1. ACCEPTANCE AND SCOPE

This agreement (“Agreement”) is between Iristrace BV, a corporation with registered office at 141 Overtoom, 1054 HG, Amsterdam (The Netherlands), with tax identification number NL854122564B01 (hereinafter referred to as “Iristrace”, “us,” “we,” or “our”) and the person or legal entity agreeing to these terms and conditions (hereinafter referred to as “Customer” or “you”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “you” or “Customer” means your company, and you are binding your company to this Agreement.

Iristrace has developed and hosts the Subscription Services (as defined below in Section 1.9), which are accessed and used by Iristrace’s customers; and Customer desires to access and use the Subscription Services, and Iristrace is willing to permit Customer to access and use the Subscription Services, subject to these terms and conditions of use (“Terms”). These Terms  includes: (i) Site Terms and Conditions; (ii) Privacy Policy posted at iristrace.com (“Site”) from time to time; (iii) the Statement of Work or, in the case of No-Charge Services, the Specific Terms (as defined in Sections 2.1. and 3.2); (iv)  and any other exhibits if agreed between parties as set forth in the Agreement.

BY USING OR ACCESING THE IRISTRACE SOFTWARE OR CLICKING ON THE “ CREATE ACCOUNT” BUTTON THAT IS PRESENTED TO YOU AT THE TIME OF CREATING YOUR ACCOUNT, YOU ARE AGREEING TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE.

DEFINITIONS

1.1 “Authorized User” means an employee or business partner of Customer (i) who is authorized by Customer to access and use the Subscription Services and that has (ii) been assigned a unique username-password combination to access and use the Subscription Services.

1.2 “Customer Data” means all data and information, including, but not limited to, video, still images, analytic data and textual content, stored by Iristrace and generated by Iristrace from the Customer-Provided Data, in connection with the provision of the Services.

1.3 “Customer-Provided Data” means all data and information provided or made available by Customer to Iristrace including, but not limited to, video or images from video and/or cameras, smartphone cameras, security cameras and related technology, templates, logos, illustrations, etc.

1.4 “Intellectual Property Rights” means all rights of a person or business entity in, to, or arising out of: (i) any european, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.

1.5 “Statement of Work” or (“SOW”) means a separate document agreed in writing between Customer and Iristrace which contains particular conditions of the Agreement as the details of the Implementation Services, Subscription Services, and products purchased by Customer from Iristrace; the applicable fees (“Fees”); the term of the Agreement (“Term”); and the applicable form of payment, among others. SOW is not applicable to No-Charge Services (as defined in Section 3.2).

1.6  “Iristrace Partner” means a partner authorized by Iristrace to perform Implementation Services or other services on behalf of Iristrace for Customers.

1.7 “Software” means Iristrace’s local/edge software, in executable form, and related documentation, if applicable, used by Iristrace in connection with the performance of the Services or made available by Iristrace to Customer.  

1.8 “Implementation Services” means the services performed by Iristrace or an Iristrace Partner to configure and rollout the Subscription Services to Customer and Authorized Users, as described in the Statement of Work.              

1.9 “Subscription Services” means the online services provided by Iristrace cloud application at v4.iristrace.com and any other services Iristrace makes available to Customer pursuant to this Agreement relating to the access and processing of Customer-Provided Data, and the generation and storage of, and access to Customer Data, available and more fully described on the Iristrace website. The Subscription Services may also include Remote Services, Training Services, Optimization Services (as defined below) and other services agreed by Iristrace and Customer described in the Statement of Work.

1.9.1 “Remote Services” means services performed by Iristrace or an Iristrace Partner to provide Analysis and Research to Customer and Authorized Users.

1.9.2  “Training Services” means services performed by Iristrace or an Iristrace Partner to train Customer and Authorized Users on the Iristrace Platform and the usage of the Iristrace Mobile Apps.

1.9.3 “Optimization Services” means services performed by Iristrace to assist the Customer and Authorized Users to improve their usage of the Iristrace Platform once the Customer has implemented and run the system for a period of time.

2. MANAGING CHANGES TO THE AGREEMENT(S), STATEMENT OF WORK, ACCOUNT TEAMS

2.1 Statement of Work. Except for No-Charge Services (as described in Section 3.2), in order to access, use or receive Implementation and Subscription Services, Statement of Work shall be mutually agreed in writing between Customer and Iristrace. Any changes to the scope included in the Statement of Work will be detailed in a written change order (“Change Order”) mutually agreed upon in writing between Iristrace and Customer and attached to the applicable Statement of Work. If the terms of a Statement of Work or change order conflict with the terms of this Agreement then the terms of the Statement of Work or change order shall control.

2.2 Account Teams.  Iristrace will assign an account manager, and Customer will assign one or more account administrator and a billing contact, to act as their respective account teams during the Term.  The account teams shall be identified directly within the Iristrace Software, in the corresponding administrator tabs. This information shall be accurate, current and complete. Client and Iristrace agree to update any change within ten (10) days after a change occurs.   

2.3 Changes to the Agreement. Iristrace reserves the right to modify and update the Agreement over time. Any changes to the Agreement will be previously notified in writing from Iristrace to Customer.  Customer has the right to terminate the contract as soon as the changes become effective, provided these changes are not required by applicable law. In such cases, Customer shall be entitled to a pro-rata refund in the amount of the unused portion of prepaid fees for the applicable Subscription Services, calculated as of the effective date of the termination of such Subscription Services.

3. SUBSCRIPTION SERVICES

3.1 Subscription Services.  Subject to Customer’s compliance with the Agreement, Iristrace will provide the Subscription Services commencing when Customer activates its account or, if there is an Statement of Work agreed, at the launch date set forth in it, and continuing throughout the remainder of the Term. Customer may access and use the Subscription Services solely for its internal business purposes.

3.2 No-Charge Services. Iristrace may offer Subscription Services to Customer at no charge, including free accounts and trial use. Customer use of No-Charge Services shall be subject to additional terms (“Specific Terms”) specified within the Iristrace system at the time of subscription. Specific Terms set out, in any case, the period during which No-Charge Services shall be provided. To the extent permitted by applicable law, Customer agrees that (i) Iristrace may terminate, at its sole discretion, Customer’s right to use No-Charge Services at any time and for any reason, without liability to Customer; (ii)  Iristrace has no obligation to provide any particular service level; and (iii) Iristrace disclaims all obligations or liabilities with respect to No-Charge Services, including maintenance, support, warranty and indemnity obligations. This Section 3.2. and Specific Terms supersedes any conflicting term of the Agreement.

3.3  Software License. Iristrace grants to Customer a non-exclusive license to use and permit its Authorized Users to use such Software only for the purpose of accessing and using the Subscription Services, solely for Customer’s own internal business purposes. Customer has no right to transfer, sublicense, license, lease, lend, rent or otherwise distribute the Software or make the functionality of the Software or Subscription Services available to any third party (other than Authorized Users who are using the Software or Subscription Services  in accordance with the Agreement and solely for the purpose of supporting Customer’s internal business purposes). Except as expressly authorized in this Agreement, Customer shall not, and shall ensure that its Authorized Users do not: (i) copy the Software other than as necessary to access and use the Subscription Services; (ii) modify the Software, in whole or in part; (iii) distribute the Software or create derivative works based on the Software. Customer acknowledges that the Software constitutes and contains trade secrets of Iristrace, and, in order to protect such trade secrets and other interests that Iristrace may have in the Software, Customer agrees not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, except to the extent such restrictions are prohibited by law. Customer’s rights in the Software are limited to those expressly granted in this Agreement. Iristrace reserves all rights and licenses in and to the Software not expressly granted to Customer under this Agreement.                                                                                                                                                                                                       

3.4 Restrictions.  Customer shall not, and shall ensure that its Authorized Users do not (a) attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services); (b) copy, modify or distribute any portion of the Subscription Services or Software; (c) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; or (d) transfer any of its rights hereunder. Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users.

3.5 Acceptable Use Policies.  Customer shall not use the Subscription Services to transmit any bulk unsolicited commercial communications.  Customer acknowledges that the Subscription Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage.  Customer shall not use the Subscription Services for such purposes or under such circumstances. Customer agrees that Customer will not, and will not permit anyone else to: (i) use the Subscription Services or Software except as permitted in this Agreement; (ii) modify or create any derivative work of any part of the Subscription Services or Software; (iii) permit any parent, subsidiaries, affiliated entities or third parties to use the Subscription Services or Software  except as permitted in this Agreement; (iv) disassemble, decompile, or reverse engineer the Subscription Services or Software or any feature thereof or otherwise attempt to gain access to the source code to the software underlying the Subscription Services (or the underlying ideas, algorithms, structure or organization of the object code used in the Subscription Services or Software), or the Software, except to the extent expressly permitted by applicable law; (v) access or use the Subscription Services or Software for the purpose of building a competitive product or service or copying its features or user interface; (vi) permit access to a Subscription Services by a direct competitor of Iristrace.

3.6 Data Maintenance and Backup Procedures. Iristrace shall follow its standard archival procedures for Customer Data as described in the applicable documentation for the Subscription Services.  In the event of any loss or corruption of Customer Data, Iristrace shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest copy maintained by Iristrace. Iristrace shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party.  IRISTRACE’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 3.6 SHALL CONSTITUTE IRISTRACE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.

4. CUSTOMER OBLIGATIONS

4.1 Cooperation and Assistance.  As a condition to Iristrace’s obligations hereunder, Customer shall at all times: (a) provide Iristrace with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by Iristrace in order to provide the Implementation Services and Subscription Services (b) provide such personnel assistance, including the account team described in Section 2.2 and other Customer personnel, as may be reasonably requested by Iristrace from time to time; and (c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.  In the event of any delay in Customer’s performance of any of the obligations set forth in (a), (b) or (c), or any other delays caused by Customer, Iristrace shall not be responsible for such delays and costs incurred, including, without limitation, any Fees paid for Subscription Services that are not usable by Customer due to such delays. Iristrace, in its sole discretion, may offer Customer a proration of Fees to account for delays caused by Customer but is under no obligation to do so.

4.2 Marketing Support.  Iristrace may request to use Customer’s name and logo to support public relations efforts pertaining to the Subscription Services, which efforts may include: (a) a press release highlighting Customer’s purchase or use of the Subscription Services (including any return on investment attained through the Subscription Services); (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Subscription Services; and (c) participation in Customer case studies developed by Iristrace and used on the Iristrace web site and other collateral.  Upon Iristrace’s request, and upon Customer’s consent, which shall not be unreasonably withheld, Customer grants to Iristrace a non-exclusive, non-transferable limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to Iristrace. Iristrace will use its commercially reasonable efforts to cooperate with Customer in monitoring use of the Customer Marks.  All goodwill developed from such use shall be solely for the benefit of Customer.

4.3 Feedback.  As part of Customer’s use of the Subscription Services and Software in accordance with this Agreement, Customer agrees that if Customer provides Iristrace with any suggestions and ideas for modifications or improvements to the Subscription Services, feedback, error identifications or other information related to the Subscription Services or Software or Customer’s use thereof (“Feedback”), Customer hereby assigns and agrees to assign to Iristrace all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agree to assist Iristrace in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback. Consequently, Iristrace has the right to use any Feedback in any way and for any purpose without any requiring Customer’s permission or compensation in exchange for such use.

4.4 Enforcement.  Except as otherwise stated in the Statement of Work, Authorized Users access credentials issued to access or use the Subscription Services cannot be shared or used by more than one individual. Authorized User’s access rights may be transferred from one individual to another in the user administration module of the Subscription Services within the limits set by the subscription plan, if the original Authorized User is removed from the Iristrace system, no longer requires, or is no longer permitted access to or use of the Subscription Services. Customer shall be responsible for the acts and omissions of its Authorized Users as if they were the acts and omissions of Customer. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 3.3, 3.4 and 3.5.  Customer shall promptly notify Iristrace of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Iristrace with respect to: (a) investigation by Iristrace of any suspected or alleged violation of this Agreement and (b) any action by Iristrace to enforce the terms and conditions of this Agreement.  Iristrace may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that Iristrace reasonably determines that such Authorized User has violated the terms and conditions of this Agreement.  

4.5 Telecommunications and Internet Services.  Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services.  Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Iristrace shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

4.6. Customer-Provided Data. Customer agrees that it is solely responsible for the Customer-Provided Data, for its accurancy and veracity and that it does not and will not contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable or any information or content that Customer does not have a right to make available.

Customer is not allowed to enter personal data in the Software nor Subscription Services except for personal data that can be completed in Users profile (First name, Family name, Email, Position and/or Phone). Beyond this data, Iristrace does not guarantee that the processing of the personal data entered in the Software in violation of this provision meet the requirements of the applicable legislation, ie, General Data Protection Regulation and development regulations as applicable.  Customer understands and agrees that any loss or damage of any kind that occurs as a result of the violation of this provision by Customer or its Authorizad Users is solely Customer’s responsibility.  Any personal data supplied by Customer to Iristrace which does not infringe this Section will be treated in accordance with Iristrace’s Privacy Policy, posted from time to time Iristrace Site. Customer authorizes Iristrace to process its personal data in accordance with Iristrace Privacy Policy.

Customer acknowledges and agrees that Iristrace does not monitor or police Customer-Provided Data transmitted through the Subscription Services and that Iristrace shall not be responsible for the content of any such Customer-Provided Data.  Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer agrees that it is solely responsible for maintaining the privacy of any individuals who appear in the Customer-Provided Data, specifically as it relates to any regional or local laws and/or guidelines. Customer agrees that Iristrace has no responsibility to any such individuals for any use Customer may make or may intentionally or inadvertently allow others to make of the Customer-Provided Data or Customer Data and other information provided to Customer via the Subscription Services. Customer represents and warrants that the Customer-Provided Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the content of any Customer-Provided Data is solely Customer’s responsibility.  

Any personal data supplied by Customer to Iristrace will be treated in accordance with Iristrace’s Privacy Policy, posted from time to time Iristrace Site. Customer authorizes Iristrace to process its personal data in accordance with Iristrace Privacy Policy.

4.7 Export Law Assurances. Customer understands that the Subscription Services and Software are subject to export control laws and regulations of various countries, including without limitation, the laws of the United States of America and the Netherlands. Customer shall not export any element of the Subscription Services or Software or any underlying information or technology except in full compliance with all applicable laws and regulations. None of the Subscription Services or Software or any underlying information or technology may be downloaded or otherwise exported or re-exported to countries, persons or entities prohibited by such laws. Customer hereby agrees to the foregoing and represents and warrants that Customer is not located in, under control of, or a national or resident of any such prohibited country or on any list of prohibited countries or debarred or denied persons or entities. Furthermore, Customer is responsible for complying with all applicable legal provisions of the country in which it is headquartered, and of other countries in respect of the use of the Software by Customer and its Authorized Users.

Customer agrees that the Software will not be used by Customer and its Authorized Users for activities related to weapons of mass destruction, including but not limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons.

4.8. Limitation of Storage. Customer account is limited in storage as indicated in the corresponding administration tabs within the Iristrace Software, which means that Customer Data shall not exceed this applicable limitation. Exceeding any limitation of storage capacity may prevent Customer from adding any data, templates, information, content, images or other materials considered as Customer Data and Iristrace shall be entitled to suspend Customer access to the Subscription Services. Additional storage may be available for purchase upon request.

5. SHARING CONTENT VIA MARKETPLACE. 

Iristrace offers the ability for Customer to share one or more templates via the marketplace functionality. By uploading templates to the marketplace, Customer accepts that the templates will be available to all Iristrace users without limitation and without compensation. Customer therefore grants all Iristrace users the right to use and modify the templates, and publish in turn any modified versions of the templates. Customer warrants that he has the right to share the templates without infringing a third party’s intellectual property and without violating any copyright or otherwise protected information in accordance with Section 4.6

6. FEES; EXPENSES; TAXES

6.1 Fees; Upgrade.  In consideration for Iristrace providing the Implementation Services and Subscription Services, Customer shall pay to Iristrace the Fees, in accordance with the terms set forth in the Statement of Work. Except as expressly set forth in the Agreement, all fees are non-refundable.

Iristrace reserves the right to change Fees in each Renewal Term (see Section 10 for definition of the Renewal Term). In such case, Iristrace will notify Customer of such pricing changes applicable to a Renewal Term prior to the effective date of the beginning of the Renewal Term. Customer will be entitled not to renew the Agreement.

6.2 Invoices; Payment; Late Payment.  Unless otherwise specified in the Statement of Work, Iristrace shall invoice Customer up front for the first year of the Subscription Services for all Fees, Expenses and applicable Taxes (as defined in Section 6.3), and including any related interest and/or penalties.  Each invoice is due and payable thirty (30) days following the invoice date unless otherwise specified in the SOW. If Iristrace has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate resulting from the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, plus five percentage points (but in no event this interest will be greater than the highest rate of interest allowed by law), calculated from the date such amount was due until the date that payment in full is received by Iristrace.  Customer shall reimburse Iristrace for the reasonable costs of collection, including reasonable fees and expenses of attorneys.

6.3 Taxes.  All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”).  Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Iristrace’s net income.  

6.4 Travel Costs.  When Iristrace’s personnel travels from their main place of business to the Customer indicated location to provide services to Customer, Iristrace will invoice travel expenses at costs, following the regular Iristrace travel policy. Travel time will be invoiced at normal service rates but in no case more than 8 hours per business day.

 

7. OWNERSHIP.  

As between Iristrace and Customer, the Subscription Services and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Iristrace or its licensors. Iristrace acknowledges that Customer owns all Customer-Provided Data and all Intellectual Property Rights therein or relating thereto, and they shall remain the exclusive property of Customer. Customer hereby grants to Iristrace a worldwide, non-exclusive, royalty-free license to use, electronically distribute, transmit, display, store, archive, analyze (and create derivative works based upon the Customer-Provided Data in the context of such analysis) and index the Customer Data in order to provide the Subscription Services to Customer and to authorize third parties to do the same.

Except for the license granted in this Agreement, Iristrace acknowledges that Customer retains all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Iristrace has no obligation to review, share, distribute, or reference any Customer Data except as is authorized by Customer and required for provision of the Subscription Services or as may be required by law. Iristrace is not responsible for any public display or misuse of Customer Data, except in the case of gross negligence or intentional misconduct by Iristrace or its employees.  

8. CONFIDENTIALITY

8.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.  “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning; all information that is orally or visually disclosed that, by its nature, a person exercising reasonable business judgment would understand to be confidential; any information of any nature described in this Agreement as confidential; any information designate as confidential at the time of the disclosure by the Disclosing Party as well as all application program interfaces, system security and system architecture design relating to the Subscription Services. Iristrace Confidential Information includes, without limitation, the Subscription Services and any Software whether in source or executable code, documentation, non-public financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services or the Software.  Customer Data is the Confidential Information of Customer. The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.

8.2 Exclusions.  Confidential Information shall not include information that:  (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; (d) represents standard business controls; or (e) is independently developed by the receiving party, which independent development can be shown by written evidence.

8.3 Use and Nondisclosure. During the Term and even after the expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement.  Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance.  Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by law or legal process, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the authority to receive such Confidential Information.

9. WARRANTY

9.1 Warranty for Subscription Services.  Iristrace warrants that: (a) it has obtained or shall obtain and maintain all rights, licenses, consents, clearances and authorizations necessary to deliver the Subscription Services and to perform its obligations and adhere to all of the terms and conditions set forth in this Agreement, and (b) it shall dedicate sufficient resources to fulfill its obligations hereunder in a timely manner.

9.2 Disclaimer.  Customer assumes sole responsibility and liability for results obtained from the use of the Subscription Services and for conclusions drawn from such use.  Iristrace shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Iristrace by Customer in connection with the Subscription Services or any actions taken by Iristrace at Customer’s direction. Iristrace shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any Authorized User’s use of any third-party products, services, software or websites that are accessed via links from within the Subscription Services.

EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, IRISTRACE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION SERVICES.  WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, IRISTRACE DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  IRISTRACE FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  Iristrace FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM IRISTRACE OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

10. TERM AND TERMINATION

10.1 Term. This Agreement shall commence when Customer activates its account in case of No-Charge Services or on the date of the signature if the SOW and shall continue until the expiration of the No-Charge Services or the expiration or completion of the last active Statement of Work, unless terminated earlier as provided in this Agreement. Unless set forth in an applicable Statement of Work, the license for the Subscription Services shall automatically renew for additional one-year terms (“Renewal Period”) unless terminated in accordance with this Agreement.

10.2 Termination for Cause.  Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.

10.3 Termination for Insolvency. If Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it,  makes an assignment for the benefit of any creditor or otherwise unable to meet its financial obligation, then Iristrace may terminate this Agreement upon thirty (30) days’ written notice. In case of termination in accordance with this Section 10.3. Customer will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

10.4 Termination upon Change of Control. Customer must notify Iristrace in writing within ten (10) days in the event Customer undergoes a change of control, merger, or sale of all or substantially all assets (a “Change of Control Event”). Iristrace may, upon sixty (60) days’ prior written notice to Customer, terminate this Agreement and any Statement of Work upon receipt of Customer’s notice of Customer’s Change of Control Event. Iristrace will invoice Customer for any in-process work that has not yet been invoiced.

10.5 Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Subscription Services shall immediately terminate, Customer and its Authorized Users shall immediately cease all use of the Subscription Services, and each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Iristrace will invoice Customer for any in-process or delivered but un-invoiced services. All prepaid Fees are non-refundable. Also upon expiration or termination of this Agreement, Iristrace shall cease use of the Customer Marks (as defined in Section 4.2); provided, however, that (a) Iristrace shall have a reasonable time to remove the Customer Marks from promotional materials, (b) Iristrace shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) Iristrace shall not be required to remove any such printed materials from circulation.

10.6. Copying and deletion of Customer data. Iristrace will use reasonable efforts to deliver the most recent copy of Customer Data to Customer upon written request made within thirty (30) days after the effective date of termination or expiration of the Agreement. Customer Data will be delivered to Customer in csv format and will be sent through email if technically possible or FTP (or in format or/and means of delivering proposed by the Customer if accepted by Iristrace). Customer may request its Customer Data encrypted by paying a plus. Customer shall pay all reasonable expenses incurred by Iristrace in returning Customer Data to Customer.

If Customer requires access to Subscription Services to export and retrieve its Customer Data after the effective date of termination or expiration, Customer may extend the Subscription Term for up to ninety (90) days by notifying Iristrace at least (30) days prior to the effective date of termination or expiration and paying subscription fees for such extension, if applicable. Subscription fees for such extension, if applicable, shall be calculated as a monthly proration of the annual fees in effect for the Subscription Services immediately preceding termination or expiration. The first month of such extension will be free. Subject to the foregoing, Iristrace shall have no obligation to maintain or provide any Customer Data.

At Customer’s request upon termination or expiration of the Agreement, Iristrace shall, within a reasonable time period, remove, delete, purge, overwrite or otherwise render inaccessible all Customer Data still remaining on the servers used to host the Service to the extent possible based on the then-current technology available within the Service, unless and to the extent applicable laws and regulations require further retention of such data.

Both, copying and deletion request, shall be made by the contract holder by a mean that certify his/her identity.

10.7. Survival. The rights and obligations of Iristrace and Customer contained in Sections 6 (Fees, Expenses and Taxes), 7 (Ownership), 8 (Confidentiality), 10.5 (Rights and Obligations Upon Expiration or Termination), 10.7 (Survival), 12 (Indemnification), 13 (Limitation of Liability), 14 (Acknowledgement), and 15 (General) shall survive any expiration or termination of this Agreement.

11. UPDATING, SUSPENDING OR TERMINATING THE SUBSCRIPTION SERVICES. 

Iristrace is constantly changing and improving its Subscription Services. Iristrace may perform automatic version updates of the software. Customer admin account will receive a notification of the changes. After the update is completed, Customer may no longer use the previous version. Iristrace may add or remove functionalities or features, and may suspend or stop Subscription Services altogether. In case of a suspension or a stop of Subscription Services, provided that such suspension or stop is not required by Law, Customer shall be entitled to a pro-rata refund in the amount of the unused portion of pre-paid fees for the applicable Subscription Services, calculated as of the effective date of the termination of such Subscription Services.  If Iristrace discontinues a Service, where reasonably possible, Iristrace will give Customer reasonable advance notice and a chance to get information out of that Service.

12. INDEMNIFICATION

12.1 Indemnification by Customer. Customer shall defend (or settle), indemnify and hold harmless Iristrace, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or an Authorized User’s use of the Subscription Services (other than any claim for which Iristrace is responsible under Section 12.2); or (ii) Customer or any Authorized User has used the Subscription Services in a manner that violates Sections 3.3 (Software License)  or 3.4 (Restrictions) of this Agreement.  Customer’s obligations under this Section 12.1 are contingent upon: (a) Iristrace providing Customer with prompt written notice of such claim; (b) Iristrace providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

12.2 Indemnification by Iristrace.  Iristrace shall defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer.  Iristrace’s obligations under this Section 12.2 are contingent upon: (a) Customer providing Iristrace with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Iristrace, at Iristrace’s expense, in the defense and settlement of such claim; and (c) Iristrace having sole authority to defend or settle such claim.  In the event that Iristrace’s right to provide the Subscription Services is enjoined or in Iristrace’s reasonable opinion is likely to be enjoined, Iristrace may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF Iristrace AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES.  Iristrace shall have no liability under this Section 12.2 to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by Iristrace.

13.  LIMITATION OF LIABILITY.  

EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 3.3 (“SOFTWARE LICENSE”) OR 3.4 ( “RESTRICTIONS”) OR SECTION 9 (“WARRANTY”), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.

NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL IRISTRACE’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL ANNUAL SOFTWARE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

14. ACKNOWLEDGEMENT. 

 The parties acknowledge that the limitations and exclusions contained in Section 13 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

15. GENERAL

15.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of The Netherlands, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement shall be subject to the exclusive jurisdiction of the courts located in Amsterdam.  Iristrace and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

15.2 Waiver.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach of the same or any other provision hereof.

15.3 Notice.  Any notices to Customer may either be posted on the Site of Iristrace or within the Iristrace Software (in the corresponding administrator tabs) or given in writing (which may be by email) to the corresponding address indicated by Customer in the Iristrace Software, including its registered office. Any notices to Iristrace, and any questions, concerns or complaints relating to the Subscription Services shall be in writing and (a) given by email to the account manager designated by Iristrace and indicated in the Iristrace Software or (b) sent through registered letter addressed to the spanish Iristrace address indicated in our website or within the Iristrace Software. The notices shall be effective upon (i) receipt by the party to which notice is given, or (ii) on the fifth (5th) calendar day following mailing, whichever occurs first.

15.4 Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

15.5 Force Majeure.  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, malware and malicious attacks, major telecommunication outages, blackouts, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

15.6 Compliance with Laws.  Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations stipulated in Section 4.7.

15.7 Relationship Between the Parties.  Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

15.8 Assignment/Successors.  Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below).  Any attempted assignment or transfer in violation of this Section will be null and void.  “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity.  Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

15.9 Entire Agreement.  This Terms together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior agreements or understandings, written or oral, concerning the subject matter of this Agreement.  This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

15.10 Equitable Relief.  Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions without any requirement to post a bond or other security, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

15.11 No Third-Party Beneficiaries.  This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

15.12 Nonexclusivity. Customer acknowledges that the rights granted to Customer under this Agreement are non-exclusive, and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Iristrace’s right to (a) license, sell or otherwise make available the Software or Subscription Services to anyone else; (b) perform any services for anyone else; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.

15.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.