Terms Of Service

1. DEFINITIONS AND INTERPRETATION

• 1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Affiliate: any entity directly or indirectly controlling or controlled by or under direct or indirect common control with another entity; and "control" means the beneficial ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management of the company, partnership or other entity in question (including the right to appoint or remove the majority of the board of directors of the company).

Agreement: these Terms of Service together with the Order Form(s) agreed between the parties and any ancillary agreements or documents referred to herein.

Authorised Users: those employees, contractors, subcontractors, and agents who are authorised by Client to use the Services.

Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.

Business Hours: 9.00 am to 5.30 pm local Irish time, each Business Day.

Client: the client entity executing the Order Form.

Client Data: the information and data supplied by Client and its Authorised Users for the purpose of using the Services during the Term.
Confidential Information: means any information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by either party to the other party whether before, on or after the date of this Agreement which ought reasonably to be regarded as confidential including, without limitation, information relating to the disclosing party's products, services, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities, business and financial affairs or other materials of a confidential nature.

DPA: the Data Processing Agreement agreed between the parties as attached hereto at Schedule A.

Data Protection Laws: the provisions of the EU General Data Protection Regulation 2016/679 (the "GDPR") and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced from time to time, and any other applicable legislation relating to the collection, processing, transfer, or retention of personal data.

Effective Date: the effective date of this Agreement as set out on the Order Form.

Fees: the fees and charges for the Services as set out in the Order Form and any Statement of Work.

Initial Term: the initial term of this Agreement as set out in the Order Form.

Intellectual Property Rights: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, trade dress, trade secrets, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade or business names, goodwill, rights in domain names, rights in inventions, rights in data, moral rights, database rights, rights in know-how and confidential information, and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the "look and feel" of any websites source code and all intellectual property rights concerning a technology application, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action).

Order Form: the form signed by Client confirming the order for the Services subject to these Terms of Service. Order Form shall include any subsequent ordering document for services that is signed by the parties specifically referring to this Agreement.

Platform: the online software platform and applications from which TrakPro makes the Services available.

Professional Services: professional services to be provided by TrakPro in accordance with an agreed Statement of Work.

Renewal Term: the renewal periods described in clause 11.1.

Services: access to the TrakPro Platform and the services available thereon as more particularly described in the Order Form.

Statement of Work: a statement of work substantially in the form set out in Schedule 2 to the Order Form as may be agreed between the parties setting out the Professional Services to be provided by TrakPro to Client.

Term: means the Initial Term together with any subsequent Renewal Terms.

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Terms of Service: these terms and conditions together with all appendices, as may be amended from time to time in accordance with clause 14.10.

User Documentation: the user instructions, technical literature and all other related materials and documentation located online or provided by TrakPro to Client in respect of the Platform and Services.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, ransomware, trojan horses, viruses and other similar things, techniques or devices.

• 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. References to a clause, section, schedule, exhibit or appendix is to a clause, section, schedule, exhibit or appendix of this Agreement unless the context requires otherwise. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes e-mail.
• 1.3 In the event, and to the extent only, of any conflict between the terms of any Order Form and any terms in this Terms of Service, the terms of the Order Form shall prevail.

2. SERVICES

• 2.1 Subject to the terms and conditions of this Agreement, TrakPro hereby grants to Client a non-exclusive, non-transferable right, without the right to grant sublicences, of access to and use of (and to permit the Authorised Users to access and use) the Services during the Term.
• 2.2 Client may designate an Authorised User as an administrator (or "master" administrator) with control over Client's service account, including management of Authorised Users and Client Data. Client is fully responsible for its choice of administrator and any actions they take. Client agrees that TrakPro's responsibilities do not extend to the internal management or administration of the Services for Client.
• 2.3 Each Authorised User must create and use unique access credentials, which may not be shared or used by more than one Authorised User. Client shall ensure its Authorised Users do not share their access credentials with any other person or permit any other person to access the Services and shall be responsible for any unauthorised usage that occurs due to misuse of its log-in credentials.
• 2.4 Client may choose to add additional services to this Agreement during the Initial Term or during a subsequent Renewal Term. In this circumstance, TrakPro will provide Client with a revised Order Form that adds the additional services, Fees and unless otherwise specifically agreed the Term will not be amended by the revised Order Form. Once the revised Order Form is signed by both parties it will replace and supersede the Order Form then in effect. Professional Services may be agreed by the parties in a Statement of Work, which once agreed shall form part of and be subject to this Agreement.
• 2.5 Client shall cooperate with TrakPro in all matters relating to the Services and will give TrakPro timely access to any Client Data, materials and systems reasonably necessary for TrakPro to provide the Services, and if Client fails to do so, TrakPro's obligation to provide the Services will be excused until access is provided. Where applicable, Client will ensure the availability of appropriately qualified internal IT or development resources during onboarding of the Services to support the delivery of integrations using the open API.
• 2.6 Affiliates of Client may procure Services from TrakPro under the terms and conditions of this Agreement, provided that each such Affiliate enters into an Order Form and/or Statement of Work for such Services, referencing this Agreement. Any Affiliate that enters into such Order Form and/or Statement of Work with TrakPro will be deemed to be "Client" hereunder, provided that such Order Form and/or Statement of Work, together with these Terms of Service, will constitute a separate contract with such Affiliate.

3. CLIENT'S OBLIGATIONS

• 3.1 Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify TrakPro. Client shall be responsible for the acts and omissions of its Affiliates and Authorised Users who access the Services, as though they were the acts and omissions of Client. Client agrees to indemnify and hold harmless TrakPro, its Affiliates and subcontractors against any claims, costs, losses, damages, liabilities or expenses arising from the acts or omissions of its Affiliates and Authorised Users.
• 3.2 Client shall not during the course of its use of the Services access, store, distribute or transmit any Viruses, or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorised advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.
• 3.3 Client shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Services; (iii) access all or any part of the Services in order to build a product or service which competes with the Services; or (iv) work around any technical limitations in the Services.
• 3.4 Client shall: (i) comply with all applicable laws and regulations with respect to its activities under this Agreement; (ii) obtain and shall maintain all necessary licences, consents, and permissions necessary (if any) in respect of Client's systems and software for TrakPro to provide the Services; and (iii) be solely responsible for procuring, configuring and maintaining its own systems, software, hardware and network connections necessary to enable it to connect to the internet and access the Platform, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client's network connections or telecommunications links.
• 3.5 Client acknowledges that it is solely responsible for ensuring that its use (and the use of its Authorised Users) of the Services do not infringe the provisions of this clause 3. Without prejudice to TrakPro's other rights in law or equity, TrakPro reserves the right, without liability to Client, to suspend or disable Client's or any Authorised Users access to the Services where Client or an Authorised User is in breach of the provisions of this clause 3 and fails to remedy such breach within ten (10) days of being notified by TrakPro to do so, provided however that where such breach of same: (a) violates or may violate any applicable law; or (b) has or may have a material adverse impact on TrakPro's ability to provide the Services to its clients; or (c) impacts on the integrity and security of the Platform, then no remedy period shall be granted to Client prior to TrakPro exercising the suspension or disablement rights herein. Client shall not thereby be entitled to claim any refund or compensation for such suspension or disablement and shall remain liable for all Fees arising during any period of suspension.
• 3.6 While TrakPro does not moderate Client's use of the Services, it may report any illegal activity it discovers to the relevant authorities.

4. FEES AND PAYMENT

• 4.1 TrakPro shall invoice Client and Client shall pay the Fees in accordance with the provisions of the relevant Order Form and this clause 4. Subject to clause 4.5, Fees for Renewal Terms shall be at TrakPro's then-current rates, regardless of any discounted pricing in a prior Order Form.
• 4.2 All Fees are non-cancellable and non-refundable (including on termination) and are exclusive of all sales, use, value-added, withholding and other taxes, duties and tariffs which shall be added to TrakPro's invoice(s) at the appropriate rate. Client will pay all taxes and duties (including withholding tax) (but excluding, for the avoidance of doubt, any taxes referable to TrakPro's income or employees) assessed in connection with this Agreement. Client shall pay all Fees in full without set off or counterclaim.
• 4.3 Should Client have a bona fide dispute in respect of all or any part of any invoice(s) it will notify TrakPro of the nature of that dispute in writing within ten (10) days of receipt of the invoice giving the relevant details. Following any such notice, Client will be entitled to withhold payment of the amount in dispute without interest but will pay the undisputed amount(s) in accordance with this Agreement. The parties will cooperate in good faith to resolve any such dispute as amicably and promptly as possible and on settlement of the dispute Client shall discharge all agreed amounts in accordance with the agreed payment terms.
• 4.4 If TrakPro has not received payment of undisputed Fees within fifteen (15) days after the due date in accordance with the payment terms set out in the Order Form, and without prejudice to any other rights and remedies of TrakPro, TrakPro may, subject to providing a further fifteen (15) days' written notice, without liability to Client, disable Client's password, account and suspend access to all or part of the Services and TrakPro shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid. In addition, interest shall accrue on a daily basis on such outstanding amounts at an annual rate equal to four (4) percentage points above the European Central Bank's reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
• 4.5 TrakPro may increase the Fees at the end of the Initial Term and any Renewal Term by giving Client not less than sixty (60) days' notice with such notice to expire at the end of the Initial Term or Renewal Term as the case may be. During this notice period the Client can either: (i) accept the increase in the Fees by continuing to avail of the Services; or (ii) reject the increase in Fees and issue a notice to TrakPro of their intention to terminate this Agreement on the expiration of the Initial Term or Renewal Term, as the case may be.
• 4.6 All payments due under this Agreement shall be made by Client via direct debit. Client agrees to provide and maintain valid and up-to-date direct debit instructions with the designated bank account for the duration of the Agreement. Payments shall be debited on the agreed date each month (or as otherwise specified) without the need for further action by Client, and Client acknowledges that failure to maintain valid direct debit details may result in delays or non-payment of amounts due.

5. SUPPORT AND MAINTENANCE

• 5.1 Client may contact TrakPro for support in relation to the Services during Business Hours by contacting support@trak-pro.com.
• 5.2 From time to time it may be necessary for TrakPro to complete maintenance on the TrakPro systems and Platform. If the maintenance is likely to result in unavailability of the Services then TrakPro will endeavour to advise Client in advance. Unscheduled maintenance in respect of a significant event may be required to be performed at any time without notice.

6. WARRANTIES AND DISCLAIMER

• 6.1 Each party warrants that it has the full corporate power: (i) to enter into this Agreement; (ii) to carry out its obligations hereunder; and (iii) to grant the rights herein granted to the other party.
• 6.2 Client warrants that Client Data provided to TrakPro by or on behalf of Client: (i) are owned by Client or provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) does not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) does not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property Rights, injury, damage or harm of any kind to any person or entity.
• 6.3 TrakPro warrants that: (i) the Services when used in accordance with this Agreement shall perform materially in accordance with the User Documentation; (ii) it shall obtain and maintain all necessary licenses, permits and consents as required to enable TrakPro to provide the Services; and (iii) it comply with all applicable laws relating to the Services, provided that these warranties will not apply to the extent of any non-conformance which is caused by Client's use of the Services contrary to this Agreement, or modification or alteration of the Services by any party other than TrakPro or TrakPro's duly authorised contractors or agents.
• 6.4 Other than with respect to the express warranties set forth herein, the Services are provided "as is" and all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by TrakPro from this Agreement. Client is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws.
• 6.5 Notwithstanding the foregoing, TrakPro does not warrant that Client's use of the Services will be uninterrupted or error-free or that the Services will operate in combination with third party services used by Client save where otherwise agreed. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. TrakPro is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet which are part of Client's system. In relation to the Services, TrakPro is not responsible for any inaccuracies or errors arising as a result of incorrect data provided by Client or data provided by Client or any third party which does not conform to required input formats which are notified in writing by TrakPro to Client or as advised in the User Documentation.
• 6.6 Client may choose to use the Services with third-party platforms. Use of third-party platforms is subject to Client's agreement with the relevant provider and not this Agreement. TrakPro does not control and has no liability for third-party platforms, including their security, functionality, operation, availability or interoperability or how the third-party platforms or their providers use Client Data. If Client enables a third-party platform with the Services, TrakPro may access and exchange Client Data with the third-party platform on Client's behalf.
• 6.7 TrakPro reserves the right to introduce new or enhanced features and functionalities to the Services which do not negatively impact the Services.
• 6.8 Subject to Client uploading the appropriate Client Data, the Services and Platform provide a framework to support Client's compliance with its payment and payment notification obligations under the Irish Construction Contracts Act 2013 and the Housing Grants, Construction and Regeneration Act 1996 (as amended by the Local Democracy, Economic Development and Construction Act 2009) whichever may be applicable. However Client acknowledges and agrees that it remains solely responsible and liable for its compliance obligations under this and all other relevant and applicable laws and regulations and whilst TrakPro provides the Services under this Agreement, Client must seek independent legal and accounting advice to satisfy itself that it has complied with all applicable contractual, legal and statutory obligations, including those statutory obligations under the Irish Construction Contracts Act 2013 and the Housing Grants, Construction and Regeneration Act 1996 (as amended by the Local Democracy, Economic Development and Construction Act 2009) whichever may be applicable.

7. DATA

• 7.1 In providing its Services under this Agreement, TrakPro may be required to process personal data on Client's behalf. In such circumstances, the parties record their intention that Client and its Affiliates (as applicable) shall be the controller and TrakPro shall be a processor and each party shall comply with the DPA.
• 7.2 TrakPro shall own all rights, title, and interest in and to any and all data generated, collected, or derived from its customer's use of the Platform, including but not limited to usage data, performance metrics, analytics, statistics and any aggregated or anonymized data or insights derived therefrom. Such data may be used by TrakPro for its business purposes, including to improve the Platform and develop new products or services. This data shall be irreversibly anonymized and shall not be considered personal data under Data Protection Laws and shall not include any Client Data or Client Confidential Information.

8. INTELLECTUAL PROPERTY RIGHTS

• 8.1 Client acknowledges and agrees that TrakPro and/or its licensors own all Intellectual Property Rights in the Services and Platform (including any modifications or enhancements thereto) and shall remain the property of TrakPro and/or its licensors. Except as expressly stated herein, this Agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services and Platform.
• 8.2 All Client Data shall be and remain the property of Client, and/or its licensors, as the case may be. Client shall own all right, title and interest in and to all of Client Data and shall have sole responsibility and liability for the legality, reliability, integrity, accuracy and quality of all such Client Data. Client hereby grants TrakPro a royalty-free, non-exclusive licence to use the Client Data for the Term of this Agreement solely for the purposes of carrying out its obligations under this Agreement.

9. INDEMNITY

• 9.1 TrakPro will indemnify Client in respect of any and all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, expenses and liabilities (including reasonable legal fees, fines and penalties) to the extent arising out of claims by third parties that the Services infringes a third-party's copyright, trademark existing or patent granted as of the date of delivery in any country in which the Services are delivered. If Services are or are likely to be held to be infringing, TrakPro will at its expense and option either: (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) terminate this Agreement and refund to Client fees paid for any unused portion of the Services.
• 9.2 Notwithstanding the above, TrakPro shall have no liability to Client to the extent that any claim is based upon: (i) modifications to the Services made by anyone other than TrakPro or a party authorised by TrakPro; (ii) combination of the Services with software not provided by TrakPro or specified in any agreed documentation; (iii) Client's failure to use modifications to the Services provided by TrakPro to avoid infringement or misappropriation; or (iv) Client or its Authorised User's unauthorised use or misuse of the Services or breach of applicable laws.
• 9.3 The rights granted to Client under Clause 9.1 shall be Client's sole and exclusive remedy and TrakPro's entire liability for any alleged or actual infringement of Intellectual Property Rights of any third party.
• 9.4 Client shall defend indemnify and hold harmless TrakPro, its Affiliates and each of its officers, employees agents and subcontractors from and against all claims, demands, damages, awards of damages, losses, costs, expenses and liabilities (including any regulatory fines and reasonable legal fees) that result or arise in connection with Client or its Authorised User's: (i) unauthorised use of the Services in breach of clause 3; (ii) infringement or violation of TrakPro's Intellectual Property Rights; or (iii) breach of applicable law including violations of third party rights due to Client's use of the Services with the Client Data.
• 9.5 The indemnities set forth in this Agreement are conditioned on the following: (i) the party claiming indemnification (the "Indemnitee") shall promptly notify the indemnifying party (the "Indemnitor") of any matters in respect of which it seeks to be indemnified, and shall give the Indemnitor full cooperation and opportunity to control the response thereto and the defense thereof, including without limitation any settlement thereof (provided that the Indemnitor will not enter into any settlement of such claim without the prior approval of the Indemnitee, which approval will not be unreasonably withheld); (ii) the Indemnitor shall have no obligation for any claim under this Agreement if the Indemnitee makes any admission, settlement or other communication regarding such claim without the prior written consent of the Indemnitor, which consent shall not be unreasonably withheld; and (iii) the Indemnitee's failure to promptly give notice to the Indemnitor shall affect the Indemnitor's obligation to indemnify the Indemnitee only to the extent the Indemnitor's rights are materially prejudiced by such failure. The Indemnitee may participate, at its own expense, in such defense and in any settlement discussions directly or through counsel of its choice.

10. LIMITATION OF LIABILITY

• 10.1 Nothing in this Agreement limits or excludes liability of either party in respect of any claims for death or personal injury caused by negligence, fraud or any other liability which cannot be excluded or limited by law.
• 10.2 To the maximum extent permitted by applicable law, TrakPro will not have any liability to Client for any loss of profits, loss of business, loss of revenue, loss of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not TrakPro has been advised of the possibility of such.
• 10.3 Subject to clauses 10.1 and 10.2, to the maximum extent permitted by applicable law, TrakPro's total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees paid by Client in the twelve (12) months preceding the event giving rise to the claim under which the liability has arisen.
• 10.4 Nothing in this Clause 10 shall exclude or limit the Client's obligation to pay the Fees.

11. TERM AND TERMINATION

11.1 This Agreement shall commence on the Effective Date and shall unless otherwise terminated as provided in this Clause 11 continue for the Initial Term. Thereafter, this Agreement shall automatically renew for the Renewal Terms of twelve (12) months each unless either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term or otherwise terminated in accordance with the provisions of this Agreement. The Initial Term together with any subsequent Renewal Terms shall constitute the Term. If TrakPro wishes to modify pricing for the Services for such a Renewal Term it may do so in accordance with clause 4.

11.2 TrakPro may immediately terminate this Agreement by notice in writing to Client if Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment.

11.3 Either party shall be entitled, without prejudice to the rights and remedies otherwise available under this Agreement or by law to terminate the Agreement on written notice in the event of:

• a material breach of this Agreement by the other party which, if capable of remedy, is not remedied by the defaulting party within thirty (30) days of its receipt of written notice of the breach from the non-defaulting party;
• fraud or wilful default of the other party; or
• the other party is unable to pay its debts, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction.

11.4 On termination of this Agreement for any reason:

• Client shall immediately pay to TrakPro all amounts due and owing up to the date of termination;
• all licences and rights of access granted under this Agreement shall immediately terminate;
• each party shall return and make no further use of any Confidential Information, property, documentation and other items (and all copies of them) belonging to the other party;
• upon receipt of a written request, TrakPro shall use reasonable commercial endeavours to deliver a back-up of Client Data to Client within 30 days of its receipt of such a written request, provided that Client has at that time paid all fees and charges outstanding at and resulting from termination. If TrakPro does not receive any such request within thirty (30) days of the date of termination, it may destroy or otherwise dispose of any of Client Data in its possession; and
• any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

11.5 If TrakPro terminates this Agreement or relevant Order Form or Statement of Work due to Client's breach in accordance with clause 11.2 or 11.3, then TrakPro may declare all outstanding amounts due and to become due in relation to the termination (including unpaid Fees through the normal expiration date of the then-current Term) immediately due and payable.

12. CONFIDENTIALITY

• 12.1 Each party (the "Receiving Party") acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other Party, (the "Disclosing Party"). The Receiving Party shall keep in confidence and protect the Confidential Information of the Disclosing Party from unauthorised disclosure or dissemination and use no less than that degree of care it uses to protect its own like information, and in any event no less than reasonable care. The Receiving Party shall not use such Confidential Information except in furtherance of this Agreement.
• 12.2 The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party's prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents ("Representatives") on a "need-to-know" basis, provided that such Representatives are bound by a written agreement with materially the same terms and conditions as this clause 12 and the Receiving Party remains ultimately liable for any breach thereof. In addition, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any audit, financing transaction, regulatory or due diligence inquiry provided the recipients are subject to obligations of confidentiality at least as restrictive as those contained herein. Except as expressly provided in this Agreement, no ownership or license rights are granted in any Confidential Information.
• 12.3 The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 12.4.
• 12.4 This clause 12 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from a third party without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information as evidenced by its written records at the time; or (d) was, prior to its receipt by the Receiving Party from the Disclosing Party, in the possession of the Receiving Party and at its free disposal without confidentiality obligations.
• 12.5 If the Receiving Party is confronted with legal action to disclose the Confidential Information received under this Agreement from the Disclosing Party or it is required to be disclosed by operation of law, the Receiving Party shall, unless prohibited by the applicable laws, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief that it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only the portion of the Confidential Information which must be disclosed as advised by its legal counsel.
• 12.6 Any breach or threatened breach by the Receiving Party of an obligation under this clause 12 may cause the Disclosing Party immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently, the Disclosing Party has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the Receiving Party or to compel specific performance of this clause.
• 12.7 A Receiving Party must notify the Disclosing Party in writing, giving full details known to it immediately, when it becomes aware of any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information, or any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

13. FORCE MAJEURE

Neither party shall have any liability to the other party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, provided that the party notified of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for one (1) month, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party. Force Majeure shall not prevent or delay the payment of any sum due or to be due by either Party.

14. MISCELLANEOUS

• 14.1 Non-solicitation. Each party hereby covenants to the other party that it shall not, and it shall procure that its Affiliates shall not, during the Term and for the period of twelve (12) months from the termination or expiry of this Agreement, solicit the services of, or endeavour to entice away from the other party any director, employee, contractor or consultant of the other party, without the prior written consent of the other party.
• 14.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law, or a single or partial exercise of such right or remedy, shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
• 14.3 Invalidity. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
• 14.4 Entire Agreement. This Agreement and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Additional Order Forms may be agreed between the parties referencing this Agreement, each of which shall form part of the Agreement.
• 14.5 Assignment. Either party may assign on written notice all of its rights and obligations under this Agreement to: (i) an Affiliate; (ii) a purchaser of all or substantially all assets related to this Agreement; or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which a party is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. This Agreement will bind and inure to the benefit of the parties and their respective permitted successors and assigns.
• 14.6 Publicity. Neither party may publicly announce this Agreement except with the other party's prior consent or as required by applicable laws. However, TrakPro may include Client and its trademarks in TrakPro's customer lists and promotional materials but will cease this use at Client's written request.
• 14.7 No agency. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorize either party to act as agent for the other.
• 14.8 Notice. Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in the Order Form. A notice delivered (i) by hand shall be deemed to have been received when delivered or if delivery is not in Business Hours, at 9am on the first Business Day following delivery, (ii) by post if correctly addressed by prepaid registered delivery shall be deemed delivered two days from the date of posting and five days for pre-paid registered airmail, and (iii) by email shall be deemed to have been received at 9am on the next Business Day after transmission.
• 14.9 Survival. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. The following Clauses shall survive the termination or expiration of this Agreement: clause 3, 6, 7, 8, 9, 10, 11, 12, 13 and this clause 14.
• 14.10 Amendment. No variation of an Order Form or Statement of work shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party. Notwithstanding, TrakPro may amend these Terms of Service from time to time and will notify Client prior to any such amendments taking effect. Should Client decide that any amendment to the Terms of Service is unacceptable, Client may by issuing notice in writing to TrakPro, terminate this Agreement within thirty (30) days of being notified of such change by TrakPro. If Client has does not terminate the Agreement within thirty (30) days, it shall be deemed to have accepted the amended Terms of Service.
• 14.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. The parties acknowledge that they may use an electronic signature process to sign this Agreement and agree to be bound by any such electronic signature which they have applied to the Agreement. The exchange of a fully executed version of this Agreement (in counterparts or otherwise) by electronic transmission (including .pdf or any electronic signature complying with Regulation (EU) N°910/2014 (eIDAS Regulation)) and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes and shall be sufficient to bind the parties to the terms and conditions of this Agreement. No exchange of original signatures is necessary.
• 14.12 Dispute Resolution. The parties shall do their best acting in good faith to settle amicably any dispute, controversy or claim arising out of or in connection with the existence, validity, construction, performance and termination of the Agreement (or any terms thereof). Escalation to the senior management (or C-Suite) of the parties shall be the preferred dispute resolution methodology. If senior management (or C-Suite) cannot resolve the dispute within 30 days of first notification of the dispute the matter shall be referred to the courts of Ireland in accordance with clause 14.13.
• 14.13 Governing Law and Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with it are governed by and construed in accordance with the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

SCHEDULE A

DATA PROCESSING AGREEMENT

This Data Processing Agreement ("DPA") sets out the additional terms, requirements and conditions on which TrakPro will process Personal Data when providing the Services and contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) ("GDPR") for contracts between controllers and processors.

DATA PROCESSING AGREEMENT

1. INTRODUCTION

• 1.1 In providing the Services under the Agreement, TrakPro may be required to process Personal Data on Client's behalf. The parties record their intention that Client and its Affiliates (as applicable) shall be the Controller and TrakPro shall be a Processor.
• 1.2 Client and its Affiliates shall, at all times, comply with their respective obligations as Controller and shall be responsible for Processing of all Personal Data processed under or in connection with the Agreement by their respective contractors or agents and Authorised Users in accordance with their obligations under applicable Data Protection Laws.
• 1.3 Client shall ensure that Authorised Users and all relevant third parties have, been informed of, and have given their consent, as required by Data Protection Laws to the specific Processing as contemplated by this DPA.
• 1.4 Annex 1 to this DPA sets out certain information regarding TrakPro and its subprocessors Processing of the Personal Data as required by article 28(3) of the GDPR.
• 1.5 Client hereby instructs TrakPro (and consents and authorises TrakPro to instruct each subprocessor) to process Client Personal Data as reasonably necessary for the provision of the services and consistent with this DPA.
• 1.6 The terms "Controller", "Processor", "Data Subject", "Personal Data", "Personal Data Breach" and "Process/Processing" have the same meaning as described in GDPR and shall be construed accordingly.

2. DATA PROTECTION OBLIGATIONS

2.1 To the extent that TrakPro Processes Client Personal Data pursuant to the Agreement, TrakPro warrants, represents and undertakes to Client that it shall:

• not process, disclose to or source from any third party, any Personal Data except to the extent, and in such a manner, as is reasonably necessary for the provision of the Services and then only where TrakPro is acting on and in accordance with the express written instructions of Client and/or its Affiliates, and at all times in accordance with all Data Protection Laws;
• implement and maintain appropriate technical and organisational measures to protect Client Personal Data including but not limited to against accidental unauthorised or unlawful loss, destruction, damage, alteration, access, disclosure or other Processing;
• not transfer or Process any Client Personal Data outside the European Economic Area, including any transfer via electronic media, without the express prior written consent of Client (and subject then in any event to the execution of an appropriate data transfer agreement);
• cooperate as reasonably requested by Client to enable Client to (i) comply with any exercise of rights by a Data Subject under the Data Protection Laws in respect of Personal Data processed by TrakPro under this DPA and shall implement and maintain appropriate technical and organisational measures to assist Client in responding to such requests from Data Subjects and shall notify Client promptly upon receipt of any such request from a Data Subject; and (ii) comply with any assessment, enquiry, notice or investigation under the Data Protection Laws which includes assisting Client where required in its obligations under Articles 35 and 36 of GDPR (including but not limited to the completion of a data protection impact assessment) to the extent this relates to the Services. Any such reasonable assistance shall be at the cost of Client;
• maintain proper up to date records of any Client Personal Data Processed by or on behalf of TrakPro pursuant to this DPA;
• ensure that all TrakPro Personnel engaged in the provision of the Services have entered into a confidentiality agreement with TrakPro and shall further ensure that such TrakPro Personnel are made aware of and observe TrakPro's obligations under this DPA with regard to the security and protection of Personal Data;
• at Client's option within thirty (30) days in writing to TrakPro, either (i) return to Client, or, (ii) delete from its systems, or destroy and make permanently unusable, all Client Personal Data and any copies, records, analysis, memoranda or other notes to the extent containing or effecting any Personal Data and TrakPro shall provide a certificate of confirmation from a senior authorised representative of TrakPro that this paragraph 2.1.7 has been complied with in full in accordance with TrakPro extract, return and deletion procedures and no longer than thirty (30) days from receipt of the request;
• appoint and identify to Client a named individual within TrakPro to act as a point of contact for any enquiries from Client relating to Personal Data and cooperate in good faith with Client concerning all such enquires within a reasonable time period;
• only sub-contract any element of the data Processing provided that (i) Client has given its express prior written consent to the use of such a sub-contractor or (ii) has given its prior general consent to sub-contracting of the data Processing by TrakPro from time to time. In the case of (ii), TrakPro will maintain a list of subcontractors used from time to time in relation to the data Processing and will make such list available to Client with any proposed additional or replacement sub-contractors prior to the introduction of any such addition or replacement. Client may acting reasonably object to the TrakPro or replacement of any particular sub-contractor proposed by TrakPro. If no written objections have been received within ten (10) days, the proposed subprocessor shall be deemed accepted. TrakPro shall ensure that (i) the terms governing the engagement between TrakPro and any subcontractors are not less protective with respect to Processing of Client Personal Data compared to the provisions of this DPA and any other relevant provisions of the Agreement to the extent those requirements are applicable to the nature of the services provided by the subprocessor; and (ii) TrakPro will remain responsible for the sub-contractor's compliance with its obligations and for any acts or omissions of such subcontractor.

3. PERSONAL DATA BREACH

Without prejudice to the other provisions of this DPA, TrakPro shall promptly upon becoming aware of any Personal Data Breach (and in any event within twenty four (24) hours of becoming aware of the Personal Data Breach) notify Client of the Personal Data Breach by telephone and by email, and where the Personal Data Breach directly affects Client Personal Data or the Services being offered to Client. TrakPro shall, at no additional cost to Client (save that Client shall reimburse TrakPro's reasonable costs where TrakPro has complied fully with its obligations under this DPA and such Personal Data Breach is not due to TrakPro default or neglect), provide Client with all resources and assistance as required by Client for Client to notify the Office of the Data Protection Commissioner and/or Information Commissioners Office (or analogous body in any other relevant jurisdiction and/or any bodies which may succeed or replace them from time to time and any other relevant Regulatory Authorities) of the Personal Data Breach and for Client to provide such reports or information as may be requested by it in relation to such Personal Data Breach and/or for Client to notify the relevant Data Subjects of such Personal Data Breach, as applicable.

4. SUBPROCESSORS AND DATA TRANSFERS

• 4.1 Client acknowledges and confirms it prior general consent to sub-contracting of the data Processing by TrakPro from time to time to its subprocessors, an up to date list of which is maintained by TrakPro and available on request, and which may be changed in accordance with Clause 2.1.9.
• 4.2 TrakPro shall process Client Personal Data in the EU/European Economic Area (EEA) and Client Personal Data shall not be transferred outside of EU/EEA to a country that the European Commission has not determined has adequate protection for Personal Data, without Client's prior written consent. Where Client Personal Data for EEA data subjects is transferred outside of the EU/EEA, the parties shall enter into appropriate data transfer agreements.

5. CHANGES IN DATA PROTECTION LAWS

• 5.1 Should changes to applicable Data Protection Laws, including the interpretation thereof, entail increased costs for TrakPro or its Subprocessors, TrakPro may, subject to providing written notice to Client, increase the rates charged to Client to reflect the increased costs. The increase to Client should be fair and reasonable and should be proportional to what other similar TrakPro clients are being asked to pay.
• 5.2 TrakPro may propose variations to this Appendix which TrakPro reasonably considers to be necessary to address the requirements of any Data Protection Laws. The parties shall promptly discuss the proposed variations and negotiate in good faith with a view to agreeing and implementing those or alternative variations designed to address the requirements identified as soon as is reasonably practicable. Client shall not unreasonably withhold or delay agreement to any consequential variations to this Appendix proposed by TrakPro to protect TrakPro and the Subprocessors against additional risks associated with the variations proposed.

6. AUDIT

Upon 30 days written request by Client, not more than once per year, Client may conduct an audit of TrakPro systems, processes, and procedures relevant to the protection of Personal Data at locations where Personal Data is Processed. TrakPro will work cooperatively with Client to agree on an audit plan in advance of any audit. If the scope of the audit is addressed in an ISO 27001/27701 or similar audit report performed by a qualified third party auditor within the prior 12 months, and TrakPro data protection or other relevant officer certifies in writing there are no known material changes in the controls audited, Client shall agree to accept those reports in lieu of requesting an audit of the controls covered by the report. TrakPro will reasonably cooperate with and assist Client where a Regulator requires an audit of the data processing facilities from which TrakPro process Personal Data in order to ascertain or monitor Client's compliance with Data Protection Laws.

7. INDEMNITY

TrakPro shall indemnify Client from and against any and all third party claims, suits, demands and actions and for resulting damages, awards of damages, losses, costs, and expenses (including but not limited to any regulatory fines and reasonable legal and professional fees) incurred by Client that result or arise from any breach by TrakPro of the terms and conditions of this DPA and/or Data Protection Laws. TrakPro shall be liable on a comparative basis for the portion of those damages directly attributable to its breach of its obligations and the indemnity shall be subject to the limitations of liability in the Agreement.

ANNEX 1: DETAILS OF PROCESSING OF CLIENT
AND AUTHORISED USER PERSONAL DATA

(a) Subject matter and duration of the Processing of Client and Authorised User Personal Data
The subject matter is Client Personal Data and Authorised User Personal Data and the duration of the Processing of Client Personal Data and Authorised User Personal Data is set out in the Agreement.

(b) The nature and purpose of the Processing of Client and Authorised User Personal Data
TrakPro will Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by the Client and/or Authorised User in its use of the Services.

(c) The types of Personal Data to be Processed
Client and Authorised User Personal Data relating to the following type of data categories:

• First name and last name
• Contact Information (email, phone, work location)

The types of Personal Data may change from time to time, according to any additional or amended Services to be provided by TrakPro.

(d) The categories of Data Subject to whom Client and Authorised User Personal Data relates
Client Personal Data relating to the following type of Data Subjects:

• Client employees; and
• Authorised Users (as defined in the Agreement)

(e) The obligations and rights of Client

These are as set out in the Agreement and this DPA.
TrakPro may provide notice of change to these provisions where an update is required due to changes to services or changes required due to applicable Data Protection Laws, including the interpretation thereof.