General Terms and Conditions for the provision of services and work performance from InVision Software, Inc.

Issue date: May 2019

1. Scope

1.1 These general terms and conditions (“GTCs”) are attached to and incorporated by reference to each individual order for services and/or work performance (each an “Order”) that is submitted by the client identified thereon (“Client”) and accepted by InVision Software, Inc. (“InVision”), 330 N. Wabash, 23rd Floor, Chicago, 60611 IL, United States. An Order will have no force or effect until accepted by InVision. InVision may accept or reject any Order in its sole discretion. The Order(s) together with these GTCs shall constitute the entire agreement between InVision and Client (the “Agreement”) provided that in the event of any conflict between an individual Order and the GTCs, the terms of the GTCs shall govern.

1.2 The GTCs apply to any subsequent individual Order. Any modifications or expansions of an Order must be in writing and expressly accepted by InVision. InVision’s obligations are those expressly set forth in the Agreement and the provision of services shall not be deemed acceptance by InVision of any additional or modified terms.

2. Term and termination of services

2.1 This Agreement shall be effective for the term of each outstanding Order executed by the parties. Termination or performance of an Order shall not affect this Agreement and its applicability to all other Orders.

3. Subject of delivery and performance

3.1 InVision shall provide the services stated in the specification of services in the Order.

Training for Client, if included in an Order, shall be provided in the form of seminars. Unless otherwise agreed, the training shall be undertaken at the registered office of InVision.

All amendments or supplements to the services requested subsequently by Client may only be accommodated by InVision if Client confirms its acceptance of the additional or already incurred costs and any resultant changes to the service provision period or other contractual provisions. InVision shall not be responsible for any delays arising in the provision of services pending a corresponding decision by Client regarding the required changes.

4. Delivery and performance period

4.1 Unless otherwise expressly agreed in writing, all dates specified shall be non-binding and only constitute an approximate service provision period.

4.2 If InVision fails to provide the services in all material respects by an agreed date, Client shall grant a suitable subsequent period of not less than 14 days. If the initial subsequent period expires without completion, Client shall be entitled to terminate the applicable Order.

5. Ownership and rights of use

5.1 Client agrees that InVision shall be the sole Owner of the results of work produced by InVision in the provision of its services (e.g. documents, process descriptions, scripts, software programs, source code, know-how, designs, algorithms, routines, techniques, developments or experimental work, work-in-progress, inventions, discoveries, improvements, and copyrightable works) (“Work Product”).

5.2 Client hereby assigns and agrees to assign to InVision all of its interest in any country in any and all Work Product, whether such interest arises under patent law, copyright law, trade-secret law, semiconductor chip protection law, or otherwise.

5.3 To the extent that any Work Product constitutes copyrightable or similar subject matter that is eligible to be treated as a “work made for hire” or as having similar status in any jurisdiction, it will be so deemed. This provision does not alter or limit Client’s assignment of, or obligation to assign, intellectual property rights under this Agreement.

5.4 The obligations of Client set forth in this Section, including the assignment obligations, will continue beyond the termination of engagement hereunder with respect to Work Product conceived or made by Client along or in concert with others during its engagement by InVision in connection with the performance of the Services. Those obligations will be binding upon Client, its assignees permitted under this Agreement, executors, administrators, and other representatives.

5.5 The Client shall not be entitled to permit use by a third party while retaining its own right of use.

5.6 The right of use shall be granted on payment in full of the consideration.

6. Use of personnel

6.1 Each party shall be responsible for the selection and use as well as the supervision, control, monitoring and payment of its own employees.

6.2 In its performance of the Order InVision shall be entitled to instruct expert subcontractors to provide the agreed service or parts thereof.

6.3 The relationship of InVision to Client is one of an independent contractor and is not one of employment or agency, express or implied. In performing the services hereunder.

7. Confidentiality

7.1 Both parties agree to treat any information of the other party acquired in the course of their cooperation that is competitively sensitive, of a proprietary nature or that a reasonable person would consider confidential (the “Confidential Information”) as strictly confidential, and agrees that it will not, during or after the termination of this Agreement, disclose the Confidential Information to any person, firm, corporation or entity, nor use the Confidential Information for any purpose other than in connection with the provision of the services contemplated in the Order. The Parties further agree to deliver to the other Party, immediately upon termination or upon written request, any and all documents, notes or other physical embodiments of the Confidential Information that are in their possession or control provided that InVision may retain copies of all reports and results of analysis and services provided hereunder. The obligation to return upon request applies in particular to all information regarding the software, documentation or the data model of InVision. The parties agree that the term “Confidential Information” does not include information which (i) was or becomes generally available to the public other than as a result of a disclosure by receiving party, or (ii) was or becomes available to the receiving party on a non-confidential basis prior to its disclosure to the receiving party by the disclosing party, provided that the source of such information is not bound by a confidentiality agreement with the disclosing party or is otherwise prohibited from transmitting the information to the receiving party by a contractual, legal or fiduciary obligation.

7.2 Both parties shall place their employees (including temporarily employed staff, trainees, etc.) and, where appropriate, any subcontractors engaged in the course of implementation of the Agreement, under written obligation to safeguard the Confidential Information at least to the extent set forth above and to submit to the other party evidence of the foregoing on request.

7.3 The obligation for confidentiality shall survive the termination of the Agreement.

7.4 Client undertakes to refrain from using the knowhow and software acquired in the course of the cooperation for its own development of software which may be used as products in competition with those of InVision.

7.5 If in the course of their work employees of InVision are allowed access to premises and to data processing systems, data and programs of Client or third parties serviced by or otherwise cooperating with Client, InVision shall only use employees bound by confidentiality agreements at least as protective as provided herein.

7.6 InVision is entitled to make reference to the project in press releases and public relations work.

8. Client’s responsibilities

8.1 The Client shall:

1. without need for request make available to the Contractor all information and instructions necessary for the provision of the services in good time, i.e. not less than 3 working days prior to the scheduled implementation date and immediately if on request;
2. ensure that the required system environment is available;
3. appoint a contact person with decision making authority for reciprocal agreement and clarification of all issues arising in the course of the provision of the services;
4. at all times allow InVision the requisite access to its premises, IT systems and work equipment and shall make the data required for functional tests available; and
5. otherwise cooperate if the service in question can by its nature only be provided by Client.

8.2 If Client fails to promptly cooperate as provided above and such failure results in additional expenditure and/or delays, the parties agree to equitably adjust the schedule and the agreed prices and fees to reflect such expenditure and/or delay. The period for provision of the services shall be extended by the period in which Client fails to cooperate as provided above.

8.3 If Client fails to comply with this Section or delays acceptance of the services offered by InVision, InVision may terminate the Agreement if Client fails to cure such failure within 14 days written notice thereof. However, automatic cancellation of the Agreement does not occur on expiry of the period of grace.

9. Fees, ancillary costs, due dates

9.1 If payment for services are not set forth in an Order and unless otherwise agreed in writing, Client shall pay for the services provided by InVision according to actual expenditure based on the relevant valid price and conditions list of InVision.

9.2 Summaries of expenditure in offers or other service specifications represent only non-binding estimated values for Client’s budget planning purposes and do not constitute confirmation that the services can be provided in full based on the specified expenditure. The sums actually invoiced may therefore be higher or lower. If the estimated expenditure is exceeded, InVision shall notify Client accordingly.

9.3 Per diem rates are based on a day of eight working hours. Invoicing shall be on a pro rata temporis basis for each hour or part-hour.

9.4 Travelling time shall be treated as working time and charged at 50 % of the standard remuneration rate.

9.5 Any time schedules presented by InVision shall be deemed to be accepted by Client unless express written notice of objection is given by Client within 14 days of receipt. InVision shall make express reference to this provision on presentation of the time schedule.

9.6 In the event of a postponement of agreed services by Client, Client agrees to pay to InVision a postponement fee as follows:

1. 25% of the estimated remuneration for the postponed services if postponed within 20 business days prior to the agreed start date,
2. 50% of the estimated remuneration for the postponed services if postponed within 10 business days prior to the agreed start date and
3. 100% of the estimated remuneration for the postponed services if postponed within 2 business days.
4. Unless otherwise agreed, travel costs and subsistence expenses shall be charged as accrued.

All prices are exclusive of tax which are the responsibility of Client. Any itemized tax must accompany any payment by Client.

The services provided shall be invoiced at the end of each calendar month.

All invoices are payable without deduction within 10 days of the invoice date. The Client shall be deemed to be automatically in default on expiry of the payment period without need for any further reminder by InVision.

Payments shall be made to the bank account specified on the invoice in such a way that any bank charges being paid by Client and that the funds are available to InVision not later than the stipulated due date.

In the event of default and subject to the right to claim further damages, interest shall be charged at the lesser of 1.5% per month or the maximum rate allowable by applicable law on all amounts past due from the date that such amount became due and payable and InVision may suspend performance on any outstanding services under this Agreement until such time as such amounts are paid.

10. Acceptance

10.1 On performance of the services in accordance with the specifications set forth in an Order, InVision shall make the agreed results of work (the “Deliverable”) available to Client (readiness for acceptance) for review and acceptance. If Client discovers a material non-conformity within 7 days following delivery of the Deliverable (“Acceptance Period”) and Client provides written notice InVision specifying the non-conformity in detail, InVision shall correct the non-conformity in a reasonably timely and professional manner and resubmit the Deliverable to Client for acceptance review for an additional Acceptance Period. Such process shall repeat until the non-conformity is corrected such that it materially satisfies the acceptance criteria set forth in the applicable Order, or, if such non-conformity has been resubmitted for acceptance at least twice and remains uncorrected, at either party’s election, terminate the Order with respect to such non-conforming Deliverable. A Deliverable is deemed accepted upon the earlier of the expiration of the Acceptance Period if Client does not notify InVision of any non-conformities for such deliverable or Client provides written notification of acceptance.

11. Warranty

11.1 InVision warrants that the services shall be provided in a professional and workmanlike manner and the Deliverables shall materially conform and operate in accordance with the specifications set forth in the applicable Order for a period of 9 months (the “Warranty Period”) following delivery of such Deliverable. If, within the Warranty Period, Client notifies InVision that a Deliverable fails to conform and operate in material accordance with the specifications set forth in the applicable Order, then as Clients sole remedy, InVision shall repair or replace such non-conforming Deliverable so that it does materially conform with the specifications set forth in the applicable Order.

11.2 The representations, warranties and covenants in this Agreement are the only representations, warranties and covenants provided by InVision concerning this Agreement, any services or work provided hereunder or otherwise and there are no other representations, warranties, covenants or conditions of any kind or nature or whatsoever, whether written or oral, statutory or implied, including any warranties or conditions of merchantable quality or fitness for a particular purpose or use or those arising from a course of dealing or usage trade, all of which are expressly denied and disclaimed. The Client and InVision each confirm that it has not relied on any representation, warranty, condition or promise made by the other party which has not been expressly stated in the Agreement.

12. Liability and compensation

12.1 InVision’s liability for any claim, expense, loss or damage hereunder shall be limited to (a) USD 500,000.00 for insured claims or USD 25,000 for uninsured claims or (b) fees paid by Client over the past six months, whichever is greater.

12.2 In no event shall InVision be liable to Client or to any third party for any special, indirect, incidental, exemplary or consequential damages of any kind or nature whatsoever (including loss of data or goodwill, loss of use of any work product, loss of revenue or profits or for business interruption) suffered by Client or other third party howsoever caused and regardless of the form of action or theory of liability (including for breach of contract, tort, negligence, by statute or otherwise), even if such damages are foreseeable or Client has been advised of the possibility of such damages.

12.3 Each Party agrees that it is the only person entitled to enforce this Agreement or to claim damages, or other relief, from the other party. Without limiting the foregoing, each party further agrees that it shall not grant any person the right to claim from the other party damages or other losses suffered by such person even where such person is a beneficiary of any of the services/work under the Agreement, including associated companies or outsourcers of Client.

13. Limitation of actions

13.1 Claims for compensation lapse, unless they are based on intent, within one year of knowledge of the circumstances giving rise to the claim.

14. Force majeure

14.1 Incidents of force majeure (these include circumstances and events, which cannot be prevented by the due diligence of prudent business management) suspend the contractual obligations of the parties for the duration of the disruption and to the extent of its effect. Should the delays resulting from a force majeure event exceed a period of 8 weeks, both parties shall have the right to terminate the Agreement. There shall be no further claims.

14.2 Any consequences of a labor dispute with InVision or a third party for which InVision is not to blame shall also be considered to be force majeure where such dispute affects the performance of the deliveries of InVision.

15. Miscellaneous

15.1 Any amendments or supplements to the GTCs shall only be valid if made in writing. Any waiver of the requirement for the written form itself shall be in writing.

15.2 No delay or omission by any party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of any other party to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.

15.3 If any of the provisions of the GTCs should prove to be invalid, the validity of the remaining provisions shall not be affected. The parties in such a case undertake to replace the ineffective clause by an effective one which is as close as possible to the economic purpose of the ineffective clause.

15.4 The Agreement including the GTCs are exclusively governed by the laws of the State of Illinois. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) and references to foreign legal systems of law shall not apply. InVision and Client agree that the provisions of the Uniform Computer Information Transaction Act (UCITA) or any version, adopted by any jurisdiction in any form shall not apply to the transactions between the parties. If applicable, the parties agree to waive and opt out of any purported application of the UCITA during the term hereof.

15.5 The place of performance for all obligations under the Agreement shall be the federal or state courts located in the Counties of Cook or DuPage, State of Illinois and each party agrees to the exclusive jurisdiction and venue thereof.