These CertifID, Inc. Platform Terms and Conditions (these “Terms and Conditions”), together with any written agreement executed by CertifID and Customer referencing these Terms and Conditions (the “Order Form”, together with these Terms and Conditions, collectively, this “Agreement”) apply to the sale and provision by CertifID of the Services (defined below) described in this Agreement and Customer’s use of the CertifID Platform (defined below). CertifID and Customer may sometimes be referred to individually as a “Party” and collectively as the “Parties.” Unless otherwise defined herein, all capitalized terms will have the meaning assigned to them in the Order Form. CertifID and Customer hereby agree as follows:
“Applicable Laws” means any applicable federal, state and local laws, statutes, ordinances, rules, codes, regulations, executive orders, directives, and other official releases of or by any governmental body or regulatory authority.
“CertifID Platform” means those secure application programming interfaces (streaming API, rest API or persistent query) API Services, web interfaces, web-based platforms or such other formats as determined solely by CertifID and identified in an Order Form.
“Content” means any information or content in whatever form, provided by Customer, including Enterprise Users and/or End Users, to CertifID through Customer’s, including Enterprise Users’ and/or End Users’, use of the Services. Content shall not include Verification Responses or other information derived either directly or indirectly by CertifID and its Third Party Content Providers from such Content.
“End User” means any individual or entity for which identity and information verification is sought by Customer, and who accesses the CertifID Platform under these Terms and Conditions.
“Enterprise User” means any employee or agent of Customer provided with a unique individual login subject to this Agreement.
“Fees” means the fees specified in the Order Form.
“Intellectual Property Rights” means any patent, idea, invention, discovery, improvement, work of authorship, trademark, service mark, trade and service names, copyrights, database rights and design rights, know-how, trade secrets and other proprietary or intellectual property rights in any intellectual property, whether or not patented, patentable, registered, or registerable anywhere in the world.
“Internal Purposes” means to use the Services, Verification Responses, Mortgage Payoff Verification Services, and the CertifID Platform strictly for the Customer’s own internal use of verifying the identity and/or bank account credentials of an individual or entity to which Customer has a business relationship or such other purposes consistent with this Agreement as intended based on the type of Verification Response provided by CertifID.
“Mortgage Payoff Verification Services” means Customer’s or Authorized Users’ use of the CertifID Platform to access CertifID’s mortgage payoff database in order to receive a Verification Response.
“Personal Information” means any Customer information or data CertifID processes or uses in providing the Services that identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in CertifID’s possession or control, such as Customer’s name, address, social security number or other identifying number or code, telephone number, bank account information or other financial information.
“Recovery Assistance Services” means any services that CertifID, in its sole discretion, provides to assist Customer in the recovery of incoming or outgoing funds transfers that are diverted to fraudulent or improper accounts. Recovery Assistance Services are subject to the CertifID, Inc. Terms and Conditions for Fraud Recovery Services, which are incorporated herein in full force and effect by reference (the “Recovery Terms and Conditions”).
“Services” means, as applicable, (a) the service provided by CertifID giving to Customer the Verification Responses via the CertifID Platform, or other transmission or online, web-based data access point pursuant to this Agreement; (b) CertifID providing Customer access and allowing Customer to use the CertifID Platform; (c) the Recovery Assistance Services; and (d) the Mortgage Payoff Verification Services.
“Third Party Content Provider” means (a) any provider of information or data from which CertifID obtains, receives or acquires verification related information or data; or (b) any content provider that provides Content to CertifID to allow CertifID to formulate and provide a Verification Response.
“Verification Response” means, as applicable, the “CertifID” or “rejected” answer provided on the CertifID Platform or through other electronic mediums by CertifID to Customer in response to a Customer request for (a) verification of the identity and/or bank account credentials of individuals or entities; (b) identity validation that enables the secure transfer of wire instructions; and (c) verification of mortgage/loan data or information to enable the secure payments or transfer of wire instructions, each based on information input by Enterprise Users and/or End Users.
1. Grant and Acceptance of License. During the Term, to the extent identified on an Order Form, CertifID hereby grants to Customer, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license for any Enterprise User and End User (each an “Authorized User”) to input Content and for its own Internal Purposes and to access and use the CertifID Platform in accordance with these Terms and Conditions to receive Verification Responses to better verify the identity and/or bank account credentials of individuals or entities, and to securely share its bank credentials with parties involved in a transaction or such other legitimate purposes as intended based on the type of Verification Response provided by CertifID (collectively, the “License”). Customer may not sell, license, sublicense, lease, rent, loan, lend, transmit, network, publish, or otherwise distribute or transfer the Verification Responses in any manner. Customer represents, warrants and covenants that it will not use the Verification Responses, CertifID Platform or Services for any purpose or in any manner not authorized by this Agreement or for any unlawful purpose. Customer shall not, directly or indirectly, provide any access to the CertifID Platform, Services, or any Verification Responses to any third party and shall limit use and access solely to Authorized Users. In the event Customer releases Verification Responses or provides access to the CertifID Platform or Services to a third party without obtaining written confirmation or a separate written license agreement, in addition to all other applicable remedies, Customer will be responsible for paying CertifID all fees that otherwise would have been remitted or owed by the third party directly to CertifID.
2. Intellectual Property Rights.
2.1. Customer acknowledges and agrees that CertifID holds all right, title and interest and reserves all Intellectual Property Rights in and to the Verification Responses, the Services, the CertifID Platform, and the Content and, if applicable, the format thereof. Customer agrees that the Intellectual Property Rights of CertifID, its licensors and/or Third Party Content Providers are not transferred, assigned or affected in any way as a result of this Agreement. In the event that CertifID does not own the Content uploaded by an Authorized User, Customer and Authorized User hereby grant CertifID a nonexclusive, perpetual, royalty free, irrevocable and unlimited license to use such Content in performing the Services, as well as in connection with any other business purpose of CertifID.
2.2. Customer shall, at CertifID’s request and expense, take all reasonable steps (such as execution of written documents or cooperation in litigation) both during and after the Term, that in CertifID’s sole judgment, are prudent and reasonable for the protection and enforcement of the Intellectual Property Rights of CertifID, its licensors and, if applicable, Third Party Content Providers.
2.3. Customer hereby grants to CertifID (including its affiliates, subcontractors, agents, successors and assigns) an exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate into the Services or CertifID Platform any suggestions, enhancement requests, recommendations or other feedback from Customer or its Authorized Users relating to the Services or CertifID Platform (collectively, “Feedback”). To the extent that Customer provides a testimonial to CertifID, Customer agrees that CertifID may use Customer’s or its Authorized Users’ name, picture, logo, or likeness (collectively “Customer Likeness”) for any advertising purpose during the Term of this Agreement and indefinitely thereafter. Customer hereby waives any right to the Customer Likeness and will ensure that all Authorized Users waive any rights to the Customer Likeness.
2.4. In connection with the Mortgage Payoff Verification Services provided by CertifID to Customer, Customer hereby appoints CertifID as an agent of Customer for the limited purpose of verifying mortgage payoff information from a mortgage lender or mortgage servicer.
3. Customer’s Receipt & Use of Verification Responses.
3.1. CertifID, its agents, licensors and/or its Third Party Content Providers may add or delete information, change what information is needed to obtain a Verification Response, change the algorithms or process for obtaining a Verification Response, and/or modify the Services and CertifID Platform, depending on operational requirements and availability, and to comply with Applicable Law. In the event that CertifID loses access to information and content from its Third Party Content Providers that is used in the CertifID Platform and/or Services to provide Verification Responses, CertifID will use commercially reasonable efforts to acquire similar content sources. CertifID shall not be required to provide any advance notice of changes to the Services, information required from Customer or End User to obtain Verification Responses, or the content or information used from its Third Party Content Providers in providing Verification Responses. CertifID shall always have the unrestricted right related to remove Content uploaded by Customer or information from its Third Party Content Providers, which CertifID identifies as illegal or infringing, reasonably believes may be illegal or infringing, or any of the foregoing that are alleged to be illegal or infringing by a third party (“Identified Content”).
3.2. Customer shall not misrepresent the Verification Responses, or the capabilities of the CertifID Platform or Services or display or distribute the Verification Responses in any way that may create a false or misleading impression as to the origin or value or verification of the identity of any individual.
3.3. Customer shall not use the Verification Responses, Services and the CertifID Platform for any illegal purpose, or to test or probe the Services and/or the CertifID Platform, reverse engineer, disassemble, decompile, adapt or otherwise attempt to derive or gain access to the source code of the Services or the CertifID Platform, impede or harm in any way the Services or the CertifID Platform, access or use the Services or the CertifID Platform for purposes of competitive analysis, the development, provision or use of a competing software service or product, or any other purpose that is to CertifID’s detriment or commercial disadvantage, or otherwise access or use the Services or CertifID Platform beyond the scope of the License. Upon becoming aware that the Content includes any false, misrepresentations, illegal or infringing information, or any information that possibly could give a false Verification Response, or that any End User did not match the identity of the person being verified, Customer shall promptly inform CertifID. CertifID may immediately suspend or terminate, without notice, receipt or display of Verification Response, and/or access to the Services and/or the CertifID Platform by any party, entity or person if CertifID has reason to believe the Customer is breaching any Applicable Law, is in breach of its payment obligations under this Agreement, or is otherwise not using the Services or CertifID Platform in compliance with this Agreement. Customer shall not provide any personal health information covered by Applicable Laws (including HIPAA) to CertifID.
3.4. Customer shall immediately notify CertifID of any attempt by an individual or entity to use a false identity, or to commit fraud by a particular End User. CertifID is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s or any Authorized User’s delay in performing or failure to perform any of its obligations under this Agreement.
4. Fees, Billing and Payment. Customer shall pay to CertifID the applicable Fees specified in the Order Form within thirty (30) days of the date of invoice. Any amounts not paid when due will accrue interest at the lesser of six percent (6%) per month, or the maximum rate allowed by Applicable Law. If Customer has not paid all Fees when due, CertifID has the right to suspend its provision of the Services until full payment is received, including any late payment charges. All Fees referenced under this Agreement will be shown, invoiced and automatically payable in U.S. Dollars. In the event Customer is receiving the Services as part of a free trial (“Free Trial”) as set forth on the Order Form, CertifID shall automatically bill Customer under this Agreement after the term of the Free Trial has expired. Customer shall pay any taxes, fees and similar governmental charges related to the execution or performance of this Agreement, other than taxes on CertifID’s net income.
Recovery Assistance Services shall only be included on all funds transfers that include a “CertifID” Verification Response (for outbound wire transfers) or a purchased Money Protection Plan (for inbound transfers) at no additional cost. If CertifID is requested by Customer or a customer of Customer to provide Recovery Assistance Services on funds transfers that do not include either a “CertifID” Verification Response (for outbound wire transfers) or a purchased Money Protection Plan (for inbound wire transfers), such services may be rendered at the sole and absolute discretion of CertifID and for a fee as set forth on the Order Form and subject to the Recovery Terms and Conditions. Unless otherwise provided for in this Agreement, all other services, including Recovery Assistance Services, rendered by CertifID shall be subject to additional compensation under a separate agreement to be entered into by and between CertifID and Customer.
5. Representations, Warranties, Indemnities, and Limitation of Liability.
5.1. CertifID represents, warrants and covenants that it: (a) has the right to provide Services to Customer via the CertifID Platform, as applicable, for the purposes specified in this Agreement; (b) has the power and authority to enter into this Agreement and to perform its obligations hereunder;(c) shall comply with all Applicable Law applicable to the provision of the Services; (d) shall employ industry-standard methods to prevent introduction, through the Services, of computer viruses or malicious code into Customer’s software systems; and (e) shall provide an Evidence of Insurance document naming Customer to the applicable sections of the CertifID Status Approved Wire Fraud Indemnity Policy that specifically relate to the Services provided by CertifID to Customer as specifically referenced in such Evidence of Insurance.
5.2. Neither CertifID nor its officers, directors, members, employees, agents, consultants, licensors, successors, and assigns (“CertifID Parties”) shall be liable for: (a) any delay, inaccuracy, error or omission of any kind in providing the Services or for any resulting loss or damage or for the inability to access or receive the Services; (b) losses arising from unauthorized access to the Services or any other misuse of the Services; (c) any or all claims, losses or damages covered, in whole or part, by any insurance policy or subject to any insurance coverage (including for the avoidance of doubt, the amount of loss or damage that exceeds the limit(s) of available insurance or insurance coverage); (d) any or all claims, losses or damages that would have been covered, in whole or part, by any insurance policy or subject to any insurance coverage but that are not covered because the applicable limit(s) have been exhausted or the carrier has denied coverage; (e) any or all claims, losses, or damages if the Customer elects not to purchase insurance or insurance coverage; or (f) any or all claims, losses, or damages asserted by a third party resulting from the unauthorized sharing of a Verification Response by Customer to such third party, whether voluntarily or involuntarily.
5.3. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND THE MORTGAGE PAYOFF VERIFICATION SERVICES ARE PROVIDED “AS IS”, “WHERE IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED IN FACT, STATUTORY, OR BY OPERATION OF LAW, AND CERTIFID EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. CERTIFID DOES NOT REPRESENT OR WARRANT THAT THE SERVICES AND THE MORTGAGE PAYOFF VERIFICATION SERVICES WILL BE ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR THE USEFULNESS OF THE VERIFICATION RESPONSES AS INCORPORATED IN THE WORKFLOW, DECISION MAKING, SERVICES AND THE MORTGAGE PAYOFF VERIFICATION SERVICES, OR AS USED BY THE CUSTOMER. CUSTOMER UNDERSTANDS AND AGREES THAT CERTIFID OBTAINS THE INFORMATION REQUIRED TO PROVIDE THE SERVICES, THE MORTGAGE PAYOFF VERIFICATION SERVICES, AND VERIFICATION RESPONSES FROM A VARIETY OF SOURCES, INCLUDING THIRD PARTY CONTENT PROVIDERS AND THAT CERTIFID DOES NOT REVIEW INFORMATION PROVIDED BY SUCH THIRD PARTY CONTENT PROVIDERS BEFORE PROVIDING OR MAKING THE VERIFICATION RESPONSES AVAILABLE TO CUSTOMER. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT IT HAS ITS OWN PROCESS AND PROCEDURE TO COMPLY WITH THE PROVISIONS SET FORTH IN SECTION 5.5 BELOW AND THAT CERTIFID IS BEING USED AS AN AUGMENTATION OF SUCH PROCESS AND PROCEDURES AND NOT AS A REPLACEMENT. CERTIFID MAKES NO PROMISES, REPRESENTATIONS OR GUARANTEES REGARDING THE SERVICES AND THE MORTGAGE PAYOFF VERIFICATION SERVICES. CERTIFID DOES NOT PROVIDE LEGAL OR FINANCIAL SERVICES TO CUSTOMER AND CERTIFID WILL NOT GIVE CUSTOMER FINANCIAL OR LEGAL ADVICE AT ANY TIME, EITHER VERBALLY OR IN WRITING. SHOULD CUSTOMER’S BANK OR FINANCIAL INSTITUTION DEEM IT NECESSARY TO CLOSE AN ACCOUNT OF CUSTOMER, CERTIFID ACCEPTS NO LIABILITY, CONSEQUENTIAL LOSS, OR OTHER RESULT OF THE ACCOUNT CLOSURE.
5.4. Customer represents, warrants and covenants that it: (a) has the authority to enter into and comply with the terms and conditions of this Agreement; (b) shall comply with all Applicable Law applicable to the receipt of Services (including but not limited to the access to or use, storage, and transmission of the Content or use, distribution, display and export of the Verification Responses); (c) is lawfully in possession of any Personal Information it provides CertifID as part of the Content, (d) has the proper policies, procedures and security in place to ensure the confidentiality of such Personal Information, and comply with all Applicable Laws regarding such Personal Information, (e) that it keeps all such Personal Information confidential and has entered into agreements with Enterprise Users requiring them to ensure the confidentiality of such Personal Information; (f) that all Content including; without limitation, information relating to the identity or contact information of an individual; ABA routing numbers or account information of financial institutions, is accurately transferred from Customer’s source of such information into the CertifID Platform; and (g) it has an information security management system (ISMS) in place that covers confidential and non-confidential information and applies with Applicable Law.
5.5. Customer represents, warrants and covenants and agrees that if any Verification Response is not “CertifID” by the CertifID Platform, Customer shall not use the CertifID Platform to validate the identity or bank credentials of the same party that resulted in the failure to obtain a “CertifID” Verification Response. In such an event, Customer represents, warrants and covenants that it has its own process for collecting or sending funds via check and not electronic transfer or, in the alternative; the process, procedure and/or technology for verifying the identity of individuals, entities, bank account information and mortgage payoff information that includes, without limitation: (a) identifying spoofed email accounts and domain names; (b) relying upon information from only trusted and known sources; (c) verifying personal or entity identity or account information with a trusted third party and not relying on communications received via email, SMS, facsimile or phone; (d) version control of all information including bank account information such as mortgage payoff statements and consumer wiring instructions; (e) regular training for employees on email phishing and identity verification; and (f) an incident response plan in the event of an email compromise or wire fraud.
5.6. In no event will CertifID sell or transfer Personal Information to third parties other than its affiliates or for use in CertifID’s other services or products offered to its customers, or otherwise provide third parties other than its affiliates with access thereto, except (a) in the performances of the Services, or (b) with any of its third-party service providers assisting CertifID with the performance of the Services hereunder. If there is a suspected or actual breach of security involving Personal Information, CertifID will promptly notify Customer after becoming aware of such occurrence. On termination or expiration of this Agreement or upon Customer’s request, CertifID will securely destroy or, if directed in writing by the Customer, return and not retain, all or any Personal Information related to this Agreement in its possession or control, except (i) for one copy that CertifID may retain and use for audit purposes; (ii) for use in CertifID’s other services or products offered to its customers; and (iii) if any law, regulation, or government or regulatory body requires CertifID to retain any documents or materials that CertifID would otherwise be required to return or destroy, in which case, CertifID will notify Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends. For the avoidance of doubt, CertifID may only use this retained Personal Information as provided for in this Agreement.
5.7. Customer shall indemnify, defend, and hold harmless CertifID Parties against all losses, claims, damages, expenses or costs (including reasonable attorneys’ fees) which CertifID has incurred or paid to any third party arising from (a) improper, unlawful, or unauthorized access to or use of the Services, CertifID Platform and/or Verification Responses by Customer, except where the losses or claims arise from willful misconduct on the part of CertifID or its officers; (b) any Identified Content; and (c) any breach of any of the representations, warranties, agreements or covenants under this Agreement by Customer.
5.8. CertifID shall indemnify, defend, and hold harmless Customer and any Authorized Users all losses, claims, damages, expenses or costs (including reasonable attorneys’ fees) which Customer or any Authorized Users have incurred or paid to any third party arising from: (i) CertifID’s gross negligence or willful misconduct or (ii) any allegation that the Services or the CertifID Platform infringe any Intellectual Property Rights of a third party (or constitute the misappropriation of a trade secret of a third party). Notwithstanding the foregoing, Customer acknowledges that the Services may be provided in conjunction with other third-party service providers, (“Third Party Service Providers”), and CertifID’s obligations under this Section 5 shall not apply, to the facilities, technologies, networks, or other services provided by any Third Party Service Provider. CertifID will have no obligation for any claim of infringement if the Services or the CertifID Platform would not itself be infringing or otherwise the subject of a claim but for any of the following: (a) use of the Services or the CertifID Platform in conjunction with anything, including data, equipment or software, not provided by CertifID; (b) use of the Services or the CertifID Platform in a manner not described in this Agreement; (c) any modification to the Services or the CertifID Platform not made or authorized by CertifID; (d) use of the Services or the CertifID Platform in any unlawful, improper or inappropriate manner or for any unlawful purpose; (e) the claim(s) allege(s) that the Services or the CertifID Platform enables any function, system or method that is (i) not commercially unique to Services or the CertifID Platform or (ii) widely used within Customer’s industry; or (f) the claim is based in whole or in part on any Intellectual Property Right owned or controlled by Customer.
5.9. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF A BREACH OF SECTION 1 OR AS A RESULT OF A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES SHALL A PARTY BE LIABLE TO THE OTHER PARTY, DIRECTLY OR INDIRECTLY AS A RESULT OF THIS AGREEMENT OR FOR MAKING USE OF ANY INFORMATION, VERIFICATION RESPONSES, SERVICES, AND THE CERTIFID PLATFORM, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, OR LOST DATA, ARISING UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
5.10. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF A BREACH OF SECTION 1, FOR THE FEES DUE AND OWING TO CERTIFID, OR AS A RESULT OF A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL A PARTY’S AGGREGATE LIABILITY HEREUNDER FROM ANY AND ALL CAUSES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, WARRANTY, INDEMNITY OR OTHERWISE) EXCEED THE FEES PAID FOR THE PRECEEDING THREE MONTHS TO CERTIFID BY CUSTOMER UNDER THIS AGREEMENT. THIS LIMITATION SHALL SURVIVE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT AND THAT CERTIFID WOULD NOT BE ABLE TO PROVIDE THE VERIFICATION RESPONSES TO CUSTOMER AT THE PRICES SET FORTH IN THE ORDER FORM WITHOUT SUCH LIMITATIONS.
5.11. Customer shall reimburse CertifID for all costs and expenses (including attorneys’ fees and costs) incurred by CertifID resulting from any third-party investigation of the acts or practices of Customer including, without limitation, any costs or expenses related to compliance with any third party subpoena or other discovery request. Should CertifID be served with a third party subpoena in connection with Services it performed for Customer, CertifID shall promptly advise Customer and consult with Customer regarding CertifID’s response to the subpoena to the extent the subpoena seeks Customer’s Personally Identifiable Information so that Customer may have an opportunity to seek appropriate relief.
5.12. CertifID shall provide written notice to Customer of any claim or demand which CertifID has determined has given or could give rise to a right of indemnification under this Agreement. Customer shall promptly undertake to discharge its indemnification obligations hereunder. Additionally, Customer shall employ counsel reasonably acceptable to CertifID to defend any such claim or demand asserted against CertifID. CertifID shall have the right to participate in the defense of any such claim or demand at Customer’s expense. CertifID shall reasonably cooperate with Customer in any such defense. In addition, CertifID shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business and shall have the right to settle any claims, even if such settlement might give rise to liability of Customer, without the prior consent of Customer; provided, however, Customer may not settle or negotiate any claim or demand without CertifID’s prior written consent, which can be withheld for any reason.
5.13. In the event of any claim that any Verification Response, the CertifID Platform or CertifID’s Services hereunder infringe any Intellectual Property Rights of any third party, CertifID shall use commercially reasonable efforts to: (a) undertake and obtain the right for Customer to continue using such Verification Responses or for CertifID to continue such Services, as applicable; (b) replace such Verification Response, CertifID Platform, or Services with substantially the same functionality and efficiency, or (c) if neither (a) nor (b) are commercially reasonably possible in CertifID’s sole discretion, refund any fees and expenses paid to CertifID by Customer with respect to such Verification Response or Services.
5.14. This Section 5 states Customer’s sole remedy and CertifID’s entire liability for any loss and damages whatsoever arising out of or relating to the infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third party.
5.15. The CertifID Platform includes third-party underwritten insurance benefits, for the Customer, including any Enterprise User or End User, as provided in Section 5.1(e). These benefits are offered and distributed through CertifID Insurance Services LLC, a licensed insurance producer and an affiliate of CertifID, Inc. The insurance benefits are underwritten by Lloyd’s of London under a master policy issued to CertifID, Inc. and, in some cases, are reflected for you or your customers by individual certificates reflecting those transactions. Lloyd’s of London is rated by A.M. Best as A (Excellent) with a stable outlook and a financial size category of XV, the highest possible. In virtually all states, Lloyds of London is neither licensed nor admitted and its policies are not covered by state guaranty funds. The terms and conditions of the master policy (including its limits of liability), any summary of benefits prepared by us, and any transactional certificates are referenced herein, and are available for your review upon request. You acknowledge receipt of this information and agree to be bound by the terms, conditions, limitations, and exclusions of the master policy and any applicable individual certificates. As provided in Section 5.3, the program you are purchasing is provided on an “as is”, “where is” basis, without any express or implied warranty of any kind, including but not limited to warranties of merchantability, fitness for a particular purpose, and title, nor any product or service warranties. For the avoidance of doubt, nothing in this Section 5 will limit or otherwise affect the insurance coverage to which Customer is entitled under Section 5.1(e).
6. Confidentiality & Security.
6.1. Each Party acknowledges that information of a confidential nature relating to the business of the other (including Personal information) (“Confidential Information”) may be disclosed to it under this Agreement. Content, the CertifID Platform and Verification Responses, as well as any documentation or materials provided regarding the Services, or the CertifID Platform shall be considered Confidential Information of CertifID. Each Party undertakes to hold such Confidential Information in strict confidence and not, without the consent of the other, disclose it to any third party nor use it for any purpose other than in the performance of this Agreement. Confidential Information does not include information that: (a) at the time of disclosure is already publicly available, (b) is already known to the receiving Party prior to disclosure by the disclosing Party, (c) after disclosure becomes publicly available through no fault of the receiving Party, (d) is or becomes rightfully known to either Party without restriction from another source, (e) is developed independently by the receiving Party without use of the disclosing Party’s Confidential Information; and (f) is required to be disclosed by order of Applicable Law, provided that the receiving Party provides reasonable notice to the disclosing Party of such required disclosure and reasonably cooperates with the disclosing Party in limiting such disclosure.
6.2. Upon termination of this Agreement each Party will, within thirty (30) days, return or permanently destroy all electronic, paper or other copies of such Confidential Information of the other Party. Each Party will cause each of its agents or employees who have access to the Confidential Information of the other Party to comply with the restrictions of confidentiality and non-use of this Agreement. Each Party acknowledges and agrees that a breach of its commitments herein will or may result in damage to the other Party that is irreparable in nature and is not susceptible to monetary determination and that, accordingly, in the event of any such breach, the non-breaching Party will have the right, in addition to all other rights and remedies permitted under Applicable Law, to seek and secure compliance by the breaching Party with such commitments through the order for injunctive relief by a court of competent jurisdiction.
6.3. Subject to the disclaimers in Section 5.2, CertifID shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to or use of the CertifID Platform and Content or unauthorized communications between CertifID Platform and Customer’s or an Authorized User’s browser (“Security Breach”); and (b) control the use of the Content, including the uploading or other provision of the Content for processing by the CertifID Platform consistent with industry standards. CertifID maintains a data breach plan in accordance with the criteria set forth in CertifID’s privacy and security policy and shall implement the procedures required under such data breach plan on the occurrence of a Security Breach.
6.4. Customer agrees it will not seek to hold CertifID or its personnel criminally or civilly liable under any applicable law for disclosing Customer’s or its affiliates’ Confidential Information where such disclosure is made (a) in confidence to a federal, state, or local governmental official or an attorney, solely for the purpose of reporting or investigating a suspected violation of law; (b) unknowingly, inadvertently (including negligence but excluding gross negligence) or through methods beyond CertifID’s reasonable control (e.g., data breach); or (c) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7. Term and Termination.
7.1. This Agreement shall commence on the Effective Date and shall continue hereafter for the initial term as specified in the Order Form unless terminated in accordance with Sections 7.2 and 7.3 (the “Initial Term”). Upon expiration of the Initial Term, this Agreement and the rights granted under this Agreement will automatically renew for additional one (1)-year periods (each, a “Renewal Term”) unless: (i) earlier terminated in accordance with Sections 7.2 and 7.3 or (ii) either Party provides written notice of its election not to renew at least thirty (30) calendar days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable (the Initial Term together with any and all Renewal Terms, the “Term”).
7.2. This Agreement may be terminated immediately or on the date specified in written notice by the Party not at fault if the other Party commits any material breach of the terms or conditions of this Agreement and fails to remedy such breach (insofar as such breach is capable of remedy) within thirty (30) days after receiving written notice of such breach from the Party not at fault. Without limiting the foregoing, Customer shall be deemed to have committed a material breach not capable of cure in the event of: (a) any misrepresentation of Verification Responses; (b) failure to pay any fees in accordance with this Agreement; or (c) failure to prevent or identify and immediately end unauthorized distribution of Verification Responses. In addition, CertifID may immediately terminate this Agreement for cause and without liability if Customer (or its customer) is or is likely to be a victim of fraud which may have been avoided through the use of or proper use of the CertifID Platform resulting in Customer (or its customer) utilizing the CertifID Recovery Assistance Services three (3) or more times during the Term. Without limiting the foregoing, CertifID may terminate this Agreement for convenience at any time and without any liability to Customer.
7.3. On or following the effective date of termination or expiration of this Agreement, CertifID will have the right to terminate all Customer access to the CertifID Platform and the Verification Responses and Customer will have no further right to access the CertifID Platform. Termination will not affect the rights and obligations of CertifID and Customer with respect to the access of Customer to the CertifID Platform prior to the effective date of termination, including, without limitation, the obligation of Customer to pay the Fees to CertifID for such access, in addition to CertifID’s cost of collection (including reasonable attorney fees, costs and expenses incurred by CertifID) or any other clauses that by their nature, would survive termination.
8. Miscellaneous.
8.1. This Agreement may not be assigned or transferred in anyway without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, CertifID may assign or transfer this Agreement, without Customer’s consent, to its affiliates, and either Party may assign this Agreement and its rights and obligations hereunder in connection with a merger, consolidation or similar transaction or a sale or other transfer of all or substantially all of the assets of the company.
8.2. If any part, term or provision of this Agreement is held illegal, invalid or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.
8.3. All notices required or permitted under this Agreement shall be executed in writing or via such electronic means as are agreed between the Parties to constitute written notices and shall be sent to the address appearing on the face of the Order Form or such other address as the receiving Party may from time to time designate.
8.4. Except as otherwise provided herein, neither party may use the other party’s name, trademarks, trade names or logos for any purposes without the prior written approval of the other party or to the extent necessary to provide the Services
8.5. The failure of either Party at any time to enforce any provision of this Agreement shall not affect its right thereafter to require complete performance by the other Party.
8.6. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes all prior agreements, oral or written, and all other communications between the Parties concerning the subject matter of this Agreement. Each Party acknowledges that no reliance is placed on any representation not embodied in this Agreement. Any item not specifically included herein or within the Order Form, or any item that is explicitly excluded from the Services in the Order Form not covered under this Agreement. In the event of any conflict or inconsistency between the provisions of these Terms and Conditions and the provisions of the Order Form, the provisions of the Order Form shall control. In the event of any conflict or inconsistency between the provisions of these Terms and Conditions and the provisions of the Recovery Terms and Conditions solely with respect to the Recovery Assistance Services, the provisions of the Recovery Terms and Conditions shall control.
8.7. Headings in this Agreement are for convenience only and do not form a part of this Agreement and do not in any way modify, interpret, limit or construe the intentions of the Parties.
8.8. The provisions of Article 2, Sections 3.1-3.4, Article 4, Article 5, Article 6, Section 7.3 and Article 8 shall survive termination or expiration of this Agreement.
8.9. The Parties acknowledge and agree that an independent contractor relationship is formed between Customer and CertifID pursuant to this Agreement. CertifID has the authority to control and direct the performance and the details of the Services, as governed by its own independent judgment and discretion. Customer may not control, direct, or otherwise supervise CertifID’s employees, agents, or contractors in the performance of the Services.
8.10. Except for known conflicts that have been disclosed to CertifID (in each case Customer has recused itself fully from any such conflict) Customer represents and warrants to CertifID that (a) the execution, delivery, and performance of this Agreement by Customer do not and shall not conflict with, breach, violate, or cause a default under any contract, agreement, instrument, order, judgment, decree, or other legal obligation to which Customer is a party or by which Customer is bound; (b) except for this Agreement, Customer is not a party to or bound by any agreement with any person that would interfere with the performance of the Services hereunder; and (c) upon the execution of this Agreement by Customer, this Agreement shall be a valid and binding obligation of the Parties, enforceable in accordance with these Terms and Conditions. Customer agrees to disclose known or potential conflicts of interest to CertifID.
8.11. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Michigan and the federal laws of the United States, notwithstanding any conflicts of laws principles. Any action brought to enforce the terms of this Agreement shall be brought in the state or federal courts located in Kent County, Michigan.
8.12. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused by an event beyond such Party’s control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, acts of God, acts of a governmental entity, embargoes, explosions, riots, wars, acts of terrorism, fires, or floods, epidemics, pandemics, quarantine restrictions, or freight embargoes) (each, a “Force Majeure”). Notwithstanding anything in this Section to the contrary, (a) Customer’s financial inability to perform, and (b) Customer actions or agreement disputes with its bank or financial institution are not, in each case, a Force Majeure and will not, in each case, excuse performance by Customer under this Agreement or otherwise excuse performance by Customer on theories of force majeure, commercial impracticability, or otherwise, and Customer expressly assumes these risks.
8.13. Customer agrees that, unless a shorter period of limitations applies, any claim, suit, action, administrative charge, or other proceeding arising out of this Agreement, including, without limitation, claims arising under any federal, state, or local civil rights law, must be brought or asserted by Customer or its assigned personnel (as applicable) within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred. Customer expressly waives any longer statute or other period of limitations to the contrary. CUSTOMER FURTHER AND EXPRESSLY HEREBY AGREES TO WAIVE ITS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AND AGREES TO SUBMIT ANY AND ALL CLAIMS TO DETERMINATION BY A JUDGE.
8.14. The Parties shall take such further steps and execute such further documents and instruments as may be necessary or appropriate to carry this Agreement into full force and effect or otherwise effectuate the intention of the Parties.
8.15. Customer shall require each of its customers that receive a benefit of the Services contemplated hereunder, to be bound by these Terms and Conditions unless the same are clearly inapplicable to the agreement between Customer and its customers because of legal requirements or industry practices. Customer is responsible for ensuring that all such customers are in compliance with this Agreement.
8.16. CertifID reserves the right to modify these Terms and Conditions at any time and that any such modification will be effective thirty (30) days from the date the updated Terms and Conditions have been posted on CertifID’s website.
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