Trackforce Valiant SaaS Agreement

Trackforce Valiant SaaS Agreement

Updated 12 May, 2021

This Trackforce Valiant SaaS Agreement, together with all applicable Exhibits hereto and all Schedule(s) (as defined below) entered into hereunder (collectively, the “Agreement”), is entered into between GuardTek SARL and its subsidiaries as applicable, and the “Customer” identified below. GuardTek SARL and its subsidiaries are sometimes collectively referred to herein as (“Trackforce Valiant” or “TFV”). The Agreement shall constitute a binding agreement between TFV and Customer.

With the entry into force on 25 May 2018 of European Regulation no. 2016/679 of 27 April 2016 on the protection of personal data (hereinafter the “GDPR”), we have redefined and formalized the legal framework of the marketing of our solutions in these Terms and Conditions of Sale. These Terms and Conditions are supplemented by the “Subcontracting Clauses” and the “Data Protection Policy” which form an integral part thereof.

Terms and Conditions

1: Definitions

Capitalized terms used and not otherwise defined in this Agreement shall have the meaning set forth below

1.1: Active Employee

Shall mean, with respect to a given period, any employee of Customer (or any other person performing services for Customer (such as an independent contractor) who is included in, uses or accesses the Services in any way during such period.

1.2. Affiliate

Means a legal entity separate from and controlled by or under common control with the either party. For purposes of this Agreement, the term “control” shall mean ownership of a beneficial controlling interest.

1.3. Customer

Shall mean the customer entity indicated on the applicable Schedule/Proposal(s), and any additional affiliated customer entities for whom Customer has engaged TFV to provide Services. In the event that Customer shall be comprised of more than one legal entity, then this Agreement shall apply to each such legal entity receiving Services.

1.4. Customer Data

Shall mean any data, information, content and materials provided by Customer to TFV in the course of using the Services.

1.5. Documentation

Shall mean all written or electronic materials provided to Customer by TFV for facilitating use of the Services, as applicable, but does not include advertising or similar promotional materials.

1.6. Equipment

Shall mean provided by TFV to Customer from time to time for use in connection with the Services. Such Equipment may be provided on a purchase, lease, rental or other basis. Equipment shall be provided, if and as applicable, by TFV pursuant to this Agreement, the terms of the applicable Schedule/Proposal(s), and the terms of such additional documents as may be provided by TFV for that purpose from time to time.

1.7. Force Majeure

Shall mean events outside of the control of TFV, such as, but not limited to, acts of war, natural disasters, fires, extended power, electrical or Network outages, acts of vandalism or pandemics, which render the Services temporarily unavailable or permanently affect or prevents performance under this Agreement.

1.8. Initial Term

Means the period as specified in the Schedule/Proposal, beginning with the Start Date, in respect of which the Customer will pay fees.

1.9. Intellectual Property Rights

Shall mean all copyrights, trade secrets, patents, trademarks, and other intellectual property rights or portion thereof including, but not limited to, the ideas, methodologies, methods of operation, processes, and look and feel in the SaaS Services.

1.10. Network

Means the Internet, phone network, cell phone network, and other transmission methods by which the SaaS Services are delivered.

1.11. Party or Parties

Shall mean TFV or Customer, individually or collectively.

1.12. Production Environment

Means an environment provided in the SaaS Services which Customer uses for live processing.

1.13. Related Systems

Shall mean Customer owned or operated computers, web-browsers, operating systems, firewalls, e-mail servers, LDAP servers, portals, Networks, third party software, internet connection, and any other Equipment or software that connects to the SaaS Services or affects the SaaS Services.

1.14. SaaS Service or SaaS Services

Means the provision of access to and use of one or more components of the TFV software as a service platform, together with the provision of updates and upgrades, and related services including maintenance and support, all in accordance with this Agreement and the applicable Schedule(s).

SaaS Services may include the following: (I) GuardTek SaaS Services (including the GuardTek Guarding SaaS Service and the GuardTek Analytics SaaS Service), both of which are provided by GuardTek SARL and its subsidiaries.

1.15. SaaS Software

Means the software of TFV that is used to provide the SaaS Services, together with all TFV modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto.

1.16. Schedule/Proposal

Means one or more written orders listing the Services to be delivered to the Customer hereunder that is signed by both TFV and the Customer and references this Agreement. A form template of the Schedule/Proposal is attached as Exhibit A. Upon acceptance by both Customer and TFV, an accepted Schedule/Proposal is sometimes referred to herein as a Schedule. All applicable Schedule(s) are incorporated into this Agreement by reference and shall constitute a part hereof. If any terms of a Schedule/Proposal shall conflict with terms of the Agreement, the terms of the Schedule/Proposal will prevail.

1.17. Service Level Agreement or SLA

Means the service level agreement applicable to the SaaS Services that is attached hereto as Exhibit E.

1.18. Services

Shall refer to SaaS Services provided under Schedule(s) issued under this Agreement.

1.19. Start Date

Shall mean, with respect to a given Service, the date upon which TFV (or Third-Party Provider) shall begin providing the Service to Customer, as specified on the Schedule/Proposal(s) pertaining to such Service.

2. Services Delivered

2.1. TFV shall provide to Customer the Services selected by Customer on the Schedule(s) for the Initial Term specified on the Schedule(s).

2.2. TFV shall provide access to the applicable SaaS Services to Customer via the Network as specified in the Schedules. Any use of the SaaS Services prior to the Start Date specified in the Schedule(s) shall be considered a trial period during which the SLA shall not apply. Within the Production Environment, Customer may use only the applications and extensions specified in the Schedule(s), even if other applications and extensions are made available.

2.3. TFV, without prior notice, may periodically update the SaaS Services, but makes no representations as to the frequency of new releases or the features, enhancements, or corrections that will be provided in the updates.

2.4. Customer shall only provide access to the SaaS Services to its own employees, consultants, and other authorized users and shall not make the SaaS Services available to third parties or make it available on a service bureau, timesharing, or outsourcing basis.

2.5. TFV shall take commercially reasonable measures, consistent with those in the industry, to prevent unauthorized parties from gaining (a) physical access to the data center(s) where the SaaS Services are hosted, and (b) electronic access to the SaaS Services or Customer Data. TFV shall promptly notify Customer of any unauthorized access to any Customer Date on the SaaS Services that TFV detects.

2.6. TFV shall periodically backup the Customer Data (“Backup Services”) as specified in Exhibit E. TFV will undertake commercially reasonable steps to begin the restoration of Customer Data as specified in the SLA. TFV shall not be responsible if Customer Data is lost or corrupted in between scheduled backups or for a reason caused by the acts or omissions of Customer. Customer Data shall not be used by TFV for any other purpose except to provide the services contemplated under this Agreement and as otherwise set forth in any applicable TFV Privacy Policy.

2.7. In the event of a Force Majeure event, TFV shall make commercially reasonable efforts to restore the SaaS Services at an alternate facility as soon as feasible. Until such Force Majeure event shall have passed, the SaaS Services may be provided on a reduced use basis and may require Customer to make changes to the procedures used to access the SaaS Services. Neither party shall incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement, where such delay or failure is caused, in whole or in part, by a Force Majeure event. If a party asserts a Force Majeure event for failure to perform the party’s obligations, then the asserting party shall notify the other party of the event and take commercially reasonable steps to minimize the delay or damages caused by the Force Majeure event.

2.8. TFV shall provide the Support Services specified in the SLA. The SLA description attached as Exhibit E provides details of the service levels and items provided under each service level. Terms of the Support Plan supersede the terms in this Agreement.

2.9. If applicable, TFV will provide Equipment Support and Maintenance Services as specified in Exhibit D.

2.10 This Agreement is entered into for the benefit of the Customer and its Affiliates. The Customer’s Affiliates may: i) enter into a separate Schedule/Proposal for the purchase of Services which shall be governed by the terms in this Agreement as though reference to “the Customer” in this Agreement were reference to such Customer Affiliate; or ii) shall be entitled to use the Services subject always to their compliance with this Agreement and the relevant restrictions stated in the Schedule/Proposal as purchased by the Customer. In relation to ii) above, the Customer shall retain ultimate liability for the acts and omissions of its Affiliates in relation to the Services and this Agreement, including but not limited to payment obligations hereunder and for the distribution of content submitted or processed through the Customer’s account by its Affiliates, including but not limited to Customer Data.

3. Customer Responsibilities

3.1. SaaS Software License. TFV hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the software constituting the SaaS Services (collectively, the “SaaS Software License”) on a SaaS basis for so long as Customer receives the SaaS Services. Customer may only use the SaaS Software for its own internal business operations. Customer shall not, directly or indirectly, (I) change, copy, modify, reverse engineer, disassemble, decompile any of the SaaS Software or any of the other intellectual property in connection to this Agreement; or (II) sublicense the SaaS Software for time-sharing, outsourcing or service bureau use.

3.2. Customer shall be responsible for entering its Customer Data into the Services and Customer shall be responsible for the maintenance of the Customer Data supplied by it. Customer represents and warrants to TFV that the Customer Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by TFV or its subcontractors to provide the Services. Customer agrees that it has collected and shall maintain and handle all Customer Data in compliance with all applicable data privacy and protection laws, rules and regulations.

3.3. Customer has sole responsibility to maintain the integrity, confidentiality, and availability of information on Customer equipment.

3.4. Customer has sole responsibility to (a) check the accuracy of information processed using the Services, (b) run all normal processes and procedures within the Services such as end of period processing, imports, exports, and file transfers, and (c) manage and configure its Related Systems and ensure they operate properly. When using and applying the information generated by the Services, Customer is responsible for ensuring that Customer complies with the applicable requirements of federal and state law. Customer agrees: (I) using the Services does not release Customer of any professional obligation concerning the preparation and review of such reports and documents, and (II) Customer does not rely upon TFV or the Services for any advice or guidance regarding compliance with federal and state laws or the appropriate tax treatment of items reflected on such reports or documents.

3.5. Customer assumes all responsibilities and obligations and expertise with respect to (a) the selection of the Services to meet its intended results, and (b) any decision it makes based on the results produced by the Services. Customer understands and acknowledges that neither TFV nor any Third Party Providers (if applicable) are engaged in rendering legal, accounting, tax or other professional advice either as a service, or through the Services, and that Customer it is not relying on TFV or any Third Party Providers for any advice or guidance regarding laws and regulations. Customer shall review all calculations and determinations made using the Services and satisfy itself those results are accurate. If legal, accounting, tax or other expert assistance is required, the services of a competent professional will be sought by Customer. To the extent permitted by law, Customer shall indemnify and hold TFV harmless from claims and demands of its employees or former employees arising from the use by Customer of the Services.

3.6. Customer is solely responsible to ensure Related Systems operate properly. The support provisions of this Agreement do not apply to Related Systems or problems in the SaaS Services caused by Related Systems, regardless of who provided, installed, or distributed the Related Systems. Should TFV identify that the root cause of a problem is caused by Customer modifications to the SaaS Services or behavior in Related Systems it shall notify Customer and request approval to provide additional assistance (if applicable). Should Customer give its approval, the additional time spent by TFV after such approval shall be billed to customer on a time and materials basis at the then current rates.

3.7. Customer shall change all passwords used to access the Services at regular intervals. Should Customer learn of an unauthorized third party having obtained knowledge of a password, Customer shall inform TFV thereof without undue delay and promptly change the password. Customer will terminate old users in the Services.

3.8. Customer is responsible for monitoring user access to the Services.

3.9. Customer is responsible for the connection to the SaaS Service, including the Internet connection.

3.10. If Customer uses phone and data services (“Mobile Services”) that are purchased in the name of TFV, Customer is responsible for abiding by and adhering to the following restrictions:

3.10.1. Customer will only use such phone and data services for use of the SaaS Services as stated in this SaaS Agreement.

3.10.2. Customer will not abuse or misuse the services as provided under these Mobile Services.

3.10.3. Customer will be responsible for any and all charges that are incurred in activities unrelated to the SaaS Services.

3.10.4. Customer will abide by all local and country laws when using Mobile Services, including not using the Mobile Services for unsolicited advertisements, fraudulent or misleading calls, or threats.

3.10.5. Customer is solely liable for any violation or misuse as noted in this Section 3.9, and will pay any and all fines, penalties, fees, and legal costs associated with defending, settling, and resolving such violations or misuse.

3.10.6. Customer will notify TFV immediately of any known abuse or violation against this Section 3.10, providing all details and course of correction to resolve such issue.

4. Payments, Credits, and Refunds

4.1. Customer agrees to pay TFV the fees set forth in this Agreement, the applicable Schedule/Proposal(s), and, if applicable, TFV’s invoice(s), for the Services and Equipment provided for hereunder.

4.2. All initial fees for Services shall be due upon commencement of the services. All subsequent invoices submitted shall be due Net 30 for the term of the Subscription Period as defined in each Schedule.

4.3. Customers shall pay all invoices via direct debit and electronic transfer.

4.4. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount when due and submit written notice of the disputed amount (with details of the nature of the dispute and the invoice(s) disputed) within thirty (30) days of receipt of the invoice. TFV may assess interest at the rate of 1.5% per month or the maximum allowed by law on balances not paid when due. Customer shall pay all costs incurred in the collection of charges due and payable, including reasonable attorney fees, whether or not a suit is instituted.

4.5. Without limiting any other right or remedy of TFV under this Agreement, TFV reserves the right to suspend or terminate Customer’s access to any Services or Equipment (or any Third Party Services, Third Party Software or Third Party Equipment) provided hereunder in the event that any amount due under this Agreement, any Schedule/Proposal(s), or any invoice(s), is more than thirty (30) days past due. Such suspension or termination shall not relieve Customer of its obligation to pay any amount(s) due.

4.6. TFV fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, except for taxes on TFV net income (including FCC and related taxes and charges for phone based systems).

4.7. Upon written notice by Customer to TFV of its failure to satisfy the Uptime Commitment of the SLA within thirty (30) days of the end of a month, TFV shall credit Customer the fees as calculated in the SLA towards the next payment due from Customer. The credits provided to Customer shall be its sole and exclusive remedy for TFV’s failure to comply with the Uptime Commitment.

5. Term and Termination

5.1. The term of this Agreement (the “Term”) shall commence upon the Effective Date and shall continue until all Schedule/Proposal(s) issued under this Agreement shall have expired or been terminated.

5.2. Schedule/Proposal(s) issued under this Agreement shall (with respect to the Services identified thereon) commence upon the Start Date specified on the Schedule/Proposal(s) or, if earlier, the commencement or delivery of the applicable Services, and shall continue for the Initial Term. Thereafter, Schedule/Proposal(s) shall renew (with respect to the Services identified thereon) for successive one (1) year renewal terms (each a “Renewal Term”) unless either party provides written notice to the other of its election not to renew not less than sixty (60) days prior to the expiration of the Initial Term or the then current Renewal Term, as the case may be. The per-unit pricing during any such renewal term shall increase by 5% per year over the base prices listed in the Schedules for the relevant services in the immediately prior term.

5.3. The provisions of Sections 6, 7, and 8, and any payment obligations incurred by Customer prior to or upon termination, shall survive termination of this Agreement.

5.4. If either party commits a material breach of this Agreement, and should such breach not be cured within thirty (30) days after receipt of written notice from the non-breaching party, this Agreement may be terminated by the non-breaching party upon written notice. Notwithstanding the foregoing, if the nature of the breach requires longer than thirty (30) days to cure, and TFV is taking commercially reasonable efforts to cure such breach at the end of the initial thirty (30) day cure period, TFV shall have a reasonable time thereafter to continue to effectuate a cure of such breach. Upon termination in such instance, TFV shall refund the unexpired portion of any fees paid.

5.5. Upon the effective date of termination, Customer’s access to the SaaS Services will be terminated. Thirty (30) days after the effective date of termination, TFV shall have no obligation to maintain or provide any Customer SaaS Data, except as set forth on the Data Retention Policy attached hereto as Exhibit C. Upon termination of the Agreement, TFV shall use commercially reasonable efforts to permanently and irrevocably remove, purge or overwrite all data still remaining on the servers used to host the SaaS Services, including, but not limited to, Customer Data, unless and to the extent applicable laws and regulations require further retention of such data or as otherwise set forth on the Data Retention Policy attached hereto as Exhibit C.

6. Proprietary Right, Non-Disclosure and Data Protection

6.1. Each party shall maintain as confidential and shall not disclose, publish, or use for purposes other than as intended in this Agreement the other party’s Confidential Information except to those employees, contractors, legal or financial consultants and auditors of the recipient and its Affiliates who need to know such information in connection with the recipient’s performance of its rights and obligations under this Agreement and in the normal course of its business and who are bound by confidentiality terms no less stringent than the terms contained herein. “Confidential Information” shall include, but shall not be limited to, Customer Data, the SaaS Services, the pricing and terms of this Agreement, benchmarks, statistics or information on the capabilities of the SaaS Services, financial information, business plans, technology, marketing or sales plans that are disclosed to a party and any other information that is disclosed pursuant to this Agreement and reasonably should have been understood by the receiving party to be proprietary and confidential to the disclosing party because of (I) legends or other markings, (II) the circumstances of disclosure, or (III) the nature of the information itself. Notwithstanding the foregoing, Confidential Information shall not include: (I) information which is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; (II) information which is lawfully received by the receiving party free of restriction from another source having the right to so furnish such information; (III) information after it has become generally available to the public without breach of any confidentiality obligations; or (IV) information which at the time of disclosure to the receiving party was known to the receiving party free of restriction. Each party shall protect such Confidential Information with reasonable care and no less care than it would exercise to protect its own Confidential Information of a like nature and to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Notwithstanding anything else in this Agreement, either party may disclose Confidential Information in accordance with a judicial or governmental order, or as otherwise required by law, provided that the recipient either: (I) gives the disclosing party reasonable notice prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or equivalent, or (II) uses commercially reasonable efforts to obtain written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information with confidential treatment.

6.2. Either party may disclose the existence of this Agreement and its terms to the extent required by law, the rules of any applicable regulatory authority or the rules of a stock exchange or other trading system on which that party’s securities are listed, quoted, and/or traded.

6.3. Breach of the obligations in this Section 5 may cause irreparable damage to the disclosing party and therefore, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief for such breach. In the event of any litigation to enforce or construe this Section 5, the prevailing party shall be entitled to recover, in addition to any charges fixed by the court, its costs and expenses of suit, including reasonable attorneys’ fees, costs and expenses.

6.4. As between TFV and Customer, Customer shall own all title, rights, and interest in Customer Data.

6.5. Both parties agree to comply with all applicable privacy and data protection statutes, rules, or regulations governing the respective activities of the parties. Customer hereby consents to the use, processing and/or disclosure of the Customer Data for the purposes described herein and to the extent such use or processing is necessary for TFV to carry out its duties and responsibilities under this Agreement or as required by law.

6.6. Customer acknowledges and agrees that the SaaS Service and the SaaS Software embodied therein, and any modifications, customizations, updates, add-ons and interfaces (including APIs) thereof or thereto (including, without limitation, any modifications, customizations, updates, add-ons and interfaces thereof or thereto developed or made by TFV for Customer) and the documentation relating thereto, are, and shall at all times remain, the property of TFV (and, if and as applicable, any third parties which have granted TFV the right to license the same) and Customer shall have no right or interest in or to any of the foregoing other than the rights expressly granted under this Agreement.

6.7. Other than the rights expressly granted in this Agreement, each party retains all of its rights to its technologies, trade secrets and other intellectual property and proprietary rights. No implied licenses are granted herein.

6.8 As further outlined and supplemented by the policies in Exhibit C, If TFV processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and TFV shall be a data processor and in any such case: (a) when the Customer is located within the EEA, the parties agree that personal data may not be transferred or stored outside the EEA or the country or countries where the Customer is located except to the extent reasonably necessary to enable TFV to carry out the Services and TFV’s other obligations under this Agreement. TFV will ensure its compliance with GDPR, including but not limited to Articles 44 and 46 GDPR, in relation to the provision of Services under this Agreement; (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to TFV so that TFV may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf; (c) the Customer shall ensure that the relevant third parties have been informed of, and have specifically and freely given their consent to, such use, processing, and transfer as required by all applicable data protection legislation (including but not limited to GDPR); (d) TFV shall process the personal data for the duration of this Agreement and only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and (e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.

7. Warranties and Indemnifications

7.1. TFV shall, at its expense, indemnify, defend and hold Customer harmless from and against any third party claim that the SaaS Services infringe an Intellectual Property Right of any third party; provided, however, that (a) Customer promptly notifies TFV of any such claim, and (b) permits TFV to defend with counsel of its own choice, and (c) Customer gives TFV such information and/or assistance in the defense thereof as TFV may reasonably request. In no event shall Customer settle any such claim without the written consent of TFV. If the SaaS Services are adjudged to infringe an Intellectual Property Right by a court of competent jurisdiction, TFV shall, at its expense and election either: (I) procure the right for Customer to continue using the infringing items, (II) replace the infringing items with a functionally equivalent non-infringing product, (III) modify the infringing items so that they are non-infringing, or (IV) terminate the affected Schedule and refund the unexpired portion of any fees paid. In no event shall TFV, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on: (a) a modification of the SaaS Services or Documentation by anyone other than TFV, or (b) the Customer’s use of the SaaS Services or Documentation in a manner contrary to the instructions given to the Customer by TFV, or (c) the Customer’s use of the SaaS Services or Documentation after notice of the alleged or actual infringement from TFV or any appropriate authority. The provisions of Section 7.1 constitute the entire liability of TFV and sole remedy of Customer with respect to any claims or actions based in whole or in part upon infringement or violation of an Intellectual Property Right of any third party.

7.2. TFV represents and warrants: (a) it has the right to grant the rights specified herein, and (b) the SaaS Services will not contain any viruses or Trojan horses.

7.3. Customer represents and warrants to TFV that it shall comply with all applicable local laws, rules and regulations in connection with its use of the Services and the Equipment ) including, without limitation, all applicable data privacy and export control laws, rules and regulations.

7.4. THE WARRANTIES AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS, WHETHER ORAL OR WRITTEN, EXPRESSED OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES REGARDING THE SERVICES AND ANY OTHER MATTER WHATSOEVER. IN PARTICULAR, BUT WITHOUT LIMITATION, TFV SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO TFV AGENT, CONTRACTOR OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATION TO THIS WARRANTY, UNLESS IN A SIGNED WRITING EXECUTED BY A TFV EMPLOYEE WITH ACTUAL AUTHORIZATION TO BIND TFV. TFV DOES NOT WARRANT THAT THE SAAS SERVICE OR ANY PORTION THEREOF WILL OPERATE UNINTERRUPTED, WILL BE ERROR FREE OR THAT TFV WILL CORRECT ALL NON-MATERIAL ERRORS.

7.5. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT. THE LIMITATION OF LIABILITY SPECIFIED IN THIS PARAGRAPH APPLIES REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, THE DAMAGES ARE FORESEEABLE, OR THE ALLEGED BREACH OR DEFAULT IS A FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM. IN NO EVENT SHALL TFV BE LIABLE FOR THE ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY INCLUDING, BUT NOT LIMITED TO, ANY THIRD PARTY PROVIDER.

7.6. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL TFV BE LIABLE FOR ANY DAMAGES FROM ANY CAUSE OR CLAIM WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICE OR EQUIPMENT PROVIDED HEREUNDER IN EXCESS OF THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING WHICH THE CLAIM AROSE. SUCH FEES SHALL BE LIMITED TO THE PARTICULAR SCHEDULE TO WHICH THE DEFAULT RELATES. THE LIMITATIONS SPECIFIED IN THIS SECTION 7.6 SHALL NOT APPLY TO A BREACH OF THE NON-DISCLOSURE PROVISIONS OF SECTION 5 OR THE INDEMNIFICATION PROVISIONS OF SECTIONS 7.1.

7.7 The Customer shall defend, indemnify and hold harmless TFV against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services if and to the extent that such use is in breach of this Agreement, negligent, fraudulent, or in wilful default, provided that: (a) the Customer is given prompt notice of any such claim; (b) TFV provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer’s expense; and (c) the Customer is given sole authority to defend or settle the claim.

8. General Provisions

8.1. The parties are independent contractors with respect to the Services and Equipment contemplated under this Agreement. Except as expressly set forth herein, neither party shall be deemed to be an employee, agent or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

8.2. Each party may include the other party’s name or logo in a list of its clients, vendors, or service providers. Each party may make reference to the other in an initial press release, provided that any use of the other party’s trademark(s) retain proprietary notices and/or are properly attributed to their owner and also provided that any such press release will require the review and prior written consent of both parties, which shall not be unreasonably withheld, conditioned, or delayed.

8.3. In recognition of the pricing provided under this Agreement, Customer shall (subject to its reasonable right to review and approve): (a) allow TFV to include a brief description of the Services and Equipment furnished to Customer in TFV promotional materials, and (b) allow TFV to make reference to Customer in case studies, ROI analyses, white papers and related marketing materials, and (c) serve as a reference for TFV potential clients, and (d) provide interviews to the news media and provide quotes for press releases, and (e) organize mutually convenient site visits for TFV potential clients, and (f) make presentations at conferences, upon TFV reasonable request and at TFV’s cost.

8.4. Any notice to be sent relating to this Agreement shall be in writing and mailed to the other party at the addresses set forth herein addressed to Legal Department, by certified mail, return receipt requested, or by Federal Express (or other reputable overnight delivery service which maintains a record of delivery), confirmed facsimile transmission or acknowledged receipt of electronic mail.

This Agreement, including all Exhibits and Schedules, contains the entire agreement of the parties with respect to its subject matter hereof, and there are no promises, conditions, representations or warranties except as expressly set forth herein. This Agreement has been the subject of arm’s length negotiations and shall be construed as though drafted equally the parties. No terms, provisions or conditions of any purchase order or other document that Customer may use in connection with this Agreement shall have any effect on the rights, duties or obligations of either party. Unless expressly stated to the contrary in any Schedule, any terms or conditions specified in this Agreement shall prevail over terms and conditions in the Schedules. Silence shall not constitute a conflict. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to or waiver of any different or subsequent breach. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions of them, will not be affected. The headings and titles provided in this Agreement are for convenience only and shall have no meaning on the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Customer may not assign this Agreement (or any related Schedule(s) without TFV’s prior written consent. Any attempted assignment contrary to the foregoing shall be void. TFV may assign this Agreement (and any applicable Schedule(s) to any affiliate of TFV or to any entity which acquires all or part of the business or assets of TFV. TFV may subcontract any of its service obligations under this Agreement to a subcontractor selected by TFV. The parties agree that reliable copies such as scanned or facsimile counterpart signatures are acceptable.

8.5. This Agreement may be modified or amended only by written instrument executed by the parties. Notwithstanding the foregoing, TFV may modify any term of this Agreement by providing not less than forty-five (45) days prior written notice to Customer (such notice to include the nature of and effective date of any such modification) to the extent reasonably necessary to conform to the requirements of any applicable law, rule or regulation or to conform to requirements imposed by any Third Party Provider. Customer shall be deemed to have accepted and agreed to any such modification unless Customer elects to terminate this Agreement by written notice to TFV prior to the effective date of the modification. In the event that Customer elects to terminate this Agreement prior to such effectiveness, TFV shall refund to Customer any fees paid which pertain to the portion of the term of this Agreement which is terminated.

8.6. No action arising out of any claimed breach of this Agreement may be brought by the Customer against TFV more than one (1) year after the cause of action has accrued. Customer shall be liable for breaches of its Affiliates and contractors under this Agreement.

8.7. This Agreement and any dispute or claim arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Luxembourg.

8.8. EACH PARTY ACKNOWLEDGES THAT THE WARRANTY DISCLAIMERS, LIABILITY AND REMEDY LIMITATIONS, AND SERVICE LEVELS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

EXHIBIT A:  SCHEDULE/PROPOSAL DOCUMENT

TO BE EXECUTED BY BOTH PARTIES

EXHIBIT B: DATA PROTECTION

TFV will adhere to industry standard practices in security risk management for the SaaS Service and maintain controls as appropriate. Specific privacy and data protection policies can be reviewed on TFV website located at https://legal.trackforce.com/.

Such policies are subject to updates and changes, without notice, by TFV.

EXHIBIT C: TRACKFORCE VALIANT DATA RETENTION POLICY

For current TFV SaaS Customers, Trackforce Valiant will ordinarily retain (I) five (5) years of Customer Data in the SaaS environment pertaining to GuardTek SaaS Services.

1. Customer may request for Trackforce Valiant to backup their SaaS data prior to the purge operation, in a format and delivery method made available by Trackforce Valiant for this purpose, or a standard CSV formatted data dump which Customer may download and retain via SFTP, no more than once per year at Customer’s cost.

EXHIBIT D: TRACKFORCE EQUIPMENT SUPPORT AND MAINTENANCE TERMS

TFV reserves the right to modify and improve the Equipment Support and Maintenance Services provided under these Equipment Support and Maintenance Terms and to adapt the services to changes in technology and to TFV’s business environment. For these purposes, TFV reserves the right to modify, improve, elaborate, remove or add to the provisions of these Equipment Support and Maintenance Terms at TFV’s sole discretion and without further notice, provided that any such improvement or adaptation shall not result in a diminution of the overall level of service provided hereunder.

1. Term

If Customer leases Equipment from TFV, TFV agrees to provide Equipment Support during and for the term of the Agreement. If Customer purchases Equipment from TFV, TFV agrees to provide Equipment Support for 12 months.

2. Supported Equipment

All Equipment leased from TFV and all Equipment purchased from TFV (for which Customer has paid a fee for support and maintenance, as discussed above) shall be considered Supported Equipment under these Equipment Support and Maintenance Terms.

3. Incident

An Incident is defined as a single support issue with a TFV Equipment product, and the reasonable effort needed to resolve such issue. A single support incident is a problem that cannot be broken down into subordinate parts. It is possible for one Incident to span multiple telephone calls and multiple emails; it is also possible for one telephone call to include multiple Incidents.

4. Support Services

TFV support technicians shall aid in the resolution of Equipment support requests in a timely and professional manner. TFV will assist with issues related only to the Supported Equipment. Upon notification of an Incident, an Incident number will be issued, and the Incident number will remain effective and open until satisfactory resolution of the cause of the Incident, or five (5) business days without a Customer communication, after which the Incident number will be closed.

5. Maintenance Services

During the term, should a defect in materials or workmanship be identified on Supported Equipment (“Defective Equipment”), once defect material received and checked by TFV Support Service, TFV will promptly ship Customer a comparable Equipment device of like kind with the functional equivalent of the Defective Equipment (“Replacement Equipment”) to arrive at Customer’s specified location. Cost to ship replacement Equipment is the responsibility of Customer.

6. Return of Defective Equipment

Instructions for return of the Defective Equipment will be provided by the Support Team upon request. Customer shall properly package the shipment when returning the Defective Equipment. The Defective Equipment must be returned to TFV before any replacement device will be provided.

7. Additional Products

If, during the Term, Customer purchases additional Equipment Products, these Equipment Support and Maintenance Terms shall be amended to include Equipment Support and Maintenance Services for such additional Equipment Products. The fee for such additional Equipment Products shall be charged at the time of purchase, unless TFV and Customer agree to prorate such payment term so that the term of such additional product coverage will expire at the end of the Term.

8. Limitations

• Support Services.Support Services are limited to Equipment troubleshooting and Equipment configurations as needed to ensure the GuardTek SaaS software functions appropriately on the Equipment. Support Services do not cover inquiries on legal time keeping compliance and do not include in-depth product training. Support Services extend only to platforms and operating environments specified by TFV. TFV is not responsible for integration or configuration with third party software, Equipment, or operating environments except as allowed by the Agreement and the products purchased from TFV. Customer is entitled to an unlimited number of support Incidents during the Term of the Agreement.
• Maintenance Services.TFV will provide maintenance on Equipment for damage caused in the normal course of business. Maintenance Services do not cover (a) damage caused by accident, abuse, misuse, liquid contact, fire, earthquake, other external causes, or operating covered Equipment outside the Equipment’s intended or permitted use; (b) Equipment with a serial number that has been defaced, altered, removed, or modified without written permission from TFV; (c) Equipment that has been lost or stolen; (d) cosmetic damage including, but not limited to, scratches, dents, and broken plastics or ports; (e) consumable parts such as batteries; (f) preventative maintenance; or (g) defects caused by normal wear and tear or otherwise normal aging of the Equipment.
• Services Requests

Requests for Services shall be made by Customer to TFV support email at support@trackforce.com. Customer shall provide a reasonable amount of information and assistance related to the Incident for verification and resolution of the Incident. When requesting Replacement Equipment, Customer must provide TFV with the serial number of Defective Equipment in question, the problem, the context in which the problem was encountered, a description of the system configuration, the steps necessary to generate or reproduce the problem, and the address TFV will use to ship the Replacement Equipment. Failure to provide reasonable information or assistance may result failure to resolve the Incident.

10. Miscellaneous

The Equipment Support and Maintenance Services and these Equipment Support and Maintenance Terms are not transferable by Customer. These Equipment Support and Maintenance Terms are issued under the Agreement and are subject to the terms and conditions of the Agreement. With the exception of the Agreement, these Equipment Support and Maintenance Terms supersede all other oral or written proposals, purchase orders, prior agreements, and other communications between Customer and TFV concerning the subject matter hereof, and constitute the entire agreement between TFV and Customer regarding provision of Equipment Support and Maintenance Services. These Equipment Support and Maintenance Terms do not constitute a certification or warranty, express or implied of any kind. TFV’s obligations and responsibilities regarding product warranties are governed solely by the Agreement under which they are sold or licensed, not to exceed the original manufacturer’s product warranties.

EXHIBIT E: SERVICE LEVEL AGREEMENT

Service Area	Service Level Commitment
Uptime Commitment	Production Environments: 99.9%
Backup Services	TFV is responsible for backup and restore of data stored in the SaaS Service. Full backup: TFV shall backup all Customer Data in its entirety every seven (7) days. Differential backup: TFV shall backup all changes to Customer Data every twenty-four (24) hours.Transaction logs: TFV shall backup transaction logs every four (4) hours.
Disaster Recovery Time Objective	Except as otherwise noted herein, failover of Production Environment functionality to the Disaster Recovery site will occur within four (4) hours of TFV declaring a Disaster if main datacenter is still available, and twelve (12) hours in case of complete datacenter loss.
Disaster Recovery Point Objective	Maximum data loss of four (4) hours of data stored in the Production Environment.

TFV shall provide the following service levels for the SaaS Services during the term of the Agreement.

NOTES, DEFINITIONS, AND ADDITIONAL TERMS

The following notes, definitions, and additional terms are an integral part of the Service Level Agreement.

1. Disaster

Means an event after which TFV determines the SaaS Services should be failed over to the disaster recovery site.

2. Downtime

Means the Total Minutes in the Month during which the Production Environment is not available, except for Excluded Downtime.

3. Excluded Downtime

Means Total Minutes in the Month attributable to:
(I) Scheduled Maintenance Windows;

(II) SaaS Service updates;
(III) Content provided by Third Party Content Vendors, including third party software vendors;
(IV) Unavailability caused by factors outside of TFV’s reasonable control, such as unpredictable and unforeseeable events that could not have been avoided even if reasonable care had been exercised, including, without limitation, a Force Majeure event.

4. Month

Means a calendar month.

5. Total Minutes in the Month

Are measured 24 hours at 7 days a week during a Month.

6. Scheduled Maintenance Windows

Means a window of time during which the SaaS Services may be down for maintenance, which window is (a) 3:00 am Sunday to 4:00 am Sunday U.S. Eastern Time for the US and Canada data centers (b) 3:00 am Sunday to 4:00 am Sunday Central European Time for the European data centers (if applicable); (c) 3:00 am Sunday to 4:00 am Sunday Australian Eastern Time for Asia Pacific/Australia data centers (if applicable); (d) for an extended maintenance window in which case Customer will be notified at least ten (10) business days in advanced; and (e) a maintenance window scheduled with Customer to perform maintenance or updates to the Customer’s Production Environment.

7. System Availability Percentage

Means the average percentage of total time during which the Production Environment is available to Customer and is calculated as follows:

8. Data collection terminals will continue to accept swipes during system downtime and swipes will be uploaded when the online system becomes available.
9. If Customer elects to have any services provided by a third party, TFV shall have no liability for any defect or failure of the SaaS Services caused by such third party services, and Customer shall not be entitled to any reduction in fees for the SaaS Services relating to the same. TFV may deny access to the SaaS Services to any third party which TFV determines in its sole discretion poses a security risk or other risk to TFV systems, data or intellectual property.
10. Customer shall notify TFV in writing at least sixty (60) days in advance of any period when it reasonably believes the number of Active Employees or peak usage transaction volume to the SaaS Services may increase by more than 20% over the prior thirty (30) day period and at least ninety (90) days in advance if it expects more than a 50% increase. Failure to provide such notification shall release TFV of any obligations herein from the date such increase occurred.
11. The Uptime Commitment does not apply in the first thirty (30) days of use in a Production Environment, during which time TFV may need to tune the environment for Customer based on its actual usage patterns.
12. The Uptime Commitment does not apply during a Force Majeure event and shall be reinstated again only after service has been fully restored at the primary facility.
13. Access to archived or backup data, if available, will be quoted to Customer, provided as a Global Service, and may be made available in a separate environment.

CREDITS IF TFV FAILS TO MEET THE UPTIME COMMITMENT

If Customer provides written notice to TFV of TFV’s failure to satisfy the Uptime Commitment within thirty (30) days of the end of a month, TFV will credit to Customer 2% of monthly fee as calculated on a prorated basis of the Subscription Fees for each 1% below SLA, not to exceed 100% of the calculated prorate monthly amount of the Subscription Fees.