SurePassID Master Subscription Agreement

Effective Date: June 20, 2023

This Master Subscription Agreement (“Agreement”) is by and between SurePassID, Corp. (“SurePassID,” “we,” or “our”) and you (where “you” means the Customer for which you are acting and that is bound to the terms set forth herein by your execution of an Order Form), and set forth the legally binding terms for license of the Licensed Software or subscription for use of the Cloud Service, and the use of the related Services, pursuant to one or more Order Forms incorporating this Agreement, together with any exhibits, addenda and schedules attached hereto and thereto (collectively referred to as the “Agreement”). SurePassID may modify this Agreement from time to time, subject to the terms in Section 12.18 below.

The use of SurePassID’s hosted or cloud-based solutions (currently designated as “Cloud” deployments) requires the incorporation of additional terms and conditions set forth in the SurePassID Privacy Policy and Acceptable Use Policy (available at https://surepassid.com/legal/privacy-policy-and-acceptable-use-policy) which is incorporated in the Agreement in connection with any subscription to or use of SurePassID’s Cloud Service.

By agreeing to the terms of this Agreement, or by accessing, using, or installing any part of the Licensed Software, the Cloud Services or the other Services, as applicable, Customer expressly agrees to and consents to be bound by all the terms of this Agreement. If Customer does not agree to any of the terms of this Agreement, Customer is prohibited from downloading, installing, activating, accessing or using the Licensed Software, the Cloud Service or the other Services. The effective date of this Agreement is the date set forth on the applicable Order Form or, if earlier, the date on which Customer downloads, installs, activates, or uses the Licensed Software, Cloud Service or any other Services (the “Effective Date”). Collectively, SurePassID and Customer may be referred to as the “Parties” or in the singular as a “Party.”

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions

“Administrator” is an individual who has been granted administrative permissions by Customer to the Services.

“Affiliate(s)” means, with respect to any entity, any other present or future entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” (and its derivatives), for purposes of this definition, means, with respect to any entity, direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Cloud Platform" means SurePassID’s proprietary application software and/or web site, including all modules, functions, features identified in an Order Form or otherwise made available by SurePassID to its Customers subscribing for Cloud Services, and all updates thereto.

"Cloud Service" means SurePassID’s proprietary online, cloud-based services and platform [(including associated Enabling Software)], as ordered by Customer and described on the applicable Order Form, as is provided by SurePassID, including (i) limited access and use rights to the Cloud Platform, (ii) hosting services, (iii) support services, and (iv) any other similar generally applicable services that SurePassID provides to its Cloud Service customers in accordance with the applicable Documentation.

“Customer” means the entity identified on the first page of the applicable Order Form that has signed up for the Services and agreed to the terms of this Agreement.

“Customer Data” means all electronic data or information submitted by Customer and its Users to the Services. Customer Data may include Personal Data.

“Documentation” means SurePassID technical and user guides and manuals for the Services or Cloud Platform, as applicable, as are made generally available by SurePassID on its website, as updated and amended from time to time.

“Error” means the failure of the Licensed Software or Cloud Services, as applicable, to substantially conform to and perform in accordance with the applicable Documentation. An Error does not include a passive defect identified by SurePassID or another party which does not hinder use of a Service, which defect may be corrected in future modifications or releases of Services or portions thereof.

“Free Services” means those aspects of the Services that are free and do not require payment, such as beta features or functionality or, in the case of a free trial, the Services themselves.

“Hardware Tokens” means hardware authenticators such as security keys, key fobs, display cards, and similar purchased by Customer under an Order Form.

“Intellectual Property Rights” means all patents, registered designs, unregistered designs, design rights, utility models, semiconductor topography rights, database rights, copyright and other similar statutory rights, trade mark, service mark and any know how relating to algorithms, drawings, tests, reports and procedures, models, manuals, formulae, methods, processes and the like (including applications for any of the preceding rights), other forms of technology, or any other intellectual or industrial property rights of whatever nature in each case in any part of the world and whether or not registered or registerable, for the full period and all extensions and renewals where applicable.

“Licensed Software” means the software products licensed by SurePassID to Customer for use by Customer and its Users and which are listed on an Order Form, which Licensed Software may include (i) SurePassID proprietary software (including the SurePassID Mobile Authenticator Application), and (ii) Third Party Provider software used by SurePassID in providing the Services which integrates with Customer’s network or application, including SSL or other VPN, Unix operating system, Microsoft applications and systems, or web application, as provided in the Documentation, and any updates, enhancements, bug fixes or patches, and new releases thereto developed from time to time, which SurePassID makes available to Customer hereunder. The Cloud Services and the Cloud Platform do not constitute Licensed Software for any purposes hereunder.

“Malicious Code” means viruses, worms, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

“Materials” means all materials provided on the SurePassID Web Site and via other marketing collateral, including but not limited to information, documents, products, logos, graphics, sounds, images, software, and services.

“Performance, System and Operational Data” means any and all data relating to the access or use of the Services by or on behalf of Customer or any User, including without limitation any performance, analytics or statistical data, Service Level Agreement data, trouble ticket information, tracking data and problem resolution data that SurePassID may collect from time to time.

“Order Forms” means any ordering document (submitted in written form or online), including an invoice or other forms from SurePassID, for the order for the Services, and any subsequent invoice or other forms from SurePassID, specifying, among other things, whether such order is for a license of Licensed Software or a subscription to Cloud Services, the maximum number of User Licenses, the initial Term, purchase of any Hardware Tokens, costs, professional service fees, and such other charges and terms relevant to the specific Services for a Customer as agreed between the parties. Each Order Form will incorporate these Terms by reference, and the Order Form, together with these Terms and any other documents incorporated thereby or hereby, shall constitute the applicable Agreement.

“Professional Services” means the professional services identified as such in an Order Form or this Agreement, which may include any Support Services, installation assistance, maintenance, customized support, consulting, or similar assistance which SurePassID may consent to provide to Customer related to the Licensed Software or to facilitate Customer’s productive use of the same, as is more particularly described in Section 2.8 herein. Professional Services do not include Cloud Service.

“Services” means the Licensed Software and/or Cloud Service, as applicable, Hardware Tokens, Software Tokens, Professional Services, Trial Services (defined in Section 2.4) and Beta Versions (defined in Section 2.6), in each case that are ordered by or made available to Customer under a free trial or Order Form(s).

“Software Tokens” means all software authenticators in the form of free proprietary mobile applications, whether provided by SurePassID or Third Party Providers such as Microsoft or Google, chosen by Customer and/or its users for providing the Services.

“Support Services” means those maintenance and support services that Customer obtains from SurePassID set forth in Section 2.8 below.

“Term” means the license term or subscription term indicated on the Order Forms and any subsequent renewal terms.

“Third Party Providers” means third party vendors, developers, manufacturers, and authors.

“User Licenses” means the Customer’s maximum permitted number of Users for the Services, as set forth on the applicable Order Forms.

“Users” means any Administrator and individuals (including non-human devices) who are authorized or provisioned by Customer (or Customer’s authorized third parties accessing Customer’s services) to utilize the Services, or with whom Customer utilizes the Services, in connection with Customer’s use of the Services. Order Forms define the specific number and type of Users that Customer is authorized to permit to utilize the Services.

2. General

2.1 Provision of Services. Subject to the terms and conditions of this Agreement, SurePassID shall make the Services available to Customer during the term specified in the applicable Order Form(s) so that Customer may utilize the Service, solely for Customer’s business use, all in accordance with this Agreement, the applicable Order Forms and the Documentation. Customer agrees that neither its subscription for the Services or license of any Licensed Software is contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by SurePassID with respect to future functionality or features. Customer acknowledges that the Services may be offered in various and separately priced service levels and packages, and Customer will receive the right to use only those Services as are set forth in the applicable Order Form(s) which have been licensed or subscribed for by Customer and with respect to which Customer is paying the associated fees.

2.2 Software License Grant. Subject to the terms and conditions of this Agreement, including without limitation all license limitations and restrictions set forth herein, SurePassID hereby grants Customer, during the term specified in the applicable Order Forms, a limited, non-exclusive, non-sublicensable, non-transferable license to (i) install the Licensed Software, in machine-readable form only, and (ii) to use (and authorize your Users pursuant to such User Licenses as are specified in applicable Order Forms) the Licensed Software and the accompanying Documentation solely for Customer’s business use, all in accordance with and solely within the limits provided for in this Agreement, any applicable Order Forms and the Documentation. The use of the Licensed Software and Services is solely for the use by Customer and its permitted Users and does not extend to third parties. Customer is responsible for the use of the Licensed Software and Services by Customer’s Users.

2.3 User Licenses. Customer shall enter into User Licenses for all Active and Disabled Users authorized to utilize the Services in accordance with and pursuant to an Order Form, provided that any User License with respect to a terminated User may be reassigned to a new User upon notice to SurePassID.

2.4 Evaluation and Developer Licenses. If SurePassID provides Customer with a trial, evaluation, or developer license to the Services (the “Trial Services”), Customer agrees to use the Trial Services solely for evaluation purposes, for a thirty (30) day evaluation period unless a different period is otherwise agreed to in writing by SurePassID (the “Trial Period”). At the end of the Trial Period, Customer’s right to use the Trial Services automatically expires and Customer agrees to uninstall the Trial Services and, upon request, certify to SurePassID in writing that all copies or partial copies of the Trial Services have been deleted from Customer’s computer libraries and/or storage devices and destroyed. If Customer desires to continue its use of the Trial Services beyond the Trial Period, Customer shall contact SurePassID to acquire a license to, or subscription for, the Trial Services for the applicable fee.

2.5 Cloud Service; Subscription. If the Services subscribed to by Customer include SurePassID’s Cloud Service, subject to the terms of this Agreement, SurePassID will make available to Customer and its Users, on a non-exclusive and non-transferable basis, the Cloud Service. Customer agrees that its subscription for the Cloud Service hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by SurePassID regarding future functionality or features. Customer acknowledges that the Cloud Services may be offered in various and separately priced service levels and packages, and Customer will receive only those Services as are set forth in the applicable Order Forms which have been registered and subscribed for by Customer and with respect to which Customer is paying the associated fees. The Cloud Service is purchased as a subscription for only such purposes as are set forth in the applicable Order Forms. SurePassID uses commercially reasonable efforts to maintain availability of the Cloud Services and the Cloud Platform in accordance with the service level standards set forth in SurePassID’s current Service Level Agreement (available at https://surepassid.com/legal/service-level-agreement). The SurePassID Privacy Policy and Acceptable Use Policy (available at https://surepassid.com/legal/privacy-policy-and-acceptable-use-policy) shall be incorporated in the Agreement with respect to any subscription for or use of the Cloud Services and/or Cloud Platform.  

2.6 Beta Versions. If SurePassID and Customer mutually agree in writing, Customer may receive beta, preview or other pre-release Services or features from SurePassID (“Beta Versions”). Beta Versions may not have been tested or debugged and are experimental, and any documentation may be in draft form. SurePassID may change or discontinue Beta Versions at any time without notice.

2.7 IN ADDITION TO ANY DISCLAIMERS IN SECTION 8.7, ANY TRIAL SERVICES AND BETA VERSIONS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. SUREPASSID SHALL NOT HAVE ANY LIABILITY FOR CUSTOMER’S USE OF THE TRIAL SERVICES OR BETA VERSIONS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY. SurePassID does not provide support for Trial Services or Beta Versions. Trial Services and Beta Versions may be subject to reduced or different security, compliance, and privacy commitments. Without limiting the foregoing, the following Sections of this Agreement shall not apply to Trial Services or Beta Versions: 2.8, 6.6, 6.7, 8.1, 8.2, 8.3, 8.4, 8.5, 9.1 and 10.1.

2.8 Delivery, Installation and Acceptance of the Licensed Software.

(a) Delivery, Installation and Acceptance of the Licensed Software. The Licensed Software will be delivered to Customer by electronic download. Customer will be solely responsible for installing any Licensed Software as permitted under this Agreement unless otherwise set forth in a Order Form. All Licensed Software will be deemed accepted upon delivery.

(b) SurePassID Assistance. If Customer requires any administration, training, installation, health check, or similar services with respect to the Services, any such services and related Fees shall be set forth in a Order Form and such services shall be provided by SurePassID without the need for a separate professional services agreement unless otherwise agreed to by the Parties.

2.9 Professional and Support Services. SurePassID will provide those Professional Services and other Support Services in accordance with the Order Form, in exchange for such professional service fees as set forth therein. SurePassID is not obligated under the terms of this Agreement to provide any customer service or support to any User other than Administrators; such responsibility (if any) shall remain with Customer. Customer acknowledges that SurePassID will maintain and provide technical support only for (i) the current version of the Services and (ii) the last prior version of the Licensed Software until six (6) months after the release of the newest version, but in no case after the termination of the applicable license or Agreement. Any consulting services, training or other requirements not expressly stated in this Agreement or in a separate statement of work signed by the parties are outside the scope of this Agreement and only will be provided for additional fees. Fees for such items are payable as specified in the applicable Order Form and unless otherwise specified will be paid upon receipt of invoice.

2.10 Order Forms. Customer and its Affiliates may place orders under this Agreement by executing Order Forms. When an Affiliate of Customer signs a Order Form under this Agreement, the Affiliate shall be considered the Customer for purposes of such Order Form and shall be bound by the terms and conditions of this Agreement.

2.11 Resellers. If Customer purchases licenses or subscriptions to the Services through an authorized reseller of SurePassID (a “Reseller”), no Order Forms will be executed between SurePassID and Customer. SurePassID’s official ordering documentation with the Reseller will contain the details of the licenses or subscriptions to the applicable Services (including the scope of permitted use, quantities of licenses, etc.), and references to Order Forms herein will refer to such documentation (which documentation shall incorporate this Agreement and all exhibits, addenda and schedules hereto). Customer should obtain such details from the Reseller, but SurePassID can also confirm to Customer any such details of the license or subscription other than amounts payable. Fees and Taxes (if any) will be payable to Reseller, and the billing and payment terms will be determined pursuant to Customer’s agreement(s) with Reseller in lieu of Section 4 hereof. Resellers have no authority to modify any of the terms of this Agreement and may not grant Customer any rights to the Services beyond what is set forth in the ordering documentation between SurePassID and Reseller.

3. Use Guidelines; Restrictions

Customer shall use the Services solely for its own business purposes in accordance with this Agreement and any related Order Form. Customer shall obtain any required authorizations or consents from Users for the transmission of Customer Data to SurePassID and other third parties in connection with the Services and related processing by such persons, including as may be necessary under any data protection laws and regulations. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, encumber, or otherwise commercially exploit or make any portion of the Services or the Documentation available to any third party except as expressly contemplated by this Agreement; (ii) modify, adapt, alter, translate or create derivative works of the Services; (iii) create Internet hypertext links or hot links to or from the Licensed Software or Customer’s website, or copy, share, frame or mirror any content forming part of or contained in the Services or its or their structure or user interface, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iv) reverse engineer, decompile or disassemble, in whole or in part, the Licensed Software or any of the Services (or otherwise attempt to derive the source code or underlying ideas or algorithms of the Licensed Software); (v) take any action that would cause the Services (including any license key) to be placed in the public domain; (vi) remove, alter, or obscure any proprietary notices of SurePassID, its licensors or supplier included in the Services; (vii) send or store Malicious Code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam, or otherwise use any portion of the Services for any unlawful purpose or for any purpose other than its intended purpose; (viii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, including conducting any load or penetration testing on the Services; (ix) attempt to gain unauthorized access to the Services or its related systems or networks; (x) exceed the license limitations contained in the Order Form, or (xi) access the Services or the Documentation in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Services or the Documentation. The Services may only be integrated with, displayed on, and run in connection with Customer’s designated website as set forth in the Order Form, and not any other website, domain names, url or mobile application, whether or not such website, domain name, URL or mobile application is owned or maintained by Customer, without SurePassID’s prior express written approval.

4. Fees & Payment; Audit

4.1 Fees. Customer shall pay all fees specified in any Order Forms hereunder (the “Fees”). If Customer is purchasing through a Reseller, the applicable Fees will be set forth in Customer’s ordering documentation with the Reseller and such Fees will be remitted to Reseller. Except as otherwise provided, all fees are quoted and payable in United States dollars. Except as otherwise specified herein or in an Order Form, stated fees are based on the scope of the Services licenses or subscriptions purchased and not actual usage, payment obligations are non-cancelable, and fees paid are non-refundable. If Customer is entering into a license or purchasing a subscription based on the number of individual Users, connections or another metric set forth in a Order Form, and Customer’s actual usage exceeds the applicable limit on such metric, overage charges shall apply based on the then-current per-unit rate on the applicable Order Form or as otherwise set forth therein, and Customer shall remit such charges to SurePassID.

4.2 Invoicing & Payment Terms. All Fees will be invoiced in advance and in accordance with the relevant Order Form. Any additional licenses or services added during the applicable Term will be pro-rated and billed for the remainder of the current applicable Term. Unless otherwise stated in a Order Form, charges are due net thirty (30) days from the date of the invoice. Customer is responsible for maintaining complete and accurate billing and contact information. This section does not apply if Customer is purchasing through a Reseller.

4.3 Overdue Payments. For those payments that are invoiced, any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at SurePassID’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. This section does not apply if Customer is purchasing through a Reseller.

4.4 Taxes. Customer is responsible for paying all applicable direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes (collectively, “Taxes”) associated with its purchases hereunder, above and beyond the Fees, excluding taxes based on SurePassID’s net income or property, unless Customer provides SurePassID with a valid tax exemption certificate authorized by the appropriate taxing authority. Unless otherwise stated, all prices set forth on an Order Form are exclusive of Taxes. In addition to all other sums payable hereunder, Customer shall pay all reasonable out-of-pocket expenses incurred by SurePassID, including fees and disbursements of counsel, in connection with collection and other enforcement proceedings resulting therefrom or in connection therewith. This section does not apply if Customer is purchasing through a Reseller.

4.5 Suspension of Services for Critical Cause. SurePassID reserves the right to suspend any Services provided to Customer if: (i) Customer is delinquent on any undisputed (in good faith) late payment obligations for more than thirty (30) days following written notice of such late payment; (ii) SurePassID reasonably believes that suspension of the applicable Services is necessary to comply with the law or requests of governmental entities; or (iii) SurePassID reasonably determines that Customer’s use of the Services in violation of this Agreement poses any security or vulnerability risk to SurePassID or the Services. Customer shall only be responsible for fees and charges during the period of suspension if the underlying cause was Customer’s breach of this Agreement. SurePassID will endeavor to give advance notice of the suspension, to the extent it is able, considering the nature of the underlying cause. SurePassID will restore access to the applicable Services as soon as the underlying cause is mitigated.

4.6 Right to Audit. SurePassID will have the right, upon reasonable prior written notice to Customer, at a mutually agreeable time, and no more than once in any twelve (12) month period, to either audit or have an independent audit firm selected by SurePassID audit, Customer’s equipment (if any) on which Licensed Software is installed, and all related back-up files, and to reasonably examine those portions of Customer’s books, records and accounts related to this Agreement during Customer’s normal business hours, to verify compliance with this Agreement. Any such audit will be conducted during normal business hours in a manner so as not to unreasonably interfere with Customer’s normal operations. Such audits will be conducted at SurePassID’s expense. If an audit reveals that Customer has failed to pay Fees consistent with its use of the Licensed Software, Customer will remit to SurePassID the applicable Fees for the overuse, based on the then-current per-unit rate on the applicable Order Forms, and reimburse SurePassID for all reasonable costs and expenses incurred by SurePassID in connection with such audit.

4.7 Billing and Contact Information. Customer will maintain complete and accurate billing and contact information on the Services at all times.

5. Confidentiality

5.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (the “Disclosing Party”) disclosed or made available to the other Party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including without limitation, the terms and conditions of this Agreement, the Services, business and marketing plans, technology and technical information, pricing information, financial results and information, product designs, product roadmaps, developments, inventions, engineering, formulae, markets, results of penetration testing, software (including source and object code), hardware configuration, algorithms, security reports or audits and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party. Confidential Information specifically excludes Customer Data and Personal Data. Customer Data obligations are set forth in Section 6 below.

5.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party may disclose Confidential Information to its Affiliates and service providers who are bound by confidentiality terms no less restrictive than those in the Agreement, in each case only on a need-to-know basis, and such Affiliates and service providers may use such Confidential Information, in each case only for the purposes of fulfilling Receiving Party’s obligations under this Agreement. The Receiving Party shall be liable to the Disclosing Party for all actions and omissions of its Affiliates and service providers with respect to such information as if such actions and omissions were those of the Receiving Party hereunder.

5.3 Protection. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care), and promptly notify the Disclosing Party upon discovery of any unauthorized access or acquisition of Confidential Information and reasonably cooperate with the Disclosing Party’s efforts to prevent, investigate and remediate the breach of confidentiality.

5.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to seek a protective order or otherwise contest the disclosure.

5.5 Remedies. If the Receiving Party or any of its Affiliates or service providers discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts (and in connection therewith the Receiving Party, on behalf of itself and its Affiliates and service providers, waives, to the greatest extent permissible, any requirement that the Disclosing Party post bond or other security as a precondition thereto), it being specifically acknowledged by the Parties that any other available remedies are inadequate.

5.6 Retention of Confidential Information. Upon a Party’s written request, the other Party will erase, delete, or destroy all copies of Confidential Information of the other Party whether modified or merged into other materials, and certify in writing to the other Party that such Party has fully complied with these requirements. A Party may retain archived copies of Confidential Information or copies that are incapable of being destroyed because it would be unduly burdensome or cost prohibitive, provided that all such copies remain subject to the restrictions herein for so long as they are retained.

6. Customer Data and Security

6.1 Use of Customer Data. SurePassID shall not provide the Customer Data to any third parties except as necessary to operate the Services. As between SurePassID and Customer, Customer owns all rights, title, and interest in and to all Customer Data.

6.2 Customer Responsibilities. Customer is solely responsible for all activities that occur in any Users’ accounts and for compliance with this Agreement by Users. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data submitted by it and its Users to the Service; and (ii) prevent unauthorized access to, or use of, the Service, and notify SurePassID promptly of any such unauthorized access or use. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any User, Customer will promptly notify SurePassID and work with SurePassID to promptly terminate access of any such User to the Service.

6.3 Nature of Customer Data. Customer represents and warrants that it will not transmit or expose to SurePassID any (i) protected health information (as that term is used in the Health Insurance Portability and Accountability Act of 1996 (HIPAA)) or (ii) cardholder data (as regulated by the Payment Card Industry Security Standards Council) as a part of using the Services, in connection with Support Services, or otherwise under this Agreement.

6.4 Compliance with Laws. Each Party shall comply with all applicable local, state, national and foreign laws in the provision and use of the Services under this Agreement. Customer agrees that it has control over and/or understands the nature and scope of the Customer Data processed by the Services, and the origin or location of Users. Customer warrants that it will ascertain that Customer Data can be processed under this Agreement by the Services and in connection with any Support Services or professional services, in the locations in which SurePassID operates, in accordance with applicable law. SurePassID will provide all reasonably necessary information to Customer to allow Customer to make such determination upon Customer’s written request.

6.5 Information Security, Audits, and Security Assessments. SurePassID will implement and maintain reasonable and appropriate technical, administrative, and physical security measures designed to protect against unauthorized access to or use of Customer Data. SurePassID shall, at a minimum, maintain the security of the Services and the Customer Data in compliance with the requirements of NIST 800-171 Rev. 2 (“Protecting CUI in Nonfederal Systems”) available at https://csrc.nist.gov/publications/detail/sp/800-171/rev-2/final. Upon Customer’s reasonable written request at any time during the term of the Agreement, SurePassID will promptly provide Customer with information related to SurePassID’s information security safeguards and practices, which may include one or more of the following per Customer request: (i) responses to a reasonable information security-related questionnaire, no more than once annually; (ii) copies of relevant third-party audits, reviews, tests, or certifications of SurePassID’s systems or processes; (iii) the results of any recently completed third-party penetration testing on the Services; (iv) a summary of SurePassID’s operational practices related to data protection and security; and (v) making SurePassID Personnel reasonably available for security-related discussions with Customer.

6.6 Business Continuity/Disaster Recovery. During the term of this Agreement, SurePassID will maintain and comply with its then-current Business Continuity and Disaster Recovery Plans. SurePassID will test such plans at least annually. Upon written request, SurePassID will provide (i) a copy of the table of contents to such plan, and (ii) a summary of its annual testing results.

6.7 Intelligence Service Features. SurePassID may collect and utilize Customer Data and information derived from Customer’s use of the Services internally to improve and develop its offerings. In addition, SurePassID owns any usage data derived from the operation of the Services that has been aggregated and de-identified so that results are non-personally identifiable with respect to Customer or any User (“Aggregated Data”), and nothing herein will prohibit SurePassID from using Aggregated Data in the operation of SurePassID’s business. For clarity, SurePassID may only disclose Aggregated Data externally in a de-identified (anonymous) form that does not identify Customers or any Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). SurePassID will retain, and Customer expressly disclaims, all intellectual property and other rights in any products or services SurePassID develops pursuant to the usage rights herein.

6.8 Passwords. Customer is responsible for maintaining the confidentiality of passwords, and Customer agrees that SurePassID has no liability with regard to the use of such passwords by third parties unless the Services on a Cloud Platform and such third-party use is the result of SurePassID’s gross negligence or willful misconduct. If the Services are hosted on a Cloud Platform, Customer agrees to notify SurePassID immediately if Customer has any reason to believe that the security of Customer’s account has been compromised.

7. Proprietary Rights

7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SurePassID reserves all rights, title, and interest in and to the Services and the Documentation (and any enhancements, modifications, or derivative works thereof, or other software development performed by SurePassID), including all related intellectual property rights, and all such rights, title and interest shall remain vested in SurePassID at all times. No rights are granted to Customer hereunder other than as expressly set forth herein.

7.2 Suggestions. SurePassID shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services or Documentation any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Services.

7.3 Restrictions. Customer shall not (i) permit any third party to access the Services, other than to the Administrator and Users, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer any portion of the Services, or (v) access the Services in order to (A) build a competitive product or service, or (B) copy any features, functions or graphics of any portion of the Services. Customer agrees to, and does hereby, assign to SurePassID any and all right, title, and interest that it may acquire in or to the Licensed Software, including without limitation all right, title, and interest in and to any and all derivative works, modifications, revisions, and/or new versions of the Licensed Software, and all improvements or other Intellectual Property Rights relating to the Licensed Software that are authored, created, reduced to practice and/or invented by, or on behalf of, Customer.

7.4 SurePassID Trademarks. The name “SurePassID” and its associated logos, tradenames, and trademarks are the property of SurePassID and that each such mark logo, tradename and trademark have substantial commercial value and reputation. Customer shall not use the name “SurePassID” or any variant thereof, nor its logo, nor any of its tradenames or trademarks in any way without first obtaining the prior written consent of SurePassID for each such use.

8. Warranties & Disclaimers

8.1 Warranties. Each Party represents that it has the legal power to enter into and perform its obligations under the Agreement.

8.2 Performance Warranty for Licensed Software. For a period of ninety (90) days after the date of delivery of the Licensed Software (the “Warranty Period”), SurePassID warrants that the Licensed Software, when used as permitted by SurePassID and in accordance with the applicable Documentation provided contemporaneously with delivery of the Licensed Software, will operate substantially as described in such Documentation.

8.3 Warranty for Cloud Services. SurePassID warrants that the Cloud Services will function substantially in conformance with the applicable Documentation in a manner consistent with industry standards applicable to the provision thereof.

8.4 Warranty for Professional Services. SurePassID warrants that it will provide any Professional Services in a good, professional, and workmanlike manner consistent with applicable industry standards.

8.5 Harmful Code. SurePassID warrants that it will use commercially reasonable efforts, using industry standard practices, to ensure that the Services, in the form provided by SurePassID to Customer, do not contain Malicious Code.

8.6 Remedies. With respect to any material reproducible Error that Customer reports to SurePassID in writing during the Warranty Period (with respect to Section 8.2 above) or during the provision of the Cloud Services (with respect to Section 8.3 above), SurePassID will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of the warranties set forth in Sections 8.2 or 8.3 above, use commercially reasonable efforts to (i) determine if there is an Error, (ii) correct or remedy any such Error, or (iii) with respect to Licensed Software, replace the defective Licensed Software. Customer will make reasonably appropriate adjustments to mitigate adverse effects of any Error until SurePassID corrects or remedies such Error. If SurePassID, in its sole discretion, may not achieve either (ii) or (iii) as a remedy for breach of such warranties, (x) with respect to an Error in Licensed Software, SurePassID agrees to accept return of the Licensed Software, terminate the license to the defective Licensed Software and refund Customer all unused, prepaid fees with respect to the defective Licensed Software, or (y) with respect to an Error in Cloud Services which Cloud Services SurePassID is unable to make operate as warranted, Customer shall be entitled to cancel its subscription for the applicable Cloud Services.

8.7 Disclaimer. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES AND DOCUMENTATION AND SUREPASSID EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SUREPASSID DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SUREPASSID OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY HEREIN. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SUREPASSID PROVIDES THE SERVICES “AS IS”. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.

SUREPASSID SHALL NOT BE LIABLE FOR ANY MISTAKE, OMISSION, INTERRUPTION, OR DEFECT IN ANY SERVICE CAUSED BY THE NEGLIGENCE OR WILLFUL ACT OF OR MISUSE OR ACCIDENT BY CUSTOMER, ITS REPRESENTATIVES, ANY AUTHORIZED AGENT, USER, END USER, EQUIPMENT OR HARDWARE DEALERS OR INSTALLERS, PARTIES OTHER THAN SUREPASSID, OR WHEN CAUSED BY ACTS OF GOD, FIRE, WAR, RIOTS, GOVERNMENT AUTHORITIES, DEFAULT OF SUPPLIER, OR OTHER CAUSES BEYOND THE CONTROL OF SUREPASSID, INCLUDING WITHOUT LIMITATION, DEFECT IN OR FAILURE OF EQUIPMENT OR SOFTWARE PROVIDED BY CUSTOMER’S EQUIPMENT OR HARDWARE VENDOR, INSTALLER OR DEALER OR ANY PARTY OTHER THAN SUREPASSID.

9. Indemnification

9.1 Indemnification by SurePassID. Subject to the terms of the Agreement, SurePassID will defend at its own expense any action against Customer brought by a third party alleging that the Services, in each case, as delivered, infringe any U.S., UK, or EU patents issued as of the Effective Date or any copyrights or misappropriate any trade secrets, in each case, of a third party, and SurePassID will indemnify and hold Customer harmless against those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer’s compliance with the Indemnification Conditions (defined below). If the Services become, or in SurePassID’s opinion are likely to become, the subject of an infringement claim, SurePassID may, at its option and expense, either: (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services so that they become non-infringing; or (iii) terminate the license to the Licensed Software or the subscription to the infringing Services and refund to Customer (on a prorated basis) any unused, prepaid fees for the infringing Services covering the remainder of the applicable Term after the date of termination. Notwithstanding the foregoing, SurePassID will have no obligation or liability under this Section 9.1 or otherwise with respect to any infringement claim based upon: (a) any use of the Services not in accordance with this Agreement; (b) any use of the Services in combination with products, equipment, software, or data not supplied or approved in writing by SurePassID if such infringement would have been avoided but for the combination with other products, equipment, software or data; (c) any use of a prior release of the Licensed Software after a more current release has been made available to Customer; or (d) any modification of the Services by any person other than SurePassID. This Section 9.1 states SurePassID’s entire liability and the Customer’s exclusive remedy for any claims of infringement or misappropriation of third-party rights.

9.2 Indemnification by Customer. Subject to the terms of this Agreement, Customer will , at its own expense, defend and indemnify SurePassID, and hold SurePassID harmless against, any costs, expenses (including reasonable attorney’ fees), liabilities, settlements, judgments, losses or damages in any action against SurePassID brought by a third party (including any User incurred in connection with, arising from or based upon (i) any breach by Customer of any covenant or agreement in this Agreement, (ii) Customer’s use of the Services in a manner not permitted by the Agreement and the Documentation, (iii) alleging that SurePassID’s possession or use of the Customer Data violates or misappropriates the rights of, or has otherwise harmed, a third party, or (iv) concerning a User’s use of the Services (provided it is not due to SurePassID’s breach of this Agreement). The foregoing obligations are conditioned on SurePassID’s compliance with the Indemnification Conditions (defined below).

9.3 Indemnification Conditions. “Indemnification Conditions” means the following conditions, which a Party must comply with to be entitled to the defense and indemnification obligations of the other Party under this Agreement. The indemnified Party must (i) notify the indemnifying Party promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim, provided, that failure to provide such prompt notice will not release the indemnifying Party from its indemnity obligations except to the extent the indemnifying Party is materially prejudiced thereby; (ii) give the indemnifying Party sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying Party to defend the claim; (iii) cooperate and, at the indemnifying Party’s request and expense, assisting in such defense; and (iv) the indemnifying Party will not settle the indemnified portion of a third-party action without the indemnified Party’s prior written consent in a manner which (x) results in an admission of liability by the indemnified Party, (y) requires payment of monies by the indemnified Party, or (z) requires indemnified Party to take or refrain from taking an action.

10. Limitation of Liability

10.1 Limitation of Liability. NEITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO ANY LIABILITY, NOT TO EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) USD. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE SUREPASID’S LIABILITY HEREUNDER. EXCEPT WHERE PROHIBITED BY LAW, NO CLAIM REGARDLESS OF FORM, WHICH IN ANY WAY ARISES OUT OF THE AGREEMENT MAY BE MADE, NOR ACTION BASED UPON SUCH CLAIM BE BROUGHT BY CUSTOMER, MORE THAN ONE (1) YEAR AFTER THE TERMINATION OR EXPIRATION OF THE AGREEMENT.

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR (i) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY (iii) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (iv) LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 Limitations. The disclaimers and limitations on liabilities contained in Sections 10.1 and 10.2 shall not apply to the obligations set forth in Section 9 (Indemnification) or a breach of Section 3 (Use Guidelines; Restrictions) or Section 5 (Confidentiality) of this Agreement.

11. Term & Termination

11.1 Term of Agreement. This Agreement commences on the Effective Date and continues for as the duration of the applicable Term set forth in any related Order Form (and any subsequent Order Forms) or as otherwise agreed to by SurePassID in writing, unless earlier terminated as set forth herein. Unless otherwise stated in the applicable Order Form: (a) the Term, as applicable, will automatically renew for successive additional one (1) year periods at the then-current SurePassID price and subject to then-current version of this Agreement the date of renewal unless either party gives the other party notice of non-renewal at least 90 days prior to the end of the relevant Term.

11.2 Termination for Cause. Either Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach of this Agreement by the other Party (which notice shall specify such breach in reasonable detail) if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

11.3 Effects of Termination. Upon expiration or termination of this Agreement all rights to use the Services (including all licensed rights for the Licensed Software and any rights to access the Cloud Service) granted in this Agreement will immediately cease to exist, Customer must promptly discontinue all use of the Services, and SurePassID shall immediately be entitled to disconnect or block Customer’s use of the Services.

11.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to SurePassID prior to the effective date of termination. Upon any termination for cause by Customer, SurePassID shall refund Customer any unused, prepaid fees covering the remainder of the Term after the date of termination. If this Agreement is terminated by SurePassID for cause, Customer shall remain responsible for any payments set forth on any outstanding Order Forms, regardless of whether such amounts have been invoiced or are payable at the time of such termination.

11.5 Customer Data. Customer acknowledges and agrees that SurePassID shall have no obligation to retain any Customer Data following the termination of this Agreement, whether pursuant to the expiration of all Terms (including renewals), termination for cause, or for any other reason. Customer understands, acknowledges and agrees that SurePassID may irretrievably delete all Customer Data at any time after sixty (60) days following the effective date of any such termination, provided that at any time prior to such deletion Customer may provide to SurePassID written notice of its election to access and copy such Customer Data in such reasonable manner as provided by SurePassID subject to the payment by Customer to SurePassID of all reasonable costs relating to the access, copying and/or delivery of such Customer Data to Customer.

11.5 Surviving Provisions. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.

12. General Provisions

12.1 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

12.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.3 Notices. All notices under this Agreement shall be in writing and may be sent by electronic mail. Notices shall be deemed to have been given upon the second business day after sending by email. Notices to SurePassID shall be sent to info@surepassid.com. Notices to Customer, unless otherwise indicated by Customer, may be sent to the individual that executed this Agreement on behalf of Customer and/or an Administrator by email, or at the address listed in the Order Form.

12.4 Waiver and Cumulative Remedies. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision of this Agreement. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any legal action is brought to enforce the Agreement, the prevailing Party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses from the non-prevailing Party, in addition to any other relief the prevailing Party may receive.

12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in force and effect.

12.6 Third-Party Services. The Services may be used by Customer to interface with certain third-party products, services and applications (“Third-Party Services”). SurePassID makes no warranty regarding the operation or functionality of such Third-Party Services (whether or not such products, software, applications, hardware or services are designated by SurePassID as "certified," "validated" or otherwise). SurePassID does not guarantee that the Services will interoperate with any particular Third-Party Service, and SurePassID’s support obligations set forth in Section 2.8 shall not extend to any Third-Party Services. SurePassID shall not be held responsible for any deliverable to be provided by a third-party vendor, or for any modification, update or upgrade to third-party products, software, applications or services which break any integration with or affect the functionality of the applicable Services, provided that SurePassID shall use reasonable commercial efforts to work with such third-party to restore any affected functionality (subject to the charge of a professional service fee by SurePassID in connection therewith, in SurePassID’s sole discretion). Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider. Notwithstanding the foregoing, in no event shall any incompatibility or failure of Customer to cause third-party products, software, applications or services to properly integrate or maintain proper integration with the Services alter or suspend Customer’s obligation to pay the applicable fees.

12.7 Open Source Software. Certain items of software embedded within the Services are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Nothing in this document limits Customer’s rights or obligations under the terms and conditions of any applicable end user license for the Open Source Software. In no event do any authors of any Open Source Software provide any warranties with respect to such Open Source Software and such authors disclaim liability of any kind for any use of the Open Source Software. The terms of the licenses for the Open Source Software shall not impose any additional restrictions on your use of the Services as permitted by this Agreement or negate or amend any of our responsibilities with respect to the Services.

12.8 Assignment. Neither Party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Licensed Software) to any third party without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise; provided that such assignment is not to a competitor of the other Party. Unless otherwise specifically agreed to by the non-assigning Party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement. In the event Customer acquires or is acquired by another existing SurePassID customer (a “Customer Acquirer”) during the term of this Agreement, the respective Agreements, together with the applicable Terms and fees applicable to both Customer and Customer Acquirer, will remain unchanged and unaffected unless and until otherwise agreed to by all affected parties. Any attempted assignment or transfer in violation of the foregoing will be null and void. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of SurePassID and Customer.

12.9 Applicable Law and Venue. The laws of (i) the State of Florida, USA (without giving effect to any conflict of laws principles that would require the application of laws of a different state) govern this Agreement and all matters arising out of or relating to this Agreement, including, without limitation, validity, interpretation, construction, performance, and enforcement. Any dispute, action, claim or cause of action arising out of, relating to, or in connection with this Agreement or the Services shall be only brought in and is subject to the exclusive jurisdiction of (a) the state and federal courts located in St. Petersburg, Florida, USA. Each Party waives, to the fullest extent of the law, any objection to venue in such courts, and each Party hereby irrevocably submits and consents to the exclusive jurisdiction of such courts. To the extent permitted by law, the Parties expressly waive any right to trial by jury.

12.10 Governing Language. The governing language for this Agreement and for negotiation and resolution of any disputes related to this Agreement is the English language. Each Party waives any right it may have under any law in any state or country to have the Agreement written in any language other than English.

12.11 U.S. Government End Users. If Customer is a branch or agency of the United States Government, the following provision applies. The Licensed Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualify as “commercial items” as defined in 48 C.F.R. 2.101. SurePassID provides the Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customarily commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). This section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data. If a government agency has a need for rights not conveyed under this Agreement, it must negotiate with SurePassID to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable Order Form or amendment to the Agreement.

12.12 Marketing and Publicity. Upon execution of this Agreement, SurePassID may identify Customer as a customer of SurePassID on SurePassID’s website as well as within any written and/or electronic marketing material relating to SurePassID’s products and/or services, and Customer grants SurePassID a non-exclusive, worldwide, royalty free right to include Customer’s name and logo in any customer listing appearing on or in any SurePassID websites, brochures, fliers, presentations, annual reports and any other marketing materials. [Upon request, Customer shall provide SurePassID with quotes from Customer’s officers to use in SurePassID’s marketing materials.] Customer may terminate the foregoing license at any time following the termination of the Agreement, by providing SurePassID thirty (30) days’ written notice, upon which SurePassID will promptly remove Customer’s name and logo from its website and cease from creating any new marketing material containing the same. Notwithstanding the foregoing, SurePassID’s right to continue to use any pre-printed marketing materials produced prior to such termination will continue until the supply of such materials is exhausted. Customer shall not publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Services without the prior written consent of SurePassID.

12.13 Application Linkage in the Service. If Customer is utilizing the Services to enable entities to connect into its applications, SurePassID may list Customer’s name and accompanying logo within the Service portal and/or application catalog to facilitate such intended functionality of the Services. Customer hereby grants SurePassID a limited, non-exclusive license to its trademarks in order to implement the foregoing provision. Notwithstanding the foregoing, Customer may contact SurePassID following execution of this Agreement and request in writing that SurePassID refrain from listing Customer on any of the Materials and/or portals referenced herein.

12.14 Force Majeure. Neither Party will be liable for any failure in performance due to circumstances beyond such Party’s reasonable control, including without limitation, acts of God; acts of government; flood; fire; earthquakes; civil unrest; acts of terror, strikes or other labor problems (other than those involving such Party’s employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks. For the avoidance of doubt, a force majeure event shall not include (a) financial distress, (b) changes in the market prices or conditions, or (c) a Party's financial inability to perform its obligations hereunder.

12.15 Anti-Bribery. SurePassID agrees not to provide, and Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any SurePassID employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either Party learns of any violation of the above restriction, such Party will use reasonable efforts to promptly notify the other Party.

12.16 Headings, Advice of Counsel, and Drafting. Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section. The Parties acknowledge that they have been advised by counsel of their own choosing, or had the opportunity to seek such counsel, and that its terms will be interpreted without any bias against one Party as drafter.

12.17 Entire Agreement. This Agreement, including all exhibits hereto (including those referenced via hyperlinks), the Security Exhibit, the Support Policy, and all Order Forms, constitutes the final agreement between the Parties, and is the complete and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. Each Order Form that is executed by Customer incorporates the terms of the Agreement in effect as of such date of execution. All exhibits (including those referenced via hyperlinks) and Order Forms are incorporated into this Agreement by reference. All prior agreements (including any click-through agreement associated with the Services), proposals or representations, written or oral, concerning the subject matter contained in this Agreement, are expressly superseded by this Agreement. Any prior non-disclosure, confidentiality, or similar agreement between the Parties is expressly superseded by this Agreement and the confidential or proprietary information previously disclosed thereunder shall become “Confidential Information” under the terms of this Agreement as if originally disclosed hereunder. In entering this Agreement, neither Party has relied upon any statement, representation, warranty, or agreement of the other Party except for those expressly contained in this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail in the following order of precedence: addendum; exhibit; Order Form. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are specifically and expressly rejected by SurePassID and shall be null and void. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.

12.18 Modifications, Amendments, and Waivers. This Agreement may not be modified except by written instrument signed by both Parties. Notwithstanding the foregoing sentence, SurePassID may amend the Agreement from time to time by posting such amendment(s) at URLs as may be provided to Customer by SurePassID. Customer acknowledges and agrees that Customer’s continued use of the Services after the posting of such an amendment shall constitute Customer’s consent to such amendment and agreement to be bound by same.

12.19 Counterparts. Any Order Forms may be executed by PDF or other electronic means, and in one or more counterparts, which taken together shall form one legal instrument.