Version: 6.0; June 1, 2021
These Jumio Terms and Conditions (“Terms”) and accompanying Sales Order(s) (collectively, the “Agreement”) are entered into between Jumio Corporation (“Jumio”) and the Customer indicated on the Sales Order, and are effective as of the Effective Date of the Sales Order. Jumio and Customer are referred to in this Agreement individually as a “Party” and collectively as “the Parties”. Any capitalized term used but not defined in these Terms has the meaning ascribed to it in the Sales Order(s).
1. SALES ORDERS; SERVICE LICENSE; TRANSACTIONS; CUSTOMER PORTAL
1. 1 Sales Orders. The Parties may enter into Sales Orders (each and collectively, “Order”) for the provision of Jumio’s identity verification, transaction monitoring and other services on Jumio’s corporate price list, or otherwise specified in an Order, and related integration and support services (each and collectively, “Service”). Each Order will reference these Terms, be signed by both Parties, and specify the Service selected, its term, fees, quantities and other relevant terms. Each Order is subject to these Terms. Any Jumio supplemental terms for a Service are contained in an exhibit or addendum attached to these Terms and are incorporated herein.
1.2 Provision of the Service. Subject to Customer’s compliance with this Agreement, Jumio will provide the Service to Customer in accordance with the terms of this Agreement. Customer will make access to the Service available to its end users, including Customer’s actual and potential customers, (each a “User”) solely for the purposes set forth in, and in accordance with the terms of, this Agreement. Customer will enter into contracts directly with Users, and Jumio is not a party to those contracts; provided, however, to the extent Customer limits its liability in its contracts with Users, Customer shall limit Jumio’s liability (as Customer’s licensor or supplier) to the same extent, and also include Jumio as a third party beneficiary of any arbitration provisions.
1.3 Service License. Subject to Customer’s compliance with this Agreement, Jumio grants to Customer a worldwide, non-exclusive, non-transferable, non-assignable, revocable license to access and use the Service identified in an Order solely for Customer’s internal business purposes to provide services directly to Users. To the extent any software is provided by Jumio to Customer for use in connection with the Service (the “Software”), or Documentation (as defined in Section 2(g)) is provided to Customer, that Software and Documentation are included in the definition of Service and subject to the foregoing license and its related restrictions. All Software and Documentation may only be used in support of Customer’s use of the Service and for no other purpose. Jumio reserves all rights in the Service not expressly granted in this Section. The license grant set forth in this Section extends to Customer’s affiliates (i.e., entities controlled by, controlling or under common control with Customer) who have been approved by Jumio in writing. Customer and its affiliates shall be jointly and severally liable under this Agreement.
1.4 User Information; Transactions. In Customer’s use of the Service, Customer will supply to Jumio information related to Users and otherwise cause Users to supply information to Jumio, including personally identifiable information, images and metadata (collectively, “User Information”). As between Jumio and Customer, Customer owns the User Information. A “Transaction” is a scan of User Information submitted to Jumio which Jumio processes as described in the Service’s applicable Documentation and, depending on the Service, returns one of Jumio’s standard acknowledgement responses or returns one or more structured data fields for the purpose of Customer conducting business with the User.
1.5 Customer Portal. Jumio will grant Customer access to a portal hosted by Jumio (the “Customer Portal”) in which Customer may (a) access Documentation, (b) configure the Service, and (c) review, download and delete Transaction results and User Information. Upon termination of the Agreement, Customer’s access to the Customer Portal, including any data stored therein, will be revoked. Jumio logs access to the Customer Portal, including contact information of authorized users, and Customer hereby authorizes Jumio to retain access logs during the term of the Agreement.
2. LICENSE RESTRICTIONS; ACCEPTABLE USE
2.1 License Restrictions. Customer shall comply with the license set forth in Section 1.3, and shall not:
(a) attempt to interfere with or disrupt the Service or attempt to gain access to, or conduct penetration tests of, any systems or networks that connect to the Service (except as required to use the Service);
(b) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure or interoperability interfaces of the Service, for any purpose;
(c) remove or modify any of the Service’s identification markings, including copyright, trademark and other intellectual property notices;
(d) make any modification or enhancement to the Service, except the customization options specifically referenced and allowed in the Documentation;
(e) copy, sell, resell, OEM, lease, assign, distribute or transfer in any manner, in whole or in part, the Service or use the Service for any purpose other than Customer’s internal business purposes consistent with this Agreement;
(f) use the Service or any Jumio information to develop or distribute a competing product or service for either its own internal or third party use, re-use the Transaction results, or otherwise use the results provided by the Service to create a digital identity or other identification of Users independent of the Service;
(g) use a version of the Service not supported by Jumio, or use the Service in a manner not in accordance with the standard documentation, specifications, written instructions or explanatory materials related to the installation, operation, use or maintenance of the Service made generally available by Jumio to its customers (the “Documentation”);
(h) allow unauthorized persons to access the Service; and
(i) transfer any of its rights under this Agreement, except to the extent expressly permitted under this Agreement.
2.2 Acceptable Use. Customer shall use the Service exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Without limiting the foregoing, Customer shall integrate the Service into its User verification, transaction monitoring or other applicable workflow consistent with all applicable laws and regulations and obtain all consents necessary to enable Jumio to lawfully process the User Information, and Customer shall otherwise implement all compliance requirements in accordance with applicable laws and regulations that relate to the provision of the Service to and use by Users. Customer shall not use the Service to transmit inappropriate content.
3. CUSTOMER’S ADDITIONAL OBLIGATIONS
3.1 General Obligations. Customer shall: (a) maintain at its own cost hardware, software, telecommunication and other systems, and Internet connections required to access the Service; (b) implement appropriate information security controls with respect to the Service, including restricting access to the Service in conformance with reasonable security measures; (c) have qualified personnel interface with the Service and with Jumio personnel; (d) implement and maintain appropriate safeguards to identify data and processing errors, and notify Jumio promptly of any non-conforming transmissions, or failure to send or receive transmissions; (e) accurately supply all required data fields, and otherwise use the Service in accordance with the Documentation and Jumio instruction; (f) set reasonable data processing and transmission parameters allowing for efficient and cost-effective delivery of the Service; and (g) use the Service with a representative population of, and not targeted categories of, its Users and identification document types. Without prejudice to Jumio’s other rights under this Agreement, if Customer fails to comply with an obligation in this Section, Jumio may delay or suspend performance of the Service until Customer is fully compliant with the obligation or the Parties agree to a reasonable increase in Fees to reflect any noncompliance. In addition, Jumio may engage a reputable, independent third party to audit Customer’s compliance with this Section and Section 2 (License Restrictions; Acceptable Use) at Jumio’s expense, and if the auditor determines that Customer is not in compliance with those Sections, in addition to other remedies available to Jumio, Customer shall reimburse Jumio for the costs of the audit and shall implement all reasonable recommendations of the auditor.
3.2 Implementation of Updates. Within ninety (90) days of Jumio’s release of an update (including new versions, releases, improvements or maintenance updates) to the Service, Customer shall implement such update. Customer’s failure to implement an update may render the Service unusable, defective or not secure, and Jumio shall have no liability to Customer that arises from Customer’s failure to implement such update and may in its sole discretion suspend provision of the Service to Customer until Customer implements the update.
4. USER INFORMATION LICENSE
4.1 Customer hereby grants to Jumio a worldwide, royalty-free license (with the right to sublicense) to use, reproduce, modify, create derivative works from, distribute, transmit, and display (collectively, “Use”) the User Information (including any rights specifically pertaining to biometric information) to develop, provide and improve the Service, including the right to grant equivalent rights to its service providers in order to perform the Service. Customer further hereby grants to Jumio all necessary rights to perpetually and irrevocably Use the User Information, and data derived from Customer’s use of the Service, in anonymized, aggregated or other form that does not include personally identifiable information or information identifying Customer to compile statistics regarding the Service and to develop and improve the Service. Jumio is hereby instructed to Use the User Information to develop and improve the Service, including through machine learning techniques, and to protect against fraudulent or illegal activity.
4.2 Jumio acts as a service provider with regard to any personally identifiable information included in User Information and neither it nor its own service providers shall retain, use or disclose such personal information for any purpose other than for providing, developing and improving the Service, including the detection of fraudulent or illegal activity.
5.1 Fees. Customer shall pay Jumio the fees specified in the Order (the “Fees”). Unless otherwise specified in the Order, all Fees are payable in United States dollars and are due in full on the Effective Date and any term renewal date, and Jumio is under no obligation to begin provision of the Service until Customer has paid all Fees due. Customer’s payment obligations are unconditional and not dependent on a go live date or use of the Service in a live environment. All payments are nonrefundable and noncancelable, except as otherwise expressly stated in this Agreement.
5.2 Overdue Fees. If Customer’s payment of Fees is overdue, Jumio may immediately suspend provision of the Service to Customer and change payment terms previously extended to Customer, and all amounts under the Order shall become immediately due and payable. Suspension of the Service does not relieve Customer of its obligation to pay any Fees due under the Agreement. In addition, a late charge shall be assessed on all overdue Fees at the lesser of one and a half percent (1.5%) per month or the maximum rate allowed by law. Customer shall reimburse Jumio for all costs incurred in collecting any overdue Fees, including attorney and collection agency fees.
5.3 Taxes. The amounts due to Jumio under this Agreement do not include bank fees, transfer fees, taxes, duties or similar fees. If Jumio is required to pay (a) sales, use, property, value-added, withholding or other taxes, (b) any customs or other duties, or (c) any import or other fees associated with importation or delivery based on the licenses granted or services performed under this Agreement or on Customer’s use of the Service, then such taxes, duties or fees will be billed to and paid by Customer. This Section does not apply to and Customer shall not be required to pay taxes based on Jumio’s gross receipts, income or payroll. Notwithstanding anything to the contrary herein, Customer shall be entitled to deduct and withhold from the Fees such amounts as Customer is required to deduct and withhold with respect to the making of such payment under applicable tax laws. To the extent such amounts are withheld and paid to the appropriate tax authority by Customer, Customer shall immediately provide Jumio with proof of such withholding tax payment, and, accordingly, such withheld amounts shall be treated under this Agreement as having been paid to Jumio.
5.4 Overages. If Customer exceeds the total number of Transactions included for a Service in the Order, Customer agrees to pay Jumio an amount equal to 130% of that Service’s net unit price indicated in the Order for each such additional Transaction (collectively, “Overages”), plus a commensurate increase in any related Support Services Fees. Jumio will invoice Customer monthly in arrears for Overages, and payments of those invoices for Overages are due net thirty (30) days from date of invoice. However, if Customer exceeds 120% of the quantity of Transactions included in the Order (the “Original Order”), then as of the date that 120% is exceeded the Order will automatically renew for a period of ninety (90) days (the “Bridge Order”) and include a quantity of Transactions that totals the lesser of (i) the equivalent of $250,000 worth of Transactions as calculated using the pricing set forth in the Original Order, or (ii) one quarter of the quantity of Transactions set forth in the Original Order. At the end of that ninety day period, if a new Order has not been entered into by Jumio and Customer, then the Original Order (including its quantity, pricing and term) will automatically renew. Notwithstanding the foregoing, at any time after Customer has exceeded the total number of Transactions included for a Service in an Order, Jumio in its sole discretion may elect to not have the Order automatically renew and may instead suspend providing the Service to Customer until Customer and Jumio enter into a new Order for additional Transactions.
5.5 Unused Transactions. Customer agrees that any unused Transactions and related other Services existing at the end of the Order’s then current term (collectively, “Unused Transactions”) will automatically expire at the end of the Order’s then current term and Customer is not entitled to a refund or credit for any Unused Transactions and will not be entitled to rollover any Unused Transactions for future usage.
5.6 Delayed Launch. If Customer fails to go live with the Service within ninety (90) days of the Effective Date, then Jumio may invoice Customer an additional fee equal to 3% of the total Fees set forth in the Order, and payment of that invoice is due net thirty (30) days from date of invoice.
6. SUSPENSION OF SERVICE
6.1 Suspension Due to Noncompliance. In addition to Jumio’s aforementioned rights to suspend the Service, if Customer fails to comply with any terms of this Agreement, Jumio may suspend provision of the Service effective immediately upon written notice to Customer. Suspension of the Service does not relieve Customer of its obligation to pay any Fees due under this Agreement, and upon suspension Jumio may accelerate or otherwise change payment terms for current and future amounts due. Jumio in its sole discretion may reactivate provision of the Service to Customer if Customer remedies the noncompliance, as determined by Jumio.
6.2 Suspension Due to Other Factors. Notwithstanding any other provision of this Agreement, Jumio may in its sole discretion suspend Customer’s access to the Service for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Service; (b) to comply with any law, regulation, court order or other governmental request; or (c) to otherwise protect Jumio from potential legal liability. Jumio will use reasonable commercial efforts to provide Customer with notice prior to any such suspension of the Service. Jumio will restore access to the Service promptly following resolution of the event giving rise to the suspension.
7.1 Confidential Information. “Confidential Information” means information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that can reasonably be inferred to be confidential, including trade secrets, know-how, any nonpublic information relating to the disclosing party’s inventions, products, product plans, designs, ideas, concepts, works of authorship (whether or not patentable, copyrightable or otherwise protected by law), software, data, processes, research, development, prices, budgets, finances, strategies, forecasts, business plans, market data, marketing plans, business opportunities, personnel, suppliers and any other nonpublic technical or business information. For purposes of this Section 7, User Information and Transaction results are not Confidential Information, and Jumio’s duty of care with respect to User Information and Transaction results is set forth in Section 9 (Information Security).
7.2 Standard of Care. The Receiving Party shall (i) hold the Disclosing Party’s Confidential Information in confidence consistent with the standard of care it applies to its own confidential information but in no event less than reasonable care; (ii) not use any Disclosing Party’s Confidential Information for any purpose except to perform its obligations under this Agreement; (iii) not disclose such Confidential Information to any third parties, other than third parties allowed by this Agreement; and (iv) to the extent reasonably necessary for it to carry out its obligations under this Agreement, disclose the Disclosing Party’s Confidential Information to only its employees, affiliates, officers, directors, contractors, consultants and vendors, provided the Receiving Party remains liable for their compliance with the terms of this Section 7. Subject to Section 14 (Publicity), the existence and terms of this Agreement are Confidential Information which neither Party may disclose to third parties without the prior written consent of the other Party, except as required by law or to a Party’s attorneys, investors, lenders and acquirers, so long as those disclosures are subject to confidentiality requirements at least as protective as those in this Section 7 and the Receiving Party remains liable for their compliance with the terms of this Section 7. Upon request by the Disclosing Party, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information.
7.3 Exceptions. Confidential Information does not include information that: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available to the public; (ii) is information which the Receiving Party had rightfully in its possession without restriction as to use or disclosure before receiving such information from the Disclosing Party; (iii) is hereafter rightfully obtained by the Receiving Party from a third party, without restriction as to use or disclosure and without breach by that third party of a duty of confidentiality to the Disclosing Party; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
7.4 Inadequate Remedy. Each Party acknowledges that its breach or threatened breach of this Section 7 may result in irreparable harm to the other Party that cannot be adequately relieved by money damages alone. Accordingly, the Parties agree that the non-breaching Party may seek any applicable equitable remedies from a court, including injunctive relief.
8. COMPELLED DISCLOSURES
To the extent required by applicable law, lawful order or requirement of a court or governmental authority, a Party may disclose the other Party’s Confidential Information, User Information, Transaction results, and any other information related to this Agreement, in accordance with such law, order or requirement; provided, however, if permitted under such law, order or requirement, the Party will provide notice to the other Party prior to furnishing the requested information and, upon request of and at the expense of the other Party, cooperate in seeking reasonable arrangements to protect the confidential nature of such information.
9. INFORMATION SECURITY
Jumio will maintain no less than industry standard administrative, technical and physical information security safeguards in order to protect the User Information, Transactions and Transaction results. Customer will maintain and enforce appropriate information security practices with respect to its receipt of the Service, including access to and timely deletion of User Information and Transaction results from the Customer Portal. Customer is responsible for making adequate backups of User Information and Transaction results that it desires to have available to it. Customer acknowledges that, despite Jumio’s implementation of the industry standard safeguards, unauthorized third parties, including hackers, or viruses, worms, or other malware may gain access to, obtain or damage User Information, Transactions, Transaction results or Customer’s systems, and Jumio is not responsible or liable for such activities. Without limiting the foregoing, regardless of any data retention period set by Customer, in no event will Jumio be liable for claims, losses or damages arising from a data breach related to User Information, Transactions or Transaction results, retained in the Customer Portal or otherwise stored, after Jumio has concluded the processing of those Transactions.
10. INTELLECTUAL PROPERTY
10.1 Jumio Ownership. As between Customer and Jumio, Jumio owns the Service and all copies, improvements, modifications and derivative works thereof, and all Intellectual Property Rights (as defined below) relating thereto are and shall remain the exclusive property of Jumio or its licensors. Customer agrees that the Service constitutes and contains valuable proprietary information and trade secrets of Jumio. Except as expressly set forth in this Agreement, Jumio does not grant any rights to the Service to Customer. Customer further agrees that Jumio owns all right, title and interest in the Service, including any changes or modifications made to the Service in connection with this Agreement, whether made independent of, in conjunction with, or at the direction of Customer. Without limiting the foregoing, Jumio owns any suggestions, comments or other feedback provided by Customer to Jumio with respect to the Service, and Jumio owns any insights, including knowledge or know-how, it otherwise gains during the course of performing the Service. “Intellectual Property Rights” means all intellectual property rights protected by law throughout the world, including all copyrights, trademark rights, patent rights (including the right to apply for), patent applications (including the right to claim priority under applicable international conventions), inventions (whether or not patentable), know-how and trade secrets, as may exist now and hereafter come into existence.
10.2 Restrictions. Customer agrees not to challenge, directly or indirectly, any right or interest of Jumio in the Service, or 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 Service or to take any other action which may adversely affect Jumio’s rights or interest in the Service in any jurisdiction.
10.3 Trademarks. Customer acknowledges Jumio’s ownership of the trademarks “Jumio,” “Netverify”, “Trusted Identity as a Service”, and Jumio’s and the Service’s other names and related trademarks. Customer further acknowledges that it will acquire no interest in such trademarks by virtue of this Agreement. Customer agrees not to use the name “Jumio” or any Jumio service name or trademark (or any confusingly similar name or symbol) as part of Customer’s branding, and to not register or use internet domain names or social media websites that include the “Jumio” name.
11.1 Mutual Warranties. Each Party represents and warrants that it has all right and authority necessary to enter into this Agreement and to grant the licenses set forth herein.
11.2 Jumio Warranty. Jumio warrants that the Services will be performed in a professional manner, consistent with generally accepted industry standards, and that the Service will substantially conform to the Documentation. In the event of a breach of this warranty, Jumio’s sole and exclusive liability and Customer’s sole and exclusive remedy will be for Jumio to use commercially reasonable efforts to re-perform the non-conforming Service within thirty (30) days from receipt of notice from Customer of the breach.
11.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JUMIO SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, NONINFRINGEMENT, OR SATISFACTORY QUALITY, REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE, OR OTHERWISE. JUMIO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED OR PROVIDED WITHOUT ERROR. Without limiting the foregoing, Customer assumes sole responsibility and liability for results obtained from use of the Service and for conclusions drawn from such use by Customer, and Jumio shall have no liability for any claims, losses or damages caused by errors or omissions in any information provided to Jumio by Customer or Users or any actions taken by Jumio at Customer’s direction. In addition, Customer agrees that (i) Jumio does not monitor or police data transmitted through the Service, shall not be liable for the content of any such transmissions, and has no obligation to otherwise monitor use of the Service, and (ii) notwithstanding any provision to the contrary in the Agreement, Jumio shall have no liability for claims, losses or damages arising from use of the Service, or performance issues related to the Service, that are the result of circumstances outside of Jumio’s control, including a User’s inappropriate use of the Service, limitations in a User’s device or system, or limitations in Internet or broadband connections.
12.1 Customer Indemnification. Customer shall defend and/or settle any third party claims against Jumio, its affiliates, officers, directors and employees, arising out of or in connection with: (i) Customer’s use of the Service in violation of this Agreement; (ii) Jumio’s use of User Information in accordance with the terms of this Agreement; or (iii) injury, damage or loss resulting from Customer’s or a User’s use of the Service (other than any claim for which Jumio is responsible under Section 12.2).
12.2 Jumio Indemnification. Jumio shall defend and/or settle any third-party claims against Customer, its affiliates, offices, directors and employees, that the Service infringes or misappropriates the Intellectual Property Rights of a third party. In the event that Jumio’s right to provide the Service is enjoined or a claim seeking such an injunction is filed, Jumio may obtain the right to continue providing the Service, or replace or modify the Service so that it is non-infringing and materially equivalent. If neither of these remedies is reasonably available to Jumio, Jumio may, in its sole discretion, immediately terminate the Agreement as it relates to the relevant Service and return the prorated portion of any prepaid, unused Fees for the Service. Notwithstanding the foregoing, Jumio will have no liability for any claim of infringement to the extent arising from: (a) use of a superseded version of the Service; (b) modification to the Service made or requested by Customer, or specifications provided by Customer; (c) use of the Service not consistent with the terms of this Agreement, the Service’s Documentation, or instructions given to Customer by Jumio, or use of the Service in combination with software or equipment not provided by Jumio; (d) any User Information or other information or materials provided by Customer or Users; or (e) continuing allegedly infringing activity after receiving notice from Jumio. 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 SERVICE. The foregoing also states the entire obligation of Jumio with respect to indemnification for claims of any nature whatsoever under this Agreement.
12.3 Indemnification Process. The foregoing indemnification obligations are contingent upon the indemnified party giving the indemnifying party prompt written notice of the third party claim, sole authority to control the defense or settlement of the claim (to the extent that any such settlement does not obligate the indemnified party to make any payment or take or refrain from any action), and reasonable assistance (at the indemnifying party’s expense) in the defense or settlement of the claim. The indemnifying party shall be responsible for payment of court costs, court awarded judgments, settlement amounts, and attorneys’ fees to defend or settle the action. The indemnified party may retain its own counsel at its own expense.
13. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM BREACH OF SECTION 2 (LICENSE RESTRICTIONS; ACCEPTABLE USE) OR SECTION 7 (CONFIDENTIALITY), OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OR THEORY OF THE CLAIM; AND (B) IN NO EVENT SHALL JUMIO’S TOTAL AGGREGATE LIABILITY TO CUSTOMER EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM. The limitations of liability and exclusions of damages set forth in this Section 13 are fundamental elements of the basis of the bargain between Jumio and Customer and shall apply to the maximum extent allowed under applicable law.
Customer hereby authorizes Jumio to list Customer as a Jumio customer in Jumio marketing materials and on its website. In addition, upon mutual consent, the Parties may issue joint or separate press releases and engage in other marketing activities.
15. TERM AND TERMINATION
15.1 Term. This Agreement is effective as of the Effective Date and shall remain in full force and effect in accordance with the terms of the Order unless earlier terminated by either Party in accordance with this Section. The Agreement, including the Order’s quantity and pricing, will automatically renew for successive twelve month periods unless either Party notifies the other Party in writing of its intent to not renew at least thirty days prior to the end of the then current term. The Agreement and Order are also subject to automatic renewal pursuant to the terms set forth in Section 5.4 (Overages).
15.2 Termination for Breach; Insolvency. Either Party may terminate this Agreement (a) upon written notice if the other Party fails to meet any material obligation under this Agreement and fails to remedy the breach within thirty (30) days after being notified in writing of such breach; or (b) upon written notice by either Party, if (i) a receiver is appointed for the other Party or its property; (ii) the other Party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other Party under any bankruptcy or similar law.
15.3 Effect of Termination. Upon termination of the Agreement, including any Order under the Agreement, Jumio will cease providing the Service to Customer, and Customer and its Users will immediately cease accessing and using the Service. Regardless of any data retention period set by Customer, Jumio has no obligation to maintain Transaction results, User Information or any other data stored in the Customer Portal after termination of the Agreement.
15.4 Payments on Termination. If Customer terminates the Agreement pursuant to Section 15.2(b), Jumio will refund any prepaid fees for the Service unconsumed calculated pro rata. If the Agreement terminates for any other reason, Customer is not entitled to a refund of any prepaid Fees and its payment obligations under the Agreement remain unchanged, except that all Fees under the Agreement that are not yet paid will become immediately due and payable.
15.5 Survival. Sections 2, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16, and all other provisions of this Agreement that by their nature are intended to survive termination of this Agreement shall continue in effect after termination of the Agreement.
16.1 Notice. All written notices required under this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or by email to the other Party at the address set forth below (for Jumio) or set forth in the Order (for Customer); provided, however, that any Agreement termination requests or notices of non-renewal by Customer must be sent to [email protected]. The notice will be effective as of the date of delivery. A Party may change the address at which it receives notice by giving notice to the other Party in accordance with this Section.
|395 Page Mill Road, Ste. 150|
|Palo Alto, CA 94306|
Attn: General Counsel
|With a copy to: [email protected]|
16.2 Relationship between the Parties. Nothing in this Agreement shall be deemed to establish a partnership, joint venture, or employment relationship between the Parties, and neither Customer nor Jumio is the agent of the other or is authorized to create any liability or obligation in the name of the other Party.
16.3 Regulatory Audits. Jumio will use commercially reasonable efforts to cooperate with audits initiated by a regulatory or similar government authority with jurisdiction over Customer, to the extent necessary to allow Customer to comply with applicable law. Customer shall be responsible for all reasonable costs incurred by Jumio with respect to any such audit.
16.4 Export Controls. Customer agrees that it must not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Service or any technical information about the Service to any country (including Crimea, Cuba, Iran, North Korea, or Syria) or party (including those on the Specially Designated Nationals and Blocked Persons List, Entity List, Denied Persons List, or Unverified List) for which the United States Export Control Reform Act, any regulation thereunder, regulations administered by the United States Treasury Department’s Office of Foreign Assets Control, 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.
16.5 Subprocessors and Subcontractors. Jumio uses subprocessors and certain other affiliates, subcontractors, agents and vendors to perform the Service, and Customer hereby consents to Jumio’s use of such parties. The rights and obligations of Jumio may be, in whole or in part, exercised or fulfilled by those parties, and Jumio will be liable for such parties’ compliance with the terms of this Agreement. Customer shall be liable for the actions of all affiliates, subcontractors and other parties it engages with respect to the Service.
16.6 Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
16.7 Assignment. Customer may not assign this Agreement without the prior written consent of Jumio. Any attempted assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement is binding upon the successors and assigns of Customer and Jumio.
16.8 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will be severable from the remainder of this Agreement, will not cause the invalidity or unenforceability of the remainder of the Agreement, and will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law.
16.9 Waiver. Neither party waives any rights by delaying or failing to exercise such rights at any time.
16.10 Dispute Resolution. The Parties shall attempt in good faith to resolve any disputes which may arise between them within 30 days of a Party’s notice to the other Party of the dispute. If the dispute is not resolved within that period, then the matter will be escalated to a Vice President (or equivalent executive) in the Parties’ respective organizations for resolution within 30 days of escalation. This dispute resolution procedure does not prejudice either Party’s right to subsequently seek a legal remedy and does not prejudice Jumio’s rights under this Agreement with respect to nonpayment of Fees. Additionally, either Party may seek injunctive relief without following the dispute resolution procedure set forth in this Section.
16.11 Governing Law. This Agreement, and any related disputes, shall be construed according to and governed by the laws of the State of California, U.S.A., without giving effect to its rules regarding conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. The Parties agree to exclusive jurisdiction of the state or federal courts located in Santa Clara County, California, U.S.A.
16.12 Force Majeure. Neither Party shall be liable for any failure or delay in performance under this Agreement (except for payment of Fees) which is due to any event beyond the reasonable control of such Party, including denial-of-service attacks, unavailability of utilities or telecommunication failures, Internet delays and failures, epidemics, pandemics, public health emergencies, quarantines, strikes, shortages, riots, insurrections, fires, floods, storms, 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 affected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance.
16.13 Interpretation. The headings in this Agreement are for convenience of reference only and have no legal effect. The word “including” shall mean “including without limitation”. The terms “Service” and “Order” shall include all Services under this Agreement and all Orders in effect between the Parties. This Agreement shall be construed without regard to any presumption requiring interpretation against the drafting party. This Agreement may be translated into multiple languages, but the English language version shall control.
16.14 Entire Agreement. This Agreement, including all exhibits and addenda hereto, sets forth the entire understanding and agreement between the Parties with respect to its subject matter, and supersedes and replaces any previous communications, understandings and agreements. Any purchase order or other document issued by Customer, even if signed by the Parties after the Effective Date, will not change or add to the terms of this Agreement. This Agreement may only be modified by a written amendment signed by authorized representatives of both Parties. In the event of a direct conflict, the following order of precedence will apply: Addenda, Terms, Exhibit, Order.
16.15 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. The Parties may execute this Agreement via electronic signature which will constitute an original signature for all purposes.
EXHIBIT A – SUPPORT SERVICES
1. DEFINITIONS. For the purposes of this Exhibit:
“Error” means an error or defect that prevents the Service from successfully operating in accordance with the specifications contained in the Documentation.
“Significant Error” means an Error that causes material features of the Service to be unavailable to all Jumio customers.
“Critical Error” means an Error that causes the Service to be unavailable to all Jumio customers.
2. SUPPORT SERVICES. For each Service that Customer purchases, Customer shall purchase the corresponding support service (each a “Support Service”). Support Service is subject to the warranty and other terms of the Agreement, at the Fees set forth in the applicable Order. Support Service includes Jumio:
(a) Maintaining the Service so that it operates in material conformity with the applicable Documentation;
(b) Using commercially reasonable efforts to correct Errors made known to Jumio;
(c) Providing modifications, refinements, corrections and enhancements that Jumio incorporates into and makes a part of the Service and does not separately price or market;
(d) Providing customer support via the telephone numbers listed in the Customer Portal, and through Jumio’s support email at [email protected];
(e)Using commercially reasonable efforts to notify Customer within thirty (30) minutes of becoming aware of a Critical or Significant Error;
(f) Using commercially reasonable efforts to provide a fix or workaround within two (2) days for reported Critical Errors and within three (3) days for reported Significant Errors;
(g) Enabling Customer self-service reporting through the Customer Portal;
(h) Emailing advance communication of planned outages; and
(i) Providing early notification of new releases.
3. CUSTOMER RESPONSIBILITIES. In order for Customer to receive Support Services from Jumio:
(a) Training. Customer personnel must be trained on use of the Service and the application programs, operating systems and hardware with which the Service is used;
(b) Systems. Customer must provide and maintain in good operating condition any systems (including computers, operating systems and other facilities) specified by Jumio as being required for operation of the Service;
(c) Instructions. Customer must follow Jumio’s documented processes and procedures for use and administration of the Service; and
(d) Cooperation. Customer must allow Jumio reasonable access, including remote access, at no charge, to Customer’s systems to perform diagnostics and maintenance.
4. EXCLUSIONS TO SUPPORT SERVICES. Jumio will have no obligation to provide Support Services for any errors or other issues in the operation or performance of the Service to the extent caused by any of the following (each, a “Customer-Generated Error”):
(a) non-Jumio software or hardware products (including the operating systems, networks and facilities on which the Service operates) or use of the Service in conjunction therewith;
(b) modifications to the Service made by any party without Jumio’s express written authorization;
(c) Customer’s use of the Service other than as authorized in this Agreement or as provided in the applicable Documentation; or
(d) Customer’s use of a release of the Service other than the currently supported release(s) of the Service, or without Error corrections or updates provided by Jumio.
5. CHARGES FOR CUSTOMER-GENERATED ERRORS. If Support Services are required for Errors or issues caused by a Customer-Generated Error, then Jumio will notify Customer of such Customer-Generated Error and will invoice Customer at its then-current time and materials rates for Support Services to resolve such Customer-Generated Error upon obtaining Customer’s prior written approval for such work and related charges.
6. INTEGRATION SERVICES. Customer shall purchase professional services from Jumio to support Customer’s integration of the Service into Customer’s offering (each an “Integration Service”). Integration Service is subject to the warranty and other terms of the Agreement at the Fees set forth in the applicable Order. Notwithstanding the Integration Service or other assistance provided by Jumio, Customer acknowledges that the integration of the Service is Customer’s responsibility.
7. ADDITIONAL FEES; MODIFICATION OF SUPPORT SERVICES. Jumio reserves the right to charge additional fees for Support Services with respect to any version of the Service other than the currently supported release(s) of the Service. In addition, Jumio reserves the right to modify the Support Service upon at least thirty (30) days prior written notice to Customer, and any such modification will become effective at the commencement of the applicable Order’s renewal term.
8. SERVICE END OF LIFE; SUBSTITUTIONS. Jumio in its sole discretion may discontinue a Service, in whole or in part, and will use commercially reasonable efforts to provide Customer with a minimum of nine (9) months notice prior to any such discontinuation. In addition, Jumio in its sole discretion may substitute for a Service, or component thereof, a functionally equivalent Service or component.
EXHIBIT B – PERFORMANCE STANDARDS
1. PERFORMANCE STANDARDS. With respect to each Service, Jumio will meet the following applicable performance standards during each calendar month (each a “Performance Standard”):
|All||Use commercially reasonable efforts to ensure that all Services are available at least ninety-nine and one-half percent (99.5%) of the time over the course of a calendar month to accept Transactions (“Uptime Availability”).|
|ID Verification||The eightieth (80th) percentile of all Transactions performed in the relevant calendar month is less than one hundred and fifty (150) seconds;
The ninety-fifth (95th) percentile of all Transactions performed in the relevant calendar month is less than two hundred and seventy (270) seconds;
provided that all of the ID Verification performance times referred to above shall be increased by: (i) forty (40) seconds when the Identity Verification feature is used; and (ii) forty (40) seconds when the Address Extraction feature is used.
|Document Verification||The ninety-fifth (95th) percentile of all Transactions performed in the relevant calendar month is less than sixty (60) minutes.|
|Authentication / Standalone Identity Verification||The eightieth (80th) percentile of all Transactions performed in the relevant calendar month is less than seven (7) seconds;
The ninety-fifth (95th) percentile of all Transactions performed in the relevant calendar month is less than ten (10) seconds.
|Data Services||The eightieth (80th) percentile of all Transactions performed in the relevant calendar month is less than twenty (20) seconds;
The ninety-fifth (95th) percentile of all Transactions performed in the relevant calendar month is less than thirty (30) seconds.
Each calculation is per Data Service and is in addition to the calculation for other Services.
|JumioGo (ID & Identity Verification)||The eightieth (80th) percentile of all Transactions performed in the relevant calendar month is less than twenty (20) seconds;
The ninety-fifth (95th) percentile of all Transactions performed in the relevant calendar month is less than thirty (30) seconds.
2. CALCULATION OF PERFORMANCE STANDARD. In the case of each Performance Standard except Uptime Availability: (i) the Performance Standard calculation shall commence when Jumio receives a readable image and conclude when Jumio sends a response to Customer; and (ii) the calculation shall exclude Transactions pursuant to Section 4 (Forecasting Dependency) below. Performance Standards are assessed on a per Service basis and do not apply to Services that operate exclusively on a User’s mobile device.
3. CALCULATION OF UPTIME AVAILABILITY. Calculation of Uptime Availability excludes unavailability caused by Customer-Generated Errors; scheduled downtime; emergency maintenance (not to exceed four hours in any calendar month); Customer environment issues affecting connectivity or interfering with the Service; third party software, hardware or telecommunications failures, including Internet slow-downs or failures; issues related to third party domain name system errors or failures; or Force Majeure Events. Jumio will use commercially reasonable efforts to schedule downtime for routine maintenance of Services outside of business hours Pacific Time.
4. FORECASTING DEPENDENCY. Jumio’s ability to meet the Performance Standards is dependent on accurate volume forecasting by Customer. In addition, if (i) Customer’s daily usage increases by more than 15% of the prior calendar month’s daily average, and (ii) Jumio has not received reasonable prior warning of, and agreed to, such increase (including with respect to payments for such increase), or (iii) the Service is otherwise not being used as intended in a manner that significantly increases the number of scans received by Jumio from Customer, then Jumio may throttle Customer’s usage to a level which minimizes the impact on Jumio’s provision of Services to other customers, disable features or portions of the Service provided to Customer, or disable provision of the Service to Customer entirely. In these instances, the quality of the Service provided to Customer may be degraded, the Performance Standards shall not apply, and Jumio shall have no liability to Customer in connection with any actions taken by Jumio under this Section 4.
5. SERVICE CREDITS. In the event Jumio fails to meet a Performance Standard for a Service during two (2) or more consecutive calendar months, Jumio will grant Customer a discount as follows (each a “Service Credit”):
(a) For the second consecutive calendar month: the equivalent of five percent (5%) of one month of the annualized contract value for Fees paid for the applicable Service under the Agreement;
(b) For the third consecutive calendar month: the equivalent of ten percent (10%) of one month of the annualized contract value for Fees paid for the applicable Service under the Agreement; and
(c) For the fourth consecutive calendar month and each subsequent consecutive calendar month: the equivalent of fifteen percent (15%) of one month of the annualized contract value for Fees paid for the applicable Service under the Agreement.
(d) The discount will be applied to future invoices. The Service Credits set forth in this Section will be Customer’s sole and exclusive remedy with respect to failure to achieve the Performance Standards. In order to receive a Service Credit, Customer must promptly notify Jumio if the Service is not meeting a Performance Standard and claim the right to a Service Credit within ten (10) business days of the end of the applicable calendar month.