partner to as applicable, distribute, re-sell and support the SaaS Products.
“Confidential Information” means all information provided by the disclosing Party to the receiving Party concerning the disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing Party at the time of disclosure.
“Customer Data” means all data and/or content uploaded to the SaaS Products by Customer (including where applicable Authorized Users), and in all data derived from it, including personal data. For the avoidance of doubt, Customer Data does not include Usage Data.
“ITS” means the ITS legal entity specified on the signature line below, at the address specified in Section 13.4 “Governing Law and Jurisdiction.”
“Documentation” means the user guides, installation documents, security fundamentals documentation, and specifications for the SaaS Products that are made available from time to time by ITS in electronic or tangible form, but excluding any sales or marketing materials.
“Intellectual Property” means a Party’s proprietary material, technology, or processes (excluding the SaaS Products and Documentation), including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
“Notice” means any notice or other communication required or permitted under this Agreement.
“SOW” means ITS’s Statement of Work accepted by Customer which references the SaaS Products, pricing, payment terms, quantities and other applicable terms set forth in an applicable ITS quote or SOW document.
“OSS Licenses” means the respective open source licenses that the Third-Party Materials are subject to.
“SaaS Products” means the software-as-a-service products specified in the SOW as further described in the Documentation (including any updates and upgrades to the SaaS Products provided by ITS in its sole discretion, and any software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by ITS in connection with the SaaS Products).
“Subscription Term” means the period of time during which Customer is subscribed to the SaaS Products, as specified in an SOW and which shall begin upon delivery of the SaaS Products.
“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements, or changes to the SaaS Products suggested by Customer to ITS, which constitute Intellectual Property rights under applicable law.
“Third-Party Materials” means open source software programs that are made available by third parties under their respective OSS Licenses.
“Usage Data” means data generated in connection with Customer’s access, use and configuration of the SaaS Products and data derived from it (e.g., types of applications or accounts utilized or interacting with the SaaS Products).
Any words following the terms including or include shall be regarded as examples only and not construed as an exhaustive list.
Should Customer have any questions concerning this Agreement, or if Customer desires to contact ITS for any reason, please e-mail us at: firstname.lastname@example.org
Last updated: January 1, 2021