iQmetrix Master Services Agreement

The Master Services Agreement (the ​“MSA”) governs the Subscriber’s access and use of the Services provided by iQmetrix.

Last Updated: July 21, 2023

The following documents, as may be amended from time to time as permitted within each document, are collectively referred to in the MSA as this ​“Agreement”:

• this MSA;
• any Quotes entered into between the Parties;
• any applicable Product Terms (as listed in Section 1.9); and
• any documents, Policies and procedures incorporated by reference.

By executing a quote or any other document that references the MSA (a ​“Quote”), Subscriber agrees to this Agreement.

The individual accepting this Agreement is accepting on behalf of the legal entity named in the Quote. Such individual represents that they have the authority to bind such entity to this Agreement, and the term ​“Subscriber” will refer to such entity. ​“iQmetrix” will refer to the iQmetrix business entity identified in the Quote. iQmetrix and Subscriber will each be referred to individually as a ​“Party” and together as the ​“Parties”. This Agreement will be effective upon the date the earliest applicable Quote is executed (the ​“Effective Date”).

In case of any conflict or inconsistency between the terms of this Agreement and any provision of the Quote, the terms of the Quote will prevail.

1. PURPOSE, SUBSCRIPTIONS AND LICENCES

1.1 Subscriber subscribes for and will pay the Fees for, and iQmetrix will provide, the Subscription Services and other Services to Subscriber and/​or to each Subscriber Affiliate and/​or to each Authorized Representative as set out in each Quote (each separate Service, a ​“Subscription”), as may be amended by agreement in writing between the Parties from time to time or as otherwise permitted hereunder.

1.2 Subject to the terms and conditions of this Agreement, including the restrictions set forth in Part 2, iQmetrix grants to Subscriber a nonexclusive, nontransferable, worldwide, revocable right and license during the term of this Agreement to: (a) permit its Agents to access and use the Software via each Subscription Service for which Subscriber has a valid and current Subscription pursuant to a Quote for Subscriber’s Internal Use; (b) permit the Agents of Subscriber Affiliates and Authorized Representatives to access and use the Software via each Subscription Service for which Subscriber has a valid and current Subscription pursuant to a Quote for the Internal Use of the Subscriber Affiliates, Authorized Representatives and/​or Subscriber, as applicable, provided that such Subscriber Affiliates and Authorized Representatives comply with the terms and conditions of this Agreement applicable to Subscriber’s access and use of the Software via each Subscription Service.

1.3 The initial term of each Subscription will commence on the effective date of the applicable Quote and run for a period of 12 months (the ​“Initial Term”), unless otherwise specified in an applicable Quote or Product Terms. Subject to the termination provisions in Part 16 of this Agreement, each Subscription will automatically renew for an unlimited number of additional 12-month terms (each such 12-month term being a ​“Renewal Term” and collectively, the ​“Renewal Terms”). UNLESS OTHERWISE SPECIFIED IN AN APPLICABLE QUOTE OR PRODUCT TERMS AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IQMETRIX WILL PROVIDE EACH AGREED UPON SUBSCRIPTION SERVICE TO SUBSCRIBER, AND SUBSCRIBER WILL RECEIVE AND PAY FOR EACH AGREED UPON SUBSCRIPTION SERVICE, FOR A MINIMUM OF 12 MONTHS.

1.4 Any portion of a Subscription may be subject to credit approval at iQmetrix’s discretion, in which case iQmetrix will not be obligated to provide or implement the related Services until such credit approval has been confirmed in writing to iQmetrix in a manner satisfactory to iQmetrix.

1.5 Subscriber expressly agrees that its access to and/​or use of the Software and Services may be subject to Third Party Terms and Conditions attached to this Agreement or otherwise made available to Subscriber from time to time, that such Third Party Terms and Conditions may be modified from time to time by the applicable third party in accordance with the terms and conditions if so required by the applicable third party, and that iQmetrix has no control over such Third Party Terms and Conditions.

1.6 Unless otherwise indicated in this Agreement, all Integrated Solutions, including Credit Card and Debit Card Services, will be provided to Subscriber pursuant to separate agreement between Subscriber and the applicable providers of Integrated Solutions.

1.7 Subscriber and iQmetrix agree that any services not included in the Services, including custom software development, integrations or modifications to the Software, will be subject to a separate professional services agreement between Subscriber and iQmetrix and will not form part of this Agreement.

1.8 In the event of any inconsistency between this Agreement and any electronic end-user license agreement that any Agent is required to click-through and indicate agreement to as a condition to accessing or using the Services, the terms of this Agreement will take precedence.

1.9 Additional product terms for the use of applicable Services are listed in this Section 1.9. Where applicable, these additional product terms will form the ​“Product Terms”, which are incorporated into and form a part of the Agreement.

(a) API Services Product Terms located at https://www.iqmetrix.com/legal…

i. API - Developer Package

ii. API - Startup Package

iii. API - Medium Package

iv. API - Large Package

v. API - Enterprise Package

vi. API - Custom Package

(b) Dropship & Endless Aisle Product Terms located at https://www.iqmetrix.com/legal…

i. Dropship

ii. Dropship Launch Fee

iii. Dropship & Endless Aisle

(c) Endless Aisle Product Terms located at https://www.iqmetrix.com/legal…

i. Endless Aisle

(d) Payments Product Terms located at https://www.iqmetrix.com/legal…

i. Firmware Update

ii. Remote Key Injection

iii. Encryption Load

iv. Gateway

v. Terminal Reporting & Branding

vi. Non-EMV Support Agreement

(e) Queue Management Product Terms located at https://www.iqmetrix.com/legal…

i. Queue Management

1.10 Notwithstanding anything in this Agreement, additional Product Terms may be added to Section 1.9 by iQmetrix from time to time and without notice where such additional Product Terms will not affect existing Subscribers until they renew, amend, or otherwise agree to change the terms of this Agreement.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 The licenses granted in Part 1 are explicitly conditioned on Subscriber’s adherence to the following restrictions and compliance with its responsibilities as set forth in Section 2.2, below.

2.2 Except as expressly permitted in this Agreement or with the prior written approval of iQmetrix, the Subscriber may not (and may not permit or cause any Subscriber Affiliate or Authorized Representative to): 

(a) access or use any Subscription for any purposes other than the Internal Use of Subscriber, Subscriber Affiliates and Authorized Representatives; 

(b) assign, sublicense, rent, lease, grant a security interest in, or otherwise transfer any rights in the Software; 

(c) access or use the Software and Services other than as permitted hereunder in conjunction with valid and current Subscription Services;

(d) access or use the Software or Services in a manner that contravenes any provisions of this Agreement or applicable statutes, laws, ordinances, or regulations; 

(e) allow any third party to have access to the Software or Services, other than Subscriber Affiliates and Authorized Representatives; 

(f) copy, distribute, modify, translate, reverse engineer, decompile, dissemble, upload or post the Software on a network, bulletin board, intranet, extranet or web site, create derivative works based on the Software, or merge the Software into any other software; 

(g) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or 

(h) introduce Malicious Software into the Services.

3. FEES AND PAYMENT

3.1 Unless otherwise specified in a Quote or Product Terms, iQmetrix will invoice Subscriber monthly in advance for amounts owed under this Agreement, and Subscriber will pay all invoices within 30 days of receipt.

3.2 iQmetrix may adjust the Fees charged to the Subscriber during any Renewal Term by providing a notice of such adjustment in Fees. Notwithstanding the foregoing, certain Subscriptions may be subject to pricing tiers as indicated in any applicable Quote (“Pricing Tiers”) and Fees payable by Subscriber throughout the Initial Term or any Renewal Term may adjust in accordance with such Pricing Tiers. For clarification, the Pricing Tiers may be modified by iQmetrix in accordance with this Section 3.2.

3.3 Other than as expressly set out in this Agreement, all Fees paid under this Agreement are non-refundable.

3.4 All Fees are exclusive of and Subscriber will pay all applicable taxes, duties, levies or fees (collectively, ​“Taxes”) assessable with respect to the Services. If any authority imposes any Taxes, excluding those based on iQmetrix’s net income, upon any transaction under this Agreement, Subscriber agrees to pay that amount as specified in an invoice or to supply such documentation as iQmetrix may reasonably require to confirm an exemption from the payment of such Taxes. The Subscriber will be responsible, and will hold iQmetrix harmless, for any and all Taxes or fees that may be charged by or for Integrated Solutions or other services that may be used in connection with the Subscription Services.

3.5 If any Fee becomes delinquent and continues delinquent for more than 30 days, iQmetrix may issue a notice to the Subscriber of such delinquency (a ​“Fee Delinquency Notice”). At iQmetrix’s option, all or any part of the Services provided under this Agreement may be withheld until Subscriber has paid all Fees specified in a Fee Delinquency Notice. This Agreement may be terminated if any such delinquent Fees as set out in the Fee Delinquency Notice remain unpaid for a further 30 days after the issuance by iQmetrix of a Fee Delinquency Notice. Reinstatement of the Service(s) following any such suspension or termination will be on such terms, and subject to guarantees, reinstatement fees and/​or security deposits, as iQmetrix may determine in its sole discretion, acting reasonably.

3.6 Unless iQmetrix agrees otherwise in an applicable Quote, Subscriber agrees to complete and provide to iQmetrix an ACH Authorization Agreement prior to executing any Quote and Subscriber authorizes iQmetrix to receive payment by ACH transaction for all Fees due in accordance with each Quote without further notice to Subscriber.

3.7 If applicable, Subscriber agrees to pay iQmetrix: an administrative fee of $50 as a result of any payment that is refused as a result of insufficient funds, a closed account, a failure to process an ACH transaction or any other similar reason; and/​or an administrative fee for payments made by credit card. Notwithstanding any provision to the contrary in this Agreement, all amounts remaining unpaid when due will bear interest at the rate of the lesser of (a) 24% per annum, and (b) the greatest amount permitted by applicable law, compounded monthly until paid in full.

3.8 All Fees set forth in the Quotes are based on the types of products and services selected by Subscriber as of the effective date of the Quotes, or as iQmetrix may otherwise agree to provide to Subscriber from time to time. Certain Fees are based on the applicable Pricing Tiers which may vary the Fees. Fees based on Pricing Tiers will be metered at the end of each calendar month of the Initial Term or any Renewal Term by iQmetrix (“Metered Usage”) and Subscriber’s subsequent invoice will include any required adjustments to Fees previously invoiced in advance.

4. IMPLEMENTATION

4.1 Implementation of the Subscription Services will start as soon as commercially reasonably possible following the effective date of the applicable Quote, subject to both Parties meeting their obligations described below. iQmetrix’s obligation to carry out implementation will be conditional on Subscriber paying all Fees owing as of the effective date of the applicable Quote.

4.2 iQmetrix will be responsible for the following:

(a) iQmetrix will provide Specifications for Subscriber’s information technology environment (“Subscriber’s IT Environment”) as and if required to operate the Software. If applicable, iQmetrix will provide Subscriber with access to a test version of the Software current as of the Effective Date (“Test Version”);

(b) the Launch Team will be assigned to manage Subscriber’s implementation. The individuals on the Launch Team will be the main contact throughout the entire implementation process;

(c) iQmetrix will provide the Subscriber with access to any help files and any library of step-by-step training videos that cover how-to scenarios for different modules and processes included in the Software. In addition, Subscriber will have access to any online iQmetrix support materials; and

(d) iQmetrix will provide the network configuration information and assist Subscriber in configuring the network settings required.

4.3 In addition to any obligations in applicable Product Terms, Subscriber will be responsible for the following:

(a) Subscriber is responsible for ensuring that Subscriber’s IT Environment complies with the Specifications and for determining that the Test Version functions within such environment to Subscriber’s satisfaction. Upon written notice to iQmetrix that the Test Version functions within Subscriber’s IT Environment to Subscriber’s satisfaction, Subscriber will complete configuring network connections to connect to the Software with assistance from iQmetrix and begin using the Software in a production environment (“Go Live Date”);

(b) during implementation, Subscriber will gather and submit any business information required by iQmetrix to implement the Subscription Services;

(c) Subscriber is responsible for configuring network connections to ensure a secure connection to the iQmetrix servers and inputting specific company data into the database;

(d) Subscriber will maintain Internet connection with a speed of no less than 100kbps to all Workstations and at any Location at all times;

(e) Subscriber must purchase and install any hardware required pursuant to the Specifications; and

(f) Subscriber is solely responsible for obtaining and securing all rights necessary to use any Subscriber Material in conjunction with any Subscription Service.

5. SERVICE DELIVERY

5.1 Subscriber does hereby grant iQmetrix a worldwide, royalty-free, non-exclusive license to access, view, transmit, store, process or otherwise use Account Data, Subscriber Material, information concerning Subscriber’s facilities, data, computers, hardware, devices and software as reasonably required to carry out iQmetrix’s obligations and exercise iQmetrix’s rights under this Agreement, including to provide the Services. Subscriber will cooperate with iQmetrix, on a commercially reasonable basis and upon request, if iQmetrix should require access to Subscriber’s personnel, facilities, information, data, computers, computer software or additional information to perform its obligations under this Agreement.

5.2 Subscriber hereby agrees to cooperate with and provide such information to iQmetrix as requested from time to time.

5.3 iQmetrix will have full discretion to assign personnel and/​or to engage independent contractors, including its affiliates, to perform any of its Services under this Agreement.

5.4 Subscriber will comply with and access, and iQmetrix will perform, the Services according to applicable policies, terms of use and legal notices referenced herein, in all applicable Quotes (including any applicable Product Terms) or otherwise provided to Subscriber, as iQmetrix may in its sole discretion, adopt or change from time to time, including without limitation (each being a ​“Policy” and collectively, ​“Policies”):

• Support Services Policy, located at https://www.iqmetrix.com/legal…;
• Intellectual Property and Take Down Policy, located at https://www.iqmetrix.com/legal…;
• API Terms referenced in the applicable Product Terms; and
• Service Level Agreement, located at https://www.iqmetrix.com/legal….

5.5 Subscriber acknowledges and agrees that iQmetrix may modify the Policies or add new Policies from time to time in its sole discretion (a ​“Modification”). Subscriber will be notified of a Modification through notifications or posts communicated through the Subscription Services, the iQmetrix website at https://www.iQmetrix.com or through direct communication from iQmetrix to Subscriber. Subscriber expressly agrees that Subscriber’s ongoing access and use of the Services will be deemed to be Subscriber’s agreement to such Modification.

5.6 Subscriber agrees to notify iQmetrix immediately if Subscriber suspects the Subscription Services are or may become unavailable to Subscriber due to any reason whatsoever outside of iQmetrix’s control including but not limited to Malicious Software, malfunction or failure of server, hardware, internet service or any other protocol.

5.7 iQmetrix will back up Subscriber’s data from each Subscription Service on a daily basis using reasonable back-up and redundancy/​recovery procedures.

5.8 The Subscriber acknowledges that the Services may be modified or upgraded by iQmetrix from time to time in its sole discretion, provided that such modifications and upgrades do not detract from the performance levels of the Subscription Services.

5.9 iQmetrix reserves the right, in its sole discretion, to temporarily or permanently disable or discontinue providing any specific functionality within a Subscription Service, provided that the core functionalities of such Subscription Service are not rendered inoperable, by providing the Subscriber with notification in writing. Notwithstanding any provision to the contrary, iQmetrix reserves the right, in its sole discretion and at any time, to temporarily or permanently disable or discontinue any Integrated Solution in the event that such Integrated Solution causes degradation to the core functionalities of the Subscription Services.

5.10 Subscriber agrees that iQmetrix will not be liable to Subscriber, any Subscriber Affiliate, any Authorized Representative, or any Agent or End-User, or any other third party for a Modification or disabling or discontinuance of all or any part of the Services done in accordance with this Agreement.

6. PRIVACY AND SUBSCRIBER DATA

6.1 iQmetrix agrees that all Subscriber data, including Account Data, stored on the Subscription Service is and remains the property of Subscriber and/​or its licensors and it will not disclose to any third party, other than to Carrier or as necessary to provide the Services (i.e. as would be required to provide Integrated Solutions), any personally identifiable information of any Agent or End-User or that identifies the Subscriber or its business. For the avoidance of doubt, Subscriber may choose to use certain Integrated Solutions that may require iQmetrix to provide or permit access to Subscriber data, including Account Data, and Subscriber’s use of such Integrated Solutions will act as authorization for iQmetrix to pass such data to the Integrated Solution provider to the extent required to provide the Integrated Solution to Subscriber.

6.2 iQmetrix will comply with privacy and data protection laws applicable to the storing and transmitting of personally identifiable information received from or in relation to Subscriber subject to the Subscriber’s compliance with its obligations in this Section 6.2. If requested by Subscriber and at Subscriber’s cost, iQmetrix will assist Subscriber to comply with Subscriber’s privacy and data compliance requirements with respect to Subscriber data and information that has been entered into or stored in the Software or Subscription Services. Subscriber is solely responsible to ensure that information is collected from End-Users, entered in the Software or Subscription Services as such were designed and intended, and accessed and used by all Agents and End-Users in accordance with this Agreement, any Dealer Agreement, and all applicable law. For the avoidance of doubt, iQmetrix prohibits the entering of personally identifying information or financial information of individuals into custom or free-form fields in the Software or Subscription Services and may delete any such information so entered without any notice to Subscriber. Such information may only be entered into specified data fields. Subscriber is solely responsible for any such information improperly entered and stored in the Software or Subscription Services by Subscriber, any Subscriber Affiliate, any Authorized Representative, or any Agent or End-User.

6.3 Notwithstanding any provision to the contrary in this Agreement, and subject to iQmetrix complying with Sections 6.1 and 6.2, Subscriber authorizes iQmetrix to collect, use and otherwise deal with all Subscriber data, including Account Data, stored by iQmetrix as part of the Services or is otherwise received by iQmetrix from Subscriber to create: 

(a) aggregated, anonymized, general datasets (including machine learning weights, databases, reports, compilations or other versions of such information), which will remain the exclusive property of iQmetrix; and 

(b) de-identified datasets, and to use such datasets in any manner iQmetrix may determine.

7. CREDIT CARD PROCESSING; INTEGRATED SOLUTIONS

7.1 Subscriber may use third party credit card processing software and services integrated by iQmetrix with the Software (collectively, the ​“Credit Card and Debit Card Services”) to accept payments from End-Users.

7.2 Subscriber will be responsible for paying all service, use, maintenance and licensing fees charged by iQmetrix or any other of iQmetrix’s third party service providers of Credit Card and Debit Card Services. The fees and program details for Credit Card and Debit Card Services are subject to change without notice, and iQmetrix accepts no responsibility for any such changes.

7.3 iQmetrix represents and warrants that the Subscription Services that store, process, or transmit credit or debit cardholder data are PCI compliant.

7.4 Subscriber acknowledges and agrees that iQmetrix will not be responsible for: 

(a) any Losses incurred by Subscriber, Subscriber Affiliates or Authorized Representatives or their Agents or End-Users in connection with Integrated Solutions, except to the extent arising from the acts or omissions of iQmetrix; 

(b) the accuracy of any credit card charges, amounts, calculations and/​or data produced using any Integrated Solution not within the direct control of iQmetrix; 

(c) the security of any data accessed, submitted, reported or transmitted using any Integrated Solution not within the direct control of iQmetrix; 

(d) transactions conducted using any Integrated Solution, including the correct and proper collection and remittance of applicable sales taxes; 

(e) selecting any Integrated Solution (even if suggested by iQmetrix); 

(f) the performance and results of each Integrated Solution if such performance and results are not within the direct control of iQmetrix; 

(g) the effects of any provider of an Integrated Solution ceasing to actively carry on business or otherwise being unable or unwilling to provide or support the applicable Integrated Solution; and 

(h) any Losses that may accrue to iQmetrix in relation to iQmetrix providing or Subscriber using any Integrated Solution, except to the extent arising from the acts or omissions of iQmetrix.

8. SUPPORT SERVICES

8.1 Following implementation of Subscription Services, iQmetrix will provide support services, as applicable, to Subscriber in accordance with the then-current Policy with respect to Support Services, located at https://www.iqmetrix.com/legal…, which iQmetrix may update or modify from time to time (the ​“Support Services”).

8.2 All services not included in the applicable Subscription’s Monthly Subscription Fees will be billed on an hourly basis at iQmetrix’s then-current, applicable Service Rate, unless otherwise agreed in an applicable Quote.

8.3 Subscriber will have access to any Documentation.

8.4 Subscriber will designate one individual (the ​“Customer Support Contact”) to be the Subscriber’s primary contact for iQmetrix and will provide iQmetrix with the name and contact details for such individual. iQmetrix will initiate all contacts available in relation to the Subscription Services, which may include e-mail or chat support, through the Customer Support Contact.

8.5 Any services provided in relation to Subscriber’s hardware or any element of its systems other than the Software and applicable hardware required pursuant to the Specifications will be billed per hour or part thereof at iQmetrix’ then-current, applicable Service Rate.

8.6 Any services on router/​hardware configuration work required as a result of any act or omission on the part of Subscriber will be billed per hour or part thereof at iQmetrix’s then-current, applicable Services Rate.

9. TRAINING

9.1 iQmetrix may make available to Subscriber additional training programs including but not limited to webinars, on-line videos, regional seminars, written materials and one-on-one telephone training sessions for such Fees and on such terms and conditions as iQmetrix may determine. Subscriber will be solely responsible for its staff scheduling and attendance at any training programs provided by iQmetrix.

9.2 Following implementation iQmetrix will provide any additional training as agreed upon with Subscriber. All additional expenses (including travel and accommodation costs) will be charged to and paid by Subscriber.

10. SERVICE LEVELS

iQmetrix will use reasonable commercial efforts to ensure that the Subscription Services are available in accordance with the then-current Policy with respect to service levels, located at https://www.iqmetrix.com/legal…, which iQmetrix may update or modify from time to time in accordance with this Agreement (“Service Level Agreement” or ​“SLA”). As Subscriber’s sole and exclusive remedy, and iQmetrix’s sole and exclusive liability to Subscriber, with respect to any single breach of an applicable SLA, iQmetrix will pay to Subscriber the service level credit specified in the then current SLA Policy (a ​“Service Level Credit”). Notwithstanding any provision to the contrary, unless otherwise indicated by iQmetrix in the applicable Quote, the SLA does not apply to Integrated Solutions for which the applicable third party providers will be solely responsible.

11. OWNERSHIP AND INTELLECTUAL PROPERTY

11.1 All right, title and interest in and to the Software and the Documentation, and any copies thereof, and all documentation, code and logic which describes and/​or comprises the Software, Documentation and related Services are and will at all times remain the sole property of iQmetrix or its licensors, including all ownership rights to patents, copyrights, trademarks, trade names, goodwill, trade secrets and other intellectual property rights (collectively, ​“Intellectual Property”) in connection therewith. Subscriber’s right to use the Software and Documentation is conditional upon and limited by the terms and conditions of this Agreement. No modification by the Subscriber of the Software or any part thereof will in any way reduce or eliminate iQmetrix’s ownership rights in and to the Software and its components.

11.2 iQmetrix or its licensors owns all Intellectual Property rights in the Software and Documentation as delivered, as well as in any Subscriber-specific customizations or alterations or customizations to the Software made at the request of, or in conjunction with, Subscriber and Subscriber agrees to take any action or deliver any document required to confirm such ownership rights on the part of iQmetrix.

11.3 Subscriber acknowledges that iQmetrix has expended substantial time, effort and funds to create and deliver its Intellectual Property. iQmetrix’s Intellectual Property will remain the exclusive property of iQmetrix. The Subscriber will not obtain any rights to Intellectual Property unless such rights are explicitly granted by this Agreement or subsequent agreements entered into by the Parties pursuant to this Agreement. Intellectual Property may, however, be used as authorized by this Agreement or upon the receipt of the prior written approval of iQmetrix. The right of Subscriber to use of the Intellectual Property of iQmetrix will end upon termination or expiration of this Agreement.

11.4 To the limited extent required for the Parties to carry out their respective obligations under the terms of this Agreement, each of the Parties grants the other a non-exclusive, royalty-free, world-wide license to use their proprietary trademarks and service marks as previously approved in writing and in accordance with reasonable instructions provided from time to time, and only to the extent reasonably necessary or appropriate in order to perform the services stated in this Agreement.

11.5 Subscriber hereby grants iQmetrix a royalty-free, worldwide, transferable, sub-licensable (through multiple tiers of distribution), irrevocable and perpetual license to incorporate into the Subscription Services or the Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback iQmetrix receives from Subscriber without any further permissions of or notifications to Subscriber.

12. CONFIDENTIALITY AND NON-DISCLOSURE

12.1 Receiving Party agrees to hold Confidential Information in confidence, using not less than a reasonable standard of care, and agrees to use the Confidential Information only for purposes of and relating to the Subscription Services or as otherwise provided for in the Agreement. Receiving Party agrees that it will limit disclosure of the Confidential Information and will only disclose Confidential Information to those employees, directors, officers, counsel or consultants of the Receiving Party, Receiving Party’s Affiliate or Authorized Representative (collectively, the ​“Representatives” and individually, each a ​“Representative”) who have a need to know such Confidential Information in connection with the Subscription Services and who are bound by obligations of confidentiality and non-disclosure similar to those set forth in this Agreement. Prior to providing the Confidential Information to any Representative or Representatives, the Receiving Party will notify such Representative or Representatives that such information is Confidential Information and must be kept in confidence as set forth in this Agreement.

12.2 All Confidential Information will, at all times, remain the sole property of Disclosing Party. The disclosure of Confidential Information to the Receiving Party will not constitute an express or implied grant to Receiving Party or any of its Representatives of any rights to or under the Software or the Documentation. At the earlier of either: 

(a) the termination of this Agreement; or 

(b) at Disclosing Party’s request. 

All Confidential Information in the Receiving Party’s possession or control will be either returned promptly to Disclosing Party or destroyed by secure means of destruction and the Receiving Party will provide to Disclosing Party written certification that all such Confidential Information has been either returned to Disclosing Party or destroyed. Receiving Party may, upon providing written notice of same to Disclosing Party, retain copies of Confidential Information only if and to the extent that such retention is required by applicable law and will retain only that portion of the Confidential Information which is legally required for Receiving Party to comply with such law. Notwithstanding the return, destruction or retention of the Confidential Information, Receiving Party will continue to be bound by its confidentiality obligations hereunder concerning Confidential Information in accordance with the terms of this Agreement.

12.3 Prior to making any disclosure pursuant to Subsection 17.1.(f)(v) of this Agreement, Receiving Party will: 

(a) to the extent legally permissible, notify Disclosing Party as soon as practicable of the required disclosure upon receipt of a governmental or court order; and 

(b) cooperate with Disclosing Party in making, if available under applicable law, a good faith effort to obtain a protective order or other appropriate determination against or limiting disclosure or use of the Confidential Information, at no cost to the Parties.

12.4 The Receiving Party agrees that it will notify Disclosing Party as soon as practicable after the discovery of any breach of the confidentiality provisions of this Agreement by the Receiving Party or its Representatives, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent against its further unauthorized disclosure or use. The Receiving Party will enforce the confidentiality obligations of this Agreement against its Representatives during and after the term of their engagement. When Subscriber is the Receiving Party, Subscriber will be fully responsible for any breach of this Agreement by its Agents and End-Users, as well as the Agents and End-Users of Subscriber Affiliates and Authorized Representatives.

12.5 NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS MADE OR GIVEN UNDER THIS AGREEMENT AS TO THE ACCURACY, COMPLETENESS OR CURRENT NATURE OF ANY OF THE CONFIDENTIAL INFORMATION DISCLOSED UNDER THIS AGREEMENT, OR ITS USEFULNESS OR FITNESS FOR PURPOSES OF THE SUBSCRIPTION SERVICES, OR USE WITH, OR IN RELATION TO THE SUBSCRIPTION SERVICES.

13. WARRANTIES

13.1 iQmetrix hereby warrants to Subscriber that iQmetrix is the owner of the Software or otherwise has the right to grant to Subscriber the rights set forth in this Agreement and that the Software (other than any Integrated Solution) does not infringe the copyright, US patent, Canadian patent, or misappropriate the trade secrets, of any third party. As Subscriber’s sole and exclusive remedy, and iQmetrix’s sole and exclusive liability to Subscriber in the event of any breach or threatened breach of the foregoing warranty, in addition to complying with its indemnity obligations hereunder, iQmetrix will, at its option, either: 

(a) procure, at iQmetrix’s expense, the right for Subscriber to use the Software and all parts thereof; 

(b) replace the Software or any part thereof that is in breach with Software of comparable functionality that does not cause any breach; or 

(c) if neither of the options set forth in Subsection (a) or (b) is commercially reasonable, terminate the Subscription applicable to the Software in breach of the foregoing warranty and provide a full refund of any Fees or other amounts paid by Subscriber to iQmetrix during the 90 day period prior to the date of termination with respect to such Subscription Service or portion thereof that was inoperable.

13.2 iQmetrix provides the following limited warranties:

(a) with respect to Subscription Services and subject to Part 10, iQmetrix warrants to Subscriber that each Subscription Service will perform substantially in accordance with its accompanying Documentation from and after the Go Live Date. As Subscriber’s sole and exclusive remedy and iQmetrix’s sole and exclusive liability to Subscriber, in the event of any breach or threatened breach of the foregoing warranty for which a Service Level Credit does not apply, if iQmetrix receives notice of such breach: 

i. iQmetrix will, at its option, either repair or replace the Software associated with the non-performing Subscription Service, or 

ii. if iQmetrix is unable, within 90 days of notification, to correct a defect that Subscriber has notified iQmetrix about, Subscriber will be entitled to terminate the applicable Subscription Service upon written notice and request a full refund of any Fees or other amounts paid by Subscriber to iQmetrix during the 90 day period with respect to such Subscription Service; and

(b) with respect to all Services other than Subscription Services, iQmetrix warrants to Subscriber that each Service will be performed in a good and workmanlike manner. In the event of any breach or threatened breach of the foregoing warranty, as Subscriber’s sole and exclusive remedy and iQmetrix’s sole and exclusive liability to Subscriber, if iQmetrix receives notice of such breach, iQmetrix will re-perform the applicable Service. The foregoing limited warranties do not apply to defects resulting from improper or inadequate implementation, maintenance or configuration of Software performed by anyone other than authorized representatives of iQmetrix or from any inadequate or improperly installed hardware. Subscriber acknowledges that iQmetrix is not liable, among other things, if the Software ceases to operate in Subscriber’s IT Environment due to changes to such environment that do not comply with the Specifications, or if Subscriber has modified the Software.

13.3 THE WARRANTIES SET FORTH IN SECTIONS 13.1 AND 13.2 ARE IN LIEU OF ALL OTHER WARRANTIES BY IQMETRIX, EXPRESS OR IMPLIED, AND IQMETRIX (INCLUDING ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS AND ASSOCIATES) HEREBY DISCLAIMS AND SUBSCRIBER HEREBY WAIVES ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IQMETRIX DOES NOT WARRANT AND SUBSCRIBER HEREBY WAIVES ANY WARRANTY THAT USE OF OR ACCESS TO THE SERVICES, SUBSCRIPTION SERVICES OR SOFTWARE BY SUBSCRIBER WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED FROM IQMETRIX OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY BY IQMETRIX NOT EXPRESSLY STATED IN THESE TERMS. EXCEPT AS SET FORTH HEREIN TO THE CONTRARY, IQMETRIX DOES NOT MAKE ANY WARRANTY AND SUBSCRIBER HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM USE OF THE SOFTWARE OR AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR RELIABILITY OF THE SOFTWARE. SUBSCRIBER HEREBY ACKNOWLEDGES AND AGREES THAT USE OF THE INTERNET WILL BE AT THE SOLE AND EXCLUSIVE RISK OF SUBSCRIBER AND SUBSCRIBER’S USE OF THE INTERNET WILL BE SUBJECT TO THE APPLICABLE LAWS GOVERNING THE INTERNET, AND SUBSCRIBER’S USE OF THE SOFTWARE WILL BE SUBJECT TO THE RESTRICTIONS AND TERMS AND CONDITIONS SET FORTH HEREIN GOVERNING THE SOFTWARE.

13.4 Some jurisdictions do not allow the exclusion of implied warranties, which means that some of the above exclusions may not apply to Subscriber. IN THESE JURISDICTIONS, IQMETRIX’S IMPLIED WARRANTIES WILL BE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW AND IQMETRIX WILL ADHERE SOLELY TO THE MINIMUM AMOUNT OF IMPLIED WARRANTIES NECESSARY TO COMPLY WITH APPLICABLE LAW.

13.5 Subscriber represents and warrants that it has all requisite corporate power, authority, and capacity to enter into, execute, deliver and perform its obligations under this Agreement, and in doing so, Subscriber will not violate any obligations Subscriber has to any third party.

14. LIMITATIONS OF LIABILITY

14.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL IQMETRIX BE LIABLE TO SUBSCRIBER, ANY SUBSCRIBER AFFILIATE, ANY AUTHORIZED REPRESENTATIVE, OR ANY AGENT OR END-USER OR ANY OTHER THIRD PARTY FOR: 

(a) INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OR ANY SIMILAR DAMAGES INCLUDING WITHOUT LIMITATION IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, THE SERVICES, THE SUSCRIPTION SERVICES, AND USE, PERFORMANCE AND OPERATION OF THE SOFTWARE;

(b) DAMAGES DUE TO USE, PERFORMANCE OR OPERATIONS OF THE INTERNET OR USE OF THE INTERNET BY SUBSCRIBER;

(c) LOSS OF DATA; 

(d) LOST PROFITS; 

(e) BUSINESS INTERRUPTION; 

(f) DAMAGES PURSUANT TO ANY THIRD PARTY TERMS AND CONDITIONS, OR OTHERWISE RELATING TO ANY INTEGRATED SOLUTION, INCLUDING ANY CREDIT CARD AND DEBIT CARD SERVICES, OTHER THAN AS AGREED IN THIS AGREEMENT; OR 

(g) CONTENT, PRODUCTS AND SERVICES OFFERED THROUGH THE SERVICES OR SUBSCRIPTION SERVICES, REGARDLESS OF WHETHER IQMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.

14.2 Without limiting the generality of the foregoing, iQmetrix’s liability for Losses with respect to the Services or any portion of the Services, including but not limited to liability for any fundamental breach of this Agreement with respect to the Services or any portion thereof and regardless of the form of action, will not exceed: (a) for Subscription Services, the total Monthly Subscription Fees paid by Subscriber for the then current Initial Term or Renewal Term with respect to the Subscription giving rise to liability hereunder; and (b) for each Service other than Subscription Services giving rise to liability hereunder, the total Fees paid by Subscriber for the then current Initial Term or Renewal Term of such Service.

14.3 IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR REQUIRE EXCLUSIONS AND/OR LIMITATIONS OF LIABILITY THAT ARE DIFFERENT THAN THOSE SET FORTH IN THIS PART 14, IQMETRIX’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Part 14 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

15. INDEMNITIES

15.1 iQmetrix will indemnify, defend and hold harmless Subscriber for Losses on account of or arising from a third party claim that the Software infringes the copyright, US patent, Canadian patent, or misappropriates the trade secrets, of such third party; provided, however, that iQmetrix is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defence and all negotiations for a settlement or compromise. The foregoing indemnification obligations will not apply with respect to Software or portions or components thereof:

(a) that are Integrated Solutions; 

(b) that are made in whole or in part in accordance with Subscriber specifications; 

(c) that are modified after shipment other than by any party other than iQmetrix or its contractors or agents, if the alleged infringement relates to such modification; or 

(d) that are combined with third party products, processes, or materials where the alleged infringement relates to such combination.

15.2 Subscriber will indemnify, defend and hold harmless iQmetrix, its affiliates and its and their employees, directors, shareholders and any entities whose products are provided as integrated parts of or through the Software and Services or who provide any part of the Subscription Services for any and all Losses arising from, or connected with:

(a) any use or misuse of the Software or Services by Subscriber, Subscriber Affiliates or Authorized Representatives, as well as their Agents or End-Users; 

(b) any breach of this Agreement by Subscriber, or any act or omission by Subscriber Affiliates or Authorized Representatives as well as Agents or End-Users that would be a breach of this Agreement if it were an act or omission by Subscriber; 

(c) Integrated Solutions, provided however that Subscriber’s indemnification obligations will not apply to the extent that claims arise directly or indirectly from the acts or omissions of iQmetrix, including without limitation Losses arising from any of the circumstances specified in Section 7.4;

(d) Account Data or Subscriber Material; 

(e) any claim by a Subscriber Affiliate, Authorized Representative, Agent or End-User arising as a result of or relating to this Agreement or the Subscription Services; and 

(f) any breach of Third Party Terms and Conditions or terms and conditions in effect between Subscriber and the provider of Integrated Solutions.

16. TERMINATION

16.1 Subject to Section 16.4, either Party will have the right to terminate any individual Subscription for any or no reason upon written notice to the other Party provided not less than ninety (90) days prior the end of the Initial Term or any Renewal Term for the applicable Subscription.

16.2 If either Party violates its material obligations under this Agreement, the other Party may send a notice of non-compliance (a ​“Notice of Non-Compliance”) to the non-complying Party. Upon receiving a Notice of Non-Compliance, the non-complying Party will have sixty (60) days from the date of receipt of the Notice of Non-Compliance to cure any such non-compliance. If such non-compliance is not cured within the required sixty (60) day period, the Party providing the Notice of Non-Compliance will have the right to terminate this Agreement as of the 61^st day after the date of receipt of the Notice of Non-Compliance. This Section 16.2 in its entirety is subject to Section 3.5.

16.3 Subject to Section 16.4, either Party will have the right to immediately terminate this Agreement and all Subscriptions in effect upon the written notice to the other Party if the other Party:

(a) ceases to carry on active business, subject to Section 18.9;

(b) becomes insolvent;

(c) files or has filed against it a petition (or other document) under any bankruptcy law or similar law;

(d) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors; or

(e) its assets are taken into the possession of a receiver, trustee, custodian or similar agent.

16.4 In the event of termination in accordance with Section 16.1, Section 16.3:

(a) Subscriber will remain liable for all Monthly Subscription Fees through the last day of the Initial Term or the then current Renewal Term of the Subscription, which fees will be pro-rated for the month in which the termination is effective; and

(b) Subject to receiving Fees in accordance with Section 16.4(a), iQmetrix will continue providing the Subscription Services for the applicable Subscription through the last day of the Initial Term or the then current Renewal Term.

16.5 Notwithstanding any other provision to the contrary in this Agreement, with respect to any Subscription to which Metered Usage applies, in the event that iQmetrix determines in any given month that such Metered Usage has declined to an amount that is less than or equal to 80% of Subscriber’s Metered Usage as compared to the rolling average monthly Metered Usage over the prior twelve (12) months (or the rolling average over the prior months since the effective date of the applicable the applicable Quote if such reduction occurs during the Initial Term) (a ​“Major Service Reduction”), unless iQmetrix otherwise agrees with Subscriber, iQmetrix will deem Subscriber to have terminated the applicable Subscription, effective at the end of month in which the Major Service Reduction occurred (“Deemed Termination”).

(a) Subscriber expressly acknowledges and agrees that (i) iQmetrix has determined the applicable pricing for each Subscription on the basis of anticipated usage as indicated by Subscriber at the commencement of the Initial Term or any Renewal Term of a Subscription; (ii) any Major Service Reduction will cause iQmetrix to incur substantial economic damages and losses in amounts which are very difficult to compute and ascertain with certainty as a basis for recovery by iQmetrix due to transactional and other variable fees that iQmetrix may forego, and (iii) liquidated damages represent a fair, reasonable and appropriate estimate thereof.

(b) Accordingly, in lieu of actual damages relating to a Major Service Reduction, Subscriber agrees that liquidated damages may be assessed and recovered by iQmetrix as against Subscriber, without iQmetrix being required to present any evidence of the amount or character of actual damages sustained by reason thereof; therefore Subscriber will be liable to iQmetrix for payment of liquidated damages in an amount equal to: the number of months remaining in the Initial Term or the then current Renewal Term upon the date of Deemed Termination multiplied by the applicable Fees that would be payable if calculated using the rolling average monthly Metered Usage over the prior twelve (12) months (or the rolling average monthly Metered Usage over the prior months since the effective date of the applicable Quote if Deemed Termination occurs during the Initial Term).

(c) Such liquidated damages are intended to represent estimated actual damages and are not intended as a penalty, and Subscriber will pay them to iQmetrix without limiting iQmetrix’s right to terminate this Agreement for default as provided elsewhere herein.

16.6 This Agreement will automatically expire on the date of expiration or termination of the last Subscription entered into hereunder (i.e. when no Subscriptions are currently in effect).

16.7 Termination or cancellation of this Agreement or a Subscription in accordance with this Agreement will not terminate or cancel any payment obligation of Subscriber under this Agreement remaining in effect.

16.8 Upon termination or expiration of this Agreement and the payment by Subscriber of any Fees or other amounts outstanding, Subscriber may request at any time within twelve (12) months following such termination or expiration and iQmetrix will deliver to Subscriber upon such request a copy of Subscriber’s data held on iQmetrix’s system, in an industry standard format as determined by iQmetrix in its sole discretion. Following such twelve (12) month period after termination or expiration, iQmetrix may delete all of Subscriber’s data, including all Account Data, from its systems and have no further obligation to Subscriber with respect to such data.

16.9 The terms outlined in the following sections of the Agreement will survive any expiration or termination of this Agreement: 5.10, 6.1, 6.2, 6.3, 7.4, 11.1, 11.2, 11.3, 11.5, 12.1, 12.2, 12.3, 12.4, 12.5, 13.3, 13.4, 14.1, 14.2, 14.3, 15.2, 16.7 and 16.8. Part 18 will survive the expiration or termination of this Agreement in its entirety, as will all defined terms required for the interpretation of any of the surviving Sections and subsections of this Agreement.

16.10 Subscriber agrees and acknowledges that the Agreement and/​or any Quote, Subscription, licence, or access granted hereunder may, at iQmetrix’s sole discretion, be terminated by iQmetrix immediately upon notice to Subscriber if Carrier makes such a request of iQmetrix or if the Dealer Agreement is terminated.

17. INTERPRETATION

17.1 In this Agreement the following terms will have the following meanings:

(a) ​“Account Data” means data or information stored, transmitted or processed through the Services by or on behalf of a Subscriber, Subscriber Affiliate, Authorized Representative, Agent or End-User;

(b) ​“ACH Authorization Agreement” means an authorization agreement for pre-authorized payments;

(c) ​“Agent” means any individual authorized by Subscriber to use the Services as an agent and/​or administrator including, for clarification, agents and administrators of Subscriber Affiliates and Authorized Representatives;

(d) ​“Authorized Representatives” means third party business entities, such as resellers, authorized by Subscriber to access and use the Services;

(e) ​“Carrier” means, if applicable, the carrier which: Subscriber has been appointed a dealer of pursuant to a Dealer Agreement; and iQmetrix has entered into a separate, written integration agreement with in respect of the Software and Carrier systems;

(f) ​“Confidential Information” means all information disclosed by or on behalf of iQmetrix or Subscriber (“Disclosing Party”) to the other party (“Receiving Party”) which is in tangible form and labeled ​“confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of its disclosure. Confidential Information includes, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information (and iQmetrix’s Confidential Information specifically includes the Software, the Services, the Documentation, and the terms and conditions of this Agreement), BUT EXCLUDES information that (i) was previously known to Receiving Party at the time of disclosure by or on behalf of Disclosing Party without an obligation of confidentiality; (ii) was or is obtained by Receiving Party from a third party who is not known by the Receiving Party to be under an obligation of confidence to Disclosing Party with respect to such information; (iii) is or has become publicly known, through no wrongful act of the Receiving Party; (iv) was or is independently developed by Receiving Party without use of Confidential Information that has been disclosed pursuant to this Agreement, as evidenced by written record; or (v) was required to be disclosed in order to comply with applicable laws or regulations (including, without limitation, for securities law purposes) or with any requirement imposed by any governmental or court order but only then to the extent required for such compliance;

(g) ​“Credit Card and Debit Card Services” has the meaning given in Section 7.1;

(h) ​“Dealer Agreement” means the separate, written agreement between Subscriber and Carrier appointing Subscriber as a dealer of such Carrier;

(i) ​“Customer Support Contact” has the meaning given in Section 8.4;

(j) ​“Deemed Termination” has the meaning given in Section 16.4;

(k) ​“Disclosing Party” has the meaning given in Section 17.1(f);

(l) ​“Documentation” means all user manuals, training materials, webinars, videos, help files, and any other packaged documentation, issued from time to time by iQmetrix to assist in and relating to the Services;

(m) ​“Effective Date” means the date of execution of the earliest applicable Quote between Subscriber and iQmetrix;

(n) ​“End-User” means any person or entity other than an Agent with whom any Subscriber, Subscriber Affiliate, Authorized Representative, or Agent interacts with using the Services, including customers;

(o) ​“Fees” means all fees, including transactional, one-time, hourly, daily, monthly and annual fees, to be paid by Subscriber in relation to the Subscription Services and Services provided by iQmetrix under the applicable Quote;

(p) ​“Go Live Date” has the meaning given in Section 4.3;

(q) ​“Initial Term” has the meaning given in Section 1.3;

(r) ​“Integrated Solutions” means any product or service available to Subscriber through the Subscription Services, or Software or portions or components thereof, including Credit Card and Debit Card Services, that are supplied by third parties (whether white-labelled by iQmetrix or provided under the label of the applicable third party) and that may be governed by agreements between Subscriber and such third party providers, as well as terms and conditions in this Agreement and any applicable Product Terms;

(s) ​“Internal Use” means the use of the Software in connection with Subscription Services for the internal business purposes of Subscriber, which includes interacting with End-Users, but expressly excludes the use of any Software or Services as a service bureau (i.e. receiving fees with respect to services provided to third parties);

(t) ​“Launch Services” means the implementation services provided by iQmetrix to enable Subscriber to use the Subscription Services, which may include Subscriber-specific configurations to the Software;

(u) ​“Launch Team” means any one or more of the iQmetrix personnel providing the Launch Services;

(v) ​“Location” means a physical location at which an instance of the Software is provided in conjunction with the Subscription Services for access and use by Agents;

(w) ​“Losses” means losses, expenses, claims, damages, actions, lawsuits, judgments, costs and expenses, including without limitation, reasonable lawyer’s fees, costs of investigation and defence;

(x) ​“Major Service Reduction” has the meaning given in Section 16.4;

(y) ​“Malicious Software” means any software that brings harm to a computer system, including without limitation worms, viruses, trojans, spyware, adware and rootkits, which steal protected data, delete documents or add software not approved by a user;

(z) ​“Metered Usage” has the meaning given in Section 3.8;

(aa) ​“Modification” has the meaning given in Section 5.5;

(bb) ​“Monthly Subscription Fees” means the monthly subscription and usage fees set out in any applicable Quote;

(cc) ​“Policies” has the meaning given in Section 5.4, and ​“Policy” means any one of them;

(dd) ​“Pricing Tiers” has the meaning given in Section 3.2;

(ee) ​“Receiving Party” has the meaning given in Section 17.1(f);

(ff) ​“Renewal Term” or ​“Renewal Terms” has the meaning given in Section 1.3;

(gg) ​“Service Level Agreement” or ​“SLA” has the meaning given in Part 10;

(hh) ​“Service Level Credit” has the meaning given in Part 10;

(ii) ​“Service Rate” means iQmetrix’s time and materials hourly rate for services not otherwise included in the Fees set forth in a Quote; generally, any such services would only be performed pursuant to a separate professional services agreement between the Parties;

(jj) ​“Service” or ​“Services” means any one or more service, as the case may be, that iQmetrix agrees to provide pursuant to this Agreement as set forth in the Quote or otherwise, which may include, without limitation, the Subscription Services, the Launch Services, the Support Services, access to the Integrated Solutions, and access to the Documentation;

(kk) ​“Software” means iQmetrix software products developed from time to time, as well as all parts thereof and updates thereto, as identified in each applicable Quote;

(ll) ​“Specifications” means system, hardware, software, and telecommunications specifications and requirements for the Services as set out in the applicable Policy;

(mm) ​“Subscriber Affiliates” means any business entity controlled by, under common control with or controlling a Subscriber;

(nn) ​“Subscriber Applications” means web or other software services or applications developed or licensed by Subscriber that utilize or interact with the Software;

(oo) ​“Subscriber Material” means all Subscriber material or third party material used by Subscriber including, without limitation, Subscriber Applications, product information (graphics, photographs, specifications), content, information or software, accessible by, viewable on, loaded on, integrated with or otherwise associated with the Software and Services (other than Integrated Solutions);

(pp) ​“Subscriber’s IT Environment” has the meaning given in Section 4.2(a);

(qq) ​“Subscription(s)” has the meaning given in Section 1.1;

(rr) ​“Subscription Services” means iQmetrix’s software-as-a-service subscriptions for use of the Software, or portions thereof, for which Subscriber receives a Subscription pursuant to this Agreement as identified in each Quote;

(ss) ​“Support Services” has the meaning given in Section 8.1;

(tt) ​“Test Version” has the meaning given in Section 4.2(a); and

(uu) ​“Third Party Terms and Conditions” means any specific third-party terms and conditions, either with respect to an Integrated Solution or other portion of the Software or aspect of the Services, that iQmetrix is bound to flow through to Subscriber;

(vv) ​“Training” means the training provided by iQmetrix in relation to the use of the Software; and

(ww) ​“Workstation” means any device on which the Software operates and/​or information is derived from the Software or the Subscription Services, is accessed, including but not limited to any workstation, laptop computer, payment terminal, digital display, tablet or smart phone.

17.2 All capitalized words and phrases used in this Agreement, if not herein defined, will have the meaning attributed to them in the relevant Quote, Policy or any appendix referenced herein.

17.3 The division of this Agreement into articles and sections is for convenience of reference only and will not affect the interpretation or construction of this Agreement.

17.4 All words and personal pronouns relating thereto will be read and construed as the number and gender of the party or parties referred to in each case required and the verb will be construed as agreeing with the required word and pronoun. A general statement, term or matter when followed by the word ​“including”, will not be construed as limited to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not language such as ​“without limitation” or ​“but not limited to” is used with reference thereto.

17.5 When calculating the period of time within which or following which any act is to be done or step taken pursuant to this Agreement, the date which is the reference date in calculating such period will be excluded. If the last day of such period is a non-business day of the Party responsible for the act or step, the period in question will end on the next business day.

17.6 Any references herein to any law, by law, rule, regulation, order or act of any government, governmental body or other regulatory body will be construed as a reference thereto as amended or re-enacted from time to time or as a reference to any successor thereto.

17.7 This Agreement is in substitution for any prior agreement with respect to the subject matter hereof made between the Parties, their affiliates or subsidiaries and any such prior agreements are hereby revoked.

17.8 All references herein to currency are to the lawful money of the United States of America unless expressly stated otherwise.

18. GENERAL

18.1 iQmetrix will not be liable for any failure to perform its obligations under this Agreement or any failure of the Subscription Services or Software because of circumstances beyond the control of iQmetrix, which such circumstances will include (without limitation) natural disaster, terrorism, riot, sabotage, labour disputes, war, any acts or omissions of any government or governmental authority, declarations of governments, laws, court orders, transportation delays, power or telecommunications failure not caused iQmetrix.

18.2 This Agreement constitutes the entire agreement among the Parties with respect to the Software and Services, and supersedes all previous oral or written communications with respect to the subject matter of this Agreement.

18.3 Nothing herein will be construed as creating a partnership relationship, employment relationship, joint venture relationship or agency relationship between the Parties, or as authorizing either Party to act as agent for the other.

18.4 All notices, requests, demands or communications required or permitted pursuant or relating to this Agreement will be in writing and will be sent: 

(a) by registered mail, postage prepaid, addressed to the Party’s address indicated in the applicable Quote and (if addressed to iQmetrix, with a carbon copy to the Legal Department); or 

(b) in the case of notice to iQmetrix, by email to legal@​iqmetrix.​com and in the case of notice to Subscriber, by email to Subscriber’s email as indicated in the applicable Quote. 

Either Party may change its address by notice given to the other in the manner set forth in this paragraph. Notices sent by registered mail will be deemed given and received 5 calendar days after they are mailed; email notices will be deemed given and received upon reply email confirming receipt.

18.5 Waiver of breach of this Agreement will not constitute waiver of any other breach. Failing to enforce a provision of this Agreement will not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement will not be binding unless such waiver is in writing and signed by the Party waiving such provision.

18.6 Subject to Sections 1.10 and 5.5, alterations, modifications or amendments of provisions of this Agreement will not be binding unless such alterations, modifications or amendments are in writing and signed by authorized representatives of iQmetrix and Subscriber.

18.7 The provisions of this Agreement will be deemed severable. In the event that any provision of this Agreement is determined by a court having jurisdiction to be unenforceable or invalid, such provision will nonetheless be enforced to the fullest extent permitted by applicable law, and such determination will not affect the validity and enforceability of any other remaining provisions of this Agreement.

18.8 All of the terms and provisions of this Agreement will inure to the benefit of, and be binding upon, the successors and permitted assigns of each of the Parties.

18.9 Subscriber must provide prior notice to iQmetrix of any merger with, or sale or assignment of its entire business to another person or business entity. Subscriber will have no right to assign this Agreement and/​or the benefit of this Agreement, by operation of law or otherwise, without express prior, written permission of iQmetrix. Any permitted assignment, by operation of law or otherwise, will be conditioned upon Subscriber and/​or the permitted assignee or successor, cooperating reasonably with iQmetrix with respect to the transition of Subscriber’s Services. iQmetrix reserves the right to charge additional Fees relating to the transition of Subscriber’s Services and accounts to any permitted assignee or successor. In the event,

(a) that Subscriber merges with another company or sells or assigns its entire business to another person or business entity that has a current agreement in effect with iQmetrix with respect to Subscription Services (in either event such company being an ​“Acquirer”), either Subscriber or Acquirer (if Subscriber no longer exists as a separate legal entity following such merger or acquisition, iQmetrix will agree to the assignment of this Agreement, subject to this Subsection 18.9(a) may terminate this Agreement upon the last date of the then current Initial Term or Renewal Term for all Services to which Subscriber is currently subscribed pursuant to this Agreement, and thereafter be provided Services pursuant to, and in accordance with the terms and conditions of, the Acquirer’s agreement; or

(b) that Subscriber wishes to assign this Agreement to another person or business entity that does not have an agreement currently in effect with iQmetrix with respect to Subscription Services, iQmetrix will not withhold unreasonably its permission to assign the benefits of this Agreement to that other person or business entity provided that iQmetrix will have the right, without restriction, to renegotiate Fees.

18.10 iQmetrix may assign this Agreement and/​or the benefit of this Agreement in the event that iQmetrix merges with another company or sells or assigns its entire business to another company.

18.11 Subscriber may permit use of the Services by any Subscriber Affiliate or Authorized Representative identified in a Quote, provided that Subscriber remains at all times fully responsible for such Subscriber Affiliate’s or Authorized Representative’s compliance with the terms and conditions of this Agreement, including payment of all applicable Fees.

18.12 Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties hereto, any rights, benefits or remedies under or by reason of this Agreement.

18.13 If the Quote has been entered into by iQmetrix USA Inc., then this Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without reference to conflicts of laws provisions, and will in all respects be treated as a State of Delaware contract. If this Section 18.13 applies, the Parties hereby irrevocably submit to the jurisdiction of the state and federal courts located in Arlington County, Virginia, to the extent that a court of competent jurisdiction determines in a binding, final court order that default Section 18.15 does not apply.

18.14 If the Quote has been entered into by iQmetrix Software Development Corp., then this Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without reference to conflicts of laws provisions, and will in all respects be treated as a British Columbia contract. If this Section 18.14 applies, the Parties hereby irrevocably submit to the jurisdiction of the federal and provincial courts located in Vancouver, British Columbia, to the extent that a court of competent jurisdiction determines in a binding, final court order that default Section 18.15 does not apply.

18.15 If the Quote has been entered into by iQmetrix USA Inc., any dispute arising out of this Agreement will be submitted to binding arbitration pursuant to the Wireless Industry Arbitration Rules and under the auspices of, the American Arbitration Association, will be conducted before one (1) arbitrator and any arbitration will be conducted in Arlington, VA (unless the binding, final court order referenced in Section 18.13 invokes the provisions of such Section 18.13 instead of the provisions of this Section 18.15). If the Quote has been entered into by iQmetrix Software Development Corp., all disputes arising out of or in connection with this Agreement, or in respect of any legal relationship associated therewith or derived therefrom, will be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its Rules (unless the binding, final court order referenced in Section 18.14 invokes the provisions of such Section 18.14 instead of the provisions of this Section 18.15). Such arbitration will be conducted before one (1) arbitrator and the place of arbitration will be Vancouver, British Columbia, Canada. In either event, Subscriber expressly consents to 

(a) the exclusive jurisdiction of such arbitration ousting the jurisdiction of any state, provincial or federal court, and 

(b) service of process being effected upon Subscriber by registered mail; 

(c) arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding; 

(d) the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding; and 

(e) in the event the prohibition on class arbitration is deemed invalid or unenforceable, then the entire Section 18.15 (agreement to arbitrate) will be null and void and that Section 18.13 and Section 18.14, respectively, will apply.

18.16 Notwithstanding any provision of this Agreement, the parties may seek a preliminary injunction, attachment or other judicial relief in any court of competent jurisdiction, if such an action is necessary to avoid irreparable harm, preserve the status quo or preserve and protect the subject matter of the dispute, without first complying with 18.13, 18.14 or 18.15.

18.17 The International Sale of Goods Act of British Columbia, any similar legislation applicable to iQmetrix in any jurisdiction, and the United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement or otherwise to create any rights or to impose any duties or obligations on either Party to this Agreement. Any rights which have arisen or which might in the future arise under the International Sale of Goods Act, similar applicable legislation or under the United Nations Convention on Contracts for the International Sale of Goods are waived and released by the Parties.

18.18 Subscriber acknowledges and agrees that the Software may include encryption software that may be subject to export, import, and/​or use controls by Government Authorities (as hereinafter defined) by way of law or regulation. Subscriber agrees that the Software will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/​or other (sub-national and/​or supranational) government authorities with authority over the country(ies) and/​or territory(ies) from which the Software is being exported or to which the Software is being imported (collectively, the ​“Government Authority(ies)”). Without limitation, the Software will not be exported: (a) to any country on Canada’s Area Control List; (b) to any country subject to UN Security Council embargo or action; (c) contrary to Canada’s Export Control List Item 5505; (d) to countries subject to U.S. economic sanctions and embargoes; and (e) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items.

18.19 If Subscriber is acquiring the Software on behalf of any unit or agency of the United States Government (the ​“Government”), this provision applies. The Government acknowledges iQmetrix’s representation that the Software and its Documentation were developed at private expense and no part of them is in the public domain. The Government acknowledges iQmetrix’s representation that the Software is ​“Restricted Computer Software” as that term is defined in Clause 52.227−19 of the Federal Acquisition Regulations (FAR) and is ​“Commercial Computer Software” as that term is defined in Subpart 227.401 of the Department of Defense Federal Acquisition Regulation Supplement (DFARS). The Government agrees that: If the Software is supplied to the Department of Defense (DoD), the Software is classified as ​“Commercial Computer Software” and the Government is acquiring only ​“restricted rights” in the Software and its documentation as that term is defined in Clause 52.227-7013(c)(1) of the DFARS, and If the Software is supplied to any unit or agency of the United States Government other than DoD, the Government’s rights in the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227−7013, and when applicable subparagraphs (a) through (d) of the Commercial Computer-Restricted rights clause at FAR 52.227−19.