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Master Subscription Agreement (2/8/21)

These terms are inapplicable to customers who signed contracts starting on or after March 1, 2024 and that incorporate by reference the terms at https://www.nmi.com/legal/platform-terms-conditions/. Please refer to your order form and reach out to your customer account manager for questions.

Last update: 2/8/2021

Master Subscription Agreement – 2/8/2021

Master Subscription Agreement
IRIS Terms and Conditions

These terms and conditions (including the cover page hereof any schedules, exhibits or addenda hereto, collectively the “Agreement“) are an agreement between Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 401 Ryland Street, Suite 200-A, Reno NV 89502 (“IRIS“, “us“, “we” or “our“) and you, being the entity that accepted them (“you“, “your” or “ISO“). This Agreement is effective as of the date of signature of the ISO, as set forth on the first page of this Agreement (the “Effective Date“).

THIS IS A LEGALLY BINDING AGREEMENT, PLEASE READ IT CAREFULLY. IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, PLEASE CONTACT IRIS THROUGH THE SITE. WE VALUE YOUR INPUT. YOU MAY ONLY ENTER INTO THIS AGREEMENT IF YOU ARE DOING SO IN YOUR CAPACITY AS A BUSINESS AND NOT AS AN INDIVIDUAL CONSUMER.

  1. Definitions.

    For the purposes of this Agreement, the following terms shall have the definitions set out below:

    1. “Account Agreement” shall mean an agreement between an Acquiring Bank an Account and either ISO or Processor, or both, pursuant to which the Account receives Account Services.
    2. “Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.
    3. “Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as a Processor may require to be included in an Account Application.
    4. “Account Portal” is a means of accessing the Service available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.
    5. “Account Principal/Customer” means an individual principal or guarantor of any Account.
    6. “Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.
    7. “Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.
    8. “Acquiring Bank” means any financial institution acting as part of a payment network and sponsor of ISO or ISO’s Affiliates.
    9. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control“, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.
    10. “Dialer Acceptable Use Policy” has the meaning set out below in Section 2.4.6 below.
    11. “Dialer Services” means that part of the Services that integrate certain telecommunication capabilities therein, as determined by IRIS from time to time.
    12. “E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.
    13. “Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.
    14. “Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail.
    15. “Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents, and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
    16. “ISO Data” means any and all electronic data or information submitted or transferred by an ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.
    17. “ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.
    18. “ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Users or Accounts in conjunction with the business of the ISO.
    19. “ISO Systems” means the computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Users or Accounts in conjunction with the business of the ISO.
    20. “Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by-laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
    21. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
    22. “Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.
    23. “Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.
    24. “Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example, purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.
    25. “Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.
    26. “Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.
    27. “Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.
    28. “Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.
    29. “Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.
    30. “Subscription Term” shall mean the term for which Services are purchased by ISO in respect of active merchants within a pricing tier.
    31. “Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.
    32. “Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.
    33. “Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, or banks that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.
    34. “TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.
    35. “Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and (iv) who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time if any.

  2. Services

    1. Services. IRIS shall make the Services available to ISO and applicable Users pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions”): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO or its Processor; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services. IRIS also reserves the right to cease providing the Services on at least sixty (60) days written notice.
    2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles/reproductions/transmissions of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
      1. Account Application Facsimiles / Reproductions / Transmissions. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile/reproduction/transmission of the Account Application. ISO hereby licenses to IRIS the right to use the information, names, and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor or any other third party in respect of the use thereof within the Services for ISO. ISO assumes the sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
      2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application can result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification”):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:
        1. YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
        2. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
        3. You have undertaken all site­ inspections or other verifications of the merchant required by your ISO and processor;
        4. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
        5. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
        6. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application;
        7. You have in your possession a valid electronically signed merchant agreed or a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant;
        8. IRIS will have no responsibility for your errors, errors of the ISO, User errors or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
        9. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
        10. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with the processor and not through IRIS when a processor or other pricing changes occur;
        11. You have consent from your Processor for ISO and Users to submit the information that you are about to submit;
        12. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
        13. YOU HEREBY REAFFIRM YOUR AGREEMENT WITH ALL OF THE IRIS “TERMS AND CONDITIONS.”
      3. ISO Third-Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third-party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO or any User in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
      4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.

    3. E-Sign Service.

      The U.S. Federal Electronic Signatures in Global and National Commerce Act (E-Sign), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature (“E- Sign Act“). Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO.

      1. The E-Sign Service allows ISO to create electronic records (each an “ISO Electronic Records“). Subject to the parameters of the E-Sign Service available on the Site, from time to time, the E-Sign Service will permit the ISO to create ISO Electronic Records and facilitate in the presentation of such documents to third parties, such as, for example, Accounts.
      2. The ISO shall assume the sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if the ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
      3. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records.
      4. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
      5. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
      6. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with the disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
      7. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
      8. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
      9. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto.

    4. Dialer Service

      1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
      2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly.
      3. Use of Dialer Services. If ISO elects to sign up for Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
      4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates any data protection statute, regulation, order or similar law.
      5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions, and obligations applicable to the Services in the Agreement.
      6. Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or another manner that interferes with the business or activities of any other party. The following list gives examples of prohibited actions/activities. Each item on the list below and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
        1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
        2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
        3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
        4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
        5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual third party policies or requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
        6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
        7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
        8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
        9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
        10. Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
        11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
        12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
        13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
        14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
    5. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the currently applicable tier that is specified in relation to the Subscriptions on the Order Form.
    6. License. The right to use the Services is granted to the ISO as a limited, non-transferable, non- exclusive license (the “License“). Subject to the terms of this Agreement, the License is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
    7. Limitations on License. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the License and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the License granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have the rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The License may not be used to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
    8. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
    9. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the ISO Site. Lack of an SSL Certificate shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
    10. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
    11. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO, and Users, as instructed by ISO and Users through the Services. If requested by a Processor, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
    12. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related to their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.

  3. Use of the Services

    1. Support.
      1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each a “Force Majeure Event“) and (c) normal and anticipated downtime of the Processor data feed.
      2. ISO shall comply with all applicable Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
      3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards”), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non-compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession, and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC”) on request by ISO.
      4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
      5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’s compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on-site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’s out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also be paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
    2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume the exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
    3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any downtime and inaccuracy to data.

  4. Third­-Party Providers

    1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider is solely between ISO and the applicable third-party provider. IRIS does not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
    2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari, and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in any way by IRIS.
    3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
    4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.

  5. Fees and Payment for Services

    1. Fees. ISO shall pay all Fees through ACH. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) In the event that ISOs add active merchants during the billing cycle that qualify for the next tier as specified in the order form, the fees for these active merchants will be prorated for the portion of the billing cycle remaining at the time the merchants are added and will be invoiced on the following billing cycle. (iv) Payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; (v) In the event that this Agreement is terminated prior to the end of the then-current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination.
    2. Start of Fees. IRIS will perform an ACH debit to ISO’s bank account for the amount specified as due on the Order Form and at the time specified on the Order Form.
    3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
    4. Sales Tax. IRIS and ISO acknowledge and agree that to the extent that the Service is subject to any state sales and use taxes, IRIS has a legal obligation to collect such taxes from ISO and to remit the same to the appropriate tax collection authorities. ISO agrees to pay any and all applicable state sales, use, gross receipts, and other similar taxes and charges. ISO has no liability for any taxes based upon IRIS’s income under the Agreement.

  6. IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS

    1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. It is the responsibility of ISO to make periodic backups of ISO Data onto ISO Systems in so far as ISO wishes to protect itself from the loss thereof. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own ISO Systems on a regular basis.
    2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON- SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON- SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
    3. Password Security. One of the most important security features used today are passwords. It is important for ISO and all Users to have secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
    4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data”) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of merchants with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
    5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
    6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.

  7. Covenants, Representations and Warranties

    1. The parties represent, warrant and covenant the:
      1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
      2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
      3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
      4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
      5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
      6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any applicable law or regulation or any agreement or Rule to which that party may now be bound.
      7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
      8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
      9. No Litigation. Neither party nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
      10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.

  8. LIMITATIONS

    1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    2. IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error-free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
    3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
    4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO, PROCESSOR, USER AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
    5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
    6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
    7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation”). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.

  9. Indemnification

    1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
    2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.

  10. Term and Termination

    1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason.
    2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
    3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
    5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably usable format, as determined by IRIS in its sole but reasonable discretion until 11:59 PM on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.

  11. License for Marketing and Promotional Activities

    1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid-up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License”).
    2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from the Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
    3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.

  12. General

    1. Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
    2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
    3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York in the county where IRIS is located.
    4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
    5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
    8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
    9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due to IRIS under this Agreement following ISO breach of Fee payment obligations.
    11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
    12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
    13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
    14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.