Terms of Service

Table of Contents

These Terms of Service are effective as of September 1, 2020 (the "Effective Date") for all customers of Qtrac, Inc. (hereinafter "Qtrac"). The terms "you," "your" and "Client" will refer to you.

By entering into any Order Form or Statement of Work ("SOW") with Qtrac, you are hereby agreeing to these Terms and Conditions, which are incorporated into each Order Form and SOW by reference and you are expressly agreeing to be bound hereto, without exception.

1. STANDARD DEFINITIONS

a) "Activation Schedule" shall mean and refer to the mutually-agreed upon schedule of License Activation or Qtrac Software go-live dates.
b) "Agreement" means these Terms of Service, including any Order Forms or SOWs made hereunder, as it or they may be amended or supplemented from time to time, and the expressions "hereof", "herein", "hereto", "hereunder", "hereby" and similar expressions refer to this Agreement and to any particular Section or other portion of this Agreement.
c) "Business Day" means Monday to Friday except any statutory holiday observed in the State of California, U.S.A. and "Business Hour" means each hour from 9:00 am to 5:00 pm P.S.T. during a Business Day.
d) "Qtrac Software" means software, in object code form or any other language in possession of Qtrac prior to the Effective Date or developed or acquired by Qtrac during the Term independent of this Agreement or that is developed pursuant to this Agreement and determined to be owned by Qtrac in accordance with Section 5.2.
e) "Change Request" means a written request for changes to any service or deliverable.
f) "Confidential Information" has the meaning attributed to it in Section 11.1.
g) "Custom Engineering Services" means the custom engineering services offered by Qtrac to Client in accordance with Section 2.
h) "Documentation" means the documentation which facilitates the use of the Qtrac Software and that is provided to Client under the terms of this Agreement.
i) "Effective Date" has the meaning attributed to it in the Recitals.
j) "End User" means any person or organization that utilizes Qtrac Software related to Client's business or services.
k) "Grace Period" shall mean and refer to the period of time following the License Activation before subscription billing commences.
l) "Initial Term" has the meaning attributed to it in Section 6.1.
m) "Implementation Services" means any service related to the enterprise onboarding, solution design, project management, training, user store upload and settings configuration, customer design, iteration/revision, QA, to deliver the client project.
n) "License Activation" shall mean and refer to that certain date when the Qtrac Software Licenses are made usable and available to a Client.
o) "License Fee" shall mean and refer to the fee for Client's use of the Qtrac Software as identified in Section 2.2.4.
p) "Off-shore Engineer" means an engineer located outside North America.
q) "On-shore Engineer" means an engineer located in North America.
r) "Parties" means Qtrac and Client and "Party" means either of them.
s) "Professional Services" means the professional support services offered by Qtrac to Client in accordance with an applicable Order Form or SOW.
t) "Project(s)" means the specific s projects undertaken by Qtrac at Client's request from time to time.
u) "Renewal Term" has the meaning attributed to it in Section 6.1.
v) "Statement of Work" or "SOW" means any work order made between the Parties which references and incorporates the terms of this Agreement, and sets out the details of a particular Project including, without limitation, any applicable (i) Qtrac Software requirements; (ii) methodologies; (iii) project responsibilities; (iii) delivery milestones; (iv) support; and (v) costs.
w) "Software License" shall mean and refer to any Qtrac Software component for which Client agrees to pay to Qtrac subscription License Fees, including but not limited to locations, kiosks, monitors, seats, modules, etc. The particular Qtrac Software licensed components will be defined in Client's agreement, Order Form, or Statement of Work.
x) "Term" means the period specified in Section 6 of this Agreement.

2. BUSINESS TERMS

2.1. Implementation Services

2.1.1. General

Client shall engage Qtrac in various Implementation Services Projects throughout the Term. Each Project shall be defined by a Statement of Work or Order Form signed by both Parties and numbered sequentially. Each Order Form or SOW shall identify the initial Project and define the functional requirements for development and application of Qtrac Software for Client.

2.1.2. Training Services

Qtrac shall provide technical and applications training to Client which may require Client to send one or more persons to locations as designated in the applicable SOW. All training programs offered by Qtrac are designed as "train-the-trainer" courses and are intended for deployment and application specialists as well as the first-line support staff. Client shall submit training requests to Qtrac through the email support address identified in the SOW.

2.1.3. Project Management

For each Project, each Party shall assign a project manager who shall be responsible for their respective Party's deliverables as defined by the Statement of Work or Order Form. It is acknowledged and agreed that Qtrac's ability to meet Project milestone dates and deliverable requirements may, in whole or in part, be dependent upon Client's timely response to Qtrac's reasonable requests for co-operation made from time to time.

2.1.4. Custom Engineering

Client may engage Qtrac in various Custom Engineering projects throughout the Term. Each Project shall be defined by a Statement of Work or Order Form signed by both Parties and numbered sequentially. Each Order Form or SOW shall identify the initial Project and define the functional requirements for development and application of Qtrac Software for Client.

2.2. Change Requests

(a) Proposed changes to any service or deliverable may be initiated by Client by giving a Change Request to Qtrac. Once a change is initiated by Client, Qtrac shall add a description of the following to the applicable Change Request: (i) the proposed changes to the Qtrac Software; (ii) any associated changes to the fees or estimated fees, and any changes to the dates set out in the applicable SOW; and (iii) any other applicable terms and conditions. Client acknowledges that time required by Qtrac to respond to Change Requests may cause delays in achieving milestones.
(b) Qtrac may initiate a change to any service or deliverable by giving Client a Change Request that includes a description of: (i) the proposed changes to the service or deliverable; (ii) any associated changes to the fees or estimated fees, and any changes to the dates set out in the applicable SOW; and (iii) any other applicable terms and conditions.
(c) Once any Change Request is signed by both Parties, it becomes a "Change Order". The changes set out in any Change Order shall constitute amendments to this Agreement and any applicable SOWs. Subject to subsection (d) below, if any Change Request is not signed by both Parties within 10 days of its submission by either Party, it is deemed to be withdrawn. Subject to the provisions of this Agreement, the Parties shall continue to be bound by the terms and conditions of any SOW made hereunder without regard to the provisions of any Change Request until such time as a Change Order is executed by both Parties.
(d) If a Change Request is delivered by Qtrac and indicates that the change(s) are related to unforeseeable deficiencies in the original specifications, or errors on the part of the Client, and the Change Request is rejected by Client, Qtrac may, in its sole discretion, either:
(i) immediately terminate the applicable SOW; or
(ii) complete the delivery of the SOW, provided that Client shall be deemed to have waived its rights to all warranties and support otherwise applicable to any part of the service or deliverable directly affected by the specified changes.

2.3. Ongoing Management

All disputes which may arise with respect to any matter related to any service or deliverable shall, to the extent possible, be resolved by the project managers for each Party, as soon as practicable and in any event within 10 Business Days of when it arises. If the project managers fail to resolve the dispute within 10 Business Days of when it arises, then their respective supervisors or other senior executives designated by the Parties shall work to resolve the dispute, as soon as practicable and in any event within 10 Business Days of when it was referred to them. Each Party shall ensure that its representative for such discussions has the necessary authority to resolve any dispute on behalf of that Party.

2.4. Licensing Terms and Conditions

2.4.1. License Terms

Qtrac grants to Client a non-exclusive, worldwide license during the Term to use the Qtrac Software, and allow its End Users to use the Qtrac Software, for use as an integrated component of Client's business operations, and to use the Documentation in support of the foregoing grant of rights.

2.4.2. Location Definition for Licensing Purposes

A "location" in the context of Qtrac licensing is defined as any distinct operational unit within an organization that independently manages its queues, services, employees, check-in systems, and dashboards. A location is characterized by:
(a) Operational Autonomy: The unit should have a degree of operational independence, particularly in how it manages queues and customer interactions. This includes having its own management for schedules, employee roles, and service offerings.
(b)Physical or Logical Separation: The unit should be physically distinct (e.g., separate floors, buildings) or logically separate (different departments within a larger entity) where each unit operates independently.
(c)Dedicated Resources: The unit should have dedicated resources, such as staff and technological infrastructure, which are not shared with other units without significant logistical coordination.
(d)Custom Service Logic: If the business logic, such as customer flow, service types, and handling procedures, varies significantly from other units within the same organization, it qualifies as a separate location.

2.4.3. Restrictions With Respect to Qtrac Software

The rights to the Qtrac Software granted by Qtrac to Client herein are subject to the following restrictions:
(a) Client shall not modify, adapt, alter, translate, copy or otherwise use the Qtrac Software or Documentation except as expressly permitted in this Agreement;
(b) Client shall not attempt to reverse engineer, decompile, disassemble or otherwise render the Qtrac Software into human readable form in order to gain access to the source code in any way, or to produce any work derived from the Qtrac Software;
(c) the Qtrac Software may only be distributed subject to the terms and conditions of an End User agreement as specified in Section 2.2.3, and, except as otherwise expressly permitted in this Agreement, Client shall not transfer the rights granted to it under this Agreement;
(d) Client shall take all necessary measures to ensure that persons under its direction and control abide by the terms and conditions of this Agreement;
(e) Client shall only represent the performance of the Qtrac Software as stated in the most current Documentation provided to Client by Qtrac from time to time; and

2.4.4. End User Agreements

Client shall enter into an agreement with each End User, and shall include provisions in such agreement that are at a minimum as protective to Qtrac as the following:
(a) End Users may use the Qtrac Software only as integrated component of the Client's business and strictly for said purposes, and may not sell, rent, lease, license, time share or otherwise transfer or provide access to the Qtrac Software to any third parties;
(b) End Users, may not reproduce, modify, adapt, alter, translate, reverse engineer, decompile, disassemble or otherwise render the Qtrac Software into human readable form in order to gain access to the Qtrac Software source code in any way, or to produce any work derived from the Qtrac Software or translate or create other versions of the Qtrac Software;
(c) End Users shall not modify or remove any copyright or other proprietary rights notices in or on the Qtrac Software or Documentation; and
(d) Qtrac shall have no liability to the End User for any express or implied warranties or any indirect, incidental, special or consequential damages.
Client's failure to enforce the terms of the End User agreement shall constitute a breach of this Agreement

2.5. Fees and Payment

Client shall pay Qtrac for Custom Engineering Services according to the Fee Schedule set forth in the applicable Order Form or SOW. Client shall also reimburse Qtrac for all pre-approved travel expenses incurred by Qtrac that are necessary to enable Qtrac to perform the Custom Engineering Services. Unless otherwise specified in the applicable SOW, Qtrac shall invoice Client on a monthly basis for Custom Engineering Services.
Client and Qtrac shall work together to determine an Activation Schedule which, when agreed upon, will determine the start of subscription billing for the Software Licenses. In the absence of an Activation Schedule agreed upon by both the Client and Qtrac, subscription billing will commence for all Software Licenses at the time of License Activation. In some cases, Qtrac provides a Grace Period following the License Activation before commencing subscription billing to provide additional time for Client project planning. Any such Grace Period must be set forth in writing, signed by Qtrac, to be enforceable.

2.5.1. Fee Schedule

Qtrac's then-current Fee Schedule will be included with any Order Form or SOW encompassing the services and products which are the subject thereof and shall include, as applicable, all software license fees, implementation fees, SMS charges and any other fees chargeable to the Client.

3. PAYMENT TERMS

3.1. Taxes

Fees do not include applicable taxes or import duties. Client shall pay such taxes or duties either directly or when invoiced by Qtrac, or shall supply appropriate tax exemption certificates in a form satisfactory to Qtrac.

3.2. Payment

Unless otherwise indicated, Qtrac invoices shall be due and payable to Qtrac within 15 days of receipt of invoice by Client. Any undisputed payment not paid within such 15-day period shall bear interest from the date payment is due until paid at the lesser of either a monthly compounded interest rate of 1.5% (19.56% per annum) or the highest interest rate allowed at law. If a dispute over an invoice is not resolved within 30 days of receipt of such invoice by Client, Qtrac may suspend all services and licensing rights provided for under this Agreement until such dispute is resolved to the mutual satisfaction of the Parties. Client agrees to reimburse Qtrac for all reasonable costs and expenses incurred by Qtrac in enforcing payment.
Payments are to be made by wire transfer or electronic payment through the Automated Clearing House (ACH) to Qtrac according to the terms specified in the applicable Order Form or SOW.

3.3. Currency

All monetary amounts in this Agreement shall be in US dollars, unless expressly stated to the contrary.

4. RECORDS AND AUDIT

Client shall maintain written records ("Records") of all copies made by Client of the Qtrac Software, or any portions thereof, and of all sublicenses of the Qtrac Software (if permitted) and on written notice by Qtrac, Client shall provide a copy of the Records to Qtrac for inspection.
Qtrac shall have the right to direct a qualified agent to audit Client's compliance with the terms of this Agreement. The audit shall occur during normal business hours and at Qtrac's expanse, unless the audit reveals that Client is not in material compliance with this Agreement, in which case Client shall pay all expenses associated with the audit and shall immediately pay to Qtrac the fees for any unauthorized copies of the Qtrac Software based on Qtrac's product transfer price list from the later of the date of the last audit or the Effective Date of this Agreement.

5. PROPRIETARY

5.1. Qtrac Software

The Qtrac Software owned by or in possession of Qtrac prior to the Effective Date or developed or acquired independent of this Agreement during the Term, and any enhancements or modifications thereto or derivatives thereof, shall be owned exclusively by Qtrac; except as expressly provided for in this Agreement, all rights, title and interest therein are reserved by Qtrac.

6. TERMS AND TERMINATION

6.1. Term of the Agreement

The initial Term of this Agreement shall be for the period identified in the Order Form or SOW (the "Initial Term").
Thereafter, the Order Form shall automatically renew for successive periods of 1 year (each, a "Renewal Term"), unless either Party gives written notice to the other Party of its intention not to renew a minimum of fifteen (15) days prior to the expiry of the Initial Term or the then current Renewal Term, as applicable. The Initial Term and any Renewal Terms shall collectively comprise the "Term." In the event Client provides notice prior to the fifteen (15) day period before the end of the current Term, all fees and costs shall remain the same going into the subsequent Term, with Qtrac reserving the right to modify fees and costs, subject to thirty (30) days' prior written notice. Should Client fail to provide notice of renewal at least fifteen (15) days prior to the expiration of the then-current Term, Client acknowledges that all fees and costs for services shall increase by five percent (5%) upon the commencement of the subsequent Term.

6.2. Termination

6.2.1. Termination for Cause

Notwithstanding the foregoing provisions of Section 6.1, this Agreement and any SOW made hereunder may be terminated immediately by either Party if:
(a) the other Party ceases to carry on business in the normal course, becomes or is declared insolvent or bankrupt, is subject to any proceeding relating to its liquidation, insolvency or for the appointment of a receiver or similar officer for it, makes a general assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension or readjustment of all or substantially all of its obligations; or
(b) the other Party breaches any material obligation under this Agreement and such breach has continued uncured for a period of 20 days after receiving written notice of the breach.

6.2.2. Procedure on Termination

Upon expiration or termination of this Agreement for any reason:
(a) Client shall promptly cease using the Qtrac Software;
(b) Client shall promptly return to Qtrac all copies of the Qtrac Software. Documentation or data originally provided by Qtrac and which are the property of Qtrac;
(c) Client shall pay all outstanding invoices or amounts owing to Qtrac which shall become immediately due and payable on notice of termination: and
(d) Qtrac shall deliver any specifications, designs, technical materials and other instructions developed or provided by Client to Qtrac, which the parties acknowledge and agree are exclusively owned by Client.
Termination and the foregoing remedies shall be in addition to, and not in lieu of, any other remedies that either Party may have at law or in equity and shall not relieve either Party of liability for any breach of contract occurring prior to the effective date of termination.

6.2.3. Non-Termination of End User Licenses

Notwithstanding the termination or expiry of this Agreement, all End User licenses granted by Client prior to such termination or expiry shall continue to be in full force and effect, subject to their terms.

7. BRANDING

Client shall not alter, remove or obscure any Qtrac copyright, trademark or other proprietary rights notices which are incorporated in or on the Qtrac Software or Documentation.

8. INDEMNITIES

8.1. Intellectual Property Rights Indemnities

Qtrac shall defend, indemnity and hold harmless Client, and its directors, officers, employees, contractors, agents and suppliers, from any claims, losses, damages, penalties, judgments and liabilities, including all reasonable related costs and expenses, arising in connection with any action or claim that the Qtrac Software infringes any patent or any other intellectual property and/or proprietary right of a third party, provided that (i) Client cooperates with Qtrac's reasonable requests for assistance in the defense; and (ii) Qtrac controls the defense, negotiation and settlement of any such claim; provided, that Qtrac shall not settle or compromise any claim that would adversely affect the rights of Client without the prior written consent of Client, such consent not to be unreasonably withheld.
Client shall defend, indemnity and hold harmless Qtrac, and its directors, officers, employees, contractors, agents and suppliers, from any claims, losses, damages, penalties, judgments and liabilities, including all reasonable related costs and expenses, arising in connection with any action or claim related to Client's negligence, willful misconduct, breach of this Agreement, or any claims alleged by End Users.

8.2. Client Remedies

In addition to any and all remedies provided under Section 8.1 above, if Client cannot use the Qtrac Software because a court of final appeal has held that its use constitutes an infringement of a third-party's intellectual property rights, Qtrac shall, in its sole discretion and as Client's sole recourse, provide Client with one of the following remedies:
(a) without impairing Qtrac Software functionality or performance in any material adverse way, (i) modify the infringing portion of the Qtrac Software so that it is non-infringing or (ii) replace the Qtrac Software with equally suitable, non-infringing components; or
(b) procure for Client the right to continue to use the infringing Qtrac Software.

8.3. Exclusion

Qtrac shall have no liability to Client with respect to any claim of intellectual property rights infringement caused by (i) Client's modifications to the Qtrac Software or combination of the Qtrac Software with non-Qtrac products; (ii) Client's continued use of the infringing Qtrac Software after having been notified of the alleged infringement; (iii) Client's failure to use modifications to the Qtrac Software supplied by Qtrac that would have avoided the infringement; or (iv) modifications made to the Qtrac Software by any person or entity other than Qtrac or by Qtrac at the Client's directions or specifications.

8.4. Notice

Each Party shall promptly provide the other with written notice of any claim or information that might lead to a claim for indemnity under this Section 8. Failure by the Party seeking indemnity to notify the indemnifying Party of such claim or information, which results in the indemnifying Party being materially prejudiced, shall relieve the Indemnifying Party of its liability under this indemnity provision.

9. NON-SOLICITATION

For a period of two (2) years following the execution of an Order Form or SOW, Client shall not hire, employ, retain or solicit any person who is an employee, officer, director of full-time independent contractor of Qtrac and who, but for this Agreement, would otherwise be unknown to the Client. The Parties acknowledge that in view of the recruitment difficulties, costs of training staff in the computing and technology industries and the highly sensitive nature of Intellectual Property rights of Qtrac, this restriction is reasonable.

10. LEGAL RISK MANAGEMENT

10.1. Notice to End-Users

CLIENT AGREES THAT IT SHALL NOT USE, MARKET, DISTRIBUTE OR RESELL THE Qtrac SOFTWARE OTHER THAN EXPRESSLY APPROVED BY Qtrac. CLIENT SHALL PROVIDE END USERS WITH A PROMINENT NOTICE, IN THEIR LOCAL LANGUAGE, TO THAT EFFECT.

10.2. Legal Risk Management

EACH OF THE PARTIES AGREES THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION ARE FAIR AND REASONABLE IN THE COMMERCIAL CIRCUMSTANCES OF THIS AGREEMENT AND THAT IT WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE OTHER PARTY'S AGREEMENT TO LIMIT ITS LIABILITY IN THE MANNER, AND TO THE EXTENT, PROVIDED FOR HEREIN. SAVE AND EXCEPT FOR CLAIMS ARISING FROM BREACH OF RESTRICTIONS ON USE AND DISTRIBUTION OF THE Qtrac SOFTWARE, BREACH OF THE PAYMENT OBLIGATIONS, BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR CLAIMS FOR WHICH AN INDEMNITY HAS BEEN PROVIDED UNDER THIS AGREEMENT, GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR INTENTIONAL MISCONDUCT, THE PARTIES AGREE THAT EACH OF THE PARTIES' AND THEIR RESPECTIVE SUPPLIERS' LIABILITY TO THE OTHER FOR ANY AND ALL DIRECT, COMPENSATORY LOSS OR DAMAGES, UNDER ANY THEORY OF LAW OR EQUITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE INTENDED FULFILLMENT OF ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, SHALL BE STRICTLY LIMITED IN THE AGGREGATE TO THE PRICE PAID BY CLIENT UNDER ANY . IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY PERSON OR ENTITY WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A BREACH OF CONDITION, A BREACH OF AN ESSENTIAL OR FUNDAMENTAL TERM. OR AN ESSENTIAL OR FUNDAMENTAL BREACH OF THIS AGREEMENT.

10.3. Exclusive

THE OBLIGATIONS OF Qtrac EXPRESSLY STATED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWABLE BY LAW, THIS EXCLUSION OF ALL OTHER WARRANTIES AND CONDITIONS EXTENDS TO IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. Qtrac MAKES NO GUARANTEES REGARDING NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OR THAT USE OF THE Qtrac SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.

11. CONFIDENTIALITY

11.1. Definition

In this Section. "Confidential Information" means all information that the disclosing Party designates as confidential or which ought to be considered as confidential from its nature or from the circumstances surrounding its disclosure, including without limitation all regulatory, commercial, financial, administrative and technological information of either Party and any information concerning this Agreement, but does not Include information which:
(a) is known to the receiving Party before receipt from the other Party, as substantiated by cogent and reliable evidence;
(b) is disclosed to the receiving Party in good faith by a third party who had a right to make such disclosure;
(c) is made public by the originating Party, or is established to be a part of the public domain otherwise than as a consequence of a breach by the receiving Party of Its obligations hereunder; or
(d) can be substantiated, based on cogent and reliable evidence, to have been independently developed by the receiving Party.

11.2. Limited Use

All Confidential Information of each Party shall be used by the other Party strictly and only for the purposes in this Agreement.

11.3. Reasonable Care

Each Party shall hold all Confidential Information of the other Party in confidence strictly for. and on behalf of the other Party and treat the Confidential Information of the other Party as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care.

11.4. Obligations of the Parties

Each Party shall have an obligation to prevent the other Party's Confidential Information in its possession or control from being misappropriated, or wrongfully communicated by any employee, consultant or other person under the obliged Party's control. If the receiving Party is required by a court or government authority to disclose Confidential Information, the receiving Party shall provide the disclosing Party with prompt notice, including the circumstances of such requirement, so that the disclosing Party may seek an appropriate protective order, and shall reasonably cooperate with the disclosing Party in an action by the disclosing Party to obtain an appropriate protective order. Upon termination of this Agreement, the Parties shall promptly return or destroy the other Party's Confidential Information.

12. GENERAL

12.1. Governing Law

The construction, validity and performance of this Agreement shall be governed by the laws of the State of California without reference to conflict of laws principles. Each Party hereto expressly consents to personal jurisdiction in the Courts in the State of California, and the County of Los Angeles.

12.2. Sale of Goods Act

This Agreement shall not be governed by either the provisions of the International Sale of Goods Act or the United Nation's Convention for Contracts on the International Sale of Goods, regardless of that Convention's legal or statutory adoption by any jurisdiction.

12.3. Assignment

Neither party may assign or otherwise transfer rights or obligations under this Agreement whether in whole or in part, except with the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety in the event of a merger, change of control, corporate reorganization, or a sale of all or substantially all of the assets of such party.

12.4. Notices

Any notices provided for under this Agreement shall be deemed received when delivered in person, on the first Business Day following electronic transmission by facsimile or five (5) days after being mailed by registered mail or reputable courier service:
To Qtrac:
Qtrac, Inc.
27810 Avenue Hopkins
Valencia, CA 91355
With a Copy to:
Fisher & Wolfe, LLP
9401 Wilshire Boulevard, Suite 640
Beverly Hills, California 90212
Attn: Jeffrey R. Klein, Esq.
To Client:
At the address identified in the applicable SOW.

12.5. Public Notices

The Parties agree to issue a press release publicizing this Agreement subject to mutual agreement, to be evidenced in writing, on appropriate content and timing of said release. Subject to the foregoing, neither Party will use the other Party's name in any publicity, publication, announcement, marketing or press release or otherwise make use of its association with the other Party or this Agreement, without the other Party's written consent.

12.6. Case Study

Upon Client's prior written consent in each Instance, Qtrac may devise a case-study of any Qtrac® Projects, and may use such case-study for marketing.

12.7. Entire Agreement

This Agreement, and any Order Forms or SOWs constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements and understandings, collateral, oral, or otherwise. No modification of this Agreement shall be binding upon the Parties to this Agreement unless included in a fully-executed Order Form or SOW.
In the event of conflict or inconsistency between the provisions of this Agreement and any Order Form or SOW made hereunder, or any other document incorporated by reference herein, the terms of the Order Form or SOW shall prevail only if the same expressly states that any terms contained therein are to prevail over any inconsistent terms contained in the provisions of this Agreement.

12.8. Amendments

This Agreement may be amended by Qtrac from time to time without prior notice to Client.

12.9. Successors and Assigns

All successors, receivers, managers, trustees and permitted assigns of the Parties shall be bound by the rights and liabilities set out in this Agreement.

12.10. Force Majeure

Neither Party shall be liable for any failure or delay in its performance under this Agreement due to causes of force majeure, including without limitation, tires, floods, storms, earthquakes, civil disturbances, or labor matters, provided that Client shall continue to be obligated to pay any fees that have accrued up until the event of force majeure. If a party is so delayed or prevented from performing its obligations under this Agreement for a period of thirty (30) consecutive days, the other party shall have the immediate right to terminate this Agreement at the end of such thirty (30) consecutive-day period, without any right of cure on the party so delayed.

12.11. Amicable Resolution

All controversies or claims arising out or relating to this Agreement, or any breath thereof, shall be finally settled amicably, if possible, by negotiation between the Parties.

12.12. No Waiver

No failure on the part of any Party to this Agreement to exercise, and no delay in exercising any right, power or single or partial exercise of any right, power or remedy by any Party shall preclude any other or further exercise thereof of the exercise of any other right, power or remedy.

12.13. Counterparts and Delivery

This Agreement may be executed in several counterparts, each of which so executed shall be deemed to be an original, and such counterparts together shall constitute but one and the same instrument. Delivery of this Agreement by fax shall constitute valid and effective delivery.

12.14. Severability

If any provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction, that provision shall be deemed to be severed from the Agreement, and the remaining provisions shall not be affected.

12.15. Legal Relationship

The Parties to this Agreement are independent contractors and separate entities. No other legal relationship is intended or implied. Except as specifically specified in this Agreement, neither Party shall be responsible for acts of the other Party or its agents or employees and neither Party shall assume or create any obligation in the name of or on behalf of the other Party.

12.16. Export Control

Client agrees to comply with the export laws and regulations of Canada and the United States of America in exercising the rights granted to it under this Agreement in respect of the Qtrac Software.

12.17. Survival

Sections 1, 3, 4, 5, 6.2.2, 6.2.3, 8, 9, 10, 11 and 12 shall survive termination of any Order Form or SOW.

Qtrac's REQUIREMENTS FOR HANDLING
OF PERSONAL DATA AND NETWORK SECURITY

I. Personal Data, Data Protection and Data Processing.

(a) For the purposes of this Agreement, the following definitions shall apply:
(i) "CCPA" means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 to 1798.198.
(ii) "Compromise" means the unauthorized access to Qtrac's computer network or systems or files that contain Qtrac Data or other Confidential Information;
(iii) "Data Subject" means an identified or identifiable natural person;
(iv) "GDPR" means the EU "General Data Protection Regulation", Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC, as may be amended, modified, supplemented, restated, or superseded from time to time;
(v) "Personal Data" means information that identifies or relates to an identifiable natural person, including information that is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
(vi) "Privacy Incident" means any incident involving the accidental, unlawful or unauthorized destruction, loss, alteration, disclosure of, or access to, Personal Data;
(vii) "Process" means any operation or set of operations which is performed upon Personal Data, whether by automatic or manual means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;
(viii) "Processor" means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of another entity, and which does not determine the purposes and means of the Processing of the Personal Data.
(b) The terms of this Section I, and all references to "Client" herein, shall also apply to any Client Affiliates or Sub-Contractors that are involved in the Processing of Personal Data in connection with this Agreement, and, for the avoidance of doubt, Client shall be responsible for ensuring its Client Affiliates and Sub-Contractors' compliance with such terms. Client acknowledges that Personal Data is subject to laws restricting collection, use, Processing and free movement of Personal Data ("Privacy Laws"), which may include, without limitation, the GDPR, European Union member state laws implementing the GDPR, and the CCPA. In addition to its other obligations hereunder, Client shall execute, or arrange to be done and executed, each act, document and thing necessary or desirable to keep Qtrac and Qtrac Affiliates in compliance with any such laws in connection with this Agreement.
(c) To the extent Client Processes any Personal Data on behalf of Qtrac or Qtrac Affiliates or Qtrac System Entities pursuant to this Agreement, Client represents and warrants that it shall comply with the following obligations at all times during which Client is engaged in such Processing or otherwise has access to such Personal Data:
(i) comply with all applicable Privacy Laws;
(ii) not, by any act or omission, cause Qtrac, Qtrac Affiliates or Qtrac System Entities to be in violation of any Privacy Laws;
(iii) collect and Process Personal Data (A) only on documented instructions from Qtrac, including with regard to the transfer of Personal Data to a third country, unless required to do so under applicable law to which Client is subject and (B) solely for the purposes of enabling Client to perform its obligations under this Agreement. Without limiting the generality of the foregoing, Client: (x) may Process the Personal Data only as expressly permitted by and in accordance with the requirements of this Agreement; and (y) shall not Process the Personal Data for any commercial purpose other than to perform its obligations under this Agreement;
(iv) act only as a data Processor;
(v) comply with all of Qtrac instructions from time to time in relation to the Processing of any such Personal Data provided such instructions are consistent with all applicable laws;
(vi) notify Qtrac in writing promptly and prior to commencing the Processing if applicable law requires Client to conduct Processing that is or could be construed as inconsistent with Qtrac instructions;
(vii) notify Qtrac in writing immediately if Client believes that any instruction from Qtrac is in violation of, or would result in Processing in violation of, applicable law;
(viii) ensure that, at all times during the term of this Agreement, all personnel (including all Workers) engaged in the Processing of Personal Data are aware of, and subject to, enforceable obligations to maintain the confidentiality of the Personal Data and to comply with the other relevant obligations and restrictions of this Agreement;
(ix) not subcontract the Processing of Personal Data without prior written consent of Qtrac except where Qtrac has provided general written authorization in which case Client will inform Qtrac of any intended changes concerning the addition or replacement of other Processors, thereby giving Qtrac the opportunity to object to such changes;
(x) ensure that the written agreement(s) between Client and Client Affiliates and Sub-Contractor(s) includes (i) the requirements of this Section I (Personal Data, Data Protection and Data Processing), as between Client and Client Affiliate or Sub-Contractor; and (ii) includes express guarantees by the Client Affiliate or Sub-Contractor to implement technical and organizational measures to ensure that Processing satisfies all requirements of applicable law;
(xi) take all reasonable steps to ensure the reliability of all personnel who may have access to Personal Data and ensure in each case that access is strictly limited to those individuals who need to know or access the relevant Personal Data, as strictly necessary for the purposes of this Agreement and comply with applicable law in the context of that individual's duties to Client;
(xii) take all necessary technical and organizational security measures against the accidental, unauthorized or unlawful Processing of Personal Data and against the loss, alteration or destruction of, disclosure of, access to or damage to, Personal Data, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural person
(xiii) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, provided that such measures shall include, at a minimum, (A) using firewalls, intrusion detection, password protection and malware protection software, (B) performing periodic, but in any event at least annual, internal security audits of applicable Client systems and the Services, and (C) testing applicable disaster recovery and business continuity plans and facilities. Further, such technical and organizational measures shall be compliant, at a minimum, with Qtrac policies and security requirements as may be issued to Client by Qtrac from time to time. Such security measures shall ensure the security and confidentiality of Personal Data, protect against any anticipated threats or hazards to the security or integrity of Personal Data. Client acknowledges that its duty to take security measures herein is in addition to, and does not limit, Client's obligations to take appropriate technical and organizational security measures pursuant to applicable laws, including those relating to data security and the handling of data security breaches, and otherwise protect against unauthorized access to or use of Personal Data. Client shall take the measures mentioned in this section having regard to the state of technological development and the cost of implementing the measures, so as to ensure a level of security appropriate to: (Y) the harm that may result from breach of such measures; and (Z) the nature of the Personal Data to be protected;
(xiv) not publish, disclose or divulge any such Personal Data to any third party without the prior consent of Qtrac, and any such disclosure must be subject to obligations of confidentiality no less onerous than those imposed on Client under this Agreement, and consistent with any procedures specified by Qtrac from time to time;
(xv) follow Qtrac instructions when transferring Personal Data across national borders to adduce adequate safeguards for the privacy of all relevant Data Subjects, and ensure transfers from the EEA or Switzerland to another location are either: (A) to a country providing adequate protection of privacy rights (as deemed by the European Commission from time to time); (B) pursuant to the current Standard Contractual Clauses issued by the European Commission, as may be updated from time to time, provided Client has secured all necessary approvals for the transfer from applicable governmental authorities; (C) authorized by all applicable governmental authorities in the EEA or Switzerland, as the case may be, such as through Binding Corporate Rules (as defined by GDPR) approved by all applicable governmental authorities; or (D) to an entity or group of entities that has self-certified under the EU-U.S. Privacy Shield mechanism and which, at the time of the transfer, is listed on the United States Department of Commerce Privacy Shield List as a current participant in the EU-U.S. Privacy Shield program in good standing;
(xvi) promptly notify Qtrac if it receives any inquiry, complaint, allegation, request or claim by a Data Subject or any third party (including governmental authorities relating to the following (collectively referred to herein as "Privacy Inquiries") regarding (A) Personal Data Processed pursuant to the Agreement and/or the previous agreements between Client and Qtrac or an Authorized Party, or (B) Qtrac or an Authorized Party's obligations under applicable Privacy Law, provided that Client will not respond to any Privacy Inquiry without Qtrac prior written consent, except to the extent required by applicable law or necessary to confirm the request relates to Qtrac;
(xvii) facilitate and cooperate fully with Qtrac or an Authorized Party, at no additional charge, with respect to the authentication, recording, investigation, processing, execution and resolution of, all Privacy Inquiries, including those in which the Data Subject or other third party: (A) requests access to, rectification of, a portable copy of, to restrict the Processing of, or erasure or deletion of Personal Data; (B) objects to the Processing of Personal Data; (C) requests to opt out from the disclosure of Personal Data for one or more purposes; or (D) asserts or seeks to fulfill any other rights available to Data Subjects under applicable Privacy Law. Further, as part of such cooperation, Client shall provide to Qtrac the details of the Personal Data held by it in relation to the Data Subject within fifteen (15) days (or such earlier time if required by applicable laws) of receipt of the request regarding such Personal Data unless otherwise directed by Qtrac.
(d) Without prejudice to any other provision of this Agreement, Qtrac may, from time to time, request a detailed written description of the technical and organizational methods employed by Client and/or its Client Affiliate or Sub-Contractors for the Processing of Personal Data. Within thirty (30) days of receipt by Client of Qtrac written request, Client shall deliver a written report to Qtrac in sufficient detail that Qtrac can reasonably determine whether or not any applicable Personal Data is being or has been Processed in compliance with this Agreement and/or applicable Privacy Law.
(e) Client shall: (i) retain Personal Data only for the period of time required for Client to perform the Services, or such longer period as may be required by applicable law, required pursuant to this Agreement or requested in writing by Qtrac and (ii) permanently delete all copies of data (including Personal Data) in its possession or control at the expiration of such time period in accordance with any standards provided to Client by Qtrac for deletion of data.
(f) Client certifies that Client (i) understands the restrictions and other obligations provided in this Section I (Personal Data, Data Protection and Data Processing), and (ii) will comply with these restrictions and obligations. The obligations under this section shall remain in full force after the termination of this Agreement until the total destruction and/or delivery to Qtrac of all Personal Data is completed.
(g) Customer's Proprietary Rights. Client acknowledges that its customers shall own and retain all rights to their customer Personal Data. Client agrees that it shall use such Personal Data only as necessary to provide the subject services to its customers or as otherwise permitted by this Agreement. Client will not use, or allow anyone else to use, Personal Data to contact any individual or company except as required to provide the subject services covered hereby and as permitted by applicable law and this Agreement.
(h) By using Qtrac and agreeing to these terms of service, you grant Qtrac a non-exclusive, worldwide, royalty-free license to anonymize and aggregate the data generated through your usage of the Qtrac queue management system. This aggregated data will be used for market intelligence, statistical analysis, and service improvement purposes. The aggregated data will not contain any personally identifiable information and will be used solely in a manner that does not disclose the identity of individual customers or infringe upon their privacy rights.

II. Network Security and Security Assessment.

(a) In the event Client discovers, is notified of or reasonably suspects a Compromise or Privacy Incident, Client shall immediately notify Qtrac within twenty-four hours, and to the extent possible, this notification shall be prior to reporting such Privacy Incident or Compromise with law enforcement.
(b) Client shall not disclose the occurrence of any Privacy Incident or a Compromise to any third party without first obtaining Qtrac written consent to do so, except to the extent Client is required by applicable law to make such disclosure prior to obtaining Qtrac written consent. Client's notice to Qtrac of a Privacy Incident or a Compromise must contain the following: (i) facts of the Privacy Incident and Compromise, including date of discovery, date range of unauthorized activity, and remediation and mitigation activities; (ii) a description of the categories and approximate number of Data Subjects, as well as the categories and approximate number of records containing Personal Data affected by the Privacy Incident; (iii) the name and contact details of any Data Protection Officer appointed by Client, and if Client has not appointed a Data Protection Officer, the name and contact details of the individual(s) in charge of Client's response to the Privacy Incident or Compromise; and (iv) Client's assessment, developed through reasonable diligence, of the likely consequences of the Privacy Incident with respect to the affected Personal Data and Data Subjects. For any Privacy Incident and any Compromise, Client shall also: (v) investigate such breach or potential breach and perform a root cause analysis thereon; (vi) remediate the effects of such breach or potential breach of security; (vii) provide Qtrac with reasonable assurances as Qtrac shall request that such breach or potential breach shall not recur; and (viii) on an ongoing basis, inform Qtrac of any impact and/or damage to Qtrac or any Qtrac Affiliates.
(c) Client agrees it will fully comply with, assist, and facilitate Qtrac investigation of any Privacy Incident or Compromise about which Client has notified to Qtrac, or which Qtrac reasonably identifies as connected to Client. Client agrees that Qtrac has the sole right to determine: (i) whether to provide notice of the Privacy Incident to any Data Subjects, governmental authorities, consumer reporting agencies or other third parties; and (ii) the contents of such notice, whether any type of remediation may be offered to affected Data Subjects, and the nature and extent of any such remediation. If Qtrac determines that any Privacy Incident must be disclosed to a third party, including Data Subjects or governmental authorities (including, but not limited to, any data protection authorities in the EEA or Switzerland), then Client shall fully cooperate with and assist Qtrac in fulfilling Qtrac reporting and disclosure obligations. Client shall bear (iii) the costs incurred by Client in complying with its legal obligations relating to such breach, and (iv) in addition to any other damages for which Client may be liable, the following costs incurred by Qtrac in responding to such breach, to the extent applicable: (1) the cost of providing notice to affected Data Subjects; (2) the cost of providing notice to government agencies, credit bureaus, and/or other required entities; (3) the cost of providing affected Data Subjects with credit monitoring services for a specific period not to exceed twelve (12) months or the minimum time period provided by applicable law, whichever is longer; (4) call center support for such affected Data Subjects for a specific period not to exceed thirty (30) days; (5) the cost of any other measures required under applicable law; and (6) any other losses, liabilities, damages (including punitive and exemplary damages), fines, penalties, interest and claims and all related costs and expenses for which Client would be liable.
(a) In the event that Qtrac learns of public information by a reputable media source regarding a Privacy Incident or Compromise and Qtrac reasonably determines that the Compromise materially harms Qtrac brand, then Qtrac may terminate this Agreement or the applicable SOW for cause by notifying Client of Qtrac intent to terminate on the grounds of the Compromise, and such termination shall be immediately effective upon Client's receipt of such termination notice with applicable refund to Qtrac for any unused Services.
(b) Client shall provide to Qtrac any security assessments/certifications previously performed (and if Client has not previously performed security assessments/certifications, it shall perform and provide such assessments/certifications at Qtrac request). In addition, Client shall, at its expense, perform such security assessments/certifications on an annual basis during the term of this Agreement and provide such assessments/certifications to Qtrac. Such assessments/certifications (i.e., those previously performed, performed at Qtrac request, and annually performed) shall include at a minimum, either an SOC 2 Type 2 report, an ISO 27001/2 certification and supporting documentation, an Industry Standard SIG Lite Form, or an equivalent acceptable to Qtrac. Client represents and warrants it will at all times maintain the same or higher security levels approved by Qtrac.
(c) If Qtrac determines that applicable law or Qtrac policy requires (i) an assessment of the privacy impacts of any Processing of Personal Data by or on behalf of Client, or (ii) Qtrac to notify, seek guidance from or consult with a third party, including any governmental authority or representative labor body, concerning Client's Processing of Personal Data, then Client will cooperate fully with and facilitate Qtrac assessment, notice, or third party review, including providing access to relevant information, records and personnel.
(d) Client shall notify Qtrac promptly if Client becomes the subject of, or reasonably believes it may become the subject of, any claim, investigation, audit, suit or enforcement proceeding arising from or relating to Client's Processing of Personal Data; and will cooperate fully with Qtrac and assist Qtrac with any claim, investigation, audit, suit or enforcement proceeding arising from or relating to Client's Processing of Personal Data, including access to relevant information, records and personnel.
(e) Client shall (i) document and provide to Qtrac upon request copies of all records of Personal Data Processing activities required to be maintained under applicable law; (ii) provide to Qtrac a copy of Client's most recent audit report or review conducted by Client's external auditors that relates to any Processing of Personal Data; and (iii) provide to Qtrac copies of the reports resulting from any audits performed by Client's internal personnel that include Processing of Personal Data within their scope.
(f) Upon reasonable notice to Client, Client shall permit Qtrac, its inspectors, regulators, auditors and designated audit representatives, including auditors affiliated with the payment card industry, access to audit and inspect: (i) Client's owned or managed facilities where Client provides Services or where Qtrac data (including Confidential Information and Personal Data) is stored, Processed or transmitted; (ii) any computerized systems used to store, Process or transmit Qtrac data (including Confidential Information and Personal Data); (iii) relevant Client personnel; and (iv) Client's security policies, practices and procedures, network infrastructure design and security, architecture and data flow diagrams, business continuity and recovery facilities, resources and plans. The audit and inspection rights hereunder shall be, at a minimum, for the purpose of performing audits of Client or any Client Affiliates or Sub-Contractor to verify Client's compliance with this Agreement and all applicable laws and at the request of Qtrac, Client will, at its sole expense, cooperate fully to assist the requesting entity in ensuring that information security measures implemented meet the requirements of applicable law. Client will provide full cooperation to Qtrac and its representatives in connection with any audit. Qtrac may perform such audits no more than once in any calendar year unless Qtrac has a reasonable suspicion of a breach or potential breach of this Agreement by Client, in which event Qtrac may perform an audit on a more frequent basis. Client will respond in writing within thirty (30) days to all requests Qtrac provides that result from such audits. Client will comply with all reasonable requests from Qtrac that result from such audits relating to Client's compliance with this Agreement.
(g) Client shall encrypt Data that it possesses, including electronic messages and attachments, if and as required by Qtrac from time to time based on the classification of the Data. In the event Qtrac does not communicate any such requirements to Client, Client shall at a minimum encrypt all Personal Data in accordance with National Institute of Standards and Technology (NIST) Special Publications 800-45 and 800-111 and/or such future revisions or publications as may be released by NIST from time to time that amend, update, or supersede the aforementioned publication.
(h) Client shall delete (i.e. destroy or securely erase) in compliance with Qtrac policies, all Confidential Information and Intellectual Property, and if requested by Qtrac shall certify the same, upon the occurrence of any of the following events: (i) receipt of demand from Qtrac, (ii) termination or expiration of this Agreement or a SOW, or (iii) with respect to a computer hard drive or other storage device owned or otherwise in the possession or control of Client or its Client Affiliates or Sub-Contractors (an "Client Storage Device"), at such time that Client takes an Client Storage Device out of service, or intends to use or re-use a Client Storage Device to store data of any other client of Client or to deliver data to a third party, including another of Client's customer. In the event Qtrac does not provide such policies to Client, Client shall destroy or securely erase such media in accordance with NIST Special Publication 800-88 and/or such future revisions or publications as may be released by NIST from time to time that amend, update, or supersede the aforementioned publication. Client shall not withhold any Confidential Information or Data (including Personal Data) as a means of resolving any dispute.
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