General Terms and Conditions

Last updated February 6 2024

1. The Agreement

These General Terms and Conditions (“Terms”) apply to each order form (“Order Form”) entered into by the intelliflo entity (“Supplier”) and the customer entity (“Customer”) named in the Order Form under which Customer has subscribed to certain software offerings, which may include cloud-based services or on-premises applications (“Subscribed Services”) and associated support services (“Support Services”) or other ordered services (“Additional Services”, together with the Subscribed Services and Support Services, “Services”).

Each Order Form will form a separate agreement that is governed by and incorporates the following (collectively, the “Agreement”):

Each of the above will include any separate document, policy or provision referred to within. If there is a conflict between any of the above, the order of precedence will be the order in which they are listed above with the Order Form having the highest precedence.

2. Term and Termination

The Agreement will commence on the date of the Order Form (“Effective Date”) and, unless earlier terminated in accordance with the Agreement, continue for the initial subscription term stated in the Order Form (“Initial Subscription Term”) and any renewal terms (“Renewal Terms,” together with the Initial Subscription Term, “Term”).

The Initial Subscription Term will commence on the earlier of: (a) the “Forecast Go Live Date” stated in the Order Form; and (b) the date that at least one Subscribed Service is first made available to Customer (“Go Live Date”). Supplier will use commercially reasonable efforts to provide access to the Subscribed Services on or before such Forecast Go Live Date; provided that Customer timely performs the dependencies set forth in the Order Form (“Dependencies”).

Unless otherwise stated in the Order Form, at the end of the Initial Subscription Term and thereafter at the end of each Renewal Term, the Term and all then-current user subscriptions purchased by Customer for the Subscribed Services will be automatically renewed for successive periods equal to the Initial Subscription Term, unless either party gives the other party written notice of non-renewal at least three (3) months before the end of the Initial Subscription Term or then-current Renewal Term.

The Agreement may be immediately terminated upon written notice by a party in the event the other party commits a material breach of the Agreement that remains uncured for sixty (60) days following receipt of written notice thereof or is subject to an Insolvency Event.

Upon termination or expiration of the Agreement, all rights granted by Supplier under the Agreement, including all rights to use the Services or any other Supplier Resources, will terminate, and Customer will stop using the Services and all Supplier Resources and return or destroy any copies of Supplier Resources in its possession or control. Unless otherwise stated in the Order Form, if the Agreement is terminated other than by Customer for cause pursuant to the previous paragraph, Customer will pay all unpaid Charges in full covering the remainder of the Term. Termination or expiration of the Agreement will not affect either of the party’s accrued rights or liabilities. Any provision which is expressly or by implication intended to survive termination or expiration of the Agreement, including this paragraph, Sections 1, 4, 8, 9, 10, 11, 12, 13 and 14, will survive termination or expiration of the Agreement in accordance with their terms.

3. Services

Subject to the terms and conditions of the Agreement, Supplier grants to Customer, exercisable by Authorized Users, a non-exclusive, non-transferable, non-sublicensable right and license to access and use during the Term each Subscribed Service solely for Customer’s internal business operations and any Deliverables solely in connection with use of the Services authorized under the Agreement.

Support Services will be available for each Subscribed Service for the duration of the Term, to the extent and in the manner specified in the Service Level and Support Terms and an Order Form, as applicable.

Subject to the terms and conditions of the Agreement, Additional Services and Additional User Subscriptions will, in each case, be provided as specified in an Order Form.

4. Charges and Payment

Customer will pay to Supplier all charges, fees and other amounts set out in the Order Form or the Agreement (“Charges”) without deductions, withholdings, or setoff and, unless otherwise stated in the Order Form, by established direct debit. Unless otherwise stated in the Order Form, all Charges are non-cancellable, non-creditable and non-refundable.

Supplier will invoice Customer for the Charges as described in the Order Form. Unless otherwise stated in the Order Form, all such invoices will be due and payable within thirty (30) days of the invoice date in the currency of the jurisdiction in which the Supplier is organized (“Due Date”).

Unless otherwise stated in the Order Form, Charges, other than basis point pricing Recurring Charges, will be subject to an increase each year during the Term equal to the greater of three percent (3%) or the annual increase in the Price Index.

Any Charges that are not subject to a good faith dispute and not paid by the Due Date will accrue interest at a rate of one and a half percent (1.5%) per month until payment is received by Supplier. In addition, Customer shall be liable for any costs incurred by Supplier in the collection of any overdue Charges that are not subject to a good faith dispute. If Customer fails to pay any such Charges by the Due Date, Supplier may, in addition to its other available remedies, suspend the provision of the Services until all past due Charges have been fully paid, or terminate the Agreement if any such Charges are overdue by thirty (30) or more days.

To dispute any invoiced Charges, Customer will notify Supplier in writing of its good faith basis for disputing such Charges within thirty (30) days of that invoice date. Any Charges not subject to a good faith dispute raised within such thirty (30) day period are deemed correct and binding on Customer and, to the maximum extent permitted by Applicable Law, Customer waives any claims it may have to dispute such Charges.

The Charges do not include, and Customer will pay to Supplier, all sales, service use, goods and services, value added, excise or other tax, assessment or duty related to the Services, Charges, or the Agreement (other than taxes based Supplier’s net income). If Applicable Laws require that any Charges are subject to tax withholding by Customer, Customer will provide prior written notice of such withholding to and reasonably cooperate with Supplier in seeking any appropriate reduction.

5. Customer Responsibilities

Customer will ensure that only Authorized Users use or access the Services via the access methods provided or approved by Supplier and that such access and use is at all times in accordance with the Acceptable Use Terms and the other terms of the Agreement. In the event Customer or any Authorized Users breach the Acceptable Use Terms or use the Services in a manner that poses an imminent and material security risk to Supplier or other customers, Supplier may immediately suspend access to the applicable Services or delete, or require Customer to delete, any Service Use Inputs contained in the Services associated with such breach or risk; provided that, Supplier will promptly restore access to the Services once the breach or risk has been resolved. Customer will be responsible and liable for all acts and omissions of all Authorized Users and any person using an Authorized User’s access credentials or account for any Subscribed Service.

Customer will ensure that the number of Authorized Users who use the Subscribed Services does not exceed the number of user subscriptions that Customer has purchased for the relevant Subscribed Service at any time and that the Authorized Users do not share their access credentials or accounts for any Subscribed Service.

Customer will be solely responsible for ensuring its hardware, software, systems, networks, internet connections, and other information technology infrastructure (“Customer Systems”) are up-to-date and compatible with the Services. Customer will provide Supplier with reasonable access to Customer Systems and data as may be reasonably required by Supplier to provide the Services.

The Services may bundle, offer access to, or otherwise include certain Third Party Services, as may be further specified in the Order Form, including Third Party Services that may be purchased via a store within the Subscribed Services. Customer agrees to and will ensure Authorized Users comply with applicable third party terms and conditions applicable to the Third Party Services (“Third Party Terms”). Unless otherwise stated in the Order Form, Customer will be solely responsible for its and its Authorized Users’ use of the Third Party Services, obtaining and maintaining all necessary licenses, permissions, and consents to use any Third Party Services, and ensuring that Customer Systems are compatible and interoperable with all Third Party Services. Customer and its Authorized Users’ use of Third Party Services will be subject to the Acceptable Use Terms as if the Third Party Services were Supplier Resources.

Customer will notify Supplier in writing within two (2) days of becoming aware that the Services have been or are likely to be used or accessed by someone other than an Authorized User or in a manner not authorized by the Agreement.

Customer will ensure that all Dependencies are timely satisfied. Customer agrees that Supplier may not be able to provide the Services until after the Dependencies are satisfied and that, unless otherwise expressly agreed in writing by Supplier, Supplier will not be obligated to expend additional resources in order to mitigate any such failure by Customer to timely satisfy the Dependencies.

If Customer provides any express written instructions to Supplier with respect to the Agreement, Customer will be solely responsible for all acts and omissions to the extent acting pursuant to such instructions.

Customer will be solely responsible for compliance with all Applicable Laws in relation to its use of the Services, Third Party Services, and the Agreement. Customer will take no action in violation of, or that would cause Supplier or any of its Affiliates to be in violation of, any Applicable Laws, including any anti-corruption laws, and Customer will maintain policies, procedures and controls that are reasonably designed to prevent and detect violations of anti-money laundering laws.

Customer will have sole authority and responsibility for all legal, tax, financial, investment, regulatory or other professional advice, opinions, or recommendations delivered by or on behalf of Customer through the Services. Supplier will in no way be liable or responsible for any such advice, opinions, or recommendations rendered by or on behalf of Customer.

6. Disclaimers and Acknowledgements

Notwithstanding anything in the Agreement to the contrary, neither the Services nor Supplier will be required to comply with the laws of any jurisdictions other than Customer’s domicile unless such other jurisdictions have been specified for deployment of the Services in the applicable Order Form. If there is a change in any Applicable Laws which affects Supplier’s ability to perform the Services in accordance with the Agreement, Supplier may: (a) make a reasonable change in the Charges to reflect Supplier’s increased costs to comply with such change in Applicable Laws; (b) make a reasonable change to the Services to comply with such change in Applicable Laws; or (c) if (a) and (b) are not commercially reasonable, terminate the Agreement. In the event Supplier takes the actions described in (a) or (b), Customer will have the right to terminate the Agreement without liability hereunder by providing written notice to Supplier of its intent to terminate within thirty (30) days of such action.

Supplier will have no obligation to perform any modifications to or in connection with the Services in order to provide access to the Services to any Customer Affiliate that is established or operates in a jurisdiction other than the United Kingdom (if Supplier is Intelliflo Limited), Australia (if Supplier is Intelliflo Australia Pty Ltd), or the United States of America (if Supplier is Intelliflo (organized in New Hampshire as RedBlack Software, LLC)). In the event of any access to the Services provided to such Customer Affiliate, Supplier will be under no obligation to comply with additional legal or compliance obligations that may arise as a result of providing such access.

Customer acknowledges and agrees that Supplier may continually monitor by automated or other means the use of the Services, Supplier Resources and Service Use Inputs, including to verify that such use is in compliance with the Agreement.

In relation to Customer, Supplier is a technology services provider only, and Supplier is not responsible for soliciting clients on behalf of Customer. Nothing in the Agreement will be construed as Supplier providing, and Supplier will not be responsible for providing: (a) any investment advisory services or services in any fiduciary capacity; (b) individualized or personalized investment or financial advice; (c) services as, or otherwise acting as, a financial or investment adviser; or (d) any Service that would bring Supplier within the meaning of an “investment adviser” (or any equivalent term) under the Investment Advisers Act of 1940 or other Applicable Laws. Customer expressly agrees that: (i) the Services do not constitute activities or services which are regulated by any securities regulatory organization, such as the U.K. Financial Conduct Authority (“FCA”), Australian Securities and Investments Commission, or U.S. Securities and Exchange Commission; (ii) Customer will not be treated as a customer or client of Supplier for the purposes of the rules and guidance of the FCA and Customer will not be an eligible claimant under the FCA rules or guidance relating to the “Financial Services Compensation Scheme”; (iii) Supplier is not providing investment advice or making any recommendations to Customer or any Authorized User or their customers; (iv) Supplier is not soliciting the sale or purchase of any securities; and (v) none of the Services or Supplier Resources are intended to serve as the sole or primary basis for any investment decision, it being understood that Customer, its Authorized Users or their clients are responsible for exercising independent analysis of any investment.

Any assurances relating to the Services complying with or satisfying any obligations, requirements or needs of Customer, any Authorized User or other person are as expressly stated in the Agreement. Customer’s subscription to the Services is not contingent on, and Customer has not relied upon, any oral or public written comments made by Supplier regarding the Services, including with respect to any future functionality or features. Unless otherwise stated in the Order Form, Supplier will not be required to customize, enhance, upgrade, or modify the Services.

7. Warranties

Subject to the terms and conditions of the Agreement, Supplier will provide the Services in accordance with the Service Level and Support Terms, in a professional and workmanlike manner, and, subject to Section 6, in material compliance with Applicable Laws.

If Customer notifies Supplier in writing of a breach of the previous paragraph, Supplier will correct, re-perform, repair, or replace the impacted Service in accordance with the Service Level and Support Terms. Except as otherwise expressly stated in the Agreement and to the maximum extent permitted by Applicable Laws, this paragraph sets out Customer’s sole remedy for any such breach.

Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under Applicable Laws; (b) it has the organizational and legal power and authority to enter into, validly execute and deliver the Agreement as binding on behalf of itself and to perform its obligations under the Agreement; (c) it is properly licensed and has obtained any approvals, licenses, consents and permissions necessary to perform its obligations and operate its business under the Agreement; (d) the Agreement is enforceable against itself in accordance with its terms; (e) neither it nor any of its Affiliates has violated any Applicable Laws, been convicted of any offense or been subject to any sanctions relating to a violation of Applicable Laws or been subject to any investigation, inquiry or enforcement proceeding by a regulatory organization; (f) neither it nor any of its Affiliates are, or are owned or controlled by any person that is, the subject or target of any trade, economic, or financial sanctions, or located, organized or resident in a country or territory that is, or whose government is, the subject or target of any trade, economic or financial sanctions; and (g) no person employed or engaged by it in relation to the Agreement is or will be, during the Term, a Government Official and each party will immediately notify the other party if any such person becomes a Government Official during the Term.

8. Intellectual Property

Customer grants to Supplier a non-exclusive, sub-licensable, transferable, worldwide, royalty-free, fully paid-up license to access, process, reproduce, modify, perform, display, distribute, transmit and otherwise use Service Use Inputs to: (a) maintain and provide the Services, including to detect and correct Errors; (b) extract, generate and use Service Data; and (c) comply with any Applicable Laws. Customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant to Supplier the foregoing license. For clarity, Supplier’s use of Service Use Inputs will be subject to the confidentiality terms of the Agreement.

Customer may choose to provide Feedback to Supplier and acknowledges that Supplier may collect or generate Service Data in connection with Customer and its Authorized Users’ use of the Services. Customer agrees that Supplier may analyze and otherwise use Feedback and Service Data to improve and develop Supplier’s products and services.

Except for the rights expressly granted in the Agreement, Customer will not acquire any rights, title, or interest (including any Intellectual Property Rights) in any Supplier Resources and Supplier and its licensors reserve all rights, title, and interest in the Supplier Resources. Except for the rights expressly granted in the Agreement, Supplier will not acquire any rights, title, or interest (including any Intellectual Property Rights) in any Service Use Inputs and Customer and its licensors reserve all rights, title, and interest in the Service Use Inputs.

9. Service Use Inputs

Customer acknowledges that Supplier has no control over any Service Use Inputs hosted as part of the Services and may not actively monitor or have access to the content of Service Use Inputs. Customer will ensure that, and is solely responsible for the accuracy, quality, integrity, and legality of each Service Use Input, and that their use by Supplier as permitted by the Agreement complies with all Applicable Laws, does not infringe, misappropriate, or violate any Intellectual Property Rights of any person, or creates or enables any Virus.

If any Service Use Inputs are alleged to infringe, misappropriate, or violate any Intellectual Property Rights of any person, create, or enable any Virus, or not comply with Applicable Laws or the Agreement, Supplier may permanently delete, remove, or suspend access to such Service Use Inputs without prior notice to Customer; provided that Supplier will promptly notify Customer following any such deletion, removal, or suspension.

If Customer submits a written request to Supplier for extraction of specified Service Use Inputs indicating the associated Authorized User in accordance with any form provided by Supplier (“Extraction Request”) during the Term or within sixty (60) days thereafter, Supplier will within thirty (30) days following receipt of all applicable extraction charges agreed by the parties (“Extraction Charge”) extract and provide a copy of such Service Use Inputs identified in the Extraction Request to the extent reasonably extractable from the Subscribed Services. Except as otherwise expressly agreed in the Agreement, Supplier will not be obligated to provide Customer with any assistance transferring, extracting, or recovering any Service Use Inputs, whether during or after the Term. Except to comply with a timely Extraction Request, Supplier will have no obligation to store or retain any Service Use Inputs after the Term.

10. Indemnities

Customer will indemnify, defend, and hold harmless Supplier and its Affiliates against all Losses arising out of or in connection with: (a) any use by Supplier or its Affiliates of Service Use Inputs in accordance with the Agreement; (b) use of the Services in combination with any products, services, software, data, or other materials not provided by Supplier; (c) any activities by Customer in connection with investment advice and securities trading, including any actions related to any securities transaction or compliance with any applicable securities laws or other Applicable Laws; and (d) any dispute between or among Customer, its Authorized Users or any client of Customer or its Authorized Users.

Supplier will indemnify, defend and hold harmless Customer and its Affiliates against all Losses arising out of or in connection with: (a) any use by Supplier or its Affiliates of Service Use Inputs not in accordance with the Agreement; and (b) any infringement, misappropriation or violation of any third party Intellectual Property Rights to the extent caused by Customer’s use of the Services or Supplier Resources in accordance with the Agreement, except to the extent caused by (i) any Service Use Inputs, or use of the Services or Supplier Resources in combination with any products, services, software, data or materials not provided by Supplier; (ii) any alteration, modification, or revision of the Services or Supplier Resources not authorized, performed or developed by Supplier; (iii) any Deliverables or alteration, modification, or revision of the Services or Supplier Resources performed or developed in accordance with Customer’s express instructions, designs or specifications; or (iv) use of any version of the Services or Supplier Resources other than the latest version made available by Supplier hereunder.

The party seeking indemnification under the Agreement (“Indemnitee”) will promptly notify the indemnifying party (“Indemnitor”) in writing of any Loss for which Indemnitee is seeking indemnification; provided that, any failure or delay to give such notice will not excuse any indemnity obligations except to the extent such failure or delay prejudices Indemnitor’s ability to defend or settle such Loss. Indemnitee will permit Indemnitor, at Indemnitor’s own expense, to conduct any litigation and negotiations for a settlement of the Loss including the employment of counsel reasonably acceptable to Indemnitee, and will reasonably cooperate with Indemnitor in assisting the defense, and in the negotiations or settlements of any such claim, demand or action at Indemnitee’s expense; provided that, the Indemnitor will not make any admission, settle any claim or Loss or take any other action which might be prejudicial without the consent of Indemnitee.

If Customer’s use of the Services or any Supplier Resources infringes, misappropriates or violates, or is alleged to or reasonably expected to infringe, misappropriate or violate, any third party Intellectual Property Rights, Supplier may, at its option: (a) obtain the right for Customer to continue using such Services or Supplier Resources; (b) replace or modify such Services or Supplier Resources so they are no longer infringing, misappropriating or violating third party Intellectual Property Rights; or (c) in the event (a) and (b) are not commercially reasonable, require Customer to cease use of, and terminate the Agreement with respect to, such Services or Supplier Resources and refund to Customer any prepaid Charges attributable to the portion of the Services or Supplier Resources that will not be available to Customer as a result of such early termination, as reasonably determined by Supplier.

This Section 10 sets out Customer’s sole remedy, and Supplier’s sole liability and obligation for, any actual or alleged claims or other Losses that the Services, Supplier Resources or any other subject matter of the Agreement infringes, misappropriates or violates any third party Intellectual Property Right.

11. Limitations of Liability

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, NEITHER SUPPLIER, NOR ITS AFFILIATES OR LICENSORS WILL BE LIABLE, IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY, MISREPRESENTATION, MISCONDUCT, OR OTHERWISE, FOR ANY LOSSES, INCLUDING ANY LEGAL EXPENSES, WHATSOEVER ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE SERVICES, SUPPLIER RESOURCES OR THE AGREEMENT, THAT ARE: (a) INDIRECT, CONSEQUENTIAL, INCIDENTAL, ENHANCED, EXEMPLARY, SPECIAL, OR PUNITIVE; (b) WHETHER DIRECT OR INDIRECT – LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PRODUCTION, DEPLETION OR LOSS OF GOODWILL, LOSS OF OR INJURY OF REPUTATION OR SIMILAR LOSSES, DESTRUCTION, LOSS OF USE OR AVAILABILITY, INACCURACY OR CORRUPTION OF DATA, SOFTWARE OR SYSTEMS (INCLUDING SERVICE USE INPUTS OR CUSTOMER SYSTEMS), COSTS OF DELAYS OR INTERRUPTIONS, PURE ECONOMIC LOSS OR LOSS OF SAVINGS, DISCOUNT OR REBATE (WHETHER ACTUAL OR ANTICIPATED), IN EACH CASE (a) AND (b), EVEN IF ANY SUCH AFOREMENTIONED LOSS WAS REASONABLY FORESEEABLE OR SUPPLIER HAD BEEN ADVISED, OR WAS AWARE, OF THE POSSIBILITY OF THAT LOSS ARISING; OR (c) IN AGGREGATE, IN EXCESS OF THE TOTAL CHARGES PAID BY CUSTOMER TO SUPPLIER FOR THE SERVICES OR SUPPLIER RESOURCES GIVING RISE TO SUCH LOSS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO SUCH LOSS. SUPPLIER AND ITS AFFILIATES WILL NOT BE LIABLE, IN CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY, MISREPRESENTATION, MISCONDUCT, OR OTHERWISE, FOR ANY LOSSES, INCLUDING ANY LEGAL EXPENSES, WHATSOEVER ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIRD PARTY SERVICES.

EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS: (a) THE SERVICES, SUPPLIER RESOURCES AND THIRD PARTY SERVICES ARE PROVIDED ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND CUSTOMER AGREES THAT THEY MAY NOT BE FREE OF INTERRUPTIONS, PERIODS OF UNAVAILABILITY, INACCURACIES, ERRORS, OR OTHER DEFECTS OR SECURITY ISSUES; (b) ALL EXPRESS, IMPLIED, STATUTORY OR OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS, GUARANTEES AND OBLIGATIONS (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE) RELATING TO THE PROVISION OF THE SERVICES, SUPPLIER RESOURCES AND THIRD PARTY SERVICES, INCLUDING ANY IMPLIED TERMS RELATING TO MERCHANTABILITY, QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OR ABILITY TO ACHIEVE A PARTICULAR RESULT ARE HEREBY SPECIFICALLY DISCLAIMED AND EXCLUDED; and (c) USE OF THE SERVICES, SUPPLIER RESOURCES AND THIRD PARTY SERVICES IS AT CUSTOMER’S OWN RISK. SUPPLIER IS UNDER NO OBLIGATION TO CONTROL, MONITOR OR CORRECT ANY THIRD PARTY SERVICES OR TO PROVIDE, MAKE AVAILABLE, SUPPORT OR ENSURE THE CONTINUED AVAILABILITY OR SECURITY OF ANY THIRD PARTY SERVICES, WHETHER THROUGH THE SERVICES OR OTHERWISE.

12. Confidentiality

During the Term and for five (5) years thereafter, each party (“Receiving Party”) will keep confidential and not disclose to any person any Confidential Information of the other party (“Disclosing Party”), except: (a) to the extent expressly permitted by the Agreement or by Disclosing Party in writing; (b) in the performance of Receiving Party’s obligations or exercise of its rights under the Agreement; (c) subject to the following paragraph, as requested or required by Applicable Law; and (d) to any person employed or engaged by Receiving Party that has a reasonable need to know the Confidential Information in connection with (a)-(c) and is under a confidentiality obligation substantially similar to those contained in Section 12. Receiving Party will use at least the same degree of care to protect the Confidential Information of Disclosing Party from unauthorized disclosure or access that the Receiving Party uses to protect its own Confidential Information of similar importance, but not less than reasonable care.

In the event that Receiving Party is requested or required by Applicable Laws, including by a regulatory organization, subpoena, court order, deposition, administrative proceeding, government investigation or other similar process, to disclose any Confidential Information, Receiving Party will reasonably comply with such request or requirement and will, to the extent permitted by Applicable Laws, provide to Disclosing Party in writing prompt notice of any such request or requirement so that Disclosing Party may seek an appropriate protective order. Receiving Party will not oppose any action by, and will cooperate with, Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

Receiving Party will notify Disclosing Party promptly after becoming aware of any actual loss or unauthorized use or disclosure of or access to Disclosing Party’s Confidential Information and take reasonable steps to limit, stop or otherwise prevent such loss or unauthorized use, disclosure, or access.

Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of the actions of Receiving Party or a person employed or engaged by Receiving Party contrary to their respective obligations of confidentiality; (b) is or becomes available to Receiving Party from a third party free of any restrictions as to its use or disclosure; or (c) is or was independently developed by Receiving Party without violation of the Agreement.

13. Dispute Resolution

In the event of any dispute arising out of or in connection with the Agreement, the parties’ account managers or similar personnel will first attempt to resolve the matter amicably and acting in good faith. If they are unable to resolve a dispute within thirty (30) days of receiving notice of the dispute, either party may refer such dispute to senior representatives of each party. Thereafter, such senior representatives will promptly meet and attempt to resolve the issue in a mutually satisfactory manner. Either party may commence a final and binding arbitration in accordance with the following paragraph with respect to any matter that remains unresolved after thirty (30) days following a referral to the senior representatives.

Subject to the previous paragraph, any dispute arising out of or in connection with the Agreement will be exclusively resolved by arbitration under the Streamlined Arbitration Rules and Procedures or other applicable rules of the Arbitration Facilitator. The number of arbitrators will be one, appointed by the Arbitration Facilitator. The language to be used in the arbitral proceedings will be English. The arbitration will be conducted on a confidential basis and the parties will treat details of the arbitration as Confidential Information of each party. During the course of adjudication, the Agreement will continue to be performed except with respect to the part in dispute and under adjudication, Supplier will continue to provide the Services, and the Customer will continue to pay the Charges. The arbitrator will be bound by the provisions of the Agreement and will not have the power to add to, subtract from, or otherwise modify such provisions. Any decision rendered by the arbitrator will be final, conclusive, and binding upon the parties to the arbitration.

Subject to the previous paragraph, this Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) will be governed by, and construed in accordance with, the following laws (without regard or reference to the conflicts of laws thereof) in the following jurisdiction/venue (including with respect to any arbitration or the enforcement of any arbitration award):

if Supplier is Intelliflo Limited, the laws of England and Wales in London, United Kingdom and the courts of England and Wales
if Supplier is Intelliflo Australia Pty Ltd, the laws of Victoria, Australia in Melbourne, Australia and the courts of Victoria, Australia
if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), the laws of New York, United States of America and the courts of New York County, New York and the Southern District of New York

Each party irrevocably agrees that any action to enforce an arbitration award or judgment arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the applicable courts set forth above.

Except for actions for non-payment of the Charges or violation of Supplier’s Intellectual Property Rights, no action or arbitration, regardless of form, arising out of or in connection with the Agreement may be brought by either party more than two (2) years after the cause of action has accrued.

14. General Terms

If either party is prevented, hindered, or delayed from or in performing any of its obligations under the Agreement by a Force Majeure Event, it will notify the other party in writing as soon as reasonably possible. Neither party will be deemed to be in breach of the Agreement or otherwise be liable for any prevented, hindered, or delayed performance to the extent due to a Force Majeure Event. If such Force Majeure Event continues for more than three (3) months, the unaffected party may terminate the Agreement by giving thirty (30) Business Days’ prior written notice to the other party.

Without the written consent of the other party, neither party may assign or transfer the Agreement or any of its rights or obligations under the Agreement other than to its Affiliates or successors in interest; provided that, any enterprise, unlimited or other non-user/use-based licenses granted to Customer will only extend to the Customer’s business existing as of the time of such assignment or transfer and not to such Affiliate’s or successor’s broader businesses unless otherwise agreed to in writing by Supplier. Either party may, without prior consent from the other Party, engage subcontractors to assist in performing its obligations under the Agreement; provided that, each Party will remain responsible for the performance of its obligations under the Agreement notwithstanding the use of any subcontractors. Any assignment or transfer in violation of this paragraph will be void.

Notices and other written communication of general applicability may be given by Supplier on the Website and deemed received on the Business Day it was uploaded or, if uploaded after 4:00 p.m. Local Time on the next Business Day. Either party may provide notices or other communication under the Agreement to the other party by: (a) email and deemed received on the Business Day it was sent or, if sent after 4:00 p.m. Local Time on the next Business Day; (b) hand or courier and deemed received on receipt of a signature at the time of delivery; and (c) certified mail and deemed received on the second Business Day after posting. Either party may update its notice address by providing written notice to the other party in accordance with this paragraph. Notices to Customer will be sent to any email or physical address or contact details provided in the Order Form. Notices to Supplier will be sent to Supplier’s email address at [email protected] or to the following mailing address, as applicable, for the attention of General Counsel:

if Supplier is Intelliflo Limited, 60-68 Wimbledon Hill Road, London, SW19 7PA, United Kingdom
if Supplier is Intelliflo Australia Pty Ltd, 333 Collins St, Melbourne VIC 3000, Australia
if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), 1 Bedford Farms Drive, Suite 104, Bedford, NH 03110, United States of America

Customer acknowledges that the Services and Supplier Resources may be subject to certain export laws or restrictions and Customer agrees that it will not import, export, disclose or otherwise transfer the Services or Supplier Resources to any person or country that is subject to sanctions or exclusions under or otherwise in violation of Applicable Laws.

Unless otherwise stated in the Order Form, Customer agrees that Supplier and its Affiliates will be entitled to, following initial delivery of the Services, publicize that Customer is a customer of Supplier and has subscribed to the Services and Supplier may from time to time reasonably request, with the prior consent of Customer (not to be unreasonably withheld, delayed or conditioned), for Customer to serve as a reference to prospective customers of Supplier and its Affiliates and provide quotes for use in promotional materials issued by Supplier or its Affiliates. Customer hereby grants to Supplier (exercisable by Supplier and its Affiliates and marketing partners or representatives) a non-exclusive, worldwide, royalty free, fully paid-up right and license to use, publish and reproduce Customer Marks for the promotional purposes specified in this paragraph.

The Services may be updated in connection with new releases, bug fixes, or patches (e.g., to enhance security controls or streamline user experience). Supplier reserves the right to update the Agreement (other than the Order Form) (“Updates”) by providing notice to Customer or by posting the Updated version of the Agreement to the Website. Customer’s continued use of the Services following an Update will constitute Customer’s agreement to be bound by such Update. No amendment or change to the Agreement will be binding on either party unless it is made in writing and signed by (or on behalf of) both parties, or it is an Update that is made in accordance with this paragraph.

The Agreement contains the entire agreement between the parties relating to its subject matter and supersedes any prior agreements, representations, or understandings between them whether in writing or oral. Supplier will not be bound by any term, condition, or other provision howsoever related or submitted which is different from or in addition to the provisions of the Agreement, including in any purchase order or other documentation provided by or behalf of Customer. Each party acknowledges and agrees that it has not relied on and will have no remedy in respect of any representation made but not expressly set out in the Agreement.

Except with respect to Affiliates entitled to an indemnity under Section 10, the Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions (including for the purposes of the United Kingdom Contracts (Rights of Third Parties) Act 1999).

If any provision of the Agreement is or becomes invalid, illegal, or unenforceable, it will be interpreted to reflect the intent of the original provision and modified to the minimum extent necessary to make it valid, legal, and enforceable, and the validity and enforceability of the rest of the Agreement will otherwise remain unaffected.

Supplier is an independent contractor and nothing in the Agreement will be deemed to: (a) constitute a partnership or any employment relationship between the parties; (b) create any agency relationship between the parties for any purpose; and (c) create a contractual, fiduciary, investment advisory or other similar relationship for any purpose between (i) Customer or any of its Affiliates or their clients and (ii) Supplier or any of its Affiliates.

Except to the extent otherwise expressly stated in the Agreement, the rights, and remedies of the parties in the Agreement are in addition to, without prejudice to, and not exclusive of, any other rights or remedies given to them by the Agreement, Applicable Laws or otherwise, and all such rights and remedies are cumulative.

Except to the extent otherwise expressly stated in the Agreement, no delay in exercising or failure to exercise any right or remedy in connection with the Agreement will operate as a waiver of that right or remedy. Any single or partial exercise of any right, power or remedy will not preclude any other or further exercise of any such right, power or remedy.

Except to the extent otherwise expressly stated in the Agreement, each party will pay its own costs incurred in connection with the negotiation, preparation and execution of the Agreement and any documents referred to in it.

An Order Form or other document in relation to the Agreement may be executed in any number of counterparts, each of which when executed will be an original and all counterparts together will constitute the same agreement.

Each party may evidence their signature under the Agreement by transmitting by email a signed signature page in PDF or other customary electronic format together with the final version of the executed document or by electronic signature (e.g., through a third party electronic signature service provider).

The rule of construction that ambiguities are resolved against the drafting party will not apply in the interpretation of the Agreement. In the Agreement, unless the context otherwise requires:

words expressed in the singular will include the plural and vice versa, and words expressed in the masculine will include the feminine and neutral genders and vice versa,
references to sections, schedules, appendices, and the like are references to sections, schedules, appendices and like of these Terms or such portion of the Agreement as the context requires,
references to “days”, “months” and “years” are to calendar days, months, and years,
references to the Agreement or any other agreement or document will be construed as references to the Agreement or such other agreement or document, as the case may be, as the same may have been, or may from time to time be, Updated, amended, varied, novated, or supplemented,
a reference to a subsection without further reference to a section is a reference to such subsection as contained in the same section in which the reference appears, and this rule will also apply to paragraphs and other subdivisions,
any phrase introduced by the words “including”, “includes”, “in particular”, “for example” or similar will be construed as illustrative and without limitation to the generality of the related general words,
references to a “person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity and are also to its permitted successors and assigns,
a reference to “writing” or “written” includes email notice in accordance with this Agreement,
any reference to a statute or provision of a statute includes references to that statute or provision as amended, extended, applied, or transposed by any other provision regardless of whether the other provision became law before or after the Agreement,
the words “herein”, “hereof”, “hereunder”, and the like refer to the Agreement as a whole and not to any particular attachment, document, or section,
the word “or” will be interpreted in the inclusive sense commonly associated with “and/or”, and
any reference to a “third party” includes references to any person other than Customer or Supplier or their Affiliates.

15. Definitions

In the Agreement, the following expressions have these meanings:

Affiliate means in relation to a person, any person that controls, is controlled by, or is under common control with, such person. For purposes of this definition, the word “control” means the actual power, either directly or indirectly, to direct or cause the direction of the management and policies of such entity, whether by the ownership of fifty percent (50%) or more of the voting stock of such entity, by contract or otherwise. Supplier’s Affiliates include any entity that operates under the intelliflo brand, including, as applicable, Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), Intelliflo Limited, Intelliflo Australia Pty Ltd, and Intelliflo Advisers Inc. As used in the Agreement, “Customer” includes any Customer Affiliates that use the Services under, or directly execute, the Order Form.

Applicable Laws means all laws, legislation, acts, statutes, statutory instruments, regulations, bylaws, orders, or directions or guidance from a government, regulatory organization or similar authority which have the force of law whether local, national, international, or otherwise existing from time to time, in each case which are applicable to the Agreement.

Arbitration Facilitator means: (a) if Supplier is Intelliflo Limited, the London Court of International Arbitration; (b) if Supplier is Intelliflo Australia Pty Ltd, the Australian Disputes Centre; or (c) if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), JAMS (f/k/a Judicial Arbitration and Mediation Services).

Authorized Users means in respect of the relevant Service, those employees, agents, and independent contractors of Customer or its end clients or members of Customer’s network which are authorized by Customer to use the Service.

Business Day means any weekday (i.e., Monday – Friday) other than: (a) if Supplier is Intelliflo Limited, a bank or public holiday in England; (b) if Supplier is Intelliflo Australia Pty Ltd, a bank or public holiday in New South Wales, Australia; or (c) if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), U.S. holidays observed by the New York Stock Exchange.

Confidential Information means all information of a party that is made available, whether orally, in writing or through other medium, to the other party in relation to the Agreement or the provision of the Services that is marked as confidential or proprietary or would reasonably be understood to be confidential or proprietary by its nature, including: (a) in respect of Supplier, Supplier Resources, the Charges and the terms of the Agreement; and (b) in respect of Customer, Service Use Inputs.

Customer Marks means all trademarks, trade or business names, service marks, logos, trade dress and get up (in each case whether registered or not) owned or held by Customer or any of its Affiliates.

Deliverables means all documents, software, data, and other materials, including any enhancements, alterations, modifications, additions, and customizations to the Services, produced by Supplier in any form ordered by Customer pursuant to an applicable Order Form.

Error means an error, defect or the presence of any Virus in the Services that effects the normal operation, functionality, or performance of the Services.

Feedback means any recommendations, comments, questions, corrections, changes, feedback, enhancement requests and suggestions for new features, functionality or other improvements relating to the Services provided by Customer, orally or in writing.

Force Majeure Event means an event beyond the reasonable control of the affected party which prevents, delays, hinders or otherwise makes impracticable the affected party’s performance of its obligations under the Agreement, excluding Customer’s payment obligations, including the following: (a) strike, lock-out or any other industrial action or labor dispute of a national or industry-wide nature; (b) act of war (declared or undeclared), invasion, armed conflict, act of foreign enemy, blockage, embargo, revolution, riot, insurrection, civil commotion, hostility, sabotage or terrorism (cyber or physical); (c) disruption to or failure or confiscation of any facilities, systems, software or equipment or any default of any third party; (d) flood, fire, explosion, accident, epidemic, pandemic, plague, earthquake, unusual or extreme adverse weather or other catastrophes; and (e) any act of state or other exercise of sovereign, judicial or executive prerogative.

Government Official means: (a) any official, officer, employee, or representative of or any person acting in an official capacity for or on behalf of any governmental entity; (b) any political party or party official or candidate for political office; or (c) any official, officer, employee or representative of a company, business, enterprise, or other entity owned in whole or in part or controlled by any governmental entity.

Insolvency Event means any corporate action, legal proceedings or other procedure or step, other than as part of a solvent re-organization, restructuring or merger of the group of companies, including: (a) where a party stops or threatens to stop trading; (b) the appointment of a receiver, administrator, liquidator, compulsory manager or similar officer over any of the assets or business of a party; (c) a composition, compromise, assignment or arrangement with any creditor; (d) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution or administration by way of voluntary arrangement, scheme of arrangement or otherwise; and (e) any events or circumstances analogous to the foregoing in any applicable jurisdiction.

Intellectual Property Rights means all intellectual property rights, including patents, utility models, designs, design rights, industrial property rights, inventions, copyright, rights in software and technology, mask work rights, decryption rights, database rights, trademarks, trade or business names, logos, trade dress and get up, rights pursuant to passing off, service marks, domain names, know-how (including techniques, whether or not confidential), rights in the confidential or proprietary information (including trade secrets) and image rights, in each case, whether registered or not and including any application for registration and renewals or extensions of such rights in any country in the world.

Local Time means the local time in: (a) London, England (if Supplier is Intelliflo Limited); (b) Sydney, Australia (if Supplier is Intelliflo Australia Pty Ltd); or (c) New York City, United States of America (if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC)).

Losses means all losses, liabilities, damages, costs, and expenses howsoever arising, including reasonable legal fees and other professional advisors’ fees, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines, penalties, and remedial actions.

Price Index means: (a) if Supplier is Intelliflo Limited, the U.K. Retail Prices Index (all items) published by the U.K. Office for National Statistics; (b) if Supplier is Intelliflo Australia Pty Ltd, Australian Consumer Price Index published by the Australian Bureau of Statistics; or (c) if Supplier is Intelliflo (organized in New Hampshire, United States of America as RedBlack Software, LLC), the U.S. Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the U.S. Department of Labor.

Recurring Charges means all Charges for the Subscribed Services that are required to be paid monthly, quarterly, annually, or otherwise on a recurring basis during the Term.

Service Data means: (a) application logs, statistical and other information related to the performance, operation or use of the Services; (b) use data, metrics, patterns, trends, models, and other similar generalized data from the Services; and (c) any other data or materials provided to the Services or Supplier that is de-identified or aggregated in a manner that does not reasonably allow for identification of Customers or Authorized Users.

Service Use Inputs means all data, software, information, content, documentation, and other materials provided by or on behalf of Customer to Supplier or otherwise made available to Supplier in relation to the Agreement, including data uploaded by Customer or its Authorized Users to the Service and other Customer Data (as defined in the Information Security Terms), Customer’s Confidential Information and Customer Marks. Service Use Inputs do not include any Supplier Resources.

Supplier Marks means all trademarks, trade or business names, service marks, logos, trade dress and get up – in each case whether registered or not – owned or held or licensed for use by Supplier or any of its Affiliates.

Supplier Resources means the: (a) Services; (b) Supplier’s Confidential Information; (c) Website; (d) Supplier Marks; (e) Deliverables; (f) all data, software, technology, information or documentation that is embodied in or used to provide the Services or any material made available to Customer or any Authorized Users by or on behalf of Supplier; and (g) deviations, compilations or copies of the foregoing (a) through (f) in whatever form, including any redacted or aggregated versions of the same.

Third Party Services means all services, software, applications, data, information, content, documentation, and other materials made available to Customer by a party other than Supplier or Supplier’s Affiliates, excluding Service Use Inputs and Supplier Resources.

Virus means any virus or any other contaminants (including codes, commands, instructions, devices, techniques, bugs, web bugs or design flaws) that illegally or without authorization access, alter, delete, threaten, infect, assault, vandalize, defraud, disrupt, impair, damage, disable, inhibit, shut down or otherwise harm any systems, networks, infrastructures, devices, websites, databases, software or other data or property, including malware, Trojan horses, computer viruses, ransomware and spyware.

Website means Supplier’s website, currently hosted at https://www.intelliflo.com.