Last revised: February 2024

These General Terms and Conditions (“GTC”) are an integral part of each Order Form between Veriflux Corp. (“Veriflux”, “we”, “us”, “our”) and the “Customer” (also “you” or “your”) identified in the Order Form referencing these GTC (together with these GTC, the “Agreement”), on behalf of itself and its Affiliates, and cover the purchase of Services from us in connection with the Order Form. You acknowledge and agree that these GTC form a part of, and are incorporated by reference into, the Order Form. Veriflux, on the one hand, and Customer and its Affiliates, on the other hand, are collectively referred to herein as the “parties” and individually as a “party”, except that where an obligation is expressly stated to be performed by either Customer or its Affiliate(s) then such entity is the “party” and “parties” would be such entity and Veriflux. The parties agree as follows:

Our Privacy Policy, which can be found at https://veriflux.io/privacy as updated by us from time to time, provides details on what information we collect, how we use and share the information we collect, and how we protect your privacy. WE MAY CHANGE THESE GTC FROM TIME TO TIME. WHEN WE MAKE MODIFICATIONS TO THESE GTC, WE WILL INDICATE SUCH CHANGES WITH A REVISION TO THE VERSION DATE ABOVE AND WE WILL EITHER EMAIL YOU THE REVISED GTC OR WE WILL POST THE REVISED GTC ON OUR SUBSCRIPTION SERVICES AT https://veriflux.io/terms. YOU ARE BOUND BY ALL SUCH CHANGES WHEN NOTIFIED.

1.              Definitions; Agreements.

1.1.           Definitions. Capitalized terms are defined in Section 11, the Order Form or when used.

1.2.           Agreements.  This “Agreement” is comprised of (in descending order of precedence, except where otherwise stated in this Agreement): (a) the applicable Order Form; and (b) these GTC. Any terms at the uniform resource locators (URLs) identified in the Order Form or these GTC, or subsequent links we make available to you, as updated by us from time to time are incorporated herein by reference. If we make changes to the terms in a URL we will provide notice as provided in this Agreement or such terms, or, if not stated there, by email to you or via posting the changes in the Subscription Services at https://veriflux.io/terms. To the extent such changes relate to data, such changes will apply to all data, including data stored in the Subscription Services (including under prior agreement(s) between the parties) prior to such changes. In addition to this Agreement, you, your Affiliate(s) or your Authorized Users may be presented with different end user license agreement(s) to access or use any part of the Subscription Services through a web browser or when downloading our Mobile Application, including when you use our Mobile Application to access and use the Subscription Services. The applicable end user license agreement governs the applicable use by each such Authorized User, even if they are also subject to this Agreement, and is a binding agreement as between us and such Authorized User. With respect to a party bound by this Agreement (and its Authorized Users), if any terms and conditions of the applicable end user license agreement conflict with the terms of this Agreement, this Agreement will control. We may require an API agreement for use of our Connectors by third party vendors.

2.              Subscription Services.

2.1.           License to Subscription Services. Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, we hereby grant you a non-exclusive, non-transferable (except in compliance with Section 10.9), non-sublicensable, revocable right, solely in compliance with this Agreement, the Documentation and applicable Laws to: (a) use any licensed Connector solely to develop, implement, and, as applicable, integrate interfaces in order to provide access to the Subscription Services from the permitted Customer Systems, which access shall be for Data transmission only; (b) copy the Connector(s) that are code only as necessary to exercise your rights hereunder, and subject to copying of all legal, copyright, trademark and other proprietary notices contained in or on the Connector; (c) access and use the Subscription Services, including via a Connector or Mobile Application, for the Permitted Use; (d) input Customer Input Data and receive Transmitted Data, which is subject to the license in Section 2.3; and (e) use and copy the Documentation, in connection with your use of the Subscription Services and subject to copying of all legal, copyright, trademark and other proprietary notices contained in or on the Documentation. Your Affiliates shall have the same rights as granted to Customer herein, provided that Customer will remain solely responsible for its Affiliates’ compliance with the terms and conditions of this Agreement.

2.2.           Customer Input Data.

(a)           When you or an Affiliate use the Subscription Services, you and each Affiliate will be given the opportunity to select how Customer Input Data will be further shared. If you or an Affiliate elect to share Customer Input Data with Authorized Recipients, such Customer Input Data may be transmitted and shared to, and viewed, processed, used and downloaded by such Authorized Recipient(s) and from there further transmitted and shared for viewing, processing, use and downloading throughout the supply chain in countless transactions associated with the applicable Product and to applicable Governmental Authorities, auditors or other entities accessing the data for compliance purposes. If you or an Affiliate do not permit the sharing of Customer Input Data within the Subscription Services, we will not convert such Customer Input Data into Transmitted Data, and your use and your Affiliates’ use of the Subscription Services may be limited with respect to such Customer Input Data. Under no circumstances shall Customer Input Data include social security numbers, passport numbers, national identification numbers, healthcare data, banking data, credit card data or other similar data that is subject to higher levels of protection at law (collectively, “Sensitive Data”). Veriflux shall have no liability under this Agreement for Sensitive Data or its misuse or disclosure.

(b)           You, on behalf of yourself and your Affiliates, hereby grant to Veriflux a non-exclusive, perpetual, irrevocable, royalty-free, paid up, worldwide, transferable and sublicensable (through the layers) license to access, use, host, reproduce, upload, analyze, manipulate, modify and create derivative works of, transmit, store, distribute, disclose, display, make available, and otherwise process Customer Input Data:

(i)     to provide the Customer Input Data to you or your Affiliate(s) via the Subscription Services;

(ii)    to transmit and share the Customer Input Data to the Authorized Recipients you or your Affiliate(s) initially select for their viewing, processing, use and downloading and from there further transmission and sharing for viewing, processing, use and downloading by any and all subsequent recipient(s) of the Customer Input Data (which would then be Transmitted Data) throughout the supply chain for the applicable Product to which such Data relates (whether via the Subscription Services or via a download of the data) and to any Government Authority, auditor or other entities accessing the data for compliance purposes;

(iii)   to provide access to and use by any Government Authority, auditor or other entities requiring access to the Customer Input Data under applicable Law;

(iv)   to provide access to and use by Veriflux’s consultants, contractors and auditors in order for their provision of services to Veriflux;

(v)    to provide and improve the Subscription Services and our other products and Subscription Services;

(vi)   in different jurisdictions (including as Transmitted Data) as necessary to provide our products and services;

(vii)  to perform our recordkeeping and disclosure obligations under any recordkeeping services for which we have been appointed as your agent under separate agreement between Customer, its applicable Affiliates and Veriflux; and

(viii) to create Aggregated Content and use, disclose, distribute, publish or otherwise exploit the Aggregated Content for Veriflux’s product development, services to customers, or for use in marketing Veriflux’s services relating to benchmarking and producing any content associated with benchmarking, such as but not limited to reports and databases.

(c)           The foregoing license in subsection (b) provides us the authority necessary for sharing your Customer Input Data as contemplated.

2.3.          License to Transmitted Data.

(a)           When you or an Affiliate use the Subscription Services, you or each Affiliate may be an Authorized Recipient of Transmitted Data that another Veriflux customer, or other party in the supply chain of the Product to which the Transmitted Data relates, has given us rights to make available to you, your Affiliate(s) and others in the applicable supply chain of the applicable Product.

(b)           Subject to the terms and conditions of this Agreement, during the applicable Subscription Term, we hereby grant you and your Affiliates a non-exclusive, non-transferable (except in compliance with Section 10.9), non-sublicensable, revocable right, solely in compliance with this Agreement, the Documentation and applicable Laws to:

(i)     view, download, process and use the Transmitted Data accessed via the Subscription Services solely for the Permitted Use;

(ii)    download and share Transmitted Data only as follows for the Permitted Use:

A.              to others in the supply chain of the applicable Products to which the Transmitted Data relates for their viewing, processing, use and downloading and from there further transmission and sharing for viewing, processing, use and downloading by any and all subsequent recipient(s) throughout the supply chain for the applicable Product to which such Transmitted Data relates (whether via the Subscription Services or via a download of the data); provided, that, if you or your Affiliate(s) download the Transmitted Data, subject to written terms that limit further use, disclosure and distribution (through the layers) to being subject to confidentiality and the Permitted Use; and

B.              to Governmental Authorities, auditors or other entities accessing the data for compliance purposes subject to confidentiality; and

(iii)   capture, copy and store the Transmitted Data or any information expressed by the Transmitted Data solely for the purposes of use in subsections (i) and (ii).

(c)           The rights in subsection (b) will continue during the Subscription Term and, with respect to Transmitted Data downloaded during the Subscription Term, thereafter perpetually but terminable for breach, for the Permitted Use.

2.4.            Data Use.

(a)           We obtain the rights to make Transmitted Data available to you and your Affiliates under the same or similar terms that we obtain rights to Customer Input Data herein. You acknowledge that Customer Input Data becomes a different Veriflux customer’s or entity in their supply chain’s Transmitted Data. If you or an Affiliate have elected not to share Customer Input Data with other Veriflux customers or future customers (which impacts others in the Product’s supply chain), then your or your Affiliates’ ability to use the Subscription Services to transact with other Veriflux customers and others in the Product’s supply chain may be negatively impacted. You, on behalf of yourself and your Affiliates, agree to use the Subscription Services and Transmitted Data in accordance with this Agreement and all applicable Laws.

(b)           You, on behalf of yourself and your Affiliates, acknowledge that we do not control Customer Input Data and Transmitted Data once it has been downloaded, except to require in our license agreement that our licensees use, disclose and distribute Transmitted Data subject to terms similar to these.  We reserve the right (although we do not assume the obligation) to decline Subscription Services with respect to any Data brought to our attention that we determine, in our sole discretion, to be in breach of this Agreement, or to be otherwise objectionable and to remove from the Subscription Services any material we reasonably conclude to violate this Agreement. You acknowledge that Veriflux (i) has no obligation to notify you or your Affiliates in the event any Data is disclosed or distributed as permitted under this Agreement, and (ii) does not monitor the use or disclosure of Data within or outside the Veriflux360 Platform.

(c)           YOU, ON BEHALF OF YOURSELF AND YOUR AFFILIATES, ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE, AND WILL BEAR NO LIABILITY, FOR OTHER VERIFLUX CUSTOMERS’ AND OTHERS IN THE PRODUCT’S SUPPLY CHAIN’S ACCESS TO AND USE OF DATA AND YOUR AND YOUR AFFILIATES’ ACCESS TO AND USE OF TRANSMITTED DATA. WE DISCLAIM ALL LIABILITY FOR DATA ONCE IT IS DOWNLOADED FROM THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE TERMS OF SECTION 2.6, YOU AND YOUR AFFILIATES ARE PROHIBITED FROM PUBLISHING TRANSMITTED DATA OR ALLOWING ANY THIRD PARTY TO PUBLISH TRANSMITTED DATA. YOU AND YOUR AFFILIATES MAY NOT CLAIM OWNERSHIP OF TRANSMITTED DATA. VERIFLUX MAKES NO WARRANTIES CONCERNING USE OF DATA OUTSIDE OF THE SUBSCRIPTION SERVICES, WHO YOU OR YOUR AFFILIATES GIVES ACCESS CREDENTIALS TO, OR WITH WHOM YOU OR YOUR AFFILIATES TRANSACT BUSINESS USING THE SUBSCRIPTION SERVICES OR DATA.

(d)           Customer shall indemnify and hold Veriflux harmless from any claims, damages, liabilities and losses (including reasonable attorney’s fees and expenses) (whether Veriflux’s or third party) arising from or resulting from your or your Affiliates’, or any Authorized User’s misuse or unauthorized use of any the Subscription Services or Transmitted Data or any claims relating to the Customer Input Data or your or your Affiliates’ breach of Sections 2.1, 2.3 or 2.6.

2.5.           Third-Party Materials. The Subscription Services may include Third-Party Materials.  Use of the Third-Party Materials may include additional terms between Veriflux and Customer or your Affiliate(s) or a third party and Customer or your Affiliate(s) that are not included in this Agreement, but which are located at the following links: https://veriflux.io/terms.  Veriflux does not warrant or support Third-Party Materials relating thereto, except as specified in an Order Form. 

2.6.           Reservation of Rights; Use Restrictions. Veriflux, and our licensors, retain all right, title, and interest in and to the Veriflux IP not granted herein. Without limiting the foregoing, except as expressly permitted in this Agreement, Customer shall not, shall cause its Affiliates not to, and shall not permit any third party to: (a) access or use the Subscription Services except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable license terms; (b) copy, modify, or create derivative works or improvements of the Subscription Services, Transmitted Data or other Veriflux IP to which you or your Affiliates get access; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, post, share, transfer, or otherwise make available any Subscription Services, Transmitted Data or other Veriflux IP to which you or your Affiliates get access to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Subscription Services or other Veriflux IP to which you or your Affiliates get access, in whole or in part; (e) bypass or breach any security device or protection used by the Subscription Services or access or use the Subscription Services or Transmitted Data other than by an Authorized User through the use of their own then valid Access Credentials; (f) input, upload, transmit, or otherwise provide to or through the Subscription Services or Veriflux360 Platform, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Subscription Services, Veriflux360 Platform, Transmitted Data or Veriflux’s provision of Subscription Services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Subscription Services, including any copy thereof; (i) access or use the Subscription Services or Transmitted Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law; (j) access or use the Subscription Services or Transmitted Data for purposes of competitive analysis of the Subscription Services, Veriflux360 Platform or Transmitted Data, the development, provision, or use of a competing software service or product or any other purpose that is to the Veriflux’s detriment or commercial disadvantage; or (k) otherwise access or use the Subscription Services or Transmitted Data beyond the scope of the authorization granted under Sections 2.1 or 2.3. Customer for itself and its Affiliates agrees to hold Veriflux harmless and indemnify Veriflux against any third party claim arising out of Customer’s or its Affiliates’ breach of this Section 2.6.

2.7.           Access Credentials. Veriflux shall provide you, or allow you access to, Access Credentials promptly upon securing all necessary authentications and information from you. Each Authorized User must complete Veriflux’s registration process prior to access to and use of the Subscription Services. As part of the registration process the Authorized User must provide Veriflux with complete and accurate information as prompted by the applicable registration form, and agree to the applicable end user license agreement. Each Authorized User will be given Access Credentials. Customer shall ensure that all data supplied in establishing Authorized User accounts is accurate and complete and that Authorized Users shall maintain the confidentiality of their Access Credentials. Subscription Services and Transmitted Data will be deemed accepted by you upon delivery. 

2.8.           Authorized Users. You, on behalf of yourself and your Affiliates, acknowledge and agree that you will ensure that all Authorized Users use the Subscription Services and Transmitted Data consistent with this Agreement. You will be responsible for any breach of this Agreement by the Authorized Users.  

2.9.           Reporting. If you or an Affiliate become aware of any actual or threatened activity prohibited under this Agreement, you shall, and shall cause your Affiliates and Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Subscription Services and Transmitted Data and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify us of any such actual or threatened activity.

2.10.        Changes. We reserve the right, in our sole discretion, to make any changes to the Subscription Services that we deem necessary or useful including without limitation to: (a) maintain or enhance: (i) the quality or delivery of the Subscription Services; (ii) the competitive strength of or market for Subscription Services and Transmitted Data; or (iii) the Subscription Services’ cost efficiency or performance; or (b) comply with applicable Law.

2.11.        Subcontractors. We may from time to time in our discretion engage third parties to perform services that support the Subscription Services or to perform other Services. We will be responsible for the acts and omissions of our subcontractors as if performed by Veriflux hereunder.

2.12.        Acquisition and Support of Hardware and Third Party Software.  You, on behalf of yourself and your Affiliates, shall be solely responsible for the acquisition, installation and maintenance of all hardware, third party software and telecommunications lines and related services necessary to access and use the Subscription Services.

2.13.        Suspension or Termination of Subscription Services. In addition to the other rights set forth in this Agreement, we may suspend, terminate, or otherwise deny Customer’s, any Affiliates’ and any Authorized User’s access to or use of all or any part of the Subscription Services and Transmitted Data, without incurring any resulting obligation or liability, if: (a) we receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Veriflux to do so; or (b) we believe, in our reasonable discretion, that: (i) Customer, any Affiliate or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Subscription Services or Transmitted Data beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer, any Affiliate or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Subscription Services or Transmitted Data. This Section 2.13 does not limit any of Veriflux's other rights or remedies, whether at Law, in equity, or under this Agreement.

3.              Security.

3.1.           Information Security. Veriflux will employ commercially reasonably technical, physical, and administrative safeguards to protect Data while stored in the Subscription Services per applicable Law.

3.2.           Customer Control and Responsibility. You, on behalf of yourself and your Affiliates, have and will retain sole responsibility for: (a) all Customer Input Data, including its content and use, except once we convert it to Transmitted Data; (b) all information, instructions, and materials provided by or on behalf of Customer, any Affiliates, or any Authorized User in connection with the Subscription Services; (c) Customer Systems; (d) the security and use of Customer’s, Affiliates’ and Authorized Users’ Access Credentials; (e) all access to and use of the Subscription Services and Transmitted Data directly or indirectly by or through the Customer Systems or Access Credentials, with or without your or your Affiliates’ knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. You, on behalf of yourself and your Affiliates, are responsible for, and represent and warrant that you or your Affiliates have, obtained all consents, permissions, and approvals necessary for the processing through the Subscription Services and sharing as contemplated herein of all Customer Input Data.

3.3.           Access and Security. You, on behalf of yourself and your Affiliates, shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Subscription Services; (b) control the content and use of Customer Input Data by Authorized Users, including the uploading or other provision of Customer Input Data for processing by the Subscription Services; (c) protect against the use of Transmitted Data except as permitted under this Agreement; and (d) protect against the unauthorized use of our Confidential Information.

3.4.           Security Incidents. In the event you, on behalf of yourself and your Affiliates, become aware of the use or disclosure of Transmitted Data in excess of the license granted in Section 2.3 or the unauthorized use or disclosure of our Confidential Information (each, a “Security Incident”), you will notify us without undue delay and, in any event, within five (5) days of becoming aware. You, on behalf of yourself and your Affiliates, also agree to reasonably cooperate with any investigation we conduct of the Security Incident.

4.              Fees and Payment.

4.1.           Fees. The fees payable for the Subscription Services and use of the Transmitted Data are set out in the applicable Order Form(s) that reference these GTC.  We may increase the fees on not less than sixty (60) days prior written notice.  Your continued use of the Subscription Services after the effective date specified in any notice of a fee increase will be deemed to constitute your acceptance of the increase. You are responsible for all amounts due by your Affiliates under this Agreement.

4.2.           Taxes. All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Veriflux's income.

4.3.           Payment. You shall: (a) pay all fees within thirty (30) days after the invoice date; (b) make all payments in U.S. dollars; and (c) make payments to the address or account specified in the applicable Order Form (if any), or such other address or account as we may specify in writing from time to time.

4.4.           Late Payment. If you fail to make any payment when due then, in addition to all other remedies that may be available: (a) we may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable Law; and (b) if such failure continues for ten (10) days following written notice thereof, we may suspend access to the Subscription Services until all past due amounts have been paid, without incurring any obligation or liability to you or any other person for reason of such suspension.

4.5.           No Deductions or Setoffs. All amounts payable to Veriflux under this Agreement shall be paid by Customer to Veriflux in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

5.              Confidentiality. Each party will protect the other party’s Confidential Information from unauthorized use or disclosure using no less than reasonable measures. The receiving party will not disclose the Confidential Information to any third party except those who have a need to know such information for the uses contemplated herein, are informed of the confidential nature of such information, and agree to be bound by obligations of confidentiality substantially similar to those set forth in this Agreement. The receiving party will use the Confidential Information solely and exclusively for the purpose of performing or receiving the benefits of this Agreement (which may be for the Permitted Use). Notwithstanding anything to the contrary, if you or your personnel, your Affiliates, or Authorized Users provide any ideas, suggestions or recommendations regarding the Services, Veriflux360 Platform or other of our Confidential Information, (even if designated as your Confidential Information) (“Feedback”), we are free to retain, use, incorporate and disclose, on a perpetual and irrevocable basis, such Feedback in our products, technology and/or Services, without payment of royalties or other consideration. Such right is fully transferable and sublicensable. In the event either party receives a subpoena or other validly issued judicial process requesting Confidential Information of the other party, or is otherwise legally required to disclose such Confidential Information, it shall provide prompt notice to the other party of such subpoena or other process or legal requirement if such notice is legally permitted. The party that is subject to the subpoena or other process or legal requirement shall thereafter be entitled to comply with such subpoena or other process or legal requirement to the extent permitted by law, provided that the parties shall reasonably cooperate with each other and their respective counsel in any party’s lawful efforts to prevent or limit such disclosure of Confidential Information.

6.              Intellectual Property Rights.

6.1.           Veriflux IP. All right, title, and interest in and to the Veriflux IP, including all Intellectual Property Rights therein, are and will remain with Veriflux. Customer and its Affiliates have no right, license, or authorization with respect to any of the Veriflux IP except as expressly set forth in this Agreement. All other rights in and to the Veriflux IP are expressly reserved by Veriflux. No implied licenses are granted.

6.2.           Third-Party Materials. With respect to Third-Party Materials, the applicable third party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials.

6.3.           Customer Input Data. As between Customer (on behalf of itself and its Affiliates) and Veriflux, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Input Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 2.2.

7.              Representations and Warranties; Disclaimers.

7.1.           Representations and Warranties. You, on behalf of yourself and your Affiliates, represent and warrant to Veriflux that Customer and its Affiliates: (a) are duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) have the full right, power, and authority to enter into and perform their obligations and grant the rights, licenses, consents, and authorizations they grant or are required to grant under this Agreement; (c) own or otherwise have, and will have, the necessary rights and consents in and relating to the Customer Input Data to allow the contemplated sharing, transmission, viewing, processing use and other exploitation in accordance with this Agreement; (d) the Customer Input Data has not been falsified and is true, accurate and complete in all respects; (e) the Customer Input Data or its use as permitted herein does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. You also represent and warrant to Veriflux that you have the full right, power, and authority to bind your Affiliates to the terms and conditions of the Agreement.

7.2.           DISCLAIMER OF WARRANTIES. ALL SERVICES AND TRANSMITTED DATA ARE PROVIDED "AS IS”. VERIFLUX SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VERIFLUX MAKES NO WARRANTY THAT THE SERVICES, TRANSMITTED DATA OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S, ITS AFFILIATES’  OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, SERVICES OR OTHERWISE BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER OR ITS AFFILIATES AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

8.              Limitations on Liability. IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH, TORT OF CONTRACT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES OR TRANSMITTED DATA; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH, TORT OF CONTRACT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM HEREUNDER. MULTIPLE CLAIMS WILL NOT INCREASE THIS LIMIT.

9.              Term and Termination.

9.1.           Term. These GTC will remain in effect for so long as the Order Form(s) to which they relate is in effect and thereafter for the terms stated to survive herein. Subscription Services commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein, as may be renewed as set forth therein. Other Services will have the term set forth in the applicable Order For, if any.

9.2.           Termination. In addition to any other express termination right set forth elsewhere in the Agreement: (a) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (b) we may terminate your or your Affiliates’ ongoing license to use Transmitted Data you downloaded during the Subscription Term with written notice to you if you or your Affiliate(s) breach the license terms regarding such data.

9.3.           Effect of Termination or Expiration. Upon any expiration or termination of this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other party hereunder will immediately terminate, except that (i) licenses to use Transmitted Data you downloaded during the Subscription Term will remain in effect until terminated pursuant to Section 9.2(b), and (ii) the license in Section 2.2(b) shall survive indefinitely; (b) except as set forth in Section 9.3(a), each party shall return, or destroy, all of the other party’s Confidential Information; (c) except for Transmitted Data downloaded before the end of the Subscription Term for which a perpetual license continues in effect, Customer and all of its Affiliates shall immediately cease all use of any Subscription Services and Transmitted Data; and (d) Veriflux may otherwise disable all Customer, its Affiliates and Authorized User access to the Subscription Services and Transmitted Data.

9.4.           Surviving Terms. The provisions set forth in the following sections, 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: all capitalized terms, Sections 1.2, 2.2(b) and (c), 2.3 until terminated, 2.4(c) and (d), 2.5, 2.6, 4, 5, 6, 7.2, 8, 9.3, this 9.4, 10 and 11.

10.            Miscellaneous.

10.1.        Export Control. All use of the Veriflux360 Platform and Subscription Services by Customer, its Affiliates, and their Authorized Users will be in accordance with (a) the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420), and the Export Administration Regulations, 15 C.F.R. Parts 730-774; (b) the Arms Export Control Act, 22 U.S.C. § 2778, and the corresponding International Traffic in Arms Regulations; (c) the economic sanctions, Laws and regulations enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, 31 C.F.R. Part 500 et seq., and the U.S. Department of State’s Office of Terrorist Financial and Economic Sanctions Policy; and (d) the anti-boycott regulations, guidelines, and reporting requirements under the Export Administration Regulations and Section 999 of the Internal Revenue Service Code (collectively, “Export Control Laws”). Customer, its Affiliates, and their Authorized Users will not introduce into the Veriflux360 Platform or Subscription Services data that is controlled for export under applicable U.S. Export Controls Laws, except data that is Export Control Classification Number EAR99. Moreover, Customer, its Affiliates, and their Authorized Users will not use the Veriflux360 Platform or Subscription Services, or cause the Veriflux360 Platform or Subscription Services to be used, in embargoed destinations, including in Cuba, Iran, North Korea, Russia, Syria, and the occupied regions of Ukraine, including Crimea, Donetsk, and Luhansk, or cause the Veriflux360 Platform or Subscription Services to be used by entities subject to restrictions under U.S. Export Control Laws.

10.2.        U.S. Government End Users. The Veriflux360 Platform and Subscription Services is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Veriflux360 Platform and Subscription Services are provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

10.3.        Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

10.4.        Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatever.

10.5.        Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indication of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Veriflux may, without consent, include Customer's or its Affiliate’s name and other indicia in its lists of Veriflux’s current or former customers in promotional and marketing materials.

10.6.        Notices. Any notices provided hereunder will be in writing and will be deemed to have been duly given when delivered, when sent by email, return receipt requested, or three (3) days after mailing by certified mail, return receipt requested, postage prepaid, addressed to the addresses stated in the Order Form, or replacement addresses notified in this manner.

10.7.        Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

10.8.        Entire Agreement. This Agreement, as defined above, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporary understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

10.9.        Assignment. You and your Affiliates shall not assign or otherwise transfer any of your respective rights, or delegate or otherwise transfer any of your respective obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without our prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer or its Affiliates (regardless of whether Customer or its Affiliate(s) are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Veriflux's prior written consent is required (which will not be unreasonably withheld). No assignment, delegation, or transfer will relieve you (or your Affiliates) of any of their obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 10.9 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assignments.

10.10.      Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including (a) acts of God; (b) flood, fire, earthquake, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of sixty (60) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

10.11.      No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assignments and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

10.12.      Amendment; Waiver. No amendment to this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

10.13.      Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

10.14.      Governing Law; Submission to Jurisdiction. This Agreement is governed by and constructed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the city of Minneapolis and County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

10.15.      Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5, or the breach of license rights or restrictions or other misuse of Confidential Information may cause irreparable harm to the disclosing party without an adequate remedy at law. Upon any such breach, violation, or infringement, or threat thereof, the disclosing party will be entitled to seek injunctive relief to prevent the receiving party from commencing or continuing any action constituting such breach, violation, or infringement, without having to post a bond or other security, and without having to prove the inadequacy of other available remedies.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

11.            Definitions. The following terms shall have the meanings set forth below when used in this Agreement:

11.1.        “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Subscription Services.

11.2.        “Affiliate” means any corporation, partnership, joint venture, limited liability entity, unincorporated organization, trust, association, or other entity that controls, is controlled by, or is under common control with Customer. The term “control” means the direct or indirect power to direct or cause the direction of the management and policies, whether through the ownership of voting securities, by contract, or otherwise.

11.3.        “Aggregated Content” means de-identified Customer Input Data used in an aggregated form with other data or on its own, in whole or in part.

11.4.         “Authorized Recipient” means (i) when Customer or an Affiliate is authorizing the sharing of Customer Input Data, another Veriflux customer or future customer that Customer or an Affiliate elects to share Customer Input Data with through the Subscription Services for their viewing, processing, use and downloading and from there any and all subsequent recipient(s) of the Customer Input Data (which would then be Transmitted Data) throughout the supply chain for the applicable Product to which such Data relates (whether via the Subscription Services or via a download of the data) and any Government Authority, auditor or other entities accessing the data for compliance purposes, or (ii) when Customer or an Affiliate is receiving access to Transmitted Data, Customer or its Affiliate(s).

11.5.        “Authorized User” means an individual under Customer’s or an Affiliates’ control either as an employee or through a written agreement that are authorized by Customer or an Affiliate to access and use the Subscription Services under the rights granted to Customer and its Affiliates pursuant to this Agreement, including access via a Mobile Application. 

11.6.        “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the disclosing party considers confidential or proprietary, including information consisting of or relating to the disclosing party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the disclosing party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential".

11.7.        “Connector” means a permitted connector of Customer Systems to the Subscription Services via a variety of methods, including Veriflux web portals, direct connection, or an API connection agreed to by Veriflux.

11.8.        “Customer Input Data” means information, data, and other content, in any form or medium, that is originally input by Customer, its Affiliates or their Authorized Users by or through the Subscription Services. For the avoidance of doubt, Customer Input Data does not include Usage Data.

11.9.        “Customer Systems” means Customer’s or an Affiliate’s (including their third party vendors’) information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or an Affiliate or through the use of third-party services.

11.10.      “Data” means Customer Input Data and Transmitted Data.

11.11.      “Documentation” means any manuals, instructions, or other documents or materials that Veriflux provides or makes available to Customer or any Affiliate in any form or medium and which describe the functionality, specifications, components, features, or requirements of the Subscription Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof, as may be updated by Veriflux from time to time.

11.12.      “Governmental Authority” means any court, commission, authority, department, ministry, official or other instrumentality of, or being vested with public authority under any law of, any country, region, state or local authority or any political subdivision thereof, or any association of countries.

11.13.      “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.

11.14.      “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

11.15.      “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

11.16.      “Mobile Application” means a client software application that may be downloaded through approved software platforms or markets, from time to time, such as Apple’s App Store or Google Play, and used to access the Subscription Services for the Permitted Use.

11.17.      “Permitted Use” means use solely for business purposes of tracing each Product to which the applicable Data relates through the supply chain, supply chain management, mass/material balancing, compliance with regulations and voluntary schemes, and other related functionalities. “Permitted Use” for Customer and its Affiliates includes inputting Customer Input Data and viewing, receiving and downloading Transmitted Data relevant for your or your Affiliates’ use of the Subscription Services.

11.18.      “Product” means the applicable physical product in the supply chain to which the Data relates (for example, purchase order or invoice terms relating to a Product), and that is traced through the supply chain using, in part, the Subscription Services.

11.19.      “Services” means the Subscription Services and any implementation or other services provided or to be provided by us under this Agreement.

11.20.      “Subscription Services” means the provision of, access to and use of the front end web portal to the Veriflux360 Platform, use of the functionality of the Veriflux360 Platform through such access as made available by Veriflux, and all hosting, support and maintenance services provided by Veriflux in connection therewith, as may be updated by Veriflux from time to time.

11.21.      “Subscription Term” means the subscription term to which you and your Affiliates have a license to the Subscription Services, as defined in the Order Form.

11.22.      “Third-Party Materials” means any materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Subscription Services that are not proprietary to Veriflux. Third-Party Materials does not include Transmitted Data.

11.23.      “Transmitted Data” means information, data, and other content, in any form or medium, that is viewed, downloaded, or otherwise received by Customer, its Affiliates or its Authorized Users by or through the Subscription Services but which originates from other Veriflux customers or others in the Product’s supply chain and authorized users.

11.24.      “Usage Data” means data and information related to Customer’s, Affiliates’ and any Authorized User’s use of the Subscription Services that is used or generated by Veriflux or the Veriflux360 Platform, including in an aggregate and anonymized manner, and used to compile statistical and performance information related to the provision and operation of the Subscription Services.

11.25.      “Veriflux IP” means the Subscription Services, Documentation, Veriflux360 Platform, Transmitted Data (as between us and Customer or its Affiliates), Aggregated Content, Usage Data and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Veriflux in connection with the Services or otherwise comprise or relate to the Services or Veriflux360 Platform, and all Intellectual Property Rights therein. For the avoidance of doubt, Veriflux IP does not include Customer Input Data.

11.26.      “Veriflux360 Platform” means Veriflux’s hosted technology platform (whether legacy or new) that is used for supply chain traceability, including all software, databases, electronic systems (including database management systems), and networks, whether operated directly by Veriflux or through the use of third-party services, as may be updated by Veriflux from time to time.