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Data Sharing Addendum

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

IRIS Data Sharing Addendum

This IRIS data sharing addendum (the Addendum) is entered into between ______________________ (Sender),___________________________ (Recipient) and Integrated Reporting is Simple, LLC (IRIS) and it forms an addendum to each of (i) the user terms and conditions executed between Sender and IRIS (Sender IRIS Agreement) and (ii) the user terms and conditions executed between Recipient and IRIS (Recipient IRIS Agreement). Sender IRIS Agreement and Recipient IRIS Agreement are each referred to herein as the Agreement. Unless otherwise defined herein, capitalized terms appearing in this Addendum have the meanings set out in the
Agreement.

WHEREAS pursuant to the Sender IRIS Agreement, IRIS is in possession of Sender ISO Data;

WHEREAS Sender wishes to instruct IRIS to grant Recipient access to certain data and information relevant to ISO’s business operations such as merchant portfolio reporting, merchant pricing, agent information, and other reporting data from its ISO Data, subject to the terms of this Addendum (such ISO Data to be shared being, the Shared Data);

WHEREAS Recipient agrees to receive the Shared Data in accordance with the terms hereof and any other agreement to which Sender and Recipient are parties (collectively, the Shared Data Terms);

The parties hereby agree as follows:

ISO as Sender or Recipient
Each ISO accepting this Addendum is either the Sender or the Recipient. is the ISO disclosing the Shared Data is the Sender and the ISO receiving the Shared Data is the Recipient, and vice versa. The final arbiter of who is the Sender or Recipient with respect to any given ISO Data shall be the records within IRIS in the Account Portal of the ISO from which ISO Data was first shared hereunder.
Term
1. This Addendum commences on the latest date in the signature block (the Effective Date) and continues until the earlier of: (i) termination of an Agreement; or (ii) notice, via an Account Portal, that any party hereto wishes to terminate this Addendum (such period being the Addendum Term).
2. Upon termination of this Addendum or the Agreement, the right to use Shared Data under Section 3 will also terminate.
ISO Data Sharing
1. Sender hereby grants IRIS a revocable, non-exclusive, non-sublicensable, and non-transferable right during the Addendum Term to use the Shared Data solely for the purpose of providing supplemental reporting under the Services in accordance with the Agreement and for the benefit of Sender in the ordinary course of its business operation.
2. As and when instructed by Sender, IRIS shall make Shared Data available to Recipient in a form and format reasonably acceptable to IRIS. Recipient acknowledges that IRIS can provide the Shared Data only if Recipient uses IRIS’s Account Portal to access the same. Recipient authorizes and instructs IRIS to act on Recipient’s behalf and as its representative to obtain the Shared Data directly from the Sender Account Portal and IRIS agrees to engage hereunder on that basis. For the avoidance of doubt, Recipient will not itself have the ability to access the Sender Account Portal. IRIS reserves the right to determine which ISO Data can become Shared Data and by what means, which parameters IRIS may amend at any time and at its sole discretion.
Sender Covenants
Sender represents, warrants and covenants to Recipient and IRIS that all of the following are true as of the Effective Date and shall remain true for the Addendum Term:
1. Whether required by contract or applicable law, Sender has obtained all consents and delivered all notices necessary from or to Processors, Merchants, Users and other third parties whose information is included in or the subject of Shared Data (collectively, the Data Subjects) to complete the Shared Data disclosure contemplated in this Addendum.;
2. If asked by a Processor to confirm whether ISO Data originating from the Processor is subject to a data sharing addendum, Sender hereby instructs IRIS to reply truthfully to such query provided that IRIS includes Sender on such correspondence;
3. Shared Data is a true and accurate representation of the information it represents;
4. Shared Data has not been selected for sharing hereunder with a view to misleading or deceiving Recipient; and
5. Sender shall notify Recipient of errors in Shared Data and shall use Account Portal to correct them.
Recipient Covenants
Recipient represents, warrants and covenants to Sender and IRIS that all of the following are true as of the Effective Date and shall remain true for the Addendum Term, unless otherwise agreed in writing between Sender and Recipient (each such writing, a Side Agreement):
1. Shared Data shall be and remain the sole and exclusive confidential property of Sender;
2. Recipient shall not use Shared Data for any purpose other than Merchant customer support services supplied by Recipient (Recipient Services)
3. For the term of this Addendum and for two (2) years thereafter, Recipient shall not use Shared Data to itself, nor permit any third party to use Shared Data to solicit any Merchant or other customer or Sender or any User to (i) cease doing business with or through Sender; or (ii) enter into any new processing, business or other relationship with Recipient or any third party
4. Recipient shall not alter Shared Data;
5. On request by Sender or IRIS, Recipient shall return to Sender or destroy any and all copies of Shared Data in its possession;
6. Recipient shall not access or seek to access Sender ISO Data that Sender has not deemed Shared Data hereunder;
Confidentiality and Data Security
1. Shared Data is Sender Confidential Information. Recipient acknowledges that the Shared Data is confidential information of Sender. Recipient shall: (i) maintain it in confidence and use Shared Data only to the extent necessary and expressly permitted hereunder; (ii) use at least the same degree of care in maintaining its secrecy as it uses in maintaining the secrecy of its own ISO Data, but in no event less than a reasonable degree of care; and (iii) return or destroy all materials containing any of the Shared Data upon request of Sender or IRIS. Recipient further agrees that it will not provide, furnish, or make available any Shared Data to any other party, including any affiliate or third party subcontractor unless Sender has provided its prior written consent to such disclosure in a Side Agreement. Sender provision of Shared Data under this Addendum does not create or convey any ownership rights of Recipient in such Shared Data.
2. Disclosure of Shared Data. Recipient may only disclose Shared Data provided under this Addendum: (1) to such party’s personnel and representatives that need to know it in connection with the provision of Recipient Services, and such personnel and representatives shall be bound by confidentiality obligations materially similar to those required under this Addendum; and (2) in response to a subpoena, court order, request from a regulator, or as required under applicable laws or card association rules.
Data Security
Recipient is responsible for any unauthorized access to any Shared Data. Recipient shall comply with applicable Payment Card Industry Data Security Standards (PCI DSS) and obtain timely certification of its systems and processes as required under applicable Rules. Recipient will allow Payment Networks, IRIS, and Processor (whose data is included in Shared Data) (Shared Data Interested Parties) to audit its PCI DSS compliance and information technology systems related to the subject matters of this Addendum. If Recipient becomes aware that there has been unauthorized access to Shared Data or Shared Data provided under this Addendum (a Security Incident), it will promptly notify Sender and IRIS. If requested by Sender or IRIS, Recipient will retain a reputable firm that is certified and approved by the card organizations that provides forensic information security services and risk assessments in order to: (1) assess the nature and scope of the Security Incident; and (2) identify the access controls or data involved in the Security Incident. Recipient will take appropriate steps to contain, control, stop, and remediate any Security Incident. Recipient will provide reasonable details regarding any Security Incident to, and cooperate with, Shared Data Interested Parties, and the forensics firms that are involved in the investigation and remediation of a Security Incident. Recipient will take all actions that any Shared Data Interested Party requires in connection with the investigation and remediation of a Security Incident. Recipient will reimburse Shared Data Interested Parties for all fines, fees, penalties, assessments, or other obligations of any kind imposed by a Payment Network or a regulator on a Shared Data Interested Party due to a Security Incident.
Indemnification
Recipient and Sender will, jointly and severally, indemnify and hold harmless IRIS from and against any and all losses, liabilities, damages, and/or expenses, including reasonable attorneys’ fees, arising out of any third party claim or action related to: (i) acts or omissions of either Sender or Recipient in respect of or related to Shared Data; (ii) the provision of Shared Data under this Addendum; (iii) any breach of this Addendum; (iv) the misuse or unauthorized disclosure of any Shared Data by Sender or Recipient; (v) the gross negligence, willful misconduct, or omission of Sender, Recipient or its employees in connection with the subject matters of this Addendum; or (vi) any claim by another party hereto versus IRIS relating to this Addendum or an act or omission of the other under an Agreement.
Acknowledgements and Releases
Sender and Recipient, jointly and severally, shall be fully responsible for, and release IRIS from, any and all liability, damage, loss, cost, claim, or expense, including without limitation, any Payment Network fines, fees, penalties, assessments, or other obligations, related to, or occurring in connection with respect to the Shared Data provided under this Addendum.
Shared Data Fees
In connection with IRIS’s efforts necessary to prepare and make available the Shared Data under this Addendum, Sender and Recipient shall pay such Fees as are indicated in the Account Portal. For clarity, any Account included in the Shared Data is an Active Account of the Recipient and the Sender, under their respective Agreement.
Limitation of Liability; Waiver of Consequential Damages
1. Allocation of Certain Liabilities. Nothing in this Addendum shall: (i) serve to diminish ISO liability under the Agreement; (ii) cause one party to be liable for the acts or omissions of another, except under the indemnification provision above where each of Sender and Recipient are liable for the acts and omissions of the other; (iii) render Sender or Recipient party to the others’ Agreement; they are, however, both parties to this Addendum; or (iv) be interpreted to give Sender or Recipient any claim versus IRIS for any act or omission of the other. No interruption in IRIS Services shall relieve Sender or Recipient of their respective obligations hereunder.
2. Limitation of Liability. IRIS shall not be liable for any acts or omissions of a Processor, Sender, Recipient or any of their respective Users. In the event of a breach of the terms hereof by Sender or Recipient, no party shall make any claim versus IRIS in that regard. IRIS has no duty to enforce the terms hereof versus any party hereto. IRIS’s aggregate liability to any other party for losses arising from any cause (regardless of the form of action or
  legal theory) in connection with this Addendum will be limited to $100.00 (Liability Cap).
3. Exclusion of Damages. IRIS will not have any liability to any other party for lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages (whether direct or indirect) under this Addendum; regardless of whether these damages were foreseeable or a party was advised they were possible.
4. Disclaimer of Warranty. IRIS does not make, and expressly disclaims, any representation or warranty: (i)
  that the Shared Data will be current, complete, accurate or error free; (ii) that access to the Shared Data will be uninterrupted or error free; (iii) that security breaches will not occur with respect to transmission or transfer of the Shared Data as provided herein; and (iv) that the parties will be able to achieve the results that may or may not be intended in connection with the use of the Shared Data (including the Recipient Services).
Agreement
This Addendum forms part of each of the respective Agreements of Sender and Recipient and is the entire
agreement between the parties and replaces any prior agreements or understanding (written or oral) with respect to
its subject matter. All changes to this Addendum shall be made in writing and signed by all parties. In the event of a
conflict between this Addendum and the Agreement as it relates to the subject matter hereof, the terms of this
Addendum will control. This Addendum may be executed electronically and in counterparts, each of which
constitutes one agreement when taken together. Electronic and other copies of the executed Addendum are valid.

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The parties have signed this Addendum as of the Effective Date:

ISO (1) (Sender/Recipient): ______________________________

____________________________________

Name:

Title:

Date:

ISO (2) (Sender/Recipient): ______________________________

____________________________________

Name:

Title:

Date:

Integrated Reporting is Simple, LLC (IRIS)

____________________________________
Name:
Title:
Date:

Historical Website Terms & Conditions

These terms are inapplicable to customers who signed contracts starting on or after March 1, 2024 and that incorporate by reference the terms at Platform Terms Conditions. Please refer to your order form and reach out to your customer account manager for questions.

Last updated: 4/8/2021

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

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

Definitions.

For the purposes of this Agreement, the following terms shall have the definitions set out below:”Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.

“Account Agreement” shall mean an agreement between any of Acquiring Bank, Processor, and ISO, on the one hand, and Account on the other hand, pursuant to which the Account receives Account Services.

“Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.

“Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as an Acquiring Bank or Processor may require to be included in an Account Application.

“Account Portal” is a means of accessing the Service supplied by IRIS and available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.

“Account Principal/Customer” means an individual principal or guarantor of any Account.

“Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.

“Active Account” means an Account: (i) that was added to the IRIS Instance during the current billing period for the first time through TurboApp, a Third Party Application, residual report import or manually by a User; or (ii) for which IRIS has reported any new data that was received from a Third Party Application such as deposits, transactions, Account demographic changes, chargebacks or statements during the current billing period; or (iii) where an ISO or any User earns any non-zero residuals or other compensation as calculated by IRIS; or (iv) the Account was manually set to ‘Active’ by a User and never deactivated.

“Acquiring Bank” means any financial institution acting as part of a Payment Network and sponsor of ISO or ISO’s Affiliates.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; “control”, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.

“ACH” means the Automated Clearing House settlement process used to effect debits and credits to the ISO DDA.

“Dialer Acceptable Use Policy” has the meaning set out below in Section 2.3.6 below.

“Dialer Services” means that part of the Services that integrate certain telecommunications capabilities therein, as determined by IRIS from time to time.

“E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.

“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.

“Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail. All Fees charged on a per-Account basis are charged only on Active Accounts. All Fees indicated are exclusive of applicable taxes.

“Force Majeure” means a circumstance beyond IRIS’ reasonable control, which results in IRIS being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include without limitation: (a) acts of God, lightning strikes, earthquakes, epidemic, plague, tsunami, floods, typhoons, tornadoes, cyclones, storms, explosions, fires and any natural disaster or calamity; (b) any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (c) acts of war, invasion, armed conflict, cessation of diplomatic relations, imposition of sanctions, acts of public enemies, rebellion, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; (d) strikes, labor disputes, industrial actions and lockouts; and (e) computer hacking or viruses and unforeseen equipment or communications interruption or fault.

“Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.

“IRIS Instance” means the IRIS-hosted and managed instance of the Services supplied to ISO under this Agreement through which ISO may access the Services.

“ISO Data” means any and all electronic data or information submitted or transferred by ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users hereunder, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.

“ISO DDA” means a direct deposit account of the ISO with a bank or other financial institution that shall be used to make payments to IRIS of Fees and other amounts owing hereunder by ACH.

“ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.

“ISO Privacy Policy” means a privacy policy of the ISO addressing the collection, storage, processing, use and disclosure of Account, User and other third party data that is consistent with Laws.

“ISO Systems” means the servers or computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain Services or additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.

“Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.

“Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.

“Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.

“Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.

“Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of: obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.

“Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.

“Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.

“Subscription Term” shall mean the term for which Services are purchased by ISO in respect of Active Accounts within a pricing tier.

“Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.

“Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.

“Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, gateways, other independent sales organizations, banks or other third parties that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.

“TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.

“Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time, if any.
Services
1. Services. IRIS shall make the Services available to ISO and Users selected by ISO pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions“): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO, its Processor, its Acquiring Bank or Payment Networks; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services or by email to the ISO. IRIS also reserves the right to cease providing the Services on at least sixty (60) days notice through the Services or by email to the ISO.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimile. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile of the Account Application. ISO hereby licenses to IRIS the right to use the information, names and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor, Acquiring Bank, Payment Network or any other third party in respect of the use thereof within the Services for ISO. ISO assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and each User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application could result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification“):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    1. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    2. You have undertaken all siteinspections or other verifications of the merchant required by your ISO and processor;
    3. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    4. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    5. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application. You have verified that the person signing for the merchant has been duly authorized to sign for the merchant;
    6. You have in your possession a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant; IRIS will have no responsibility for your errors, errors of the ISO or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    7. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    8. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with processor and not through IRIS when processor or other pricing changes occur;
    9. You have consent from your ISO to submit the information that you are about to submit;
    10. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    11. YOU HEREBY REAFFIRM YOUR ACCEPTANCE OF THE IRIS (I) MASTER SUBSCRIPTION AGREEMENT; (II) PRIVACY POLICY; AND (III) WEBSITE TERMS OF USE, ALL OF WHICH ARE AVAILABLE HERE Website Terms & Conditions AND INCORPORATED HEREIN BY REFERENCE.”
  3. ISO Third Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO, any User or any other third party in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
  5. E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (“E- Sign Act“), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature. Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO. Subject to the parameters of the E-Sign Service, the E-Sign Service allows ISO to facilitate in the presentation of its documents to third parties, such as, for example, Accounts, collect electronic signatures and create electronic records (each, an “ISO Electronic Records“).
  6. ISO shall assume sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  7. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records. ISO shall ensure that it shall use the E-Sign Service in a manner that is consistent with the ISO Privacy Policy.
  8. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  9. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  10. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  11. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  12. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  13. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto and in a manner consistent with the ISO Privacy Policy.
3. Dialer Service.
  1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
  2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly. ISO shall use the Dialer Service in a manner that is consistent with the ISO Privacy Policy.
  3. Use of Dialer Services. If ISO elects to purchase the Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
  4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all Laws and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically, and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates the ISO Privacy Policy or any data protection statute, regulation, order or similar Law.
  5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.
  6. Dialer Acceptable Use Policy.This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
    1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
    2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
    3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
    4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
    5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services, any third party policies or requirements or other requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
    6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
    7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
    8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
    9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
    10. Violating or facilitating the violation of any local or foreign Law, including Laws regarding the transmission of data or software.
    11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
    12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
    13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
    14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
    15. Using the Dialer Service to carry out debt collection or other telemarketing activities that are illegal or aggressive.
4. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Order Form.
5. Limitations on Right to Use Services. The right to use the Services are granted to the ISO on a limited, non-transferrable, non-exclusive license basis (the “Use Right”). Subject to the terms of this Agreement, the Use Right is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
6. Limitations on Use Right. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the Use Right, and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the Use Right granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The Use Right expressly excludes the right to make any use of the Services to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
8. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate“) in respect of the ISO Site. Lack of an SSL Certificate or other shortfalls in ISO security, as determined by IRIS, shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
9. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
10. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, Acquiring Banks and other third parties, each as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO and Users, as instructed by ISO and Users through the Services. If requested by a Processor or other relevant third party, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
11. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each also a “Force Majeure“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Laws, Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO, Processor or Acquiring Bank. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards“), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non- compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC“) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’ compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on- site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’ out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any down time and inaccuracy to data.
ThirdParty Providers.
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider, is solely between ISO and the applicable third-party provider. IRIS do not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in anyway by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. In consideration of the Services, ISO shall pay Fees. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) in the event that ISO adds Active Accounts during the billing cycle that qualify for the next tier as specified in the order form, the Fees for these Active Accounts will be prorated for the portion of the billing cycle remaining at the time the Accounts are added and will be invoiced on the following billing cycle; (iv) payment obligations are non-cancelable and Fees paid are non-refundable, Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; and (v) in the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the Fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination. If, for any reason, Fees are not collected via ACH, ISO shall cause them to be paid to IRIS as and when due by wire transfer, or other means acceptable to IRIS, to an account designated for such purposes by IRIS. Fees for the Dialer Services that are based on minutes used, are rounded to the nearest minute, for example, a call lasting ten (10) minutes and fifteen (15) seconds will be considered eleven (11) minutes of billable talk-time.
2. Start of Fees. IRIS will perform an ACH debit to ISO DDA for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
4. ACH Consent. ISO desires to effect settlement of credits and debits from the ISO DDA by means of ACH and/or wire transfer in conjunction with the Services provided hereunder. In accordance with this desire, ISO authorizes IRIS and/or its Affiliates to initiate debit and credit entries to the ISO DDA (the details of which are set out in the Order Form or entered into the Services). ISO agrees to maintain sufficient funds in ISO DDA to cover debit transactions. By signing this authorization, ISO states that it has authority to agree to such transactions and that the ISO DDA indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until IRIS receives written notice from ISO revoking it. This authorization is for the payment of Fees, or any other sums owed to IRIS or IRIS’s Affiliates. ISO also certifies that the appropriate authorizations are in place to allow ISO to authorize this method of settlement. All changes to the identification of the ISO DDA under this authorization must be made in writing in accordance with the Agreement. ISO understands that if the information supplied as to the ABA Routing Number and ISO DDA Number of the ISO DDA is incorrect, and funds are incorrectly deposited, IRIS will attempt to assist ISO in the recovery of such funds but has no liability as to restitution of the same. IRIS’s assistance in recovering the funds, where available, will be billed to ISO at IRIS’s current hourly rate for such work. ISO acknowledges that the origination of ACH transactions to the ISO DDA must comply with the provisions of U.S. law.
5. Taxes. ISO shall pay all taxes applicable to Fees.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own secure ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON-SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON-SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. ISO and all Users shall use only secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data“) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of Accounts with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrants and covenants as follows:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement, Rules or Laws. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any Law or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS.
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. Without limitation, IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation“). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors, Acquiring Banks and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason. IRIS may terminate this Agreement immediately on notice to ISO in event of a Force Majeure.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably useful format, as determined by IRIS in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities.
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License“).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York, in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 2.6 Limitations on Use Right, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.
15. Force Majeure. IRIS shall not be liable for a failure to perform hereunder on account of a Force Majeure.

Privacy Statement

Last updated: 9/16/2021

IRIS is committed to protecting the privacy of its users. This privacy statement represents the policies of IRIS (Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 1785 East Sahara Ave Suite 490-830 Las Vegas, NV 89104 (“IRIS”) with respect to information that it collects to provide a suite of services (the “Services”) to help independent sales organizations (each an “ISO”) collect, store and organize information, contracts and other business information (collectively, “User Data”). The Services are provided pursuant to terms of use that each ISO and each of its users (each a “User”) are required to accept before using the Services (the “Terms of Use”). Access to the Services is subject to the Terms of Use.

1. Sites

This statement applies to User Data collected through www.iriscrm.com (collectively with other IRIS sites, the “Site”).

2. User Data Collected and Stored

The information that IRIS collects concerning each User is called User Data. In general terms, IRIS will collect most of the information relevant to the operation of your independent sales organization (“ISO”) business, such as your: name, address, company name, credit card information, bank account information, dbas, logos, email addresses, telephone numbers, recordings of telephone calls, User IP addresses, processors, processor pricing, processor platform passwords, and other credentials, processor ISO portfolio reporting, agent names, agent addresses, agent telephone numbers, agent email addresses, agent pricing, agent IRIS preferences, merchant application forms, merchant pricing, merchant names, merchant addresses, merchant phone numbers, merchant email addresses, merchant telephone numbers, merchant reporting preferences, User patterns of activity and such other information that Users may elect to input into IRIS.

User Data, excluding Google & Microsoft User Data which is covered separately through our Google & Microsoft user Data Policy in Section 3, is collected and stored for at least the term of the User’s use of the Services. IRIS reserves the right to delete all User Data within thirty (30) days of the termination of the User’s Terms of Use.

3. Use of User Data

IRIS will use User Data in order to provide its Services. Such uses include, but are not limited to archiving merchant portfolio data and using such archives to generate reports requested by Users. Taking User Data and User instructions to forward User Data to third parties, such as processors, merchants or other Users. User Data will be available for online access only and will be accessible by any User that has been granted permission to access the User Data, as per the Terms of Use.

User instructions to IRIS will be generally followed, which instructions may include explicit or implicit consent to distribute User Data to third parties.

Excluding, Google & Microsoft User Data, IRIS may use aggregated and anonymized User Data to compile statistics and may distribute those anonymized statistics to third parties. IRIS may also use User Data to offer Users additional features within the Services or services of third parties that IRIS believes are compatible User interests.

IRIS will use User payment account information to either take payment of its fees or relay such information to processors or other third parties as per User instructions.

IRIS will not use User Data other than as per the Terms of Use.

Google & Microsoft User Data Policy

IRIS uses Client data which originates or is derived from a User’s Google or Microsoft account, solely for the purpose of providing and improving the User’s expected experience of using an email and calendar system through IRIS’ CRM services. CRM services are integrated independently with these providers in order to sync User data between the CRM and a User’s Google or Microsoft’s authenticated User accounts which Users permit IRIS to access through an email or calendar sync with their Google and Microsoft services. The Client data which is collected from these services is solely used for the purpose of delivering our Clients a superior and productive CRM experience and is not used for any other purpose. A User or Client is able to revoke the syncing of services between the CRM and Google and Microsoft at any time without prior notice to IRIS through User Account settings within the CRM.

IRIS only transfers Client data to other services if it is necessary to provide access to IRIS for email features that are prominent for general CRM usage by Users. IRIS may also transfer data as necessary to comply with applicable law or as part of a merger, acquisition, or sale of assets with notice to users. All other transfers or sales of Client data are prohibited within IRIS. IRIS does not use or transfer Client data for serving ads, including retargeting, personalized, or interest-based advertising; and IRIS services do not allow humans to read the data received from Google and Outlook unless IRIS has first obtained the Client’s affirmative agreement for specific message types.

IRIS does not permit emails or calendar events to be accessed by humans. Accessing emails by a human is necessary for investigating a bug, monitoring abuse through the CRM to send emails or security purposes. IRIS complies with applicable laws. IRIS’s use of Google and Microsoft data is limited to internal operations and the data (including derivations) have not been aggregated and have not been anonymized. These internal prohibitions of IRIS apply to the raw data obtained from data aggregated, anonymized, or derived from Google and Outlook. IRIS ensures that employees, agents, contractors, and successors comply with the IRIS’ Google & Microsoft User Data Policy.

Google API Disclosure

IRIS CRM’s use and transfer to any other app of information received from Google APIs will adhere to the Google API Services User Data Policy, including the Limited Use requirements.

4. Cookies

IRIS uses cookies to personalize the Site for Users and to collect aggregate information about Site usage. The aggregated information is used to understand and analyze Users’ responses, needs, and preferences and to develop, improve, market and/or offer products and services to meet Users’ needs and preferences. A cookie is a text file that our Site transfers to User’s computer’s hard drive for record-keeping purposes and to enhance the quality of your visit to our Site. The cookie assigns a random, unique number to the User’s computer. IRIS cookie may record “clickstream” information (data reporting the URLs or names of the pages on this Site that User has visited). IRIS may use cookies that stay on User’s device after User leaves this Site so that it can recognize User when they return. IRIS also uses cookies that are deleted when User leaves the Site. User can set your browser to refuse cookies, but doing so will limit system performance and may even cause certain features of the Site to malfunction or not work.

5. Solicitation for Additional Services

IRIS reserves the right to use User Data, which excludes Google & Microsoft User Data, to solicit Users with additional services or to allow third parties to use such User Data to do the same, provide that IRIS will not share pricing or ISOs merchant portfolio information with third parties.

6. Public Content / Blogs

IRIS may publish notices, blogs, forums or chats that allow Users to post questions or communicate with each other through the Service. Any information a Users submit in such a forum may be read, collected, or used by others who visit these forums and may be used to send you unsolicited messages. IRIS is not responsible for the personal information a User chooses to post in such forums.

7. Compelled Disclosure

IRIS reserves the right to use or disclose User Data if required by law or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.

8. Communication Preferences

IRIS may communicate with Users, their processors and merchants through your account on the Site, email, telephone, SMS, FTP or other means that may be available from time to time. Users are able to set communication preferences in the Services, and IRIS will honor such preferences pursuant and subject to the Terms of Use.

9. Correcting Information

Users can update their User Data at any time through their account on the Site. Users can also discontinue use of the Services by terminating their Terms of Use as per such terms.

10. Security

IRIS has security measures in place in its physical facilities and in its computer systems, databases, and communications networks located in the United States that are designed to reasonably protect information contained within our facilities or systems from loss, misuse or alteration appropriate to the sensitivity of the information. Transmission of information to and from this Site is not secured by encryption except as otherwise required by law or payment card industry data security standards applicable to the storage, processing, and transmission of credit card data. By providing your information to IRIS, User expressly agrees to the above-described cross border transmission of information and manner of transmission. User email transmissions and/or other communications containing information may be unlawfully intercepted or accessed by third parties and/or the Site and the Services may be subject to hostile network attacks or administrative errors. IRIS cannot and does not guarantee the security of any information transmitted over the internet. Once IRIS receives User Data, it takes steps that IRIS believes are commercially reasonable to limit access to User Data to only those employees, business partners and service providers whom IRIS determines need access to the information to provide the requested services, products, offers or opportunities that may be of interest to Users. However, even after IRIS receives User Data, it cannot guarantee that it will not be accessed, disclosed, altered, or destroyed as a result of a breach of our commercially reasonable efforts or as a result of any other event beyond IRIS’ reasonable control. FOR THE AVOIDANCE OF DOUBT, IRIS EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ENSURING, GUARANTEEING OR OTHERWISE OFFERING ANY DEFINITIVE PROMISE OF SECURITY IN CONNECTION WITH USER DATA, INCLUDING PERSONAL INFORMATION OR USAGE INFORMATION, THROUGH THE SITE. ADDITIONAL INFORMATION: VULNERABILITY DISCLOSURE PROGRAM.

11. Contacting Us

If you have any questions regarding this privacy policy, or if you would like additional information, please contact us at support@iriscrm.com.

Master Subscription Agreement (7/2/19)

Last update: 7/2/2019

These terms and conditions (including the cover page hereof any schedules, exhibits or addenda hereto, collectively the “Agreement”) are an agreement between Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 1785 East Sahara Ave., Suite 490-830, Las Vegas, NV 89104 (“IRIS”, “us”, “we” or “our”) and you, being the entity that accepted them (“you”, “your” or “ISO”). This Agreement is effective as of the date of signature of the ISO, as set forth on the first page of this Agreement (the “Effective Date”).

Definitions. For the purposes of this Agreement, the following terms shall have the definitions set out below:
“Account Agreement” shall mean an agreement between an Acquiring Bank an Account and either ISO or Processor, or both, pursuant to which the Account receives Account Services.
“Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.
“Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as a Processor may require to be included in an Account Application.
“Account Portal” is a means of accessing the Service available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.
“Account Principal/Customer” means an individual principal or guarantor of any Account.
“Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.
“Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.
“Acquiring Bank” means any financial institution acting as part of a payment network and sponsor of ISO or ISO’s Affiliates.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.
“Dialer Acceptable Use Policy” has the meaning set out below in Section 2.4.6 below.
“Dialer Services” means that part of the Services that integrate certain telecommunication capabilities therein, as determined by IRIS from time to time.
“E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.
“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.
“Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail.
“Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
“ISO Data” means any and all electronic data or information submitted or transferred by an ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.
“ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.
“ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Users or Accounts in conjunction with the business of the ISO.
“ISO Systems” means the computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Users or Accounts in conjunction with the business of the ISO.
“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.
“Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.
“Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.
“Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.
“Processor Site” means a web site or ftp address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of: obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.
“Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.
“Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.
“Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.
“Subscription Term” shall mean the term for which Services are purchased by ISO in respect of active merchants within a pricing tier.
“Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.
“Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.
“Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, or banks that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.
“TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.
“Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and (iv) who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time, if any.
Services
Services. IRIS shall make the Services available to ISO and applicable Users pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions”): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO or its Processor; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services. IRIS also reserves the right to cease providing the Services on at least sixty (60) days written notice.
TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles / reproductions /transmissions of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
Account Application Facsimiles / Reproductions / Transmissions. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile / reproduction / transmission of the Account Application. ISO hereby licenses to IRIS the right to use the information, names and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor or any other third party in respect of the use thereof within the Services for ISO. ISO assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application can result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification”):“IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:
YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
You have undertaken all site inspections or other verifications of the merchant required by your ISO and processor;
You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application;
You have in your possession a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant;
IRIS will have no responsibility for your errors, errors of the ISO or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with processor and not through IRIS when processor or other pricing changes occur;
You have consent from your ISO to submit the information that you are about to submit;
You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
YOU HEREBY REAFFIRM YOUR AGREEMENT WITH ALL OF THE IRIS “TERMS AND CONDITIONS.”
ISO Third Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO or any User in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change”). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (E-Sign), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature (“E- Sign Act”). Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO.
The E-Sign Service allows ISO to create electronic records (each an “ISO Electronic Records”). Subject to the parameters of the E-Sign Service available on the Site, from time to time, the E-Sign Service will permit the ISO to create ISO Electronic Records and facilitate in the presentation of such documents to third parties, such as, for example, Accounts.
The ISO shall assume sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if the ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field”).
In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records.
When ISO has completed a ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto.
Dialer Service
Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly.
Use of Dialer Services. If ISO elects to sign up for Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates any data protection statute, regulation, order or similar law.
Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.
Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy”) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited actions/activities. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual third party policies or requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
Using Dialer Services to engage in fraudulent activity with respect to third parties.
Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
Transmitting any material that infringes the intellectual property rights or other rights of third parties.
Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Order Form.
License. The right to use the Services are granted to the ISO as a limited, non-transferable, non- exclusive license (the “License”). Subject to the terms of this Agreement, the License is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
Limitations on License. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the License granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The License may not be used to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the ISO Site. Lack of a SSL Certificate shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO and Users, as instructed by ISO and Users through the Services. If requested by a Processor, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
Support.
During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each a “Force Majeure Event”) and (c) normal and anticipated downtime of the Processor data feed.
ISO shall comply with all applicable Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority”) having jurisdiction over ISO. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards”), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non-compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession, and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC”) on request by ISO.
In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’ compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on- site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’ out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any down time and inaccuracy to data.
Third-Party Providers
Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider, is solely between ISO and the applicable third-party provider. IRIS do not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in anyway by IRIS.
Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
Fees. ISO shall pay all Fees through ACH. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) In the event that ISOs add active merchants during the billing cycle that qualify for the next tier as specified in the order form, the fees for these active merchants will be prorated for the portion of the billing cycle remaining at the time the merchants are added and will be invoiced on the following billing cycle. (iv) Payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; (v) In the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination.
Start of Fees. IRIS will perform an ACH debit to ISO’s bank account for the amount specified as due on the Order Form and at the time specified on the Order Form.
Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. It is the responsibility of ISO to make periodic backups of ISO Data onto ISO Systems in so far as ISO wishes to protect itself from the loss thereof. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own ISO Systems on a regular basis.
IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON- SOLICITATION OBLIGATION”). IRIS’ CONSIDERATION FOR THE NON- SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
Password Security. One of the most important security features used today are passwords. It is important for ISO and all Users to have secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data”) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of merchants with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
The parties represent, warrant and covenant the:
Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any applicable law or regulation or any agreement or Rule to which that party may now be bound.
Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
No Litigation. Neither party, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS
WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation”). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages”) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute”) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason.
Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions”) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data”). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably useful format, as determined by IRIS in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities
Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License”).
Marketing License Guidelines. In its use of the Marks of the other party (“Licensor”), each party (“Licensee”) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York in the county where IRIS is located.
Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due IRIS under this Agreement following ISO breach of Fee payment obligations.
Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.
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Master Subscription Agreement (12/3/19)

Last update: 12/3/2019

Master Subscription Agreement – 12/3/2019

Master Subscription Agreement
IRIS Terms and Conditions

These terms and conditions (including the cover page hereof any schedules, exhibits or addenda hereto, collectively the “Agreement“) are an agreement between Integrated Reporting is Simple, LLC, a Nevada limited liability company with an office at 1785 East Sahara Ave., Suite 490-830, Las Vegas, NV 89104 (“IRIS“, “us“, “we” or “our“) and you, being the entity that accepted them (“you“, “your” or “ISO“). This Agreement is effective as of the date of signature of the ISO, as set forth on the first page of this Agreement (the “Effective Date“).

Definitions.

For the purposes of this Agreement, the following terms shall have the definitions set out below:
1. “Account Agreement” shall mean an agreement between an Acquiring Bank an Account and either ISO or Processor, or both, pursuant to which the Account receives Account Services.
2. “Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.
3. “Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as a Processor may require to be included in an Account Application.
4. “Account Portal” is a means of accessing the Service available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.
5. “Account Principal/Customer” means an individual principal or guarantor of any Account.
6. “Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.
7. “Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.
8. “Acquiring Bank” means any financial institution acting as part of a payment network and sponsor of ISO or ISO’s Affiliates.
9. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control“, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.
10. “Dialer Acceptable Use Policy” has the meaning set out below in Section 2.4.6 below.
11. “Dialer Services” means that part of the Services that integrate certain telecommunication capabilities therein, as determined by IRIS from time to time.
12. “E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.
13. “Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.
14. “Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail.
15. “Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents, and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
16. “ISO Data” means any and all electronic data or information submitted or transferred by an ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.
17. “ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.
18. “ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Users or Accounts in conjunction with the business of the ISO.
19. “ISO Systems” means the computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Users or Accounts in conjunction with the business of the ISO.
20. “Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by-laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
21. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
22. “Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.
23. “Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.
24. “Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example, purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.
25. “Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.
26. “Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.
27. “Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.
28. “Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.
29. “Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.
30. “Subscription Term” shall mean the term for which Services are purchased by ISO in respect of active merchants within a pricing tier.
31. “Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.
32. “Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.
33. “Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, or banks that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.
34. “TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.
35. “Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and (iv) who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time if any.
Services
1. Services. IRIS shall make the Services available to ISO and applicable Users pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions”): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO or its Processor; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services. IRIS also reserves the right to cease providing the Services on at least sixty (60) days written notice.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles/reproductions/transmissions of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimiles / Reproductions / Transmissions. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile/reproduction/transmission of the Account Application. ISO hereby licenses to IRIS the right to use the information, names, and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor or any other third party in respect of the use thereof within the Services for ISO. ISO assumes the sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application can result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification”):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:
    1. YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    2. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    3. You have undertaken all site inspections or other verifications of the merchant required by your ISO and processor;
    4. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    5. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    6. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application;
    7. You have in your possession a valid electronically signed merchant agreed or a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant;
    8. IRIS will have no responsibility for your errors, errors of the ISO, User errors or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    9. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    10. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with the processor and not through IRIS when a processor or other pricing changes occur;
    11. You have consent from your Processor for ISO and Users to submit the information that you are about to submit;
    12. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    13. YOU HEREBY REAFFIRM YOUR AGREEMENT WITH ALL OF THE IRIS “TERMS AND CONDITIONS.”
  3. ISO Third-Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third-party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO or any User in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
3. E-Sign Service. The U.SE-Sign Servic Federal Electronic Signatures in Global and National Commerce Act (E-Sign), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature (“E- Sign Act“). Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO.
  1. The E-Sign Service allows ISO to create electronic records (each an “ISO Electronic Records“). Subject to the parameters of the E-Sign Service available on the Site, from time to time, the E-Sign Service will permit the ISO to create ISO Electronic Records and facilitate in the presentation of such documents to third parties, such as, for example, Accounts.
  2. The ISO shall assume the sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if the ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  3. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records.
  4. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  5. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  6. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with the disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  7. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  8. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  9. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto.
Dialer Service
1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly.
3. Use of Dialer Services. If ISO elects to sign up for Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates any data protection statute, regulation, order or similar law.
5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions, and obligations applicable to the Services in the Agreement.
6. Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or another manner that interferes with the business or activities of any other party. The following list gives examples of prohibited actions/activities. Each item on the list below and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
  1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
  2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
  3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
  4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
  5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual third party policies or requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
  6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
  7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
  8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
  9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
  10. Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
  11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
  12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
  13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
  14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the currently applicable tier that is specified in relation to the Subscriptions on the Order Form.
License. The right to use the Services is granted to the ISO as a limited, non-transferable, non- exclusive license (the “License“). Subject to the terms of this Agreement, the License is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
Limitations on License. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the License and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the License granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have the rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The License may not be used to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the ISO Site. Lack of an SSL Certificate shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO, and Users, as instructed by ISO and Users through the Services. If requested by a Processor, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related to their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.

Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each a “Force Majeure Event“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards”), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non-compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession, and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC”) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’s compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on-site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’s out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also be paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume the exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any downtime and inaccuracy to data.
Third-Party Providers
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider is solely between ISO and the applicable third-party provider. IRIS does not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari, and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in any way by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. ISO shall pay all Fees through ACH. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) In the event that ISOs add active merchants during the billing cycle that qualify for the next tier as specified in the order form, the fees for these active merchants will be prorated for the portion of the billing cycle remaining at the time the merchants are added and will be invoiced on the following billing cycle. (iv) Payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; (v) In the event that this Agreement is terminated prior to the end of the then-current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination.
2. Start of Fees. IRIS will perform an ACH debit to ISO’s bank account for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. It is the responsibility of ISO to make periodic backups of ISO Data onto ISO Systems in so far as ISO wishes to protect itself from the loss thereof. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON- SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON- SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. It is important for ISO and all Users to have secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data”) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of merchants with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrant and covenant the:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any applicable law or regulation or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error-free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO, PROCESSOR, USER AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation”). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably usable format, as determined by IRIS in its sole but reasonable discretion until 11:59 PM on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid-up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License”).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from the Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due to IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.

Master Subscription Agreement (2/8/21)

Last update: 2/8/2021

Master Subscription Agreement – 2/8/2021

Master Subscription Agreement
IRIS Terms and Conditions

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

Definitions.

For the purposes of this Agreement, the following terms shall have the definitions set out below:
1. “Account Agreement” shall mean an agreement between an Acquiring Bank an Account and either ISO or Processor, or both, pursuant to which the Account receives Account Services.
2. “Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.
3. “Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as a Processor may require to be included in an Account Application.
4. “Account Portal” is a means of accessing the Service available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.
5. “Account Principal/Customer” means an individual principal or guarantor of any Account.
6. “Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.
7. “Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.
8. “Acquiring Bank” means any financial institution acting as part of a payment network and sponsor of ISO or ISO’s Affiliates.
9. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control“, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.
10. “Dialer Acceptable Use Policy” has the meaning set out below in Section 2.4.6 below.
11. “Dialer Services” means that part of the Services that integrate certain telecommunication capabilities therein, as determined by IRIS from time to time.
12. “E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.
13. “Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.
14. “Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail.
15. “Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents, and patent applications; (iv) all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.
16. “ISO Data” means any and all electronic data or information submitted or transferred by an ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.
17. “ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.
18. “ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Users or Accounts in conjunction with the business of the ISO.
19. “ISO Systems” means the computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Users or Accounts in conjunction with the business of the ISO.
20. “Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by-laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.
21. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
22. “Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.
23. “Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.
24. “Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example, purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.
25. “Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.
26. “Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.
27. “Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.
28. “Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.
29. “Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.
30. “Subscription Term” shall mean the term for which Services are purchased by ISO in respect of active merchants within a pricing tier.
31. “Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.
32. “Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.
33. “Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, or banks that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.
34. “TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.
35. “Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and (iv) who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time if any.
Services
1. Services. IRIS shall make the Services available to ISO and applicable Users pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions”): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO or its Processor; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services. IRIS also reserves the right to cease providing the Services on at least sixty (60) days written notice.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles/reproductions/transmissions of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimiles / Reproductions / Transmissions. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile/reproduction/transmission of the Account Application. ISO hereby licenses to IRIS the right to use the information, names, and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor or any other third party in respect of the use thereof within the Services for ISO. ISO assumes the sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application can result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification”):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:
    1. YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    2. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    3. You have undertaken all site inspections or other verifications of the merchant required by your ISO and processor;
    4. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    5. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    6. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application;
    7. You have in your possession a valid electronically signed merchant agreed or a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant;
    8. IRIS will have no responsibility for your errors, errors of the ISO, User errors or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    9. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    10. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with the processor and not through IRIS when a processor or other pricing changes occur;
    11. You have consent from your Processor for ISO and Users to submit the information that you are about to submit;
    12. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    13. YOU HEREBY REAFFIRM YOUR AGREEMENT WITH ALL OF THE IRIS “TERMS AND CONDITIONS.”
  3. ISO Third-Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third-party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO or any User in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
3. E-Sign Service.
  
  The U.S. Federal Electronic Signatures in Global and National Commerce Act (E-Sign), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature (“E- Sign Act“). Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO.
  1. The E-Sign Service allows ISO to create electronic records (each an “ISO Electronic Records“). Subject to the parameters of the E-Sign Service available on the Site, from time to time, the E-Sign Service will permit the ISO to create ISO Electronic Records and facilitate in the presentation of such documents to third parties, such as, for example, Accounts.
  2. The ISO shall assume the sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if the ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  3. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records.
  4. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  5. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  6. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with the disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  7. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  8. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  9. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto.
4. Dialer Service
  1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
  2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly.
  3. Use of Dialer Services. If ISO elects to sign up for Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
  4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates any data protection statute, regulation, order or similar law.
  5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions, and obligations applicable to the Services in the Agreement.
  6. Dialer Acceptable Use Policy. This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or another manner that interferes with the business or activities of any other party. The following list gives examples of prohibited actions/activities. Each item on the list below and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
    1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
    2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
    3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
    4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
    5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services to ISO other than the License, and that all Intellectual third party policies or requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
    6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
    7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
    8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
    9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
    10. Violating or facilitating the violation of any local or foreign law, including laws regarding the transmission of data or software.
    11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
    12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
    13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
    14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
5. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the currently applicable tier that is specified in relation to the Subscriptions on the Order Form.
6. License. The right to use the Services is granted to the ISO as a limited, non-transferable, non- exclusive license (the “License“). Subject to the terms of this Agreement, the License is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
7. Limitations on License. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the License and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the License granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have the rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The License may not be used to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
8. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
9. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate”) in respect of the ISO Site. Lack of an SSL Certificate shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
10. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
11. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO, and Users, as instructed by ISO and Users through the Services. If requested by a Processor, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
12. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related to their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each a “Force Majeure Event“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards”), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non-compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession, and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC”) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’s compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on-site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’s out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also be paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume the exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any downtime and inaccuracy to data.
Third-Party Providers
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider is solely between ISO and the applicable third-party provider. IRIS does not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari, and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in any way by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. ISO shall pay all Fees through ACH. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) In the event that ISOs add active merchants during the billing cycle that qualify for the next tier as specified in the order form, the fees for these active merchants will be prorated for the portion of the billing cycle remaining at the time the merchants are added and will be invoiced on the following billing cycle. (iv) Payment obligations are non-cancelable and Fees paid are non-refundable. Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; (v) In the event that this Agreement is terminated prior to the end of the then-current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination.
2. Start of Fees. IRIS will perform an ACH debit to ISO’s bank account for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
4. Sales Tax. IRIS and ISO acknowledge and agree that to the extent that the Service is subject to any state sales and use taxes, IRIS has a legal obligation to collect such taxes from ISO and to remit the same to the appropriate tax collection authorities. ISO agrees to pay any and all applicable state sales, use, gross receipts, and other similar taxes and charges. ISO has no liability for any taxes based upon IRIS’s income under the Agreement.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. It is the responsibility of ISO to make periodic backups of ISO Data onto ISO Systems in so far as ISO wishes to protect itself from the loss thereof. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON- SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON- SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. It is important for ISO and all Users to have secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data”) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of merchants with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrant and covenant the:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any applicable law or regulation or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error-free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO, PROCESSOR, USER AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation”). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably usable format, as determined by IRIS in its sole but reasonable discretion until 11:59 PM on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid-up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License”).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from the Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due to IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.

Terms of Use Free Trial

Definitions. For the purposes of this Agreement, the following terms shall have the definitions set out below:”Account” means a merchant or other business that wishes to or has agreed to procure Account Services or Processor Services as a result of the direct or indirect solicitation by ISO or any of its Users.

“Account Agreement” shall mean an agreement between any of Acquiring Bank, Processor, and ISO, on the one hand, and Account on the other hand, pursuant to which the Account receives Account Services.

“Account Application” shall mean the application or portal (electronic or paper) used by any of a Processor, Acquiring Bank or ISO to ascertain whether a given potential Account is eligible to procure the Account Services and includes the terms of the applicable Account Agreement, such as they may be from time to time.

“Account Information” shall mean any and all information concerning a given Account, including, without limitation, such information as an Acquiring Bank or Processor may require to be included in an Account Application.

“Account Portal” is a means of accessing the Service supplied by IRIS and available to certain Accounts of the ISO as per the terms of this Agreement and an Order Form.

“Account Principal/Customer” means an individual principal or guarantor of any Account.

“Account Services” means services supplied to Accounts by Processor, Acquiring Bank or ISO, such as, for example purposes only, payment processing services for payment card transactions.

“Active Account” means an Account: (i) that was added to the IRIS Instance during the current billing period for the first time through TurboApp, a Third Party Application, residual report import or manually by a User; or (ii) for which IRIS has reported any new data that was received from a Third Party Application such as deposits, transactions, Account demographic changes, chargebacks or statements during the current billing period; or (iii) where an ISO or any User earns any non-zero residuals or other compensation as calculated by IRIS; or (iv) the Account was manually set to ‘Active’ by a User and never deactivated.

“Acquiring Bank” means any financial institution acting as part of a Payment Network and sponsor of ISO or ISO’s Affiliates.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; “control”, for purposes of this definition, means direct or indirect ownership or financial influence of more than 50% of the voting interests of the subject entity.

“ACH” means the Automated Clearing House settlement process used to effect debits and credits to the ISO DDA.

“Dialer Acceptable Use Policy” has the meaning set out below in Section 2.3.6 below.

“Dialer Services” means that part of the Services that integrate certain telecommunications capabilities therein, as determined by IRIS from time to time.

“E-Sign Service” means that Service of assisting the ISO in obtaining electronic signatures of certain documents, as described more fully below.

“Emergency Services” means services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 Services.

“Fees” shall be those fees and expenses for which ISO is liable to pay IRIS in consideration of the Services for itself and all its Users. Fees are defined herein and are posted from time to time on the Site. In the event of any inconsistency between the Fees set out herein and those posted on the Site, the latter shall prevail. All Fees charged on a per-Account basis are charged only on Active Accounts. All Fees indicated are exclusive of applicable taxes.

“Force Majeure” means a circumstance beyond IRIS’ reasonable control, which results in IRIS being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include without limitation: (a) acts of God, lightning strikes, earthquakes, epidemic, plague, tsunami, floods, typhoons, tornadoes, cyclones, storms, explosions, fires and any natural disaster or calamity; (b) any law or government order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary license or consent; (c) acts of war, invasion, armed conflict, cessation of diplomatic relations, imposition of sanctions, acts of public enemies, rebellion, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; (d) strikes, labor disputes, industrial actions and lockouts; and (e) computer hacking or viruses and unforeseen equipment or communications interruption or fault.

“Intellectual Property Rights” means all intellectual property rights and all tangible embodiments of such rights, wherever located, including but not limited to the following: (i) all trademarks, service marks or other designations of origin, including all registrations and related applications and all goodwill associated with any of the foregoing; (ii) all copyrights, moral rights, and other rights in works of authorship, including all registrations and related applications; (iii) all inventions and ideas, whether patentable or not, and all patent rights, patents and patent applications; all know-how, trade secrets, confidential information, and other proprietary rights and information; and (v) all other rights covering intangible property recognized in any jurisdiction.

“IRIS Instance” means the IRIS-hosted and managed instance of the Services supplied to ISO under this Agreement through which ISO may access the Services.

“ISO Data” means any and all electronic data or information submitted or transferred by ISO, a User, an Acquiring Bank or a Processor, to IRIS through the use of the Services by the ISO or any of its Users hereunder, including, as it relates to an Account or any Account Principal/Customer, name, address, date of birth, social security number, driver’s license number, account number, credit or debit card number, or a personal identification number or password that would permit access to the Account or Account Principal/Customer’s account, or any combination of components of Account or Account Principal/Customer information that would allow someone to log onto or access Account’s or Account Principal/Customer’s account, such as a username and password, password or transaction information. ISO Dialer Data is, without limitation, ISO Data. ISO Data does not include data that has been deleted from the Services or any data or libraries used by IRIS to operate the Services or that is otherwise provided to IRIS other than by ISO or its Users or Processor in relation to ISO. For the avoidance of doubt, ISO Data is confidential and proprietary information of ISO.

“ISO DDA” means a direct deposit account of the ISO with a bank or other financial institution that shall be used to make payments to IRIS of Fees and other amounts owing hereunder by ACH.

“ISO Dialer Data” means data and other information made available to IRIS through the use of the Dialer Services under this Agreement, including call records, audio recordings, recording transcriptions, SMS records, and SMS message content.

“ISO Privacy Policy” means a privacy policy of the ISO addressing the collection, storage, processing, use and disclosure of Account, User and other third party data that is consistent with Laws.

“ISO Systems” means the servers or computing systems owned, operated or controlled by the ISO or otherwise used by the ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“ISO Site” means the web site or web sites owned or other electronic accounts, operated or controlled by the ISO or otherwise used by ISO, its Affiliates, Users or Accounts in conjunction with the business of the ISO.

“Laws” shall mean laws, statutes, codes, ordinances, orders, decrees, rules, regulations, and municipal by laws, whether domestic, or foreign, all judgments, orders, writs, injunctions, decisions, rulings, decrees, and awards of any government authority having jurisdiction.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Order Form” means that paper or electronic form provided by IRIS and completed by ISO for the purpose of ordering certain Services or additional Services wherein the Fees applicable to the Service shall be set out, all of which forms, when accepted by IRIS in writing, are hereby incorporated in this Agreement by reference.

“Payment Network” means any and all of Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, JCB, Diners, NACHA, any Affiliate of the foregoing and other payment networks providing services used by Processor and or Accounts.

“Processor” means an entity, that in the course of a valid and ongoing contractual relationship with the ISO, in the form of a Processor Agreement, provides Processor Services and electronic reporting to the ISO related thereto.

“Processor Agreement” means a written agreement entered into between ISO, Processor and possibly other entities, such as an Acquiring Bank, pursuant to which ISO and the Processor and/or Acquiring Bank provide certain services, such as, for example purposes only, the solicitation of potential Accounts. Processor Agreement shall include any and all terms and conditions and privacy policies applicable to use of the Processor Site, such as they may be from time to time, as well as all applicable Rules and Laws.

“Processor Services” shall mean those services provided by a Processor under an Account Agreement or the Processor Agreement for the ISO or for Accounts.

“Processor Site” means a web site or FTP address or other electronic portal designated by Processor or its designee that ISO is to use for the purposes of any of: obtaining electronic reporting concerning Accounts and other Account Information relevant to the Processor Services, the submission of Account Information for Account Applications or other exchanges of information between Processor and ISO or Users.

“Rules” means the rules and regulations of Payment Networks, such as they may be from time to time, other rules and regulations generally applicable to the business of the ISO and all applicable Laws.

“Services” means the electronic reporting services provided by IRIS pursuant to this Agreement including those that ISO has elected to use through an Order Form, the Site, by signing a paper version of this Agreement. The Services are more fully described on the Site, such as it may be from time to time, and may include, depending on ISO elections: the TurboApp, E-Sign Service and Dialer Service.

“Subscription Term” shall mean the term for which Services are purchased by ISO in respect of Active Accounts within a pricing tier.

“Subscription” shall mean the entitlement of an individual User to use the Services for a Subscription Term specified on the Order Form.

“Term” shall mean the term of this Agreement for the length of time specified on the Order Form that shall begin as of the Effective Date and shall terminate as of the end of the last Subscription Term to end or such earlier time as may be provided for herein.

“Third‐Party Applications” means online, applications and offline software products that are provided by third parties such as, but not limited to, feeds of data from Acquiring Banks, Processors, CRM systems, gateways, other independent sales organizations, banks or other third parties that interoperate with the Services and are identified as third-party applications within the Site, such as they may be from time to time.

“TurboApp” means that part of the Services that permits Users to transmit Account Information collected by Users from potential Accounts for Account Applications.

“Users” means individuals or entities who: (i) are authorized by ISO to use the Services; (ii) for whom Subscriptions have been purchased by ISO; (iii) who have agreed to the terms hereof; and who have been supplied user identifications and passwords for the Services by ISO. Users may include, at the discretion of ISO, ISO employees, consultants, contractors and agents, Accounts; or other third parties with which ISO transacts business for which the Services are a suitable complement. ISO has the right to initiate and remove access to the Services for each of its Users. As between ISO and each of its Users, ISO shall dictate which of the Services herein each User may be entitled to use at any given time, if any.
Services
1. Services. IRIS shall make the Services available to ISO and Users selected by ISO pursuant to this Agreement and Order Forms during the Term of this Agreement. Services are provided subject to, without limitation (the “ISO Conditions“): (i) payment by ISO of all applicable Fees; (ii) adherence of the ISO to the terms of this Agreement; (ii) no prohibition on IRIS providing the Services in respect of ISO, its Processor, its Acquiring Bank or Payment Networks; (iii) adherence of the ISO to the terms and conditions of the Processor Site; and (iv) adherence of the ISO to the terms of the Processor Agreement. ISO agrees that the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IRIS regarding future functionality or features or the Services. IRIS reserves the right to modify the Services by notice through the Services or by email to the ISO. IRIS also reserves the right to cease providing the Services on at least sixty (60) days notice through the Services or by email to the ISO.
2. TurboApp. If ISO has elected to use TurboApp, then IRIS shall allow Users to access, complete, inspect and modify certain Account Information fields within electronic facsimiles of Account Applications presented to the User through the Services. In so doing, the ISO covenants that all of its Users shall input only Account Information that is complete and accurate and that the applicable Acquiring Bank and, as applicable, Processor permits to be incorporated into the Services. IRIS shall assume no liability in respect of any Account Information that is incorrect, either through ISO, User or Processor error or otherwise, all of which information ISO undertakes to scrutinize and review prior to submission to the Processor through TurboApp or otherwise.
  1. Account Application Facsimile. As part of the setup of TurboApp, ISO will be asked to assist in accepting or creating a facsimile of the Account Application. ISO hereby licenses to IRIS the right to use the information, names and logos that it is instructed to include or that ISO accepts to be included in the TurboApp and shall indemnify and hold IRIS harmless for any claims by Processor, Acquiring Bank, Payment Network or any other third party in respect of the use thereof within the Services for ISO. ISO assumes sole and exclusive responsibility for any discrepancies that may occur between the TurboApp Account Application and that which may be mandated by an Acquiring Bank and, as applicable, Processor.
  2. Submitting Account Applications. Submitting Account Information to an Acquiring Bank and/or Processor through IRIS is a multi-stage process that requires the close attention of the ISO and each User so as not to submit false or erroneous information to the Acquiring Bank and/or Processor. Whether in good faith or not, the submission of false, erroneous or misleading information on an Account Application could result in grave and irreparable damages to the ISO under its Processor Agreement, the Rules or otherwise. Any and all mistakes or fraud in the submission of Account Information by ISO or any User shall be the sole and exclusive responsibility of the ISO and Users. ISO and Users shall indemnify and hold IRIS harmless from and against any and all liability in respect of the foregoing. Without limitation to any of the other obligations of the ISO and each User under this Agreement, when a User clicks ‘Submit’ in relation to given Account Information for an Account Application it shall be required, at every instance, to agree with the following, which shall form part of this Agreement (the “User Submission Certification“):”IMPORTANT AND LEGALLY BINDING TERMS: BY PUSHING THE ‘SUBMIT’ BUTTON BELOW, YOU ARE REPRESENTING THAT YOU HAVE DONE AND THAT YOU AGREE WITH ALL OF THE FOLLOWING:YOU ARE RESPONSIBLE FOR THE MERCHANT INFORMATION YOU SUBMIT;
    1. You have carefully reviewed all information relating to the merchant and verified that it is both true and accurate. You have solicited the merchant in full compliance with your agent or ISO agreement;
    2. You have undertaken all siteinspections or other verifications of the merchant required by your ISO and processor;
    3. You acknowledge that once the information is submitted through this form it cannot be retracted or changed through IRIS; it can only be changed through your direct correspondence with your ISO and processor;
    4. ANY AND ALL CHANGES TO MERCHANT PRICING AFTER THE SUBMISSION OF THIS APPLICATION MUST BE IMPLEMENTED BY YOU DIRECTLY WITH YOUR PROCESSOR AND NOT THROUGH IRIS. IF INTERCHANGE OR OTHER PROCESSOR PRICING CHANGES, AND YOU DO NOT INSTRUCT YOUR PROCESSOR DIRECTLY TO CHANGE MERCHANT PRICING, YOU MIGHT PAY FOR THE INCREASE, NOT YOUR MERCHANT.
    5. You have obtained a signature of the merchant and its guarantor(s) permitting you to submit their information in relation to this merchant agreement application. You have verified that the person signing for the merchant has been duly authorized to sign for the merchant;
    6. You have in your possession a hard copy of the merchant agreement wherein all of the information in this form has been completed by the merchant; IRIS will have no responsibility for your errors, errors of the ISO or errors of your processor in respect of the information you are submitting, all of which is your responsibility;
    7. From time to time processor systems may change, which changes may prevent IRIS from submitting all or submitting accurate versions of the information you are about to submit. The sole responsibility of IRIS in this regard will be to use commercially reasonable efforts for its services to be consistent with processor merchant application submission technical criteria, but IRIS does not guarantee that the merchant information will be submitted accurately or completely;
    8. After the merchant information has been submitted, you will verify through processor’s reporting system that the information is accurate and complete and you will also update merchant pricing directly with processor and not through IRIS when processor or other pricing changes occur;
    9. You have consent from your ISO to submit the information that you are about to submit;
    10. You reaffirm that the agreement with your ISO and processor is active for which you have solicited the merchant; and
    11. YOU HEREBY REAFFIRM YOUR ACCEPTANCE OF THE IRIS (I) MASTER SUBSCRIPTION AGREEMENT; (II) PRIVACY POLICY; AND (III) WEBSITE TERMS OF USE, ALL OF WHICH ARE AVAILABLE HERE Website Terms & Conditions AND INCORPORATED HEREIN BY REFERENCE.”
  3. ISO Third Party Beneficiary of User Certification. The parties hereto agree that the ISO is deemed to be a third party beneficiary in respect of each User Submission Certification. IRIS shall, however, have no liability to ISO, any User or any other third party in respect of any dispute between the two as to a User Submission Certification or otherwise and ISO shall indemnify and hold IRIS harmless from and against any claims related to a User Submission Certification.
  4. Keeping Account Pricing Up to Date. From time to time, Processors and other third parties involved in Account Agreements and Processor Services, will increase or otherwise amend the pricing applicable to Accounts and ISO for their services (each a “Account Price Change“). ISO acknowledges and agrees that: (i) once a given Account Application has been submitted through TurboApp, the only means by which to implement an Account Price Change for the Account is for the ISO to instruct the Processor/Acquiring Bank directly to make such change; and (ii) if the ISO fails to implement an Account Price Change through direct communication with its Processor (and not through IRIS) the change will not necessarily be implemented for Accounts and the ISO may be liable to pay for the change by way of a direct and potentially material reduction in its compensation under a Processor Agreement. IRIS does not provide any Account Price Change functionality.
  5. E-Sign Service. The U.S. Federal Electronic Signatures in Global and National Commerce Act (“E- Sign Act“), provides that, subject to certain conditions, electronically executed documents are legally binding in the same manner as are hard copy documents executed by hand signature. Subject to payment of the applicable Fees, IRIS shall provide the E-Sign Service to ISO. Subject to the parameters of the E-Sign Service, the E-Sign Service allows ISO to facilitate in the presentation of its documents to third parties, such as, for example, Accounts, collect electronic signatures and create electronic records (each, an “ISO Electronic Records“).
  6. ISO shall assume sole and exclusive responsibility for the content of each ISO Electronic Record. For example, if ISO wishes to create a contract using the E-Sign Service, ISO shall provide the whole content of the contract as well as all fields that the parties to the contract are required to complete (each a “Record Field“).
  7. In the event that ISO wishes to ask third parties to enter sensitive or confidential personal information into an ISO Electronic Record, such as tax ID numbers, EIN numbers, SSN numbers, bank account or routing numbers, then ISO must use only the secure field option within the E-Sign Service for such records. ISO shall ensure that it shall use the E-Sign Service in a manner that is consistent with the ISO Privacy Policy.
  8. When ISO has completed an ISO Electronic Record form with all disclosure, terms and Record Fields, the ISO will be able to grant third parties access to the ISO Electronic Record and obtain signatures on it through the E-Sign Service.
  9. IRIS makes no representation and assumes no liability for the legal effectiveness of any ISO Electronic Record or related signature, all of which is the exclusive responsibility of the ISO. IRIS recommends that the ISO consult legal counsel if it wishes to use the E-Sign Service to create legally binding agreements, as the enforceability of such agreements is the sole and exclusive responsibility of the ISO and not IRIS.
  10. As and when the ISO makes ISO Electronic Records available for signature by third parties, such third parties will be presented with disclosure that applies to the E-Sign Services, which disclosure is incorporated herein by reference.
  11. ISO hereby agrees to the terms appearing at the following URL: www.echosign.adobe.com/en/tou/terms-of-use.html, which are incorporated herein by reference.
  12. After and ISO Electronic Record is signed through the E-Sign Service, depending on the preferences selected by the ISO, an electronic copy of the record may be sent by email to the ISO or the third party or may be available for access through the E-Sign Service on the Site. ISO is required to download and store on ISO Systems copies of any and all ISO Electronic Records, both signed and unsigned.
  13. ISO shall not use the E-Sign Services nor shall it permit any User to use them to create contracts other than with the full and enlightened consent of all parties thereto and in a manner consistent with the ISO Privacy Policy.
3. Dialer Service.
  1. Provision of Services. IRIS will make the Dialer Services available to ISO in accordance with this Agreement and the Dialer Service SLA. Subject to the terms and conditions of this Agreement, IRIS grants ISO a non-exclusive, revocable right to Use the Dialer Services and make them available to Users in connection with the use of the Services.
  2. ISO Dialer Data. ISO Dialer Data shall be part of ISO Data and shall be governed accordingly. ISO shall use the Dialer Service in a manner that is consistent with the ISO Privacy Policy.
  3. Use of Dialer Services. If ISO elects to purchase the Dialer Services, ISO will be solely responsible for all use (whether or not authorized) of the Dialer Services under its Account, including for the quality and integrity of ISO Dialer Data. ISO is responsible for compliance of all its Users with the terms hereof including but not limited to those concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. ISO will promptly notify IRIS if it becomes aware of any breach of the terms of this Agreement that may affect IRIS. ISO will take all reasonable precautions to prevent unauthorized access to or use of the Dialer Services and notify IRIS promptly of any such unauthorized access or use.
  4. Restrictions. Except as expressly provided herein in respect of Users, ISO will not transfer, resell, lease, license or otherwise make available the Dialer Services to third parties. In any event, the ISO will not offer the Dialer Services on a standalone basis. ISO will not use the Dialer Services to access or allow access to Emergency Services. ISO will ensure that the Dialer Services provided hereunder are used in accordance with all Laws and third party rights, as well as the terms of this Agreement, including IRIS’ Acceptable Use Policy, set out below. Specifically, and without limitation, ISO will ensure that IRIS is entitled to use the ISO Dialer Data as needed to provide the Dialer Services and will not use the Dialer Services in any manner that violates the ISO Privacy Policy or any data protection statute, regulation, order or similar Law.
  5. Limitations. The Dialer Services are deemed part of the Services and are subject to all the limitations of liability, restrictions and obligations applicable to the Services in the Agreement.
  6. Dialer Acceptable Use Policy.This Dialer Services acceptable use policy (the “Dialer Acceptable Use Policy“) describes actions that IRIS prohibits when any party uses the Dialer Services. The Dialer Services may not be used in any illegal, abusive or other manner that interferes with the business or activities of any other party. The following list gives examples of prohibited. Each item on the list below, and similar activities are also prohibited in respect of the Services, more generally. This list is provided by way of example and should not be considered exhaustive:
    1. Attempting to bypass or break any security mechanism on any of the Dialer Services or using the Dialer Services in any other manner that poses a security or service risk to IRIS or any of its users.
    2. Testing or reverse-engineering the Dialer Services in order to find limitations, vulnerabilities or evade filtering capabilities.
    3. Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of the Dialer Services or any other conduct that adversely impacts the availability, reliability or stability of the Dialer Services.
    4. Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.
    5. Using the Dialer Services in any manner that violates any applicable industry standards, Intellectual Property Right in the Services, any third party policies or requirements or other requirements that IRIS may communicate to its users, including Marketing Association or any other accepted industry associations, carrier guidelines or other industry standards.
    6. Engaging in any unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spam laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
    7. Using the Dialer Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
    8. Using Dialer Services to harvest or otherwise collect information about others, including email addresses or phone numbers.
    9. Using Dialer Services to engage in fraudulent activity with respect to third parties.
    10. Violating or facilitating the violation of any local or foreign Law, including Laws regarding the transmission of data or software.
    11. Taking any action to encourage or promote any activity prohibited under this Acceptable Use Policy.
    12. Transmitting any material that infringes the intellectual property rights or other rights of third parties.
    13. Transmitting any material that is libelous, defamatory, discriminatory or otherwise malicious or harmful to any person or entity.
    14. Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call.
    15. Using the Dialer Service to carry out debt collection or other telemarketing activities that are illegal or aggressive.
4. Subscriptions. Unless otherwise specified in an Order Form: (i) Services are purchased by the ISO as Subscriptions; (ii) additional Subscriptions may be added during the Subscription Term at the pricing of the current applicable tier that is specified in relation to the Subscriptions on the Order Form.
5. Limitations on Right to Use Services. The right to use the Services are granted to the ISO on a limited, non-transferrable, non-exclusive license basis (the “Use Right”). Subject to the terms of this Agreement, the Use Right is hereby granted for ISO and each User only for the shorter of their Subscription Term or for the Term hereof. ISO will have the right to activate or deactivate the Services in respect of any given User at any time, subject to the terms of this Agreement.
6. Limitations on Use Right. The Services shall be used by ISO solely for its internal business purposes and ISO acknowledges and agrees that IRIS does not convey any right, title, interest or Intellectual Property Right in the Services to ISO other than the Use Right, and that all Intellectual Property Rights relating to the Services shall be the property of IRIS. ISO hereby acknowledges and agrees that the Use Right granted hereby is a right to use the Services through the Site only. ISO further agrees not to decompile, reverse engineer, or otherwise seek or utilize any expression of the Services in other than object code form. ISO shall not alter or otherwise modify the Services. ISO shall not itself or permit any third party to use the Services to gain access to information to which ISO does not have rightful title and shall immediately notify IRIS of any actual or attempted use of the Services other than as expressly permitted herein. Subject to the limited rights expressly granted hereunder, IRIS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to ISO hereunder other than as expressly set forth herein. The Use Right expressly excludes the right to make any use of the Services to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7. Suggestions. IRIS shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by ISO, including Users, relating to the operation of the Services.
8. ISO Security. ISO shall maintain the security of the ISO Site and ISO Systems so that it is up to or exceeding industry customs and norms. Without limitation, ISO shall obtain and maintain a Secure Sockets Layer certificate (“SSL Certificate“) in respect of the ISO Site. Lack of an SSL Certificate or other shortfalls in ISO security, as determined by IRIS, shall be grounds for IRIS to suspend ISO and User access to the Services. ISO shall monitor the use of the Services to verify that none of the ISO Site or ISO Systems are being used by any User or any third party to interfere in IRIS System operations or to obtain any information or data to which they are not entitled.
9. Federal Government End Use Provisions. IRIS provides the Services, including related software and technology, for ultimate federal government end use, solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IRIS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or Agreement.
10. Agency. ISO hereby appoints IRIS its lawful agent and attorney in fact for the purpose of retrieving ISO Data from Processors and, through TurboApp, or otherwise, submitting Account Information to Processors, Acquiring Banks and other third parties, each as specified through the Services. In so doing, IRIS shall collect, store and disclose ISO Data from and between Processor, ISO and Users, as instructed by ISO and Users through the Services. If requested by a Processor or other relevant third party, ISO will confirm in writing the agency granted in this provision which agency shall be in force for the Term hereof. ISO is wholly responsible for any wrongful disclosure of ISO Data that occurs through the Services but on instructions from ISO or a User. IRIS shall use commercially reasonable efforts to not disclose ISO Data other than as instructed through the Services.
11. Account Portal. If provided for in an Order Form, ISO may grant its Accounts access to the Account Portal. The Account Portal will enable each Account that is designated as a User by ISO to access certain ISO Data related their individual Account and such other information as ISO may wish to share with the Account and that the Service can accommodate. An Account that is granted access to the Account Portal shall be a User and shall be bound by all the terms of this Agreement applicable to Users. IRIS will follow ISO instructions as to who can and cannot be a User in respect of a given Account, but ISO assumes responsibility for errors in identifying and granting access to Account Users.
Use of the Services
1. Support.
  1. During each Subscription Term, IRIS shall: (i) provide to ISO basic customer support for the Services; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which IRIS shall give at least 8 hours notice via the Services and which IRIS shall schedule, to the extent practicable, during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday), (b) any unavailability caused by circumstances beyond the reasonable control of IRIS or its suppliers, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving IRIS employees), internet service provider failures or delays, Processor downtime, Processor bars to IRIS access to ISO Data, data feed failures caused by Processor, delays or inaccuracy of information (each also a “Force Majeure“) and (c) normal and anticipated downtime of the Processor data feed.
  2. ISO shall comply with all applicable Laws, Rules and all decrees of all Payment Networks and governmental authorities (including without limitation federal, state and local governments, governmental agencies and quasi-governmental agencies (each a “Regulatory Authority“) having jurisdiction over ISO, Processor or Acquiring Bank. Not being an ISO, IRIS is not ordinarily in receipt of such decrees and shall not be required to comply with any Payment Network decrees that do not apply to it or of which it has no knowledge.
  3. IRIS has designed and implemented an information security program that is designed to protect ISO Data in its possession or control in accordance with the then-current Payment Card Industry Data Security Standards (together with applicable payment network data security requirements, the “PCI Standards“), and IRIS has documented all policies and procedures comprising such program (including escalation procedures for non- compliance). IRIS covenants to use commercially reasonable efforts to maintain such compliance during the Term and so long as any ISO Data remains in IRIS’ possession and will supply ISO with its annual report on compliance as required by the PCI Standards (the “ROC“) on request by ISO.
  4. In the event IRIS discovers any unauthorized access to or fraudulent use of any ISO Data, IRIS shall take appropriate actions (in accordance with applicable Rules, contractual obligations of confidentiality to ISO and third parties and statutory obligations to third parties) to address such unauthorized access or fraudulent use, including but not limited to promptly notifying ISO, verbally and in writing, of any such incident and cooperating with ISO, Payment Networks, a Processor and/or Acquiring Bank, as reasonably requested.
  5. Subject to reasonable advance notice, ISO, Processor, Acquiring Bank, any Payment Network, or any Regulatory Authority with regulatory oversight for any of the foregoing, may, directly or through representatives, audit IRIS’ equipment, infrastructure, systems, connectivity and related procedures to assess IRIS’ compliance with the terms of this Agreement. IRIS shall supply any of the foregoing parties with such information and reasonable assistance (including, upon reasonable notice and during regular business hours, on-site inspections) as may be necessary to confirm IRIS’ compliance as required herein. IRIS shall be provided no less than thirty (30) days prior notice of any audit or on- site inspection, provided that if Acquiring Bank, Payment Network or Regulatory Authority requires that the audit or inspection be conducted in a shorter period, IRIS will use commercially reasonable efforts to accommodate such request. No such inspection or audit shall in any way entitle ISO or any Payment Network or Regulatory Authority to gain access to data in possession of IRIS other than ISO Data unless IRIS is ordered to disclose such data by a court of competent jurisdiction. All of IRIS’ out-of-pocket costs associated with any such audit shall be paid by ISO. In the event that either (1) such audit is requested by ISO or Processor (and not an Acquiring Bank, Payment Network or Regulatory Authority) or (2) such audit is requested by an Acquiring Bank, Payment Network or Regulatory Authority, but IRIS is ultimately not found to have been in breach of the terms of this Agreement, then IRIS’ reasonably allocated internal costs associated with any audit of IRIS shall also paid by ISO at an hourly rate of $125 per hour. The parties acknowledge and agree that the determination of whether IRIS has been in breach of the terms of this Agreement may not be made until after the completion of the audit, and IRIS agrees to keep reasonably detailed internal records of its hourly internal costs and provide such records to ISO with the post-determination billing for its internal costs.
2. ISO Compliance. ISO shall: (i) be responsible for its own and its Users’ compliance with this Agreement, without relieving the obligation of each User to honor the terms hereof; (ii) be solely responsible for the accuracy, quality, integrity and legality of ISO Data and of the means by which ISO acquired ISO Data in so far as IRIS is instructed to obtain, store or submit that data from or to Processors; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify IRIS promptly of any such unauthorized access or use; (iv) use the Services only in accordance with the User Guide, published on the Site, and the Rules; and (v) regularly monitor for Account Price Changes and implement them directly with Processor and Accounts as per the procedures of the Processor and the Rules. ISO shall assume exclusive responsibility for any and all information provided by the ISO through the Services to Accounts.
3. Limitations on Use. ISO shall not: (i) make the Services available to anyone other than Users; (ii) sell, resell, rent or lease the Services; (iii) use the Services to store, publish or transmit infringing, libelous, lewd, distasteful, unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or any Intellectual Property Rights; (iv) use the Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Services or their related systems or networks. ISO is responsible for keeping their Service login credentials up to date and notifying IRIS of any such changes to prevent any down time and inaccuracy to data.
ThirdParty Providers.
1. Acquisition of Third-Party Products and Services. IRIS may offer Third-Party Applications for sale under Order Forms. ISO use of any Third-Party Applications and implementation, customization and other consulting services, and any exchange of ISO Data or other data between ISO and any third-party provider, is solely between ISO and the applicable third-party provider. IRIS do not warrant or support any Third Party Applications, whether or not they are designated by IRIS as “certified” or otherwise, except as specified in an Order Form that has been expressly accepted by IRIS. No purchase of third-party products or services is required to use the Services.
2. Third-Party Applications and ISO Data. If ISO installs or enables Third-Party Applications for use with Services, ISO acknowledges that IRIS will be notified in writing prior to any development. IRIS may allow providers of those Third-Party Applications to access ISO Data as required for the interoperation of such Third-Party Applications with the Services. IRIS shall not be responsible for any disclosure, modification or deletion of ISO Data resulting from any such access by Third-Party Application providers. The Services shall allow ISO to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services. The Service has been designed to perform optimally with current versions of Internet Explorer, Google Chrome, Safari and Mozilla Firefox; no commitments are made to upgrade the Services or make them compatible with any third party product or service. Use of the Service with any other Third-Party Application or plug-ins may be functional but is not guaranteed in anyway by IRIS.
3. Processor Compatibility. The Services may not always be compatible with Processor systems. Changes in Processor systems will interrupt the Services. It is recommended that despite your use of the Services, you maintain familiarity with Processor ISO Data access sites so that you can retrieve necessary ISO Data from Processors notwithstanding any interruption in the Services.
4. Relationship Between ISO and User. The Rules require that any sales agent of an ISO be a party to a written agreement with the ISO. ISO represents to IRIS that is has executed written agent agreements with all of its Agents and that such agreements are valid and legally enforceable. Nothing in this Agreement shall amend or interfere in any of the terms and conditions of agreements in place between ISO and any User or any other third party. Without limitation, ISO and each User shall indemnify and hold IRIS harmless from and against any and all claims, losses or other liabilities arising in respect of any claim made against IRIS that relates to a dispute between ISO or any User and any other party. IRIS reserves the right to immediately suspend the Services to any ISO in respect of which a claim is made against IRIS that relates to any such dispute. For example, but without limitation, if a User seeks an injunction against IRIS to gain access to the Services in relation to a dispute with its ISO or otherwise, IRIS reserves the right to terminate this Agreement or suspend the Services to such ISO and all its Users. Without limitation, the ISO shall be responsible for IRIS legal fees incurred in responding to any such injunction or related claim.
Fees and Payment for Services
1. Fees. In consideration of the Services, ISO shall pay Fees. Except as otherwise specified herein or in an Order Form: (i) Fees are quoted and payable in United States dollars; (ii) Fees are based on Services purchased and not usage; (iii) in the event that ISO adds Active Accounts during the billing cycle that qualify for the next tier as specified in the order form, the Fees for these Active Accounts will be prorated for the portion of the billing cycle remaining at the time the Accounts are added and will be invoiced on the following billing cycle; (iv) payment obligations are non-cancelable and Fees paid are non-refundable, Fees are based on periods that begin on the Subscription Term start date and each billing anniversary thereof; and (v) in the event that this Agreement is terminated prior to the end of the then current Term, other than for material and uncured default by IRIS, ISO shall remain liable for all Fees that would apply through to the end of the current Term. At the time of termination IRIS will calculate the effective monthly average of the Fees that were paid to IRIS by ISO per month for the past 3 consecutive months and multiply the result by the remaining time left in ISO’s Subscription Term which is the “Early Termination Fee” and will be paid by ISO to IRIS within thirty (30) days of Termination. If, for any reason, Fees are not collected via ACH, ISO shall cause them to be paid to IRIS as and when due by wire transfer, or other means acceptable to IRIS, to an account designated for such purposes by IRIS. Fees for the Dialer Services that are based on minutes used, are rounded to the nearest minute, for example, a call lasting ten (10) minutes and fifteen (15) seconds will be considered eleven (11) minutes of billable talk-time.
2. Start of Fees. IRIS will perform an ACH debit to ISO DDA for the amount specified as due on the Order Form and at the time specified on the Order Form.
3. Invoicing and Payment. IRIS will provide invoices to ISO based on the billing term specified on the Order Form. ISO is responsible for maintaining complete and accurate billing and contact information with IRIS. In the event of a dispute regarding any invoice, ISO and IRIS agree to work together in good faith to resolve such dispute.
4. ACH Consent. ISO desires to effect settlement of credits and debits from the ISO DDA by means of ACH and/or wire transfer in conjunction with the Services provided hereunder. In accordance with this desire, ISO authorizes IRIS and/or its Affiliates to initiate debit and credit entries to the ISO DDA (the details of which are set out in the Order Form or entered into the Services). ISO agrees to maintain sufficient funds in ISO DDA to cover debit transactions. By signing this authorization, ISO states that it has authority to agree to such transactions and that the ISO DDA indicated is a valid and legitimate account for the handling of these transactions. This authority is to remain in effect until IRIS receives written notice from ISO revoking it. This authorization is for the payment of Fees, or any other sums owed to IRIS or IRIS’s Affiliates. ISO also certifies that the appropriate authorizations are in place to allow ISO to authorize this method of settlement. All changes to the identification of the ISO DDA under this authorization must be made in writing in accordance with the Agreement. ISO understands that if the information supplied as to the ABA Routing Number and ISO DDA Number of the ISO DDA is incorrect, and funds are incorrectly deposited, IRIS will attempt to assist ISO in the recovery of such funds but has no liability as to restitution of the same. IRIS’s assistance in recovering the funds, where available, will be billed to ISO at IRIS’s current hourly rate for such work. ISO acknowledges that the origination of ACH transactions to the ISO DDA must comply with the provisions of U.S. law.
5. Taxes. ISO shall pay all taxes applicable to Fees.
IRIS SECURITY, CONFIDENTIALITY AND NON-SOLICITATION UNDERTAKINGS
1. Protection of ISO Data. IRIS shall use commercially reasonable efforts to not disclose ISO Data to third parties except as compelled by Law, or as permitted by ISO. IRIS is not, however, responsible for: (i) the loss or destruction of any ISO Data by any means other than by the gross negligence of IRIS; (ii) breach of ISO Data due, in whole or in part to an unsecure connection being used by ISO, a User, Account or Processor, or any of their authorized or unauthorized designees; or (iii) breach of ISO Data on account of a breach in the ISO Site or ISO Systems. ISO acknowledges that it is an industry best practice to backup ISO Data onto its own secure ISO Systems on a regular basis.
2. IRIS Non-Solicitation Obligation. IRIS SHALL NOT USE ISO DATA TO SOLICIT ANY OF ISO’s USERS OR ACCOUNTS TO EITHER TERMINATE THE RELATIONSHIPS THEY HAVE FORMED THROUGH OR WITH ISO OR ENTER INTO NEW RELATIONSHIPS WITH IRIS OR WITH ANY THIRD PARTY FOR SERVICES THAT ARE SIMILAR OR COMPETITIVE WITH THOSE PROVIDED BY OR THROUGH ISO (THE “NON-SOLICITATION OBLIGATION“). IRIS’ CONSIDERATION FOR THE NON-SOLICITATION OBLIGATION IS ISO’S GRANTING TO IRIS ACCESS TO ISO DATA FOR THE PURPOSE OF PERFORMING THE SERVICES UNDER THIS AGREEMENT. THE NON-SOLICITATION OBLIGATION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT FOR TEN (10) YEARS, REGARDLESS OF THE CAUSE OF SUCH TERMINATION.
3. Password Security. One of the most important security features used today are passwords. ISO and all Users shall use only secure and un-guessable passwords. There is no way for IRIS to recall ISO or User passwords once they are created, only the ability to reset them at ISO or User request. IRIS recommends Users change their passwords every 60 days. Password information sent via an unencrypted communication method can cause eavesdropping on the packet data that ISO or a User may send or receive. Such methods of transmitting unencrypted password data to avoid are email and remote logins as eavesdropping of such sensitive information can occur. The ISO and its Users are solely responsible for any password breaches that may occur due to password exposure by or because of them.
4. Aggregated Data. Notwithstanding the foregoing, IRIS may collect, use and disclose aggregated data concerning ISO, Users, their Accounts, Processors and other information processed through the Services (“Aggregated Data“) provided, however, that no such use shall or may be likely to facilitate in IRIS or any third party being able to access any information concerning any individual Account or Agent of the ISO or in any way damage the business of the ISO. Aggregated Data will not permit any user thereof to identify the ISO or its individual portfolio of Accounts with any individual Processor. Aggregated Data, if any, shall be the sole property of IRIS.
5. Compelled Disclosure. The IRIS may disclose ISO Data of the ISO if it is compelled by Law to do so, provided the IRIS gives the ISO prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the ISO’s cost, if the ISO wishes to contest the disclosure. If the IRIS is compelled by law to disclose the ISO’s ISO Data as part of a civil proceeding to which the ISO is a party, and the ISO is not contesting the disclosure, the ISO will reimburse the IRIS for its reasonable cost of compiling and providing secure access to such ISO Data.
6. IRIS Confidential Information. ISO shall not use any information concerning this Agreement or the Services or, except as required by Law, stock exchange rules, or the Rules, disclose it to any third party except as expressly permitted by IRIS in writing all of which information shall be and remain the sole and exclusive proprietary confidential information of IRIS.
Covenants, Representations and Warranties
1. The parties represent, warrants and covenants as follows:
  1. Good Standing. Each party is a limited liability company organized, validly existing and in good standing under the Laws of the state where its principal office is located.
  2. Full Authority. Each party has full authority and corporate power to enter into this Agreement and to perform its obligations under this Agreement.
  3. Processor Agreement Valid. ISO represents and warrants that the Processor Agreement remains valid and in force; ISO is not in breach of the Processor Agreement. Neither ISO nor any User is in breach of any of the ISO Conditions.
  4. IRIS Services Not a Breach of Processor Agreement. ISO represents and warrants that performance by the ISO under this Agreement does not constitute a breach of the Processor Agreement, Rules or Laws. ISO has verified that none of the Processor Agreement or the terms and conditions applicable to the Processor Site prohibit or are inconsistent, in letter or spirit, with the use by the ISO and its Users of the Services. IRIS does not have access to the Processor Agreement and shall not verify the Processor Site terms and conditions to verify whether ISO would be in breach thereof in using the Services. ISO shall, from time to time, verify that it is not in breach of the Processor Agreement or the terms and conditions applicable to the Processor Site, as they may change from time to time. Nothing in this Agreement shall be deemed to amend or alter the terms of the Processor Agreement, nor shall this Agreement be deemed to be a part of or in any way associated with the Processor Agreement, Account Agreement or Agent Agreement. ISO acknowledges that, as between ISO and Processor, some ISO Data may belong to the Processor and ISO represents that ISO performance hereunder does not breach the ISO’s obligations in that regard.
  5. ISO Title in Information. ISO shall not enter or cause to be entered any data or information into the Service unless and to the extent that ISO has the right to such information. For example, but without limitation, ISO will not use the Service to store data that is stolen or that has been otherwise misappropriated from a third party.
  6. No Violation. ISO represents and warrants that ISO’s performance of this Agreement will not violate any Law or any agreement or Rule to which that party may now be bound.
  7. Enforceability. This Agreement represents a valid obligation of each party and is fully enforceable against it.
  8. Compliance. ISO will comply with the terms of this Agreement, with all applicable Rules.
  9. No Litigation. Neither party, nor its officers and directors are a party to any pending litigation that would have an impact on this Agreement and have never been fined or penalized by Payment Networks, NACHA or any other association in the credit, payments or banking industry.
  10. Business. In entering into and performing under this Agreement ISO is doing so as a business enterprise and not as an individual consumer.
LIMITATIONS.
1. WITH THE EXCEPTION OF THOSE WARRANTIES SET IN SECTION 6 OF THIS AGREEMENT, IRIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES AND/OR THE PERFORMANCE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2. Without limitation, IRIS makes no representation as to the continued availability of the Dialer Service on an uninterrupted or error free basis. Without limitation, IRIS shall not be liable for any interruptions in the Dialer Service that, or other Services, that: (i) are caused by factors outside of IRIS’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of IRIS or its direct hosting subcontractors (i.e beyond the point in the network where IRIS maintains access and control over the Dialer Services); (ii) result from any actions or inactions of ISO or any third party (other than IRIS’s direct hosting subcontractor); (iii) result from applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within IRIS’s direct control); or (iv) arise from IRIS’s suspension and termination of ISO’s right to use the Dialer Services in accordance with the TOS, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available IRIS features or products.
3. ISO’s sole remedy in respect of any and all interruptions of the Dialer Service shall be credit equivalent to the amount paid by the ISO for the time during which the Dialer Service was unavailable calculated by multiplying the Fee paid in respect of the Dialer Service for the month in question and multiplying it by the percentage of such month during which the Dialer Service was not available.
4. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR LOSS OF PROFITS OR ANTICIPATED PROFITS OR BENEFITS, REGARDLESS OF HAVING BEEN APPRISED OF THE POSSIBILITY THEREOF. THESE LIMITATIONS SHALL APPLY TO ALL CLAIMS OR CAUSES OF ACTION BY ISO AGAINST IRIS UNDER OR IN CONNECTION WITH THE LICENSE OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PERSONAL INJURY, AND OTHER TORTS AND CONTRACT CLAIMS. UNDER ANY AND ALL CIRCUMSTANCES, IRIS’ MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO IT HEREUNDER FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 8.4 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF THE CONFIDENTIALITY AND NON-SOLICITATION COVENANTS HEREIN IN WHICH CASE EACH PARTY’S LIABILITY IS LIMITED TO A MAXIMUM OF THE TOTAL AMOUNT PAID TO IRIS IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.
5. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6 OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS AND WITH ALL FAULTS” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IRIS DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANDNON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND THE ACCOMPANYING DOCUMENTATION. IRIS ASSUMES NO RESPONSIBILITY FOR SELECTING THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING PROVISIONS, IRIS MAKES NO WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF ISO. THE SERVICES ARE NO GUARANTEE THAT YOUR ISO BUSINESS WILL IMPROVE OR GENERATE MORE INCOME. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. WITHOUT LIMITATION, IRIS ASSUMES NO LIABILITY FOR THE LACK OF LEGAL ENFORCEABILITY OF ANY AGREEMENT FORMED OR THAT ISO ATTEMPTS TO FORM THROUGH THE SERVICES OR ANY PART THEREOF SUCH AS TURBOAPP, E-SIGNATURE SERVICES OR DIALER SERVICES.
7. Inter-ISO Solicitation. It shall not be a breach of the terms of this Agreement by IRIS for an ISO or User to solicit the Accounts of another ISO or User of another ISO (“Inter-ISO Solicitation“). Inter-ISO Solicitation may be a breach of agreements between ISOs, Processors, Acquiring Banks and Users, but IRIS is not party to and such agreements and shall not be responsible for any breach of such agreements whether or not they occur in respect of Accounts whose information is included in ISO Data. In the event of perceived, actual or attempted Inter-ISO Solicitation, IRIS shall not divulge ISO Data to assist in the resolution of any claims related thereto other than pursuant to a court order. ISO shall be responsible for any and all legal fees of IRIS in association with responding to any claims related to such an order or other matters related to Inter-ISO Solicitation. IRIS does not have the obligation to monitor new Accounts for any of its ISOs or clients to see that they are or are not migrated from one ISO to another or to see that such migration is prevented.
Indemnification
1. Subject to the limitations on liability set out in Section 8, each party agrees to indemnify, defend, and hold harmless the other party, its Affiliates, officers, directors, employees, licensors and permitted assigns from and against any loss, liability, damage, penalty or expense (including reasonable attorney’s fees and cost of defense) (“Damages“) suffered or incurred as a result of: (i) any breach of its obligations under this Agreement; (ii) any warranty or representation made pursuant to this Agreement being false or misleading; (iii) any representation or warranty made by such party to any third person other than as specifically authorized by this Agreement; (iv) any failure by ISO or any of its Users to fully comply with the applicable Rules and requirements of any Regulatory Authority, (v) any fraud by such party or, in the case of ISO, any of its Users; (vi) any wrongful act of any that would constitute a breach of such party’s obligations under this Agreement or is a violation of the Rules; or (vi) in the case of ISO, any claim or dispute (“Dispute“) that relates to the ownership, control, entitlement, enforceability or operation of ISO in connection with ISO’s rights, interests, duties and obligations under this Agreement or any agreement formed while using the Services, such as, for example, an ISO Electronic Record or Account Agreement, regardless of whether IRIS is named as a defendant or otherwise involved or subpoenaed to provide exports in such Dispute. Notwithstanding the foregoing, IRIS indemnification obligations shall extend only to its breaches of Section 6 hereof.
2. Without limitation, ISO shall indemnify IRIS for any and all attorney fees and other costs associated with responding to any subpoena for ISO Data. Notwithstanding any provision herein to the contrary, it shall not be a breach of the terms of this Agreement for IRIS to delivery ISO Data to a third party upon receipt by IRIS of a subpoena for such ISO Data, or if IRIS reasonably believes that use or disclosure is necessary to protect the IRIS’ rights and/or to comply with a judicial proceeding, court order, or legal process.
Term and Termination
1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated, or until it is terminated pursuant to the other provisions hereof. IRIS may terminate this Agreement on sixty (60) days prior written notice for any reason or no reason. IRIS may terminate this Agreement immediately on notice to ISO in event of a Force Majeure.
2. Subscription Terms. Except as otherwise specified in the applicable Order Form, all Subscriptions are specified on the Order Form and shall automatically renew for additional and successive periods equal to the expiring Subscription Term, unless either ISO gives IRIS notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. IRIS may increase per unit pricing once in any twelve (12) month period. Notice of any price increases shall be given by IRIS to ISO not less than sixty (60) days prior to its effectiveness.
3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Refund or Payment upon Termination. Upon any termination for cause by ISO, IRIS shall refund ISO any prepaid Fees for Subscription Terms that will be unused on account of the termination. Upon any termination for cause by IRIS, ISO shall pay any unpaid Fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve ISO of the obligation to pay any Fees payable to IRIS for the period prior to the effective date of termination.
5. Data Transfer. If the ISO needs to have its data exported from IRIS, it must give notice to IRIS of no less than twenty (20) days prior to termination of this Agreement. ISO will provide to IRIS with express written instructions (“Deconversion Instructions“) as to what ISO Data the ISO wishes to export prior to termination (such data being the “Deconversion Data“). Deconversion Data may contain only those elements of ISO Data that are present in the Services on receipt by IRIS of the Deconversion Instructions. IRIS shall provide ISO with access to a copy of the Deconversion Data in a reasonably useful format, as determined by IRIS in its sole but reasonable discretion until 11:59pm on the last day of the Subscription Term. ON THE EXPIRATION OF THE SUBSCRIPTION TERM, IRIS SHALL IRRETRIEVABLY DELETE DECONVERSION DATA AND ISO DATA THAT ARE IN ITS POSSESSION OR CONTROL. IRIS may, however, at its discretion, retain a record of ISO contact information, this Agreement, correspondence with IRIS under this Agreement and Fees paid or owing hereunder.
License for Marketing and Promotional Activities.
1. Marketing License. Subject to the terms and conditions of this Agreement, each party hereby grants to the other a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use and display the party’s marks and names (such marks and names being the “Marks” and such license being the “Marketing License“).
2. Marketing License Guidelines. In its use of the Marks of the other party (“Licensor“), each party (“Licensee“) will comply with any trademark usage guidelines that Licensor may communicate to Licensee from time to time. Each use of Licensor’s Marks by Licensee will be accompanied by the appropriate trademark symbol (either “™” or “®”) and a legend specifying that such Marks are trademarks of Licensor as specified by the Licensor, and will be in accordance with Licensor’s then-current trademark usage policies as provided in writing to Licensee from time to time. Licensee will provide Licensor with copies of any materials bearing any of Licensor’s Marks as requested by Licensor from time to time. If Licensee’s use of any of Licensor’s Marks, or if any material bearing such Marks, does not comply with the then-current trademark usage policies provided in writing by Licensor, Licensee will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from Licensor. Other than the express licenses granted herein with respect to each Licensor’s Marks, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marks. All goodwill resulting from Licensee’s use of Licensor’s Marks will inure solely to Licensor. Licensee will not, at any time during or after this Agreement, register, attempt to register, claim any interest in, contest the use of, or otherwise adversely affect the validity of any of Licensor’s Marks (including, without limitation, any act or assistance to any act, which may infringe or lead to the infringement of any such Marks).
3. Reservation of Rights. The parties acknowledge and agree that, except for the rights and licenses expressly granted by each party to the other party under this Agreement, each party will retain all right, title and interest in and to its products, services, Marks, and all content, information and other materials on its website(s), and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of Law or otherwise, any other license or other right.
General
1. Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing with confirmation of delivery; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to ISO shall be addressed to the system administrator designated by ISO for ISO relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by ISO.
2. Publicity. For the term of this Agreement, ISO grants IRIS the right to use the name and logo of ISO on the Site, indicating that ISO is a client of IRIS. Except for the foregoing, neither party shall make any public announcements or issue any press releases concerning this Agreement other than as may be approved in writing by both parties hereto.
3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of New York without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the State of New York, in the county where IRIS is located.
4. Waiver of Jury Trial. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
6. No Third‐Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
7. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of any other remedies of a party at law or in equity.
8. Amendment. This Agreement may be amended by: (i) a writing between the parties hereto; (ii) by acceptance of a new version hereof on the Site by the ISO or User; or (iii) by IRIS posting notices of amendments hereto on the Site and ISO or any of its Users continuing to use the Services for thirty (30) days following such postings.
9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10. Attorney Fees. ISO shall pay on demand all of IRIS’ reasonable attorney fees and other costs incurred by IRIS to collect any fees or charges due IRIS under this Agreement following ISO breach of Fee payment obligations.
11. Assignment. ISO may not assign its rights or obligations hereunder without prior written consent of IRIS, except to an Affiliate or to a party acquiring substantially all of ISO’s assets, directly or by operation of law provided that such assignee shall also assume ISO’s obligations hereunder. IRIS may assign its rights and obligations hereunder on notice to an Affiliate or to a party acquiring substantially all of IRIS’ assets, directly or by operation of law.
12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail to the extent executed by IRIS and ISO. Notwithstanding any language to the contrary therein, no terms or conditions stated in ISO purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
13. Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act (E-Sign), this Agreement and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature when: (1) ISO or User’s electronic signature is associated with the Agreement and related documents, (2) ISO or User consents and intend to be bound by the Agreement and related documents, and (3) the Agreement is delivered in an electronic record capable of retention by the recipient at the time of receipt (i.e., print or otherwise store the electronic record). When accepted in electronic form, this Agreement and all related electronic documents shall be governed by the provisions of E-Sign. By pressing “Submit”, “Accept” or “I Agree”, ISO or User, as the case may be, agrees: (i) that the Agreement and related documents shall be effective by electronic means, (ii) to be bound by the terms and conditions of this Agreement and related documents, and (iii) that it has had the ability to print or otherwise store the Agreement and related documents.
14. Survival. The following provisions of this Agreement shall survive termination of this Agreement: 1 Definitions, 2.6 Limitations on Use Right, 5 Fees (as to unpaid Fees that are owing), 6 IRIS Security, Confidentiality and Non-Solicitation Undertakings, 8 Limitations, 9 Indemnification, 10 Term and Termination, 11 Marketing License and 12 General.
15. Force Majeure. IRIS shall not be liable for a failure to perform hereunder on account of a Force Majeure.

Terms of Use

Last Updated: June 22, 2021

THESE TERMS OF USE (“TERMS OF USE” OR THIS “AGREEMENT”) BETWEEN YOU AND AGREEMENT EXPRESS, INC. (“AGREEMENT EXPRESS”) CONTAIN THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE AGREEMENT EXPRESS WEBSITES (including https://agreementexpress.com, http://agreementexpress.net, http://us.agreementexpress.net), MOBILE APPLICATIONS, AND SERVICES OFFERED THROUGH THE AGREEMENT EXPRESS PLATFORM (COLLECTIVELY, THE “SERVICE”). THE SERVICE IS OWNED AND OPERATED BY AGREEMENT EXPRESS, INC. BY ACCESSING OR USING THE SERVICE, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT; (C) ACCEPT THIS AGREEMENT (AS MAY BE AMENDED FROM TIME TO TIME BY AGREEMENT EXPRESS) AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

These Terms of Use do not alter in any way the terms or conditions of any of those other written agreements you (or as an authorized user of a company) may have or will have with Agreement Express for the use, access, and/or subscription of the Service, including, without limitation, an Order Form and its general terms, exhibits, schedules, attachments, appendices, and any related Statements of Work (collectively the “Subscription Agreement”). To the extent that there is any conflict between these Terms of Use and a Subscription Agreement, the following order of precedence governs: (i) first, the applicable Order Form related to the Subscription Agreement; (ii) second, the General Terms, (iii) third, the exhibits, schedules, attachments, appendices to such Order Form; and (iv) fourth, these Terms of Use.

ACCORDINGLY, YOU AGREE AS FOLLOWS:

1. License Grant. Subject to the terms and conditions of this Agreement, Agreement Express hereby grants to you a personal, limited, non-exclusive, non-transferable, revocable license to access the Service solely for your internal business purposes and solely for the purpose of digitally signing various agreements, contracts, acknowledgments and other materials (collectively, “Third Party Contracts”). This license is restricted to use by you and does not include the right to use the Service on behalf of any third party or the right to permit any other person to access or use the Service. This license is conditioned on your continued compliance with the terms and conditions in these Terms of Use. You are responsible for maintaining and safeguarding the security of your account and password and you shall not share your password with any other person or allow any other person to access the Service under your account. Agreement Express reserves the right to immediately suspend your access to the Service if you fail to comply with this Agreement. Any information or data that you provide to Agreement Express may be used by Agreement Express in accordance with its privacy policy http://www.agreementexpress.com/privacy (“Privacy Policy”). By accessing or using, and providing information to or through, the Service, you consent to all actions taken by Agreement Express with respect to your information or data in compliance with the Privacy Policy.

2. Restrictions. Unauthorized use, resale or commercial exploitation of the Service in any way is expressly prohibited. Without Agreement Express’ express prior written consent in each instance, you shall not: (i) license, sell, rent, lease, transfer, assign, distribute, host, or otherwise make available the Service, whether in whole or in part, to any third party for any reason; (ii) copy, modify, make derivative works of, disassemble, reverse compile, or reverse engineer, or otherwise attempt to derive or gain access to the source code of the Service or any part of the Service; (iii) access the Service in order to build a similar or competitive website, application, product, or service; (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof, (v) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Service; or (vi) input, upload, transmit, or otherwise provide to or through the Service any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code or viruses. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms of Use. You shall not attempt to access any other of Agreement Express’ systems, programs or data that are not made available for public use.
Agreement Express may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Unless otherwise expressly agreed to in writing by Agreement Express, you agree that Agreement Express has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of these Terms of Use.

3. Ownership. You acknowledge and agree that as between Agreement Express and you, all right, title, and interest in and to the Service (including, without limitation, all software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Agreement Express in providing the Service and all derivatives thereof (including any and all intellectual property rights therein) are and shall remain Agreement Express’ or its licensor’s, and this Agreement in no way conveys any right or interest in the foregoing other than a limited license to use them in accordance herewith. The Agreement Express name, the Agreement Express logo, and the product names associated with the Service, including, but not limited to “Agreement Express”, are trademarks of Agreement Express or third parties, and no right or license is granted to use them. Agreement Express and its suppliers reserve all rights not granted in these Terms of Use. There are no implied licenses granted under these Terms of Use.

4. Data and Content: Warranty. You hereby represent, warrant, and covenant to Agreement Express as follows: (i) that you have provided Agreement Express with your true, legal identity in connection with your registration to use the Service and your creation of a digital identity, (ii) that you understand and acknowledge that by digitally signing a Third Party Contract via the Service, you are becoming a party thereto, (iii) that while your digital certificate is being created with Agreement Express, Agreement Express is not a party to any of the Third Party Contracts that you digitally sign in connection with the Service and shall have no obligation or liability to you or any other person in connection with such Third Party Contract whatsoever, (iv) that you will use the Service in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions in this Agreement as it may be amended by Agreement Express from time to time, and (v) that you have all requisite power and authority to execute and deliver the Third Party Contracts and to perform your obligations thereunder and your execution and delivery of such Third Party Contracts constitute your valid and binding obligation and are enforceable in accordance with its terms. The entry of any authentication code or other confirmation of your digital identity if requested during a transaction shall be deemed to be your act and acceptance of the execution and delivery of an applicable Third Party Contract. You agree that Agreement Express may update your digital identity and certificates as necessary to reflect your user inputs and the name you use to sign any documents. You hereby grant to Agreement Express a limited, non-exclusive, non-transferable, royalty-free right to store and use your digital identity solely in connection with providing the Service and/or to enforce these Terms of Use and exercise and perform Agreement Express’s rights hereunder. Except as provided in this Agreement, you shall be solely responsible for providing, updating, uploading and maintaining all of your data and information required to use the Service. You assume all risks and shall be responsible for all data and information that you provide or use with the Service, including any reliance on its accuracy, legality, right to use, completeness or usefulness by others, or any disclosure of your data and information that personally identifies you or any third party. You shall not use the Service to upload or otherwise transmit, display, or distribute any data or information that (xi) violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (xii) contains any material that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, libelous, obscene, embarrassing, patently offensive or is otherwise objectionable,;(xiii) impersonates any person, or misrepresents your identity or affiliation with any person or organization; or (xiv) is in violation of any law, regulation, or obligations or restrictions imposed by any third party. Agreement Express does not guarantee the accuracy, integrity, or quality of your data or any other data made available to you via the Service.
The Service may display, include, or make available third-party content (including Third Party Contracts, data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Agreement Express is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Agreement Express does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions, as applicable.

5. Warranty Disclaimer. THE SERVICE IS BEING PROVIDED TO YOU “AS IS”. YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY AGREEMENT EXPRESS. AGREEMENT EXPRESS DOES NOT MAKE ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE AVAILABLE TO YOU OR THAT ANY OTHER DATA MADE AVAILABLE TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICE WILL BE ACCURATE OR UNINTERRUPTED, OR ERROR FREE; OR FREE FROM VIRUSES OR OTHER HARMFUL CODE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

6. Indemnification. You agree to indemnify and hold Agreement Express (and its affiliates, officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Service, (ii) your violation of these Terms of Use, (iii) your violation of applicable laws or regulations, or (iv) your infringement or misappropriation of any intellectual property right or your violation of any other proprietary or privacy right. Agreement Express reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Agreement Express, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Agreement Express.

7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL AGREEMENT EXPRESS OR ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PERSON, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE SERVICE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE). THE MAXIMUM AGGREGATE LIABILITY OF AGREEMENT EXPRESS TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO $100. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

8. Term and Termination. The term of this Agreement commences when you access and use the Service in accordance with this Agreement and will continue in effect until terminated by you or Agreement Express as set forth in this Section. You may terminate your use of the Service at any time by ceasing further use of the Service. Agreement Express may terminate, modify, suspend, and deny you access to the Service (in whole or in part) at our sole discretion for any reason or no reason. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You agree that Agreement Express will not be liable to you or to any third party for any termination, modification, suspension, discontinuation, or denial of access to, the Service or any part thereof. Upon termination of this Agreement for any reason, all rights granted to you will also terminate. Termination will not limit any of Agreement Express’ rights or remedies at law or in equity.

9. Governing Law. All matters relating to this Agreement, and any dispute or claim arising therefore or related thereto, shall be interpreted according to the laws of the state of Wisconsin without regard to or application of choice-of-law rules or principles.

10. Arbitration and Class Action Waiver. PLEASE READ THIS SECTION 10 CAREFULLY. BY AGREEING TO THIS AGREEMENT, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST AGREEMENT EXPRESS ON AN INDIVIDUAL BASIS IN ARBITRATION, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 10, WHICH IS REFERRED TO AS THE “ARBITRATION AGREEMENT.” THIS ARBITRATION AGREEMENT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. IT ALSO CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
This Arbitration Agreement is intended to be interpreted broadly and governs any and all disputes between the parties, including but not limited to claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below. By agreeing to this Arbitration Agreement, you agree to resolve any and all disputes with Agreement Express as follows:
(a) Initial Dispute Resolution: Most disputes can be resolved without resorting to arbitration or litigation (as expressly permitted herein). Except for intellectual property claims, the parties hereby agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Agreement Express’ support department, and such good faith negotiations shall be a condition prior to either party initiating arbitration or litigation (as expressly permitted herein). You can reach Agreement Express’ support department at support@agreementexpress.com or +1-877-247-3397.
(b) Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above in Section 10(a), then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement, the parties’ relationship with each other, and/or your use of the Service shall be finally settled by binding arbitration, administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Unless otherwise agreed to, all arbitration proceedings shall be held in English and in accordance with governing law set forth in Section 9 above. The arbitration shall be conducted before a single arbitrator. The parties shall use their reasonable efforts to select a mutually acceptable arbitrator, however, if the parties have not selected a mutually acceptable arbitrator within thirty (30) days after the commencement of the arbitration, the arbitrator shall be selected in accordance with the rules of the applicable arbitration rules and procedures as set forth above. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You and Agreement Express agree to submit to the personal jurisdiction of any court of competent jurisdiction in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator
(c) Class Action Waiver. You acknowledge and agree that you are waiving the right to participate as a plaintiff or class in any purported class action or representative proceeding. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND AGREEMENT EXPRESS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(d) Exceptions: Litigation of Intellectual Property. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions (including injunctive or other equitable relief), validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any court of competent jurisdiction or in the U.S. Patent and Trademark Office to protect such party’s intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, trade secrets, and other intellectual property rights, but specifically excluding privacy or publicity rights).
(e) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration in accordance with the terms and conditions of this Arbitration Agreement. In the event any litigation should arise between you and the Agreement Express as permitted under this Arbitration Agreement or otherwise, YOU AND AGREEMENT EXPRESS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(f) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Section 10(f) shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(g) Survival. This Arbitration Agreement (including, without limitation, the Class Action Waiver provisions) shall survive any termination of your account and/or relationship with Agreement Express.

11. Miscellaneous. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any obligation reasonably expected to survive termination or expiration of this Agreement shall survive. If any provision of this Agreement (including the Arbitration Agreement herein) is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. In the event that any action, suit, or other legal or administrative proceeding (including arbitration) is instituted or commenced by either party against the other party arising out of this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and arbitration and/or court costs from the non-prevailing party. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The provisions set forth in Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. This Agreement shall not be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

12. Changes. Agreement Express may revise these Terms of Use from time to time at its sole discretion. Agreement Express will post the revised terms on the Service with a “last updated” date. However, any changes or updates to the dispute resolution provisions set forth in these Terms of Use will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted. PLEASE REVIEW THE SERVICE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICE AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS OF USE.

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