VERIFIABLE INC. – MASTER SERVICES AGREEMENT
This Master Services Agreement is between Verifiable Inc. with its principal place of business at 18 Bartol Street #1128 San Francisco, CA 94133 (“Verifiable”), and the Customer listed on the Order Form (“Customer”) which references this Master Services Agreement.The terms of any Order Form referencing this Master Services Agreement are incorporated herein by reference and such Order Forms and this Master Services Agreement are collectively referred to as the “Agreement”.
1. SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Verifiable will provide Customer with access to and use of the Services in accordance with the Service Level Terms included in Exhibit A attached hereto, as such may be updated by Verifiable from time to time.As part of the registration process to access and use the Services, each of Customer’s designated authorized users will use the specific user name and password assigned to, or created by, them for the Services (each such user an “Authorized User”). Customer shall be responsible for any acts or omissions of each Authorized User (including any Customer’s authorized employees who use the Services) and Customer shall ensure that any log in user names or passwords shall not be used or otherwise shared by multiple Authorized Users. Verifiable reserves the right to refuse registration of, or cancel passwords it deems inappropriate and shall have the right, upon reasonable request, to audit and verify the number of Authorized Users and Customer’s compliance with the terms of this Agreement.
During the applicable Order Term, Customer may from time to time purchase additional features of the services made available by Verifiable which will be described in an Order Form to be mutually executed by the parties and incorporated by reference into this Agreement. The Order Forms will be numbered consecutively starting from Order Form #1.
2. RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Verifiable or authorized within the Services); use the Services or any Software for purposes other than those intended or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Further, Customer shall not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Verifiable’s standard published policies then in effect and all applicable laws and regulations. Customer shall also be responsible for maintaining the security of Customer account, passwords (including but not limited to Authorized User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CUSTOMER DATA
Customer is solely responsible for the lawfulness of information or data that: (i) Authorized Users input or otherwise use or create in connection with use of the Services or (ii) is provided or submitted by Customer to Verifiable, or otherwise extracted from Customer and its systems and databases by Verifiable as permitted by Customer (collectively all such information or data is referred to as “Customer Data”). Customer Data may include information that relates to an identified or identifiable natural person (“Customer Personal Data”).
Customer represents and warrants that: (a) Customer has provided appropriate notice to individuals whose Customer Data may be processed in the provision of the Services; (b) Customer has obtained, and will continue to have for the duration of the Agreement all necessary rights, authorizations, consents, authority and/or licenses for the access to and use of the Customer Data as contemplated by the Agreement; and (c) Verifiable’s use of the Customer Data is and will be in accordance with the Agreement will not violate any applicable laws.
Customer grants to Verifiable a non-exclusive, worldwide, right and license to use, reproduce, create derivative works based upon, publicly perform, publicly display and otherwise make use of Customer Data in connection with provision of the Services to Customer. In addition, Customer agrees that Verifiable shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies including, the Customer Data and to create de-identified and/or aggregated data (“De-Identified Data”) and may use such De-Identified Data in any manner in which it sees fit. Verifiable shall own all rights in and to such De-Identified Data.
Verifiable shall: (x) implement and maintain commercially reasonable administrative and technical safeguards designed to protect Customer Data; (y) promptly notify Customer upon becoming aware of any unauthorized access, use, or disclosure of Customer Data; and (z) delete all Customer Data in accordance with Verifiable’s data deletion policy.
4. EU DATA PROTECTION
In accordance with applicable data protection laws, Verifiable shall: (i) ensure that all persons authorized to process Customer Personal Data are committed to confidentiality; (ii) only engage third party service providers to process Customer Personal Data (each a “Subprocessor”) where Verifiable has entered into an agreement that imposes data protection requirements on such Subprocessor that are consistent with the obligations in this Agreement. Verifiable will maintain an up-to-date list of Subprocessors publicly available for review at any time; (iii) assist Customer with its compliance obligations under applicable data protection laws.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business that is designated in writing as confidential or which should otherwise be reasonably deemed confidential under the circumstances (hereinafter referred to as “Confidential Information” of the Disclosing Party).Confidential Information of Verifiable includes non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer may include non-public data provided by Customer to Verifiable to enable the provision of the Services but excludes Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.The Disclosing Party agrees that except for any trade secrets, which may be protected in perpetuity, the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.Each party may disclose Confidential Information to its respective investors or shareholders and Verifiable may list Customer in its representative list of clients and for case studies and marketing purposes.
Customer owns all right, title and interest in and to the Customer Data. Verifiable owns all right, title and interest in and to the Services, Software and De-Identified Data and all improvements, enhancements or modifications thereto, and all intellectual property rights related thereto.
7. PAYMENT OF FEES
Customer will pay Verifiable the then applicable fees described in the Order Form for the Services, in accordance with the terms therein (the “Fees”). Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Verifiable’s net income.
8. TERM AND TERMINATION
Subject to earlier termination as provided below, the term of Agreement for each Order Form is as specified on the Order Form.
Subject to the termination provisions in the Service Level Terms, in addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement.Upon termination or expiration, Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination or expiration will survive termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. WARRANTY AND DISCLAIMER
Verifiable shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Verifiable or by third-party providers, or because of other causes beyond Verifiable’s reasonable control, but Verifiable shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.HOWEVER, VERIFIABLE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND VERIFIABLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Verifiable shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States copyright or misappropriation of any trade secret, provided Verifiable is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Verifiable will not be responsible for any settlement it does not approve in writing.The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Verifiable, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Verifiable, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement.If, due to a claim of infringement that Verifiable is responsible to indemnify Customer, the Services are held by a court of competent jurisdiction to be or are believed by Verifiable to be infringing, Verifiable may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer as its sole remedy (other than indemnification) a pro-rata refund of any prepaid, unused Fees for the Services.
Customer shall defend, indemnify and hold Verifiable harmless from any and all losses, damages, liabilities, penalties, or third party subpoena or governmental investigation or other costs (including reasonable attorney’s fees) arising out of any claim, suit, settlement, judgement, or action arising out of or related to (x) any materials provided by Customer, its representatives, or Customer’s clients (including Customer Data and any claims that such Customer Data has not been properly acquired in accordance with applicable laws); (y) any products liability or other claim arising from Customer’s products or services; (z) any breach or misuse of the Service and licenses granted by Verifiable.
11. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS OR LIABILITIES ARISING FROM ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, VERIFIABLE AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SERVICES OR THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING ANY CUSTOMER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; AND (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY MATTER BEYOND VERIFIABLE REASONABLE CONTROL INCLUDING THE ACTIONS OR INACTIONS OF THE AUTHORIZED USERS.
EXCEPT FOR CLAIMS OR LIABILITIES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO VERIFIABLE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.This Agreement is not assignable, transferable or sublicensable by Customer except with Verifiable’s prior written consent.Verifiable may transfer and assign any of its rights and obligations under this Agreement without consent.This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Verifiable may modify these Terms and Conditions by posting a revised version of these Terms and Conditions to the Services or otherwise communicating the revised Terms and Conditions to Customer.No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Verifiable in any respect whatsoever.In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.There shall be no express or implied third-party beneficiaries capable of enforcing the terms of this Agreement other than parties whom execute this Agreement.All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions and the parties agree that any disputes will be settled in the state and federal courts in San Francisco, California.
EXHIBT A SERVICE LEVEL TERMS
These Service Level Terms sets forth the terms and conditions with respect to the uptime and availability of the Services described on a Verifiable Order Form. Verifiable will exercise commercially reasonable efforts to meet the SLA Target Percentage and to cure (or cause to be cured) any Outages.
“Excused Outage Minutes” means any Outages in a month resulting from any of following conditions or events: (i) periods of scheduled or emergency maintenance activities or other scheduled periods during which the Services will not be available and (ii) failure or inability of Customer’s network(s) or business systems to access the Services.
“Monthly Availability Percentage” means the percentage that is calculated by dividing the total number of minutes in the applicable month minus the total Unexcused Outage Minutes for that month by the total number of minutes in that month.
“Outage” means the period (measured in minutes) during which it is not possible for Authorized Users to login to the Services. An Outage is confirmed when concurrent login attempts conducted for a minimum of thirty (30) minutes fail.The Outage calculation begins from the first failed login attempt.The Outage shall end upon the first successful login following the Outage start time as determined by Verifiable.
“SLA Target Percentage” is set for 99.5% uptime as measured per calendar month.
“Unexcused Outage Minutes” means the total of all Outages in a month, minus any Excused Outage Minutes.
If in any calendar month during the Order Term the Monthly Availability Percentage is less than the SLA Target Percentage and the foregoing results from the occurrence of one or more Outages, then a “Target Percentage Shortfall” will be deemed to have occurred for that month. Customer will have the right to terminate the Agreement if a Target Percentage Shortfall occurs in three (3) or more months during any consecutive twelve (12) month period.