JUMIO TERMS AND CONDITIONS
Version: 2; August 22, 2016
In consideration of the mutual covenants and promises contained in these term and conditions (“Terms and Conditions”), the parties specified in the applicable Sales Order (“Parties”) agree as follows:
1.1 “Additional Term” means an extension of the Initial Term, whether expressly agreed between the Parties, by an automatic extension pursuant to Section 2.2, or otherwise.
1.2 “Address Extraction” means the Product described as such in Exhibit A.
1.3 “Agreement” means a Sales Order that incorporates these Terms and Conditions and any applicable exhibits, schedules or other attachments, unless the context requires otherwise.
1.4 “API” means an application program interface.
1.5 “BAM Checkout” means the Product described as such in Exhibit A.
1.6 “Confidential Information” means any and all trade secrets, proprietary or confidential information, in whatever form, that are owned by a Party and/or reasonably considered by it to be confidential, that a Party has disclosed to the other Party prior to the Effective Date, or that a Party may disclose to the other Party on or after the Effective Date. Confidential Information includes, without limitation, the object code and source code to the Products, as defined below. Notwithstanding the foregoing, the following will not constitute Confidential Information for purposes of this Agreement: (a) information which was already in the receiving Party’s possession as a matter of record prior to the Effective Date and not disclosed to the receiving Party by the other Party to this Agreement; (b) information that is independently developed by the receiving Party as a matter of record; (c) information that is obtained from a third Party who, insofar as is known to the receiving Party, is not prohibited from transmitting the information to the receiving Party by a contractual, legal or fiduciary obligation to the disclosing Party; and (d) information which is or which becomes generally available to the public other than as a result of disclosure by the receiving Party. Distinguish between confidential information and customer data.
1.7 “Customer” means the customer listed in the applicable Sales Order referring to these Terms and Conditions.
1.8 “Documentation” means the standard documentation, specifications, written instructions or explanatory material related to the installation, operation, use or maintenance of the Products and any subsequent versions thereof, available through the Merchant Portal.
1.9 “Effective Date” shall be the date on which Customer signs the applicable Sales Order.
1.10 “Fastfill” means the Product described as such in Exhibit A.
1.11 ”Fees” means the aggregate total of all license and other fees specified in the Sales Order.
1.12 “I-frame” means an HTML document embedded within another HTML document on a website.
1.13 “Initial Term” means a period of 12 months from the Services Start Date, or such other period specified in the Sales Order, in each case excluding any Additional Term(s).
1.14 “Intellectual Property Rights” means all intellectual property rights protected by law throughout the world, including all copyrights, copyright registrations and applications, trademark rights (including trade dress), trademark registrations and applications, patent rights (including the right to apply therefor), patent applications (including the right to claim priority under applicable international conventions) and all patents issuing thereon, industrial property rights, inventions (whether or not patentable), together with all utility and design, know-how, specifications, trade names, mask-work rights, trade secrets, moral rights, author’s rights, algorithms, rights in packaging, goodwill, and other intellectual and industrial property rights, as may exist now and hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
1.15 “Jumio” means Jumio Corporation, a Delaware corporation having its principal place of business at 268 Lambert Avenue, Palo Alto, CA 94306, United States of America.
1.16 “Licensed Work” means the Products and the Documentation.
1.17 “Maximum Transactions” means the number of Transactions specified in a Sales Order representing the maximum number of Transactions that Customer is permitted to undertake pursuant to that Sales Order.
1.18 “Merchant Portal” means the secure portal hosted by Jumio and available to Customer for (a) accessing the Documentation, (b) configuring the Products and (c) viewing any stored Transactions during the storage period referred to in Section 9.
1.19 “Multi-Doc” means the Product described as such in Exhibit A.
1.20 “Netverify” means the Product described as such in Exhibit A.
1.21 “Overage” means a Transaction processed pursuant to a Sales Order in excess of the Maximum Transactions specified in that Sales Order.
1.22 “Products” means Address Extraction, BAM Checkout, Facematch, Fastfill, Multi-Doc, NetVerify and such other products marketed or sold by Jumio as are specified in the applicable Sales Order(s) referencing these Terms and Conditions; and “Product” means any one of them.
1.23 “Renewal Date” means the date on which any Additional Term commences.
1.24 “Sales Order” means, irrespective of its title, a document that (a) specifically refers to these Terms and Conditions; and (b) is signed by both Parties. In the event of a conflict between the provisions of these Terms and Conditions and the provisions of a Sales Order, the provisions of the applicable Sales Order will control.
1.25 “SDK” means a software development kit.
1.26 “Service Start Date” means the date specified in the Sales Order as the Service Start Date or if none, the Effective Date.
1.27 “Services” means the provision of the Jumio Products and the Support Services.
1.28 “Support Services” means the Integration Services and the Maintenance Services set out in Exhibit B.
1.29 “Term” means the Initial Term and any Additional Term(s).
1.30 “Transaction” means (a) a submitted Netverify scan which returns a result of “verified”, “denied”, or “unable to assess” or (b) a submitted FastFill or BAM Checkout scan that returns one or more structured data fields.
1.31 “User” means an end-user executing a Transaction.
1.32 “User Information” means information submitted by a User in connection with a Transaction.
2. ORDERING SERVICES
2.1 Placing an Order. An order must be placed using a Sales Order. Jumio will prepare the Sales Order, which will contain a description of the type and quantity of the Products being purchased, the fees payable and any implementation or other terms and conditions applying to their supply. A Product is not included in a Sales Order unless it has been specifically referenced therein. A Sales Order shall only be effective when signed by both parties thereto.
2.2 Renewal. A Sales Order will expire upon: (i) the expiration of the Term or (ii) the Maximum Transaction amount set out in the applicable Sales Order being consumed with no Overage pricing included in that Sales Order (“Sales Order Expiration”). Upon a Sales Order Expiration, and unless otherwise stated in the Sales Order, the terms of that Sales Order will automatically renew as an Additional Term on identical terms and conditions (including quantity, price and duration) unless either Party notifies the other Party in writing at least thirty (30) days prior to the Sales Order Expiration that it does not intend to renew. Where Customer has breached any term of this Agreement during the Term, any renewal is subject to Jumio’s express written confirmation.
3. DESCRIPTION OF SERVICES
3.1 Provision of the Services. Subject to Customer’s compliance with the provisions of this Agreement, commencing on the Service Start Date and continuing throughout the remainder of the Term, Jumio will provide the Services in accordance with and subject to the terms of this Agreement, including where applicable, the performance standards set forth in Exhibit C (“Performance Standards”).
3.2 Services License. Jumio grants to Customer a worldwide, non-exclusive and non-transferable right and license to: (i) access and use the Licensed Work; and (ii) install and use the Products solely in connection with the Services. Jumio reserves all rights in the Licensed Work and Services not expressly granted in this Section. Customer may access and use the Licensed Work and Services solely for its business purposes and such access and use is expressly limited to the Maximum Transactions and permitted Overages set out in a Sales Order, or as otherwise agreed between the Parties.
3.3 User Information License. Customer grants to Jumio a worldwide, royalty free, non-exclusive and non-transferable right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit and display the User Information solely in connection with, and to the extent necessary to provide, the Services. Jumio may grant sublicenses under this Section to its service providers that perform services that form part of or are otherwise used to perform the Services. Customer further grants to Jumio a worldwide, royalty free, non-exclusive and non-transferable right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit and display usage data (such as, by way of example and not by way of limitation, numbers of verifications) in an aggregated form that does not identify individual persons or organizations, in order to compile statistics regarding use of the Services and/or to improve the Services.
3.4 Restrictions. Customer has no right to and shall not attempt to interfere with or disrupt the Services or the Licensed Work or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer has no right to and must not:
(a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the Licensed Work, for any purpose;
(b) remove any identification markings, including but not limited to copyright notices and trademarks, from the Licensed Work;
(c) make any modification or enhancement to the Licensed Work, or any portion thereof;
(d) copy, sell, resell, OEM, lease, assign, distribute or transfer in any manner or form, in whole or in part, of the Licensed Work or Services;
(e) use the Licensed Work to develop or distribute any software product that competes in the marketplace with the Products or Services; or transfer any of its rights hereunder.
3.5 Acceptable Use Policies. Customer acknowledges and agrees that Jumio does not monitor or police data transmitted through the Services and that Jumio shall not be responsible for the content of any such communications or transmissions. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer acknowledges that the Services are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control systems or weapons control systems, or where failure could lead to death, personal injury or environmental damage. Customer shall not use the Services for such purposes or under such circumstances.
3.6 Unauthorized Use. Customer further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Licensed Work and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Licensed Work except to the extent permitted under this Agreement.
4.1 Fees. The Customer must pay Jumio the Fees in the manner and amounts set forth in this Agreement. All payments will be nonrefundable, non-cancellable and irrevocable except as otherwise provided in this Agreement. Unless set forth in a Sales Order, the Fees are due and payable in United States’ dollars, in full, net thirty (30) days of the Effective Date or Renewal Date (as appropriate). Invoices to Customer will be sent to the email address indicated on the Sales Order. Payment obligations are unconditional and not dependent on a “go live” date or the use of the Products in a “live environment”.
4.2 Overages. Where a rate for Overages is contained in the Sales Order, Jumio will invoice and Customer must pay for Overages monthly in arrears, net thirty (30) days of Jumio’s invoice date. Fees for Overages will be calculated as the product of the quantity of Overages and the rate for Overages set out in the Sales Order.
4.3 Unused Transactions. Customer acknowledges and agrees that any unused or unprocessed Transactions (or related services) under the Maximum Transactions limitation set forth in a Sales Order (“Unused Transactions”) will automatically expire and Customer shall not be entitled to a refund or credit for any Unused Transactions nor will Customer be entitled to rollover any Unused Transactions into an Additional Term or another or future agreement or arrangement.
4.4 Taxes. The amounts due to Jumio under this Agreement do not include bank fees, transfer fees, taxes, duties or similar fees. If Jumio does not receive full payment of the Fees or is required to pay (a) sales, use, property, value-added, withholding or other taxes, (b) any customs or other duties, or (c) any import, warehouse or other fees, associated with the importation or delivery based on the licenses granted or services performed under this Agreement or on Customer’s use of the Licensed Work or the Services, then such taxes, duties or fees will be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer will declare and pay such taxes and Jumio will not be required to invoice Customer. This Section 4.4 does not apply to and Customer shall not be required to pay taxes based on Jumio’s gross receipts, income or payroll taxes.
5. CONSEQUENCES OF LATE PAYMENT
5.1 Account Suspension. If the payment of Customer’s Fees is overdue by more than five (5) days, Jumio may immediately suspend the provision of Services to Customer and remove net 30 payment terms (or any other credit terms or installment terms previously extended), and all amounts due will become due immediately. Suspension of an account does not in any way negate or lessen Customer’s obligation to pay any Fees or expenses due under this Agreement.
5.2 Default Interest and Collection Costs. All overdue payments will accrue interest at the lesser of (a) five percent (5%) per month, or (b) the maximum rate permitted by applicable law; in each case, from the date due until fully paid. Customer shall reimburse Jumio for all costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys’ fees, legal costs, court costs and collection agency fees.
5.3 Account Reactivation. If Jumio suspends Customer’s account for non-payment, Customer will be entitled to reopen or reinstate its account by: (i) paying all outstanding invoices; (ii) paying all late fees or charges associated with past due invoices; (iii) paying any fees Jumio may be charged for unsuccessful direct debit or credit card charge(s); (iv) paying a [$1,500] account reactivation fee; and (v) executing a direct debit authorization form or credit card charge authorization form expressly authorizing Jumio to debit its bank account or charge its credit card according to the payment terms set out in a Sales Order.
6.1 Service Warranties. Jumio warrants to Customer that the Services will be performed in a professional manner, consistent with generally accepted industry standards, and that the Services will substantially conform with the Documentation. If Jumio fails to perform the Services in accordance with the preceding warranty the sole and exclusive remedy of Customer for a breach of this limited warranty by Jumio shall be to require Jumio to use commercially reasonable efforts to re-perform the Services as soon as is reasonably practicable, but in no event, later than fifteen (15) days from the date Customer notifies Jumio of the same.
6.2 Mutual Warranties. In addition, each Party warrants that (a) it has all right and authority necessary to enter into this Agreement, and (b) it has all necessary licenses, permits and registrations required to perform its obligations hereunder.
6.3 Disclaimer. Jumio does not warrant that the Services will be provided without error. Customer assumes sole responsibility and liability for results obtained from the use of the Products and for conclusions drawn from such use. Jumio shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Jumio by Customer in connection with the Products or Services or any actions taken by Jumio at Customer’s direction. Jumio shall have no liability for any claims, losses or damages arising out of or in connection with Customer’s or any end user’s use of any third-party products, services, software or web sites that are accessed via links from within the Products or Services.
6.4 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, OR SATISFACTORY QUALITY REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE OR OTHERWISE.
6.5 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
7. CUSTOMER’S OBLIGATIONS
7.1 General Obligations. Customer shall: (a) maintain adequate controls over its data transmissions, (b) monitoring such transmissions, (c) notifying Jumio of any non-conforming transmissions, failure to receive transmissions or failure to send or receive such transmissions, (d) setting applicable data processing and transmission parameters, (e) inspecting all data input and output for accuracy and completeness, (f) implementation and maintenance of appropriate safeguards to identify data and processing errors, (g) maintaining their own computer and telecommunication systems for communication and data exchange with Jumio, (h) monitoring and restricting the use of all passwords, user identification numbers and other security measures subject to their control and in accordance with Customer’s policies, (i) compliance with any applicable United States or foreign government regulations relating to their products and services; (j) the delivery of their products and services, and payment of all taxes, customs and duties related to the sale of their products and services, (k) selecting qualified personnel to operate their systems, software and equipment, and (l) training all personnel.
7.2 Customer’s Obligation to Keep Current: Customer acknowledges and agrees that it is a condition of the provision of the Services by Jumio, that all solutions, corrections, or improvements provided to it by Jumio are implemented by Customer within three months of release. Customer further recognizes that its failure to implement such solutions, corrections, and improvements may render the Products unusable or defective.
7.3 Verification Results cannot be Re-used. Netverify Transaction results (“Verifications”) are provided on a single use only basis. A Verification may only be used for the User interaction or Transaction in which it was initially requested and Customer will not store, compile, or develop a database of Verifications for any purpose other than to provide historical records to the applicable User. For the avoidance of doubt, a single Verification may not be used in connection with a User on more than one occasion.
8. CONFIDENTIALITY OF INFORMATION.
8.1 Confidentiality Obligations. As between the Parties, the Confidential Information of each Party will remain its sole property. Each Party will protect Confidential Information from disclosure using the same care it uses to protect its own confidential information of like importance, but not less than reasonable care. The Party employing or engaging persons having access to the Confidential Information of the other Party is responsible and liable for their compliance with such confidentiality obligations. Notwithstanding the foregoing, if a Party receiving Confidential Information becomes, under lawful process, subject to a demand for discovery or disclosure of such information, it will give the owner of the Confidential Information notice of the demand prior to furnishing the requested information and will, upon the request of and at the expense of the owner of the Confidential Information, cooperate with such Party in seeking reasonable arrangements to protect the confidential nature of such information.
8.2 Enforcement. Both Parties acknowledge that, in the event of a breach of its obligations under this Section 8, the non-breaching Party may bring an appropriate legal action to enjoin any such breach of this Agreement without the need to obtain a bond or other security.
9. MANAGEMENT OF DATA
9.1 Access to Data. The Services include access to the Merchant Portal, and subject to Section 9.2, Customer may access the data from each of its Transactions, including extracted data and images for each individual Transaction, via the Merchant Portal for the Term. Upon termination of this Agreement for any reason, access to the Merchant Portal, and therefore access to data storage, will be revoked. Jumio may delete any stored items in storage upon expiration or termination of this Agreement. Jumio will have no responsibility or liability for storing and deleting items in accordance with this Section 10.
9.2 Jumio Data Obligations. Jumio will not store any data scanned using Fastfill. Jumio will store data scanned using the Netverify product unless Customer has enabled Instant Deletion in the Merchant Portal. Jumio will store data scanned using the BAM Checkout product unless Customer has instructed the Jumio Support Team to deactivate storage of data. Jumio will delete any Transaction Data Sets not stored hereunder.
10. INFORMATION SECURITY.
10.1 Jumio warrants that:
(a) it shall be responsible for the security of End User Information stored, processed or transmitted by Jumio pursuant to this Agreement; and
(b) it will maintain compliance with PCI DSS for the Term, and will provide customer with a copy of its most recent Attestation of Compliance certificate upon request.
10.2 Jumio shall comply with the Jumio Security Policy, a copy of which is available via the Merchant Portal, as may be updated from time to time.
11. INTELLECTUAL PROPERTY
11.1 Ownership. As between Customer and Jumio, Jumio owns the Services and Licensed Work (and all copies of the Licensed Work), and all Intellectual Property Rights therein or relating thereto are and shall remain the exclusive property of Jumio or its licensors. Except as set forth in this Agreement, Jumio does not grant any rights to the Services or Licensed Work to Customer. Customer further acknowledges that Jumio retains all right, title and interest in the Licensed Work including all rights to patent, copyright, trade and, attributable to Jumio efforts, whether such efforts are independent or in conjunction with Customer.
11.2 Notices and Enforcement. Customer agrees that all trademark and intellectual property notices for the Licensed Work will be preserved unmodified. Customer hereby acknowledges and agrees that the Licensed Work constitute and contain valuable proprietary products and trade secrets of Jumio, embodying substantial creative efforts and confidential information, ideas, and expressions. Customer further agrees to take all reasonable steps to ensure that unauthorized persons will not have access to any of the Licensed Work and that all authorized persons having access will refrain from any disclosure, duplication or reproduction of the Licensed Work except to the extent permitted under this Agreement.
11.3 Customer Restrictions. Customer agrees not to challenge, directly or indirectly, any right or interest of Jumio in the Services or Licensed Work nor the validity or enforceability of Jumio’s rights under applicable law. Customer agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, the Services or Licensed Work or to take any other action which may adversely affect Jumio’s rights or interest in the Services or Licensed Work in any jurisdiction.
11.4 Trademarks. Customer acknowledges Jumio’s ownership of the trademarks “Jumio,” “BAM Checkout,” “Netswipe”, “FastFill,” “Netverify,” and any other the Product names, and all related trademarks and service marks. Customer further acknowledges that it will acquire no interest in such trademarks and service marks by virtue of this Agreement or the performance by Customer of its duties and obligations under this Agreement. Customer agrees not to use the name “Jumio” or any of the Product names or marks (or any confusingly similar name or symbol), in whole or in part, as part of Customer’s business or trade name.
12.1 Customer Indemnification. Customer shall defend (or settle), indemnify and hold harmless Jumio, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or a User’s use of the Services (other than any claim for which Jumio is responsible under Section 12.2); or (ii) Customer or any end user has used the Services in a manner that violates Sections 3.2, 3.3 or 3.4. Customer’s obligations under this Section 12.1 are contingent upon: (a) Jumio providing Customer with prompt written notice of such claim; (b) Jumio providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.
12.2 Jumio Indemnification. Jumio shall defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. Jumio’s obligations under this Section 12.2 are contingent upon: (a) Customer providing Jumio with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Jumio, at Jumio’s expense, in the defense and settlement of such claim; and (c) Jumio having sole authority to defend or settle such claim. In the event that Jumio’s right to provide the Services is enjoined or in Jumio’s reasonable opinion is likely to be enjoined, Jumio may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF JUMIO AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. Jumio shall have no liability under this Section 12.2 to the extent that any third party claims described herein are based on use of the Services in a manner that violates this Agreement or the instructions given to Customer by Company.
12.3 Consequences of Infringement. If the Products or any portion of the Products becomes, or in Jumio’s opinion is likely to become subject to any claim of infringement, Jumio will either (a) procure for Customer the right to continue exercising its rights under this Agreement with respect to the; or (b) replace or modify the Products to make it non-infringing, or if neither (a) or (b) are, in Jumio’s reasonable discretion, commercially feasible, terminate the licenses to the corresponding Products granted under this Agreement and refund to Customer all corresponding license fees paid to Jumio relating to the period after such termination.
12.4 Exclusions. Notwithstanding the foregoing, Jumio will have no liability for any claim of infringement based upon any infringement claim for Customer’s: (a) use of a superseded or altered release of the Licensed Work if the infringement would have been avoided by the use of a current unaltered release of the Licensed Work that Jumio provided or made available to Customer; or (b) use of the Licensed Work which has been modified pursuant to either Customer’s specific request or Customer’s individual modifications or enhancements to the Products; (c) use of the Licensed Work: (i) other than in accordance with this Agreement, (ii) other than under normal use as set forth in the Documentation, or (iii) in combination with other software or equipment not provided by Jumio if such infringement would not have occurred without such use or combination; or (d) continuing the allegedly infringing activity after notice.
13. RESPONSIBILITY FOR REGULATORY COMPLIANCE
13.1 Compliance. Jumio is responsible for compliance with laws and regulations which relate to the provision of the Services. Customer is responsible for laws and regulations which relate to the purchase of the Services or the provision of the Services to its customers.
13.2 Audit. Jumio will use commercially reasonable efforts to co-operate with any audit initiated by a regulatory or similar government department or agency with authority over the Customer, to the extent necessary to allow the Customer to discharge any mandatory obligation under applicable law. Customer shall be responsible for all reasonable costs incurred by Jumio with respect to such audit.
14. REFERENCES FOR JUMIO’S SERVICES
14.1 Websites and Press Releases. Customer hereby grants Jumio the right to use its logo in the client section on the Jumio website. Customer agrees to designate a representative who will be required to assist Jumio to prepare a press release and/or case study referring to Customer’s use of Jumio in its business, the benefits it has derived and the return on investment expected.
14.2 Ongoing Use. Jumio may use Customer’s name as a reference or publicize Customer as a retained or former client of Jumio in any proposal sent to third parties or in any other promotional materials, news releases, advertisement or disclosures.
15. TERM AND TERMINATION
15.1 Term. Unless otherwise set forth in a Sales Order, this Agreement shall remain in full force and effect unless terminated in accord with the provisions of this Paragraph 15.
15.2 Termination for Convenience. Customer may terminate this Agreement at any time by notice in writing provided that all Fees (whether or not earned, invoiced or due) have been paid in full.
15.3 Immediate Termination for Cause. Notwithstanding any provision in this Agreement to the contrary, either Party may terminate this Agreement at any time after the occurrence of any of the following events:
(a) the other Party is declared or acknowledges that it is insolvent or otherwise unable to pay its debts as they become due or upon the filing of any proceeding (whether voluntary or involuntary) for bankruptcy, insolvency or relief from its creditors; or
(b) the other Party assigns or transfers this Agreement or any of its rights or obligations under this Agreement, without prior written approval (not to be unreasonably withheld).
15.4 Termination for Material Breach. Either Party may, at its option, terminate this Agreement for a material breach by the other Party after giving the other Party written notice, specifically identifying the breach on which termination is based, and thirty (30) days to cure such breach (except for a breach based upon non-payment of any sums due for which the breaching Party will have ten (10) days to cure such breach). If the breach is not cured within the appropriate time period, this Agreement will terminate without further action by either Party (with the exception of Customer obligation to remit payment for any amounts due).
15.5 Survival. Sections 4, 5, 8, 11, 12, this Section 15.5, 15.6, 15.7, 17.3, 18 and 19, any payment obligations under the Sales Order(s) and all provisions that by their nature are intended to survive termination of this Agreement shall continue in effect after expiry or termination of this Agreement.
15.6 Consequences of Termination. Upon termination of this Agreement for any reason Customer will immediately cease using the Services and Jumio shall be under no further obligation to provide the Services. Where Customer has terminated the Agreement pursuant to Sections 15.3 or 15.4, Jumio will refund any prepaid fees for Services unconsumed calculated pro rata. Where the Agreement has been terminated for any other reason, Customer will immediately pay to Jumio all outstanding fees, charges, payment and expenses due, regardless if delivered, under this Agreement and any and all Sales Order(s)
15.7 Payments on Termination. Termination of this Agreement will not relieve Customer from any obligation to pay Jumio any amount contracted prior to the termination date.
16.1 Export Obligations. Customer agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Licensed Work, or any technical information about the Licensed Work, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States government approval, unless the appropriate export license or approval has been obtained.
17.1 Dispute Procedure. The Parties shall resolve any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), under the provisions of Sections
17.2 and 17.3. The procedures set forth in Sections 17.2 through 17.3 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time.
17.2 Escalation. The Parties shall first attempt in good faith to resolve any Dispute by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within 10 Business Days after one Party provides notice to the other Party of such Dispute (“Dispute Notice”), either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such dispute to the Chief Executive of each Party set forth below (or their nominee designated in a written Notice to the other Party, “Executive(s)”).
17.3 Governing Law and Jurisdiction. This Agreement is performable in Santa Clara County, State of California. Any disputes or proceedings related or arising out of this Agreement will be governed by and construed in accordance with the substantive laws of the State of California, without giving effect to its rules regarding conflicts of law. The United Nations Convention on the International Sale of Goods is expressly disclaimed. The sole and official language of this Agreement is English. The Parties agree that the exclusive venue for any action arising under this Agreement will be in the state or federal courts located in Santa Clara County, State of California, USA.
18. LIMITATION OF LIABILITY.
18.1 Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S OBLIGATIONS UNDER SECTIONS 8 (CONFIDENTIALITY OF INFORMATION) AND 12 (INDEMNIFICATION): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY IINCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE; AND (II) IN NO EVENT SHALL JUMIO’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
18.2 Exclusions. Notwithstanding any provision in this Agreement to the contrary, Jumio will not be responsible for and will bear no liability for any damages arising from any use of the Licensed Work, or any stoppages, slowdowns, performance problems or other problems that are the result of the circumstances outside of Jumio’s control including, but not limited to, an end-user’s inappropriate use of the Licensed Work, deficiencies or limitations in an end-user’s hardware or systems or software or processes, deficiencies or limitations in the Internet or broadband connection.
18.3 Basis of Bargain. THE LIMITATIONS OF LIABLITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 18 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN JUMIO AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
19. GENERAL PROVISIONS.
19.1 No Partnership. This Agreement does not create any relationship of association, partnership, joint venture or agency between the Parties. Neither Party will have any right or authority to assume, create or incur any liability or obligation of any kind against or in the name of the other Party.
19.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter in this Agreement. This Agreement supersedes all previous discussions and negotiations between the Parties and supersedes and replaces any and every other agreement, which may have existed between Jumio and Customer with respect to the contents of this Agreement. Any Sales Order issued by Customer will not change or add to the terms and conditions of this Agreement.
19.3 Relationship Between the Parties. Work will be done at either Party’s respective premises, unless otherwise agreed. If work is done at Customer’s premises, Customer agrees to provide Jumio personnel with a safe workplace consistent with that provided to its own employees. Customer also agrees to provide reasonable access to key Customer personnel necessary for Jumio to perform the Services. Jumio personnel will observe all safety and access practices and other applicable rules in effect at such workplace, provided that reasonable notice of the rules has been given to Jumio. Jumio shall indemnify and hold the other Party, its employees, agents and contractors harmless from and against any and all losses, expenses and claims (including those of third parties) for death, personal injury, or property damage caused by the negligence or willful misconduct of the Party arising out of the performance of the Services.
19.4 Amendments. Except to the extent and in the manner specified in this Agreement, any modification or amendment of any provision of this Agreement must be in writing and bear the signature of the duly authorized representative of each Party.
19.5 No Waiver. The failure of Jumio to exercise any right granted under this Agreement, or to require the performance by Customer of any provision of this Agreement, or the waiver by Jumio of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
19.6 Assignment. Neither Customer nor Jumio may sell, assign or transfer any of its rights, duties or obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld. This Agreement is binding upon the successors and assigns of Customer and Jumio.
19.7 Third Party Beneficiaries. The Parties agree that no person or entity that is not a Party to this Agreement will be deemed to be a third-Party beneficiary or entitled to any rights under this Agreement.
19.8 Notices. All notices, requests, reports, submissions and other communications permitted or required to be given under this Agreement will be deemed to have been duly given if such notice or communication is in writing and sent by personal delivery or by airmail, cable, telegram, telex, facsimile transmission, email or other commercial means of rapid delivery, postage or costs of transmission and delivery prepaid, to Jumio at the address specified below and to Customer at the address specified in the Sales Order until such time as either Party gives the other Party not less than ten (10) days’ prior written notice of a change of address in accordance with the provisions of this Agreement; provided that any termination requests must be sent to firstname.lastname@example.org.
Jumio Corporation Attention: General Counsel 268 Lambert Avenue Palo Alto, CA 94010 United States of America
19.9 Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
19.10 Enforceability. If any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision will to such extent as it is determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement will otherwise remain in full force and effect. Furthermore, it is the intention of the Parties that in lieu of such illegal, invalid, or unenforceable provision, there automatically be added as a part of this Agreement a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
19.11 Relief. In the event a dispute arises under this Agreement, the prevailing Party will be entitled to all reasonable costs and expenses incurred by it in connection with such dispute (including, without limitation, all reasonable attorney’s fees and costs incurred before and at any trial, arbitration or other proceeding), as well as all other relief granted in any suit or other proceeding.
19.12 Publicity. Neither Party may publicize or disclose to any third Party any of the terms or provisions of this Agreement, or the discussions relating to any of the contents of this Agreement, without the prior written consent of a duly authorized officer of the other Party, except as required by law.
19.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
19.14 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
EXHIBIT A – PRODUCTS
Jumio’s proprietary software application that leverages Jumio’s credit card and document scanning technology to assist in web and mobile transaction completion or checkouts. The BAM Checkout Service is divided geographically as follows:
– BAM Checkout US/Canada
BAM Checkout, for end users with US government-issued driver’s licenses or identification cards or end users with Canadian government-issued driver’s licenses, includes the ability to scan the bar code on a government-issued driver’s license or identification cards to populate checkout forms or any other applicable forms that require credit card, debit card or government-issued driver’s license information.
– BAM Checkout Rest of World
For end users who have a non-US or non-Canadian government-issued driver’s license or identification card, BAM Checkout only allows for the scan of the end user’s credit or debit card.
Jumio’s proprietary personal identification document capture and verification software application, comprising computer vision and analytics, and/or manual verification by ID experts using a proprietary software application. Netverify enables real-time ID scanning and verification on websites and mobile applications helping to reduce risk and minimize fraud for online transactions.
NetVerify may include:
– Address Extraction – a feature of Netverify that delivers additional address data points extracted from an identification document. Address Extraction is only applicable for identification documents from certain countries.
– Facematch – a feature of Netverify that determines whether the person on an identification document is the person presenting that document in a transaction.
Jumio’s data extraction capabilities wrapped into a standalone product that populates forms or individual data fields by extracting the necessary information from personal identification documents (without verification of said document) for the purpose of reducing end user keystrokes.
Jumio’s ability to capture and securely store complimentary documents that are needed for KYC or consumer on-boarding purposes. The documents can be stored in conjunction with an ID or independently.
EXHIBIT B – SUPPORT SERVICES.
1. DEFINITIONS. For the purposes of this Exhibit:
1.1 “Critical Error” means an Error that causes the Licensed Work to be unavailable to all customers.
1.2 “Error” shall mean and error, defect or omission that prevents the Product’s successful operation in accordance with the applicable specifications.
1.3 “Significant Error” means an Error that causes material features of the Licensed Work to be unavailable to all customers.
2. INTEGRATION SUPPORT SERVICES
2.1 Customer may agree to purchase from Jumio integration services (“Integration Support Services”). Implementation Support Services may be added through the Parties’ written agreement in a Sales Order, and include:
(a) Provide access to Jumio’s standard integration guide documentation available in the Merchant Portal;
(b) Appoint a technical account manager (TAM) for a period of up to three (3) months from the Effective Date to act as primary point of contact through integration of the Products;
(c) Co-ordinate a project kick off call to review the use case, introduce key personnel on each side and discuss project parameters (such as schedules and dependencies);
(d) Facilitate prompt responses to all support requests arising during the integration phase;
(e) Facilitate testing by Jumio’s support team to ensure User Information is being correctly captured and conveyed; and
(f) Transition the integration into the support phase, including populating Jumio’s systems with relevant information pertaining to the integration.
2.2 Customer Responsibility. Notwithstanding the assistance provided by Jumio pursuant to this Section 2, Customer acknowledges that the integration of the Product is Customer’s responsibility.
3. MAINTENANCE SERVICES
3.1 Jumio shall provide standard maintenance services as specified in this Section 4 (“Standard Maintenance Services”). While Standard Maintenance Services are in effect, Jumio shall:
(a) maintain the Products so that they operates in conformity with all applicable Documentation;
(b) use commercially reasonable efforts to correct all Product errors discovered or otherwise made known to Jumio;
(c) promptly provide Customer with all modifications, refinements, corrections, and enhancements that Jumio incorporates into and makes a part of Products and does not separately price or market;
(d) provide customer support by telephone accessible via the telephone numbers listed in the Merchant Portal, and through Jumio’s worldwide support email at email@example.com;
(e) use commercially reasonable efforts to provide a program fix or work-around for reported Product related problems within two (2) business days hours for Critical Errors and within seven (7) business days for Significant Errors;
(f) self-service reporting through the Merchant Portal;
(g) emailed advance communication of planned outages; and
(h) provide an error or defect reporting service by which Customer can communicate any Errors, Defects, or Omissions requiring further investigation.
4. PLATINUM MAINTENANCE SERVICES
4.1 Customer may agree to purchase from Jumio greater maintenance services outside of the Standard Maintenance Services (“Platinum Maintenance Services”). Platinum Maintenance Services may be added through the Parties’ written agreement in a Sales Order; and include:
(a) A quarterly business review;
(b) Automatic monthly reporting;
(c) An annual on-site visit;
(d) Product performance feedback and optimization advice;
(e) Early notification of product releases; and
(f) Enhancement request advocacy.
5. CUSTOMER RESPONSIBILITIES
5.1 To receive Support Services, Customer must at all times fulfill the following responsibilities:
(a) Training. Customer must ensure that Customer personnel are trained on use of the Products and the application programs, operating systems and hardware on or with which the Products are used;
(b) Systems. Customer must provide and maintain in good operating condition the systems (including computers, operating systems and other facilities) specified by Jumio as being required for operation of the Products;
(c) Instructions. Customer must follow Jumio’s documented processes and procedures for use and administration of the Products;
(d) Cooperation. Customer must allow Jumio reasonable access (at no charge) to Customer’s systems to perform diagnostics and maintenance, including remote access;
(e) Files. Customer must maintain adequate, verified backup copies of all Products and related software and data, including operating system, application and data files, and make these available to Jumio on request; and
(f) License. Customer must purchase and maintain in effect a valid license for the Products that Customer uses.
6. EXCLUSIONS TO SUPPORT SERVICES.
6.1 Jumio will have no obligation of any kind to provide Support Services of any kind for problems in the operation or performance of the Products to the extent caused by any of the following (each, a “Customer-Generated Error”):
(a) non-Jumio software or hardware products (including without limitation, the operating systems on which the Products operate) or use of the Products in conjunction therewith;
(b) modifications to the Products made by any party without Jumio’s express written authorization;
(c) Customer’s use of the Products other than as authorized in this Agreement or as provided in the Documentation; or
(d) Customer’s use of Products other than the currently supported release(s) of the Products or any Error corrections or updates thereto provided by Jumio.
6.2 If Jumio determines that it is necessary to perform Support Services for a problem in the operation or performance of the Products that is caused by a Customer-Generated Error, then Jumio will notify Customer thereof as soon as Jumio is aware of such Customer-Generated Error and, provided Jumio has obtained Customer’s prior approval, Jumio will have the right to invoice Customer at Jumio’s then-current published time and materials rates for all Support Services performed by Jumio to resolve such Customer-Generated Error.
7.1 Jumio reserves the right to modify the Support Services as set forth in this Exhibit B upon no less than thirty (30) days written notice to Customer. However, any modification to Jumio’s Support Services will become effective only at the beginning as of the next Support Services Term (defined below) and will not affect the terms and conditions of the Support Services Term then in effect as of the date of Jumio’s notice. Jumio reserves the right to charge additional fees for Support Services with respect to any version of the Products other than the currently supported release(s) of the Products.
8. TERM AND TERMINATION OF SUPPORT SERVICES
8.1 Term. The term of this Exhibit B, or of any specific Support Services set out herein, will commence on the date specified for those Support Services in the Sales Order and, unless terminated earlier in accordance with the terms of this Agreement (including the terms and conditions of this Exhibit B), will remain in effect for the applicable period specified in that Sales Order (“Support Services Term”).
8.2 Termination of Support Services. Customer may terminate a Support Services, at any time, upon ninety (90) days’ notice to Jumio. Termination of a Support Services by Customer does not terminate this Agreement. Upon any termination of this Agreement, all Support Services Terms will automatically terminate. Under no circumstances will Customer be entitled to a refund of any pre-paid Support Services Fees.
8.3 Resumption of Support Services Term. If Customer terminates a Support Services prior to the end of its then-current term, Customer may, at its option, resume the terminated Support Services Term by paying a re-enrollment fee in addition to the then-current Support Services Fees. The re-enrollment fee will be equal to the total annual Support Services Fees applicable at the time Customer resumes the Support Services.
EXHIBIT C – PERFORMANCE STANDARDS
1. PERFORMANCE STANDARDS – SCAN TIMES
1.1 With respect to the relevant Product under a Sales Order, Jumio will meet the following performance standards (“Performance Standards”):
The eightieth (80th) percentile of all scans performed in the relevant month for that Customer, is less than seven (7) seconds;
The ninety-fifth (95th) percentile of all scans performed in the relevant month for that Customer, is less than ten (10) seconds.
The eightieth (80th) percentile of all scans performed in the relevant month for that Customer, is less than seven (7) seconds;
The ninety-fifth (95th) percentile of all scans performed in the relevant month for that Customer, is less than ten (10) seconds.
The eightieth (80th) percentile of all scans performed in the relevant month for that Customer, is less than one hundred and fifty (150) seconds;
The ninety-fifth (95th) percentile of all scans performed in the relevant month for that Customer, is less than two hundred and seventy (270) seconds;
provided that all of the Netverify scan times referred to above shall be increased by: (i) forty (40) seconds when the FaceMatch feature is used; and (ii) forty (40) seconds when the Address Extraction feature is used.
1.2 In the case of each Performance Standard: (i) the measurement time of that Performance Standard shall commence when Jumio receives a readable image of the relevant document and conclude when Jumio submits a response to Customer; and (ii) the calculation shall exclude throttled transactions pursuant to Section 3 below.
2. SERVICE CREDIT
2.1 In the event Jumio fails to meet either of the Performance Standards for a Product under a Sales Order during two (2) or more consecutive months, Jumio will grant Customer a discount as follows:
(a) Five percent (5%) discount off one twelfth of the Fees for the applicable Product for the first month thereafter;
(b) Ten percent (10%) discount off one twelfth of the Fees for the applicable Product for the second month thereafter; and
(c) Fifteen percent (15%) discount off one twelfth of the Fees for the applicable Product for the third month thereafter.
3. FORECASTING DEPENDENCY
3.1 Customer acknowledges that Jumio’s ability to meet the Performance Standards for Netverify is dependent on accurate volume forecasting. Where
(a) Customer’s daily usage increases by 20,000 when compared with the prior week’s daily average; and
(b) Jumio has not received reasonable prior warning of such increase; then Jumio may throttle Customer’s usage to a level which minimizes the impact on Jumio’s other customers.
4. NO AGGREGATION
4.1 The Performance Standards are assessed on a “per Product” basis. The Performance Standards cannot be combined for the purpose of measuring performance.
5.1 The per-product discount as set forth in Section 2 above will be Customer’s sole and exclusive remedy with respect to performance of the Products and failure to achieve the Performance Standards. In the event Customer pays Jumio for a license of more than one month, and upon Jumio’s failure to meet the Performance Standards, Customer will be entitled to a credit in the amount equal to the monthly discounts set forth in Section 2 above. Customer must claim a credit within ten (10) business days of the end of the month in question.