JUMIO MASTER SOLUTION AND SERVICES TERMS AND CONDITIONS
1.1 “Agreement” means this Master License and Services Agreement and the related Sales Order Forms, unless the context requires otherwise.
1.2 “BAM Checkout” means Jumio’s proprietary solution that leverages Jumio’s Netswipe card and document scanning technology to allow for faster and more reliable online and mobile transaction completion or checkouts. 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 US/Canada”). 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 (“BAM Checkout Rest of World”).
1.3 “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 Software, 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.
1.4 “Critical Errors” shall mean an Error, Defect, or Omission that causes the Licensed Work to be unusable.
1.5 “Deliverable(s)” means any software code or other work product developed by Jumio which is provided Licensee according to the Sales Order Form(s).
1.6 “Derivative Work” has the meaning as defined in the Copyright Act, 17 U.S.C. § 101 (2000), other than the Licensee Derivative Work.
1.7 “Documentation” means the standard user manual or other documentation, specifications, written instructions or explanatory material related to the installation, operation, use or maintenance of the Software and any subsequent versions thereof that Licensee may receive from Jumio.
1.8 “Effective Date” shall be the date on which Licensee signs this Agreement or any Sales Order Form unless Licensee and Jumio agree in writing that Licensee is entitled to use the Licensed Work in a pilot phase in which case the Effective Date shall be the first date after the end of the pilot phase.
1.9 “Error, Defect, or Omission” shall mean and include deviations within the Licensed Work that prevent its successful operation in accordance with any applicable specifications.
1.10 “FastFill” shall mean the feature of Jumio’s Netverify solution that allows for instant population of forms or individual data fields by extracting the necessary information from personal identification documents (without verification of said document).
1.11 “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.
1.12 “Licensed Work” means the Software, Documentation and/or Deliverables.
1.13 “Licensee” means (a) the Licensee and (b) any entity in which the Licensee (i) owns or controls, directly or indirectly, at least 50% of the stock, partnership shares or membership interests in an entity having the right to vote for or appoint directors thereto, and/or (ii) has the right to determine management direction whether through having a majority representation on a board of directors of a corporation or by holding, directly or indirectly through one or more subsidiaries, at least 50% of the general partnership interests of a partnership.
1.14 “Licensee Derivative Work” shall mean any ideas, concepts, know-how, techniques, inventions, discoveries or improvements (and associated goodwill), including but not limited to computer software, whether in object code or source code, which (i) arise out of or relate to Licensee’s independent efforts and work and (ii) that are derived from the Licensed Work.
1.15 “Maintenance Services” is defined in Section 11 of this Agreement.
1.16 “Maintenance Services Fee” shall mean the amount stated in the applicable Sales Order Forms as the fee for the Maintenance Services.
1.17 “Netverify” shall mean Jumio’s proprietary personal identification document capture and verification solution.
1.18 “Other Errors” shall mean an Error, Defect or Omission that is not a Critical Error or a Significant Error.
1.19 “Professional Services” means those services described in an Sales Order Form and provided by Jumio to Licensee.
1.20 “Sales Order Form” means a document that (a) specifically refers to this Agreement; (b) defines additional rights and obligations of the parties with respect to the Software, Documentation, or Professional Services; and (c) is signed by Licensee. In the event of a conflict between the provisions of this Agreement and the provisions of a Sales Order Form, the provisions of the Sales Order Form will control.
1.21 “Significant Error” shall mean an Error, Defect or Omission that has a material impact on Licensee’s ability to use the Licensed Work.
1.22 “Software” means the applications developed and maintained by Jumio, including but not limited to Jumio’s BAM Checkout and Netverify applications, and the computer software programs set forth in a Sales Order Form referencing this Agreement, and authorized copies of said programs in object code form, binary file form and source code form.
1.23 “Solution” means the Licensed Work, Transaction Services, documentation, implementation support, maintenance and support and other Deliverables Jumio provides to Licensee to meet the business purpose of this Agreement and any Sales Order Form(s).
1.24 “Source Code” means authorized copies of the computer software program set forth in a Sales Order Form referencing this Agreement, in source code form only.
1.25 “Support Services” shall have the same meaning as Maintenance Services as set forth in Section 1.15 of this Agreement.
1.26 “Transaction” means the start or completion of a Netverify, FastFill or BAM Checkout scan. A BAM Checkout US/Canada Transaction
can be either the scan of a credit or debit card, the scan of an end-user’s government-issued driver’s license or personal identification document to automatically populate a checkout form, or both scans in the same checkout process. In a BAM Checkout US/Canada Transaction, a single Transaction occurs upon the scanning of a credit or debit card, the scanning of the bar code on a government issued driver’s license or both. (The scanning of the bar code on a government-issued driver’s license is done using Jumio’s FastFill solution.) A BAM Checkout Rest of World Transaction is the defined as the start of a scan of an end-user’s credit or debit card.
1.27 “Transaction Services” means all services performed by Jumio to complete a Transaction.
2. LICENSE GRANTS AND RESTRICTIONS.
2.1 Subject to the terms of this Agreement, and for the payment of the fees set forth in the Sales Order Form(s), Jumio grants Licensee a worldwide, non-transferrable and non-exclusive right for the term of this Agreement to use the Licensed Work.
2.2 Except as expressly set forth in this Agreement, Licensee may
(a) (i) 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, (ii) remove any identification markings, including but not limited to copyright notices and trademarks, from the Licensed Work, or (iii) make any modification, enhancement, or Derivative Work of the Licensed Work, or incorporate the Licensed Work, or any portion thereof, into or with any other software;
(b) copy, sell, lease, assign, distribute or transfer in any manner or form, in whole or in part, of either the Licensed Work or any Derivative Work;
(c) use the Licensed Work to develop or distribute any software product that competes in the marketplace with the Software.
2.3 Except as specifically set forth in this Agreement, Licensee acknowledges that this Agreement does not grant Licensee any use or rights to the Licensed Work, including, but not limited to, any rights to the source code for the Licensed Work.
2.4 Licensee acknowledges that Jumio has, and will from time to time create, other computer software programs that may be based upon or related to the Software or Deliverables and that those other programs are not licensed to Licensee under this Agreement.
2.5 Except as specifically set forth in this Agreement, Licensee acknowledges that Jumio has no responsibility for providing Licensee with any services, support, product, upgrades or other enhancements for or in connection with, and that Jumio is under no obligation to create any product upgrades or enhancements to the Licensed Work.
3. FEES AND PAYMENTS
3.1 In consideration of the rights granted to Licensee under this Agreement, Licensee will pay Jumio the license and other fees (the “Fees”) in the manner and amounts set forth in this Agreement, which payments will be nonrefundable and irrevocable except as otherwise provided in Sections 5 or
6. Unless set forth in an Sales Order Form, the Fees are due and payable in United States’ dollars, in full, net thirty (30) days of License’s receipt of Jumio’s invoice. Licensee will be invoiced on the Effective Date. Licensee’s payment obligations are independent from its “go live” date or the date Licensee provides the Software or Solution to its end users or Licensee uses the Software or Solution in its “live environment”; Licensee’s payment obligations are as specifically set forth in this Section 3.1 unless otherwise provided for in a Sales Order Form.
3.2 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 Licensee’s use of the Licensed Work or the Professional Services, then such taxes, duties or fees will be billed to and paid by Licensee. If Licensee is permitted to declare any such taxes, Licensee will declare and pay such taxes and Jumio will not be required to invoice Licensee. This Section 3.2 does not apply to and Licensee shall not be required to pay taxes based on Jumio’s gross receipts, income or payroll taxes.
3.3 All past due invoices will accrue interest at the lesser of (a) five percent (5%) per month, or (b) the maximum rate permitted by applicable law, whichever is lower, in each case, from the date due until fully
3.4 Invoices to Licensee may be sent to:
a. Electronically to: @ .com
b. Mail to:
3.5 Direct Debit or Credit Card Authorization. Licensee must execute a direct debit authorization form or credit card charge authorization form in order to receive the Software or Services provided hereunder or in conjunction with any Sales Order Form (See, Exhibit A hereto). Licensee expressly authorizes Jumio to debit its bank account or charge its credit card according to the payment terms set out in a Sales Order Form. If Jumio is unable to collect the fees, through direct debit or credit card charge, Jumio shall be entitled to immediately terminate or suspend Licensee’s access to the Software or Services. Jumio may also delete all information or images from Licensee’s account to avoid ongoing operational costs.
3.6 Account Suspension or Termination. If Licensee’s account is more than thirty (30) days overdue, Jumio reserves the right to suspend or terminate Licensee’s account. Suspension or termination of an account does not in any way negate or lessen Licensee’s obligation to pay any fees due under this Agreement or any Sales Order Form.
3.7 Account Reactivation Fee. If Jumio suspends Licensee’s account for non-payment, Licensee will be entitled to reopen or reinstate its account by paying: 1) all outstanding invoices, 2) all late fees or charges associated with past due invoices, 3) any fees Jumio may be charged for unsuccessful direct debit or credit card charge(s) and 4) payment of a $2,500 Account Reactivation Fee.
3.8 Unless waived in the Sales Form, in addition to the Fees due hereunder, Licensee will reimburse Jumio for expenses incurred in furtherance of its performance under this Agreement including, but not limited to, reasonable travel expenses and conference room rentals, if and as required, in connection with Jumio’s performance of Professional Services hereunder. Jumio agrees to provide Licensee with copies of such receipts, ledgers, and other records as may be reasonably appropriate for Licensee or its accountants to verify the amount and nature of any such expenses. Licensee will reimburse expenses within thirty (30) days after receipt of Jumio’s invoice for such expenses. All expenses and fees will be authorized by both parties prior to billing.
4. WARRANTIES AND DISCLAIMERS.
4.1 Jumio warrants to Licensee that, on the date of Licensee’s initial use of the Software and for a period ending ninety (90) days following that date (the “warranty period”), the Software will (i) perform in accordance with the published specifications and Documentation, (ii) operate in good working order, and (iii) be free of defects and malfunctions that adversely affect the operation or functions of the Software, although Jumio does not warrant that the Software will be free of errors. If notified in writing by Licensee during the warranty period, that the Software does not conform to any one or more of these warranties, Jumio will, at its sole option, either (x) correct significant program errors in the Software within a reasonable time, not to exceed fifteen
(15) days; or (y) accept return of the Software and Documentation and refund any License Fees paid by Licensee to Jumio under the applicable Sales Form.
4.2 Jumio further warrants that: (i) that the Software was developed or lawfully obtained by Jumio, and (ii) that Jumio has the legal right to license the Software under the terms set forth in this Agreement and any Sales Form.
4.3 Jumio warrants to Licensee that the Professional Services will be performed in a professional manner, consistent with generally accepted industry standards. If, however, in Licensee’s reasonable opinion any of Jumio’s personnel fail to carry out the Professional Services competently, Licensee may notify Jumio and Jumio shall promptly rectify the situation by devoting additional or alternative manpower to the Professional Services at no additional charge to Licensee, or by devising a mutually agreeable alternate or amended plan. In addition, Jumio warrants that (a) it has all right and authority necessary to enter into this Agreement, (b) it has all necessary licenses, permits and registrations required to provide the Professional Services, and
(c) it is in compliance with and will maintain compliance with all applicable workers’ compensation and wage laws. The sole and exclusive remedy for a breach of the limited warranty set forth in this Section 4.3 shall be to require Jumio to use commercially reasonable efforts to perform the Professional Services as soon as is reasonably practicable, but in no event, later than fifteen (15) days from the date Licensee notifies Jumio of such breach. In the event Jumio is unable, after receiving a warranty breach notice under this Section 4.3, to perform the Professional Services within the fifteen (15) day period, Licensee may terminate the applicable Sales Order Form.
4.4 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.
5. LIMITATION OF LIABILITY AND PERFORMANCE STANDARDS.
5.1 Except for a violation of Sections 7 or 8 for which there shall be no limitation of liability, neither party (nor any of their representatives) shall be liable hereunder for any special, incidental, indirect or consequential damages whatsoever, whether such damages arise in contract, tort (including negligence) or otherwise, including but not limited to lost profits or revenues, business interruption, overhead costs, and damages arising out of commitments to subcontractors or personal services contracts, even if the other party has been advised or should have known of the possibility of such damages.
5.2 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, deficiencies or limitations in the Internet or broadband connection.
5.3 Jumio guarantees that the Software will perform up to the following standards:
(a) 95% of BAM Checkout scans will be done in no more than forty (40) seconds;
(b) 95% of Netverify scans will be done in no more than two hundred seventy (270) seconds; and,
(c) 95% of FastFill scans will be done in no more than seven (7) seconds.
5.4 Jumio’s guarantees regarding the performance of its Software are on a “per solution” basis; Jumio’s guarantees for BAM Checkout are separate and distinct from the guarantees for Netverify. The guaranteed performance of Jumio’s different Software solutions will not be combined for purposes of measuring performance.
5.5 In the event Jumio fails to meet the guaranteed BAM Checkout scanning time OR the guaranteed Netverify scanning time OR the guaranteed FastFill scanning time during two (2) or more consecutive months, Jumio will grant Licensee a discount as follows:
(a) Five percent (5%) off the per month scanning fees per Software solution for the first month thereafter;
(b) Ten percent (10%) off the per month scanning fees per Software solution for the second month thereafter;
(c) Fifteen percent (15%) off the per month scanning fees per Software solution for the third month thereafter.
5.6 The per-Software solution discount as set forth in Paragraphs 5.5(a) through 5.5(c) above will be Jumio’s sole liability with respect to performance of its Software. In the event Licensee pays Jumio for a license of more than one month, and upon Jumio’s failure to meet its performance guarantees, Licensee will be entitled to a credit in the amount equal to the monthly discounts set forth in Paragraph 5.5 above.
5.7 Jumio guarantees that its Software solutions will be available 99.5% of the time on a 6 monthly rolling basis.
6. INFRINGEMENT INDEMNITY.
6.1 Jumio shall indemnify, hold harmless and defend Licensee and its representatives against any final award of costs and damages arising out of or in connection with any infringement or claim of infringement of any copyright, patent, trademark, any intentional infringement of a trade secret or legally protected proprietary right of any third party, relating to the Licensed Work, provided that (a) Licensee promptly notifies Jumio in writing no later than thirty (30) days after Licensee’s notice of any potential claim, (b) Licensee permits Jumio to defend, compromise or settle the claim, and (c) Licensee gives Jumio all available information, reasonable assistance, and authority to enable Jumio to do so. Jumio shall defend or settle, at its expense, any claim, action, suit or demand against Licensee and/or its representatives, for which Jumio is responsible hereunder.
6.2 If the Software or any portion of the Software becomes, or in Jumio’s opinion is likely to become subject to any claim of infringement, Jumio will either (a) procure for Licensee the right to continue exercising its rights under this agreement with respect to the Software; or (b) replace or modify the Software 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 Software granted under this Agreement and refund to Licensee all corresponding license fees paid to Jumio.
6.3 Notwithstanding the foregoing, Jumio will have no liability for any claim of infringement based upon any infringement claim for Licensee’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
Licensee; or (b) use of the Licensed Work which has been modified pursuant to either Licensee’s specific request or Licensee’s individual modifications or enhancements to the Software; (c) use of the Licensed Work: (i) other than in accordance with the terms and conditions set forth in 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.
6.4 In no event will either party’s liability for indemnification under this Section 6 exceed, in the aggregate, three (3) times the total aggregate dollar amount of the Sales Order Form governing Licensee’s use of the infringing material. Notwithstanding any provision in this Agreement to the contrary, this Section 6 states the entire liability of either party with respect to infringements of any copyrights, patents, or any other proprietary rights.
7. TRADE SECRETS AND CONFIDENTIAL INFORMATION.
7.1 Licensee acknowledges that Jumio is the owner of all Intellectual Property Rights associated with the Licensed Work and, except as set forth in this Agreement, Jumio does not grant any rights to or ownership of the Licensed Work to Licensee. Licensee further acknowledges that Jumio retains all right, title and interest in the Licensed Work and in all improvements, enhancements, modifications and Derivative Works of the Licensed Work including all rights to patent, copyright, trade secret and, attributable to Jumio efforts, whether such efforts are independent or in conjunction with Licensee; provided, however, that Licensee retains all right, title and interest in and to Licensee Derivative Works. Notwithstanding anything else contained in this Agreement, Licensee Derivative Works prepared or developed under this Agreement shall be Licensee’s sole property. Jumio acknowledges that all Licensee Derivative Works created pursuant to this Agreement will be deemed to be the property of Licensee.
7.2 Licensee agrees that all trademark and intellectual property notices for the Licensed Work will be preserved unmodified. Licensee hereby acknowledges and agrees that the Licensed Work and Derivative Works constitute and contain valuable proprietary products and trade secrets of Jumio, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee 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.
7.3 Licensee agrees not to challenge, directly or indirectly, any right or interest of Jumio in the Licensed Work or Derivative Work nor the validity or enforceability of Jumio’s rights under applicable law. Licensee agrees not to directly or indirectly register, apply for registration or attempt to acquire any legal protection for, or any proprietary rights in, Licensed Work or Derivative Work or to take any other action which may adversely affect Jumio’s rights or interest in the Licensed Work or Derivative Work in any jurisdiction.
7.4 Licensee agrees to notify Jumio immediately and in writing of all circumstances, of which Licensee is aware, surrounding the unauthorized possession or use of the Licensed Work by any person or entity. Licensee agrees to cooperate fully with Jumio, at Jumio’s expense, in any litigation relating to or arising from such unauthorized possession or use.
7.5 Each party understands that the other party may disclose Confidential Information in the course of exercising its rights or performing its obligations under this Agreement. As between the parties, the Confidential Information of each party will remain its sole property. Each party will hold the Confidential Information of the other party in strict confidence and protect such 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.
7.6 Source Code may include trade secrets of Jumio. Licensee will not disclose or otherwise make any part of the Source Code (whether or not modified by Licensee) available, in any form, to any person other than Licensee employees, contractors or members whose job performance requires such access. Licensee agrees to instruct all such members on those obligations with respect to use, copying, protection, and confidentiality of Source Code.
7.7 Both parties acknowledge that, in the event of a breach of its obligations under this Section 7, the non-breaching party may (a) immediately terminate this Agreement without liability to the non-breaching party; (b) bring an appropriate legal action to enjoin any such breach of this Agreement without the need to obtain a bond or other security; and (c) recover from breaching party reasonable attorneys’ fees and costs in addition to other appropriate relief.
8.1 Licensee acknowledges Jumio’s ownership of the trademarks “Jumio,” “BAM Checkout,” “Netswipe”, “FastFill,” “Netverify,” and any other the Software names, and all related trademarks and service marks. Except as set forth in this Agreement, Licensee further acknowledges that it will acquire no interest in such trademarks and service marks by virtue of this Agreement or the performance by Licensee of its duties and obligations under this Agreement. Licensee agrees not to use the name “Jumio” or any of the Software names or marks (or any confusingly similar name or symbol), in whole or in part, as part of Licensee’s business or trade name.
8.2 Licensee hereby grants Jumio the right to use its logo in the client section on the Jumio website. Licensee further agrees to cooperate with Jumio on the creation and distribution of a joint press release regarding the business relationship established by this Agreement.
9.1 Licensee 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 Software, Documentation or any Deliverable or Derivative 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.
10. LICENSEE’S OBLIGATIONS.
10.1 Fair and Reasonable Use. Licensee agrees that its use of the Software will be fair and reasonable; that its use of the Software will be within reasonable limits of the volume estimates provided to Jumio. If Licensee uses the Software in an unfair and unreasonable manner, and thus in breach of this section, and this breach adversely impacts other customers, Jumio reserves the right to throttle down Licensee’s usage to a reasonable level or, in necessary cases, disable Licensee’s account in order to mitigate the impact of Licensee’s excessive usage on Jumio’s infrastructure. The account will be restored when Licensee’s usage becomes fair and reasonable. If Licensee knows or anticipates excessive usage in violation of this provision, Licensee will contact Jumio within ten (10) days of the start of any excessive usage period to provide notice of the excessive usage, the anticipated or possible levels or usage, and the period of time the Software will be used in such manner. Jumio agrees to work with Licensee in such circumstances to avoid account disablement.
10.2 Licensee agrees to cooperate with and assist Jumio in the performance of any Professional Services by providing such information and access to personnel and other resources as Jumio may reasonably request in connection with such performance. The parties agree that, to the extent that Licensee fails or delays in providing such cooperation and assistance with respect to Professional Services, Jumio’s obligations and/or performance times hereunder shall be extended or excused, as appropriate.
10.3 Licensee shall be solely responsible for: (a) maintaining adequate controls over their respective 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 Licensee’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, (l) training all personnel, and (m) ensuring a suitable environment and proper utilities necessary for Jumio to provide the Professional Services. Jumio will not be responsible for any failures or delays in performance of the Professional Services which directly or indirectly result from Client’s failure or delay in effecting the foregoing or otherwise relating to Licensee’s non- performance of any other obligations hereunder.
10.4 Licensee will permit Jumio, once per year, to audit Licensee’s use of the Licensed Work, at reasonable times and with reasonable notice, for the purpose of verifying Licensee’s adherence to the terms and conditions of this Agreement. Any audit requested by Jumio will be conducted during Licensee’s regular business hours, will comply with Licensee’s normal security procedures, and will not unreasonably interfere with Licensee’s business operations. All out-of-pocket costs associated with an audit will be paid by Jumio, unless the audit reveals that Licensee has violated the terms and restrictions of the licenses granted in this Agreement, in which case all out-of- pocket costs will be paid by Licensee.
11. MAINTENANCE AND SUPPORT, DATA STORAGE AND IMAGE RETRIEVAL.
11.1 Maintenance and Support Services: Jumio does not warrant that the Software will operate error-free. Jumio shall provide maintenance and support services for the Licensed Work as specified herein (“Standard Support Services”). While Standard Support Services are in effect, Jumio shall:
• maintain the Software so that it operates in conformity with all applicable specifications;
• detect and correct all software errors discovered by Licensee or otherwise made known to Jumio;
• promptly provide Licensee with all modifications, refinements, corrections, and enhancements that Jumio incorporates into and makes a part of Software and does not separately price or market;
• provide customer telephone support through Jumio’s worldwide support email at email@example.com;
• provide a program fix or work-around for reported problems within forty-eight (48) hours for Critical Errors, within seven (7) business days for Significant Errors and by the next release of the Software for all Other Errors;
• provide an error or defect reporting service by which Licensee can be assured that any Errors, Defects, or Omissions made known to Jumio thereby will be promptly investigated and corrected; and
• will not be responsible for maintaining Licensee-modified portions of the Software.
Licensee understands that Jumio’s ability to perform the Standard Support Services is subject to Licensee advising Jumio in advance of implementing each of Licensee’s modifications or enhancements to the Software by: (i) documenting such changes and (ii) providing Jumio a copy of the Software containing such changes.
11.2 Platinum Support Services: Licensee may agree to purchase from Jumio greater maintenance and support services outside of the Standard Support Services. Maintenance and support services beyond Standard Support Services (“Platinum Support”) may be added through the parties’ written agreement in a Sales Order Form or other form of writing.
11.3 Support Services Fees: In no event shall any Support Services fees for any product(s) identified in the applicable Sales Order Form be increased in any year by more than ten percent (10%) of the previous year’s maintenance and support fees paid by Licensee, except as adjusted for purchase of additional software license(s).
11.4 Maintenance and Support Standards, Discontinuance: Jumio represents and warrants that it shall perform all software maintenance services at least according to the same quality standards as are contained in the Software at the time initially licensed by Licensee. Jumio shall not discontinue or fail to perform its maintenance services of the Software, as specified in Section 11.1.
11.5 Correction At Licensee’s Facilities: Jumio may provide such maintenance or support services at its selected office; however, if no reasonable resolution can be made to correct Errors, Defects, or Omissions in the Software in Jumio’s facilities, then upon request by Licensee, Jumio will make such correction, at no cost to Licensee for time and expenses (except for reasonable travel and living expenses), in Licensee’s facilities. Licensee will provide reasonable access to the designated facility and reasonable user support to assist in correcting any such Errors, Defects or Omissions. In the event that the Error, Defect or Omission is determined by Licensee to be either: (i) not within the Software or (ii) attributed to any enhancement or modification to Software by Licensee, then Licensee will reimburse Jumio for reasonable time, materials, and travel expenses related to such alleged correction.
11.6 Licensee’s Obligation To Keep Current: Licensee understands that all solutions, corrections, or improvements provided to it by Jumio are preferably timely implemented by Licensee into Software. Licensee further recognizes that its failure to implement such solutions, corrections, and improvements may render the Software unuseful or nonconforming as to the latest specifications and documentation delivered by Jumio to Licensee.
11.7 Data Storage: Jumio will store the data from each Transaction, including extracted data and images (“Transaction Data Set”) for each individual Transaction, for up to one (1) year free of charge unless Licensee and Jumio agree that Jumio will store the Transaction Data Set for less than one (1) year. Jumio will allow Licensee to store Transaction Data Sets for up to five years for an additional cost of $0.15 per Transaction Data Set. (For clarification purposes: the cost to store a Transaction Data Set is
$0.15 for the duration of storage from any time from one (1) year to five (5) years.) Jumio will invoice Licensee after the first year of the Agreement on Net30 payment terms if Licensee agrees to store the Transaction Data Sets. Jumio will invoice Licensee annually for additional Transaction Data Sets which may be stored after the first year.
11.8 Image Storage and Retrieval. Images are stored free of charge for one (1) year from the date of the Transaction. If Licensee does not choose an extended storage plan under this Section 11, after the one (1) year period, all Images are archived. Licensee may obtain a copy of an archived image for a charge of $75.00 per image.
12. TERM AND TERMINATION.
12.1 Unless otherwise set forth in a Sales Order Form, this Agreement shall remain in full force and effect unless terminated in accord with the provisions of this Paragraph 12.
12.2 Notwithstanding any provision in this Agreement to the contrary, Jumio may terminate this Agreement at any time after the occurrence of any of the following events:
(a) Licensee 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 creditors of Licensee;
(b) Licensee enters into any agreement relating to its acquisition by an unaffiliated third party or a majority of the equity interest of Licensee is obtained by an unaffiliated third party within any twelve (12) month period; or
(c) Licensee assigns or transfers this Agreement or any of its rights or obligations under this Agreement, without Jumio’s prior written approval.
12.3 Licensee may terminate this Agreement at any time after Jumio 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 creditors or Jumio.
12.4 Either party may, at its option, terminate this Agreement for a material breach of the provisions set forth in Sections 1 through 12 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.
12.5 Sections 5, 6, 7, 13.10, and 13.14, any payment obligations under the Sales Order Form(s) and all provisions that by their nature are intended to survive termination of this Agreement shall continue in effect.
12.6 Upon termination of this Agreement: (a) Licensee will immediately pay to Jumio all outstanding fees, charges, payment and expenses then due under this Agreement and any and all Sales Order Form(s), and (b) any support or maintenance obligation relating to the applicable Software will immediately terminate.
12.7 Termination of this Agreement will not relieve Licensee from any obligation to pay Jumio any amount that has accrued or become payable prior to the termination date.
13. GENERAL PROVISIONS.
13.1 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.
13.2 This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter in this Agreement. This Agreement merges all previous discussions and negotiations between the parties and supersedes and replaces any and every other agreement, which may have existed between Jumio and Licensee with respect to the contents of this Agreement.
13.3 Work will be done at either party’s respective premises, unless otherwise agreed. If work is done at Licensee’s premises, Licensee agrees to provide Jumio personnel with a safe workplace consistent with that provided to its own employees. Licensee also agrees to provide reasonable access to key Licensee personnel necessary for Jumio to perform the Maintenance Services or the Professional 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 Maintenance Services or the Professional Services.
13.4 Any purchase order issued by Licensee will not change or add to the terms and conditions of this Agreement.
13.5 Licensee and Jumio will develop appropriate administrative procedures for coordinating with each other.
13.6 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.
13.7 The failure of either party to exercise any right granted under this Agreement, or to require the performance by the other party of any provision of this Agreement, or the waiver by either party 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.
13.8 Neither Licensee 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 Licensee and Jumio.
13.9 Jumio may enter into contracts, outsourcing agreements, in its sole discretion, in connection with any or all of its obligations under this Agreement.
13.10 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.
13.11 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 the parties at addresses specified below 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.
13.12 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.
13.13 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.
13.14 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.
13.15 Upon receiving prior and specific written consent of the Licensee in each instance of use, Jumio may use Licensee’s name as a reference or publicize Licensee 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. In addition to any other remedies available to Licensee, Licensee will be entitled to injunctive relief for any breach or threatened breach of this section by Jumio.
13.16 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.
13.17 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. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax will be sufficient to bind the parties to the terms and conditions of this Agreement.
13.18 Unless the Sales Order Form is for trial or pilot use, or the Sales Order Form otherwise states, the term for each chosen Software solution will renew automatically for the respective time period unless properly terminated by giving written notice ninety (90) days before the end of the Term of the accompanying Sales Order Form. Termination requests must be sent to firstname.lastname@example.org.