SurePassID Master Subscription Agreement
Last updated: November 1, 2021
This subscription agreement (this “Agreement”) sets forth the legally binding terms for use of the Products and with respect to Order Forms (each as defined below). This Agreement is by and between SurePassID (“SurePassID”, “we”, or “our”) and the company or entity on whose behalf you are accepting this Agreement (“Customer”). You represent that you have the authority to bind Customer to the terms of this Agreement. By agreeing to the terms of this Agreement, by accessing, using, or installing any part of the Products, or by executing an Order Form that references this Agreement, 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, or using the Products or executing an Order Form that references this Agreement. The effective date of this Agreement is the date set forth on an Order Form or, if earlier, the date on which Customer downloads, installs, activates, or uses the Products (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:
“Administrator” is an individual who has been granted administrative permissions by Customer to the Service.
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all electronic data or information submitted by Customer and its Users to the Service. Customer Data may include Personal Data.
“Customer Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with (i) customers of Customer, if such customer is an individual, or (ii) employees, contractors, subcontractors, or temporary staff of customers of Customer, if such customer is an entity, in each case acting on such individual’s behalf. Customer Identities are only permitted to access resources of Customer.
“Documentation” means SurePassID’s administrator user’s manuals for the Products made generally available by SurePassID on its website.
“Malicious Code” means viruses, worms, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
“Order Form” means any ordering document for Customer’s purchases from SurePassID that is executed by both Parties.
“Partner Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with an employee, contractor, subcontractor, or temporary staff of a business partner of Customer, acting on behalf of such business partner and not for the benefit of such individual. Partner Identities are only permitted to access resources of Customer.
“Products” means the Software, Service, Trial Products (defined in Section 2.3) and Beta Versions (defined in Section 2.4).
“Service” means hosted, software-as-a-service offerings provided by SurePassID that are identified on an Order Form or otherwise made available to Customer.
“Software” means the downloadable software programs offered by SurePassID that are identified on an Order Form or otherwise downloaded or installed by Customer, including in connection with its use of the Service.
“Support Services” means those maintenance and support services that Customer obtains from SurePassID set forth in Section 2.7 below.
“Users” means any Administrator and individuals (including non-human devices) who are provisioned by Customer (or Customer’s authorized third parties accessing Customer’s services) to utilize the Products, or with whom Customer utilizes the Products, in connection with Customer’s use of the Products. Order Forms define the specific number and type of Users that Customer is authorized to permit to utilize the Products.
“Workforce Identity” means, unless otherwise set forth on an Order Form, a unique set of identity attributes associated with an employee, contractor, subcontractor, or temporary staff acting on Customer’s behalf.
2.1 Provision of Service. Subject to the terms and conditions of this Agreement, SurePassID shall make the Service 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 Form(s) and the Documentation. Customer agrees that its purchase of the Products is neither 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.
2.2 Software License Grant. Subject to the terms and conditions of this Agreement, SurePassID hereby grants Customer, during the term specified in the applicable Order Form(s), a limited, non-exclusive, non-sublicensable, non-transferable license to install the Software, in machine-readable form only, and to use the Software solely for Customer’s business use, all in accordance with this Agreement, any applicable Order Form(s) and the Documentation.
2.3 Evaluation and Developer Licenses. If SurePassID provides Customer with a trial, evaluation, or developer license to the Products (the “Trial Products”), Customer agrees to use the Trial Products solely for evaluation purposes, in a non-production environment, for a fourteen (14) 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 Products automatically expires and Customer agrees to uninstall the Trial Products and, upon request, certify to SurePassID in writing that all copies or partial copies of the Trial Products have been deleted from Customer’s computer libraries and/or storage devices and destroyed. If Customer desires to continue its use of the Trial Products beyond the Trial Period, Customer shall contact SurePassID to acquire a license to, or subscription for, the Trial Products for the applicable fee.
2.4 Beta Versions. If SurePassID and Customer mutually agree in writing, Customer may receive beta, preview or other pre-release Products 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.
2.5 IN ADDITION TO ANY DISCLAIMERS IN SECTION 8.4, ANY TRIAL PRODUCTS 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 PRODUCTS OR BETA VERSIONS UNDER THIS AGREEMENT UNDER ANY THEORY OF LIABILITY. SurePassID does not provide support for Trial Products or Beta Versions. Trial Products and Beta Versions may be subject to reduced or different security, compliance, and privacy commitments. The following Sections of this Agreement shall not apply to Trial Products or Beta Versions: 2.7, 6.6, 6.7, 8.1, 8.2, 8.3, 9.1 and 10.1.
2.6 Delivery, Installation and Acceptance of the Software.
(a) Delivery, Installation and Acceptance of the Software. The Software will be delivered to Customer by electronic download. Customer will be solely responsible for installing any Software as permitted under this Agreement unless otherwise set forth in an Order Form. All 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 Products, any such services and related Fees shall be set forth in an 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.
2.7 Support for Products. SurePassID will provide those Support Services for the Products in accordance with the Order Form. 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.
2.8 Order Forms. Customer and its Affiliates may place orders under this Agreement by executing Order Form(s). When an Affiliate of Customer signs an 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.
2.9 Resellers. If Customer purchases subscriptions to the Products 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 subscriptions to the Products (including the scope of permitted use, quantities of licenses, etc.), and references to Order Forms herein will refer to such documentation. Customer should obtain such details from the Reseller, but SurePassID can also confirm to Customer any such details of the 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 Products beyond what is set forth in the ordering documentation between SurePassID and Reseller.
3. Use Guidelines; Restrictions
Customer shall use the Products 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 Products 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, or otherwise commercially exploit or make the Products available to any third party except as expressly contemplated by this Agreement; (ii) modify, adapt, alter, translate or create derivative works of the Products; (iii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iv) reverse engineer, decompile or disassemble the Products (or otherwise attempt to derive the source code or underlying ideas or algorithms of the Software); (v) take any action that would cause the Products (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 Products; (vii) send or store Malicious Code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, including conducting any load or penetration testing on the Service; (ix) attempt to gain unauthorized access to the Service or its related systems or networks; or (x) access the Products in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Products.
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 Product subscriptions purchased and not actual usage, payment obligations are non-cancelable, and fees paid are non-refundable. If Customer is purchasing a subscription based on the number of individual Users, connections or another metric set forth in an 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. Unless otherwise stated in an 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. This section does not apply if Customer is purchasing through a Reseller.
4.5 Suspension of Service for Critical Cause. SurePassID reserves the right to suspend the Service 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 Service is necessary to comply with the law or requests of governmental entities; or (iii) SurePassID reasonably determines that Customer’s use of the Service in violation of this Agreement poses any security or vulnerability risk to SurePassID or the Service. 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 Service as soon as the underlying cause is mitigated.
4.6 Audit of Software Usage. 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 on which the Software is installed, and all related back-up files, 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 Software, Customer will remit to SurePassID the applicable Fees for the overuse, based on the then-current per-unit rate on the applicable Order Form(s), and reimburse SurePassID for all reasonable costs and expenses incurred by SurePassID in connection with such audit.
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 Products, business and marketing plans, technology and technical information, pricing information, financial results and information, product designs, product roadmaps, results of penetration testing, 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 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 contest the disclosure.
5.5 Remedies. If the Receiving Party 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, 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 Service. 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 Products, 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 Products under this Agreement. Customer agrees that it has control over and/or understands the nature and scope of the Customer Data processed by the Products, and the origin or location of Users. Customer warrants that it will ascertain that Customer Data can be processed under this Agreement by the Service 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 Service 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 Service; (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 Products internally to improve and develop its product offerings. In addition, SurePassID owns any usage data derived from the operation of the Products 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.
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 Products (and any enhancements, modifications, or derivative works thereof, or other software development performed by SurePassID), including all related intellectual property rights. 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 Products any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Products.
8. Warranties & Disclaimers
8.1 Warranties. Each Party represents that it has the legal power to enter into this Agreement. SurePassID warrants that it will provide the Products in a manner consistent with industry standards applicable to the provision thereof and will provide the Support Service and any professional services in a good, professional, and workmanlike manner consistent with applicable industry standards.
8.2 Performance Warranty for Software. For a period of ninety (90) days after the date of delivery of the Software (the “Warranty Period”), SurePassID warrants that the Software, when used as permitted by SurePassID and in accordance with the Documentation, will operate substantially as described in the Documentation. SurePassID will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to (i) correct any material reproducible error that Customer reports to SurePassID in writing during the Warranty Period, or (ii) replace the defective Software. If SurePassID, in its sole discretion, may not achieve either (i) or (ii) as a remedy for breach of this warranty, SurePassID agrees to accept return of the Software, terminate the license to the defective Software and refund Customer all unused, prepaid fees with respect to the defective Software.
8.3 Harmful Code. SurePassID warrants that it will use commercially reasonable efforts, using industry standard practices, to ensure that the Products, in the form provided by SurePassID to Customer, do not contain Malicious Code.
8.4 Disclaimer. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS AND SUREPASSID EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, 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 PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS 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.
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 Products, 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 Products 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 Products; (ii) replace or modify the Products so that they become non-infringing; or (iii) terminate the subscription to the infringing Products and refund Customer any unused, prepaid fees for the infringing Products covering the remainder of the subscription 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 Products not in accordance with this Agreement; (b) any use of the Products 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 Software after a more current release has been made available to Customer; or (d) any modification of the Products 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.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, Customer will defend at its own expense any action against SurePassID brought by a third party (including any User) (i) 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 (ii) concerning a User’s use of the Service (provided it is not due to SurePassID’s breach of this Agreement), and Customer will indemnify and hold SurePassID harmless against those costs and damages finally awarded against SurePassID 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 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; (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; and (iii) cooperate and, at the indemnifying Party’s request and expense, assisting in such defense.
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 INCIDENT, NOT TO EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) USD.
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 long as the subscription 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.
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 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 Products (including all licensed rights for the Software) granted in this Agreement will immediately cease to exist and Customer must promptly discontinue all use of the Products.
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 subscription 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 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 email@example.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.
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 Products may be used by Customer to interface with certain third-party services and applications (“Third-Party Services”). SurePassID makes no warranty regarding the operation or functionality of such Third-Party Services. SurePassID does not guarantee that the Products will interoperate with any particular Third-Party Service, and SurePassID’s support obligations set forth in Section 2.7 shall not extend to any Third-Party Services.
12.7 Open Source Software. Certain items of software embedded within the Products 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 Products as permitted by this Agreement or negate or amend any of our responsibilities with respect to the Products.
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 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. 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 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 Products shall be only brought in and is subject to the exclusive jurisdiction of (a) the state and federal courts located in Tampa, 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 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 Products for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Products 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 this 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. Customer shall not publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product without the prior written consent of SurePassID.
12.13 Application Linkage in the Service. If Customer is utilizing the Service 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 Service. 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, 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 this Agreement in effect as of such date of execution. All exhibits and Order Forms are incorporated into this Agreement by reference. All prior agreements (including any click-through agreement associated with the Products), 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. 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 Products 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.