VERIFIABLE INC. – MASTER SERVICES AGREEMENT
This Master Services Agreement (“Agreement”) is entered into by and between Verifiable Inc. (“Verifiable”) and the entity listed in the initial Order referencing this Agreement (“Customer”).
Verifiable provides certain Offerings related to healthcare verification, licensing, monitoring, and management. Customer desires to access and use the Offerings set forth in one or more ordering documents referencing this Agreement and signed by authorized representatives of each party (each, an “Order”). This Agreement sets forth the terms and conditions under which Verifiable will provide Customer the Offerings set forth in Orders under this Agreement.
Capitalized terms used in this Agreement are defined in this Section 1 or in the context in which they are used. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
1.1 “Customer Data” means all data, information, content and materials that Customer or its Users provide to Verifiable through the Software.
1.2 “Data Sources” means the databases and other sources selected by Customer in one or more Orders, which Verifiable will search and from which Verifiable will obtain Verified Data. Data Sources include, by way of example, state licensing boards, DEA records, educational records, the OFAC watch list, and other publicly available information.
1.3 “Documentation” means all user guides, manuals, and other reference materials, if any, generally furnished with respect to the Offerings, in any form or medium, by Verifiable from time to time.
1.4 “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information.
1.5 “Laws” means all statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, common laws, judgments, decrees, or other requirements of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.6 “Offerings” means the Software, Services, and any Verifications or Verified Data provided through the foregoing.
1.7 “Software” means the software interface through which Customer requests Verifications and accesses the Services, whether Verifiable’s API, Web Application, Salesforce Application, or subsequent offering, and all modules, features, and functionality of the foregoing, each as set forth in one or more Orders.
1.8 “Subject” means either an individual health care professional licensed to provide diagnoses and/or treatment or a partnership, corporation, joint venture, limited liability company, or other legal entity providing health care services.
1.9 “Verification” means a report presenting Verified Data, including the structure, organization, selection, coordination, and arrangements thereof, and all elements comprising the foregoing.
1.10 “Verified Data” means the data obtained by Verifiable from Data Sources selected by Customer and provided to Customer in a Verification as part of the Data Verification Services.
1.11 “Salesforce” means Salesforce, Inc. and its subsidiaries.
1.12 “Salesforce Platform” means the cloud-based software platform provided by Salesforce.
1.13 “User” means those employees and contractors Customer permits to access and use Verifiable’s Offerings.
2. Term. This Agreement begins on the date the first Order referencing this Agreement is executed by the parties (the “Effective Date”) and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”). The term of each Order will begin as specified in the Order and will continue for the term stated in the Order (“Initial Term”) and shall automatically renew for successive periods of equal length thereafter (each a “Renewal Term”), unless either party provides written notice of intent not to renew at least 30-days prior to the expiration date of the Initial Term or the then-current Renewal Term, if any. The Initial Term and any Renewal Term are collectively the “Order Term”. The term of any then-active Order will end upon termination of this Agreement.
3. Orders. All Offerings provided by Verifiable under this Agreement will be strictly as set forth in Orders under this Agreement. All Orders will be as agreed to in writing by the parties and no other Order will be valid or binding on either party unless signed by the authorized representatives of both parties. Once signed by the authorized representatives of both parties, each Order will become a part of this Agreement. In the event of a conflict between the terms of an Order and the other terms of this Agreement, the other terms of this Agreement will control, except where an Order expressly indicates it is intended to control.
4.1 Generally. During the Term, subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, Verifiable will provide Customer with access to and use of the Verifiable Software set forth in Orders referencing this Agreement, as well as the Services requested by Customer through the Software. Certain terms and conditions below apply only to use of certain Verifiable Software. Verifiable will use commercially reasonable efforts to maintain the availability of the Software in accordance with its Uptime Service Level Agreement, available at verifiable.com/verifiable-service-level-agreements. Customer may allow its Users to access and use the Software solely under for purposes of exercising the rights granted to Customer under this Agreement. Customer will ensure that all information about each User provided to Verifiable is and remains accurate and complete. Customer will advise Users of the restrictions set forth in this Agreement and will be solely responsible for all acts and omissions of its Users just as if each were “Customer” under this Agreement. Customer will implement commercially reasonable measures to protect the security and confidentiality of all User credentials and to prevent unauthorized access to or use of the Software through any User credentials. Customer will notify Verifiable promptly of any such unauthorized access or use of the Software or if any User credentials are lost, stolen, or otherwise compromised.
4.2 API. If an Order provides for access to Verifiable’s application programming interface (“API”), then, subject to the terms of this Agreement, including Customer’s payment of all applicable Fees and compliance with all restrictions set forth in the Order, during the Order Term, Verifiable will provide Customer a limited, non-exclusive, non-transferrable, non-sublicensable right to access and use the API with those Third Party Software set forth in the Order solely to access available Services and request Verifications through the API for Customer’s own internal business purposes. Before accessing or using the API, Customer may be required to obtain API credentials (a “Token”) from Verifiable. Each Token is unique in nature and may be used by Customer alone. Customer may not distribute or transfer its Token or provide a third party with the right to access or use its Token. Customer is solely responsible for all use of the API through its Token, including by any third party. Customer will ensure the security and confidentiality of its Token and will notify Verifiable immediately if its Token is lost, stolen, or otherwise compromised.
4.3 Web Application. If an Order provides for access to Verifiable’s hosted web application, including any module thereof (the “Web Application”), then, subject to the terms of this Agreement, including Customer’s payment of all applicable Fees and compliance with all restrictions set forth in the Order, during the Order Term, Verifiable hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the functionality and tools of the Web Application specified in the Order solely for Customer’s own internal business purposes. Verifiable will provide Customer an account through which Customer may access and use the Web Application (“Account”). Customer will designate a User as the administrator of Customer’s Account (the “Admin”). Until an Admin is designated by Customer, the Admin will be the first User added to Customer’s Account.
4.4 Salesforce Application. If an Order provides for access to Verifiable’s application built on the Salesforce Platform, including any module thereof (the “Salesforce Application”), then, subject to the terms of this Agreement, including Customer’s payment of all applicable Fees and compliance with all restrictions set forth in the Order, during the Order Term, Verifiable hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the functionality and tools of the Salesforce Application specified in the Order solely for Customer’s own internal business purposes. Customer’s access to the Salesforce Application requires licenses to certain parts of the Salesforce Platform, which Customer may either (a) purchase through Verifiable under this Agreement or (b) purchase from Salesforce or a third party under a separate agreement.
(a) Salesforce ISV. If Customer elects to purchase licenses to the Salesforce Platform from Salesforce or a third party, then Customer acknowledges and agrees that it must maintain such licenses for the duration of the Term in order to use the Software and that the Salesforce Platform shall be deemed “Third Party Software” as defined below.
4.5 Modifications and Improvements. In order to improve the Software, Verifiable may need to, and reserves the right to, modify or discontinue, temporarily or permanently, the Software (or any part thereof) with or without notice. If Verifiable materially decreases the performance of the Software, so that it does not materially conform to the Documentation, Customer may terminate this Agreement upon written notice to Verifiable within 30 days of the update taking place. Customer’s continued use of the Software following the expiration of said 30-day period shall constitute consent to any such change. Verifiable may also, from time to time, in its discretion make available to its customers one or more optional products, modules or features for the Software, which require additional one-time or recurring fees and may be subject to additional terms and conditions. The Software, as defined herein, shall include only those additional products, modules or features that are ordered by Customer pursuant to an Order. Customer will be under no obligation to subscribe to such optional products, modules or features.
4.6 Third-Party Software.
(a) Third Party Agreements. At Customer’s request, Verifiable may facilitate or allow a connection or integration (whether via application programming interface or otherwise) between the Software and certain Customer or third-party owned or operated websites, mobile applications, datasets, or other software applications (collectively, “Third Party Software”). Subject to the terms of this Agreement and to the extent specified in an Order, Verifiable will use commercially reasonable efforts to facilitate an integration between the Verifiable Software and Third Party Software set forth in the Order. All access to and use of any Third Party Software is subject to any additional terms, conditions, or agreements that Customer enters into in connection with the Third Party Software (each, a “Third-Party Agreement”). Each Third-Party Agreement forms a separate and direct agreement between Customer and the provider of the applicable Third Party Software and exclusively governs Customer’s use of the applicable Third Party Software. The terms of any Third-Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Software provided under that Third-Party Agreement but will not otherwise apply to Customer’s access to or use of the Offerings. Customer represents and warrants that it will comply with the terms of each applicable Third-Party Agreement at all times.
(b) Assumption of Risks for Third Party Software. All Third Party Software is provided by third parties and Verifiable does not control any Third Party Software. Verifiable is not responsible or liable for any access to or use of any Third Party Software, including any damages, losses, liabilities, failures, or problems caused by, related to, or arising from any Third Party Software. Any exchange of data or other interaction between Customer and a provider of Third Party Software, including Customer’s purchase or acquisition of any Third Party Software, is solely between Customer and such third-party provider. In addition, Customer agrees that Verifiable is not responsible for any and all information or data that Customer may transmit, process, or transfer to or from such third party through the Software after such information or data leaves the Software. Verifiable cannot guarantee the continued availability of any Third Party Software and may block access provided by the Software to any Third Party Software without entitling Customer to any refund, credit, or other compensation, if for example the provider of Third Party Software ceases to provision the Third Party Software at a level or in a manner acceptable to Verifiable. If Verifiable cannot continue providing a Third Party Software, as set forth in the preceding sentence, Verifiable will, as its sole obligation and Customer’s exclusive remedy, provide Customer a pro-rated refund of any pre-paid fees applicable to the Software functionality dependent upon such Third Party Software that is not provided.
Subject to the terms of this Agreement, and provided that Customer remains in compliance with this Agreement, Verifiable will use commercially reasonable efforts to collect Verified Data from each of the Data Sources selected by Customer in the Order and provide the same to Customer in Verifications. Customer may order Verifications on either a one-time basis, e.g., a single Verification covering a single Subject (“On-Demand”) or a recurring basis, e.g., monthly Verifications covering a single Subject (“Monitoring”). For On-Demand Verifications, Customer’s Usage Allotment equals the number of Verifications Customer can purchase at the prices set forth in the Order, using dollar for dollar credits that Customer purchases annually in advance. Verifiable deducts credits from Customer’s annual On-Demand Verifications prepayment each time Customer requests a Verification for a Subject. For Monitoring Verifications, Customer’s Usage Allotment equals the number of Subjects being Monitored at any given time. If Customer exceeds the Usage Allotment for On-Demand or Monitoring Verifications, Customer shall pay for the Overage as set forth in Section 7.2, below.
Subject to the terms of this Agreement, and provided that Customer remains in compliance with this Agreement, Verifiable will use commercially reasonable efforts to provide the following services to Customer as may be specified in Orders under this Agreement (“Services”):
6.1 CVO Services. Verifiable will compile Verified Data contained in Verifications ordered by Customer into a Packet, which Customer can submit to applicable regulatory agencies and governing bodies (the “CVO Services”). A “Packet” is a document containing the Verified Data set forth in the Order, organized for submission to regulatory agencies and governing bodies for credentialing a Subject. For CVO Services, Customer’s Usage Allotment equals the number of Packets Customer can purchase at the prices set forth in the Order, using dollar for dollar credits that Customer purchases annually in advance. Verifiable deducts credits from Customer’s annual CVO Services prepayment each time Customer requests a Packet for a Subject. If Customer exceeds the Usage Allotment for CVO Services, Customer shall pay for the Overage as set forth in Section 7.2, below.
6.2 Enrollment Services. Verifiable will compile applications for, and enroll Subjects with, those health insurance networks, Medicare, Medicaid, and commercial payers selected by Customer (“Enrollment Services”). An “Application” is a request to include a Subject in one of the networks or programs specified above. For Enrollment Services, Customer’s Usage Allotment equals the number of Applications Customer can purchase, at the prices set forth in the Order, using dollar for dollar credits that Customer purchases annually in advance. Verifiable deducts credits from Customer’s annual Enrollment Services prepayment each time Customer requests an Application for a Subject. If Customer exceeds the Usage Allotment for Enrollment Services, Customer shall pay for the Overage as set forth in Section 7.2, below.
6.3 Licensing Services. Verifiable will obtain and/or maintain professional licenses for Subjects selected by Customer (“Licensing Services”). A “License” is a submission to license a Subject in one of states or fields of practice referenced above. For Licensing Services, Customer’s Usage Allotment equals the number of Licenses Customer can purchase, at the prices set forth in the Order, using dollar for dollar credits that Customer purchases annually in advance. Verifiable deducts credits from Customer’s annual Licensing Services prepayment each time Customer requests a License for a Subject. If Customer exceeds the Usage Allotment for Licensing Services, Customer shall pay for the Overage as set forth in Section 7.2, below.
6.4 Consulting Services. Verifiable will provide consulting services, such as implementation, configuration, custom development, and training relating to the other Offerings solely as specified in Orders under this Agreement or an additional agreement between the parties.
7. Fees and Payment.
7.1 Fees. Customer shall pay all fees specified in each Order (“Fees”) as and when due. The Fees may include a fee to access and use the Software set forth in the Order (the “Software License Fee”), fees for Verifiable’s Services (“Services Fees”), fees for each Verification ordered through the Software (“Verification Fees”), any applicable Overages, and any fees to reimburse Verifiable for its direct cost of procuring certain requested Verified Data from governmental entities and third party data vendors, including court fees, school fees, board certifications and educational and employment verification fees (“Pass-Through Fees”). Except for Pass-Through Fees, all Fees will remain fixed during the term of the applicable Order. Because Pass-Through Fees are set by third parties, Verifiable may increase the Pass-Through Fees if, and only to the extent that the third parties increase their fees. Verifiable will limit such increase to the increase in Verifiable’s actual costs, and, at Customer’s written request, will provide Customer with documentation supporting such increase. Verifiable may increase all other Fees at each Renewal Term by up to 7% above the applicable pricing in the prior term, unless otherwise set forth in the applicable Order or unless Verifiable provides Customer notice of different pricing at least 30 days prior to the applicable Renewal Term.
7.2 Overages. Customer may commit to use a certain quantity of particular Offerings in each Order for a fixed Fee (in each case, the “Usage Allotment”). If Customer’s use of the particular Offering in any billing period exceeds the applicable Usage Allotment (an “Overage”), at the next billing cycle Verifiable shall invoice, and Customer shall pay, for all Overages in arrears at the rate listed on the Order or, if no rate is listed, at 150% of the current Fees for the applicable Offering. If the Overage is for subscription-based Services, Verifiable will prorate the additional Fees to the portion of the subscription term remaining at the time the Overage was added. At each Renewal Term, (a) any unused Usage Allotment applies annually, and will expire and not roll-over to the next year and (b) Customer’s Usage Allotment for the next year will automatically increase to include the prior year’s Usage Allotment plus any Overage from the prior year.
7.3 Payment. With the exception of Overages, all Fees are due in advance for the Initial Term and any Renewal Term. Unless otherwise expressly indicated in the Order Form, Customer shall pay all Fees within 30 days after the date of the applicable invoice by means of an automated clearing house transfer. All Fees are non-refundable once paid to Verifiable. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. If Verifiable requires use of collection agencies, attorneys, or courts of law for collection of Customer’s account, Customer will be responsible for those expenses. Customer will be responsible for any and all use, sales, and other taxes imposed on the Offerings provided under this Agreement. In the case of late payment, after prior written notice, Verifiable may suspend Customer’s use of the applicable Offerings until payment is made in full.
8. Information and Data.
8.1 Data Protection. In the course of providing the Offerings to Customer, Verifiable may receive, store, and process Personal Data (as defined in the Verified Data Processing Addendum available at verifiable.com/data-processing-addendum (the “DPA”). Verifiable shall safeguard Personal Data in accordance with the DPA and will not access or use such Personal Data other than as necessary to perform its obligations or exercise its rights under this Agreement. Each party will comply with applicable obligations under applicable data privacy and security Laws and provide the same level of privacy protection to Personal Data as is required by applicable data privacy and security Laws. Each party has the right to take reasonable and appropriate steps to help ensure that the receiving party uses the Personal Data transferred in a manner consistent with the disclosing party’s obligations under applicable data privacy and security Laws. The receiving party will notify the disclosing party if the receiving party makes a determination that the receiving party can no longer meet its obligations under applicable data privacy and security Laws. If the receiving party notifies the disclosing party of unauthorized use of Personal Data, the disclosing party will have the right to take reasonable and appropriate steps to stop and remediate such unauthorized use by limiting the Personal Data shared with the other party, terminating the affected Order relevant to such unauthorized use, or such other steps mutually agreed in writing.
8.2 Customer Data. As between Customer and Verifiable, Customer retains all right, title, and interest, including all IPR, in and to the Customer Data. Customer grants Verifiable a nonexclusive right to process Customer Data solely to perform its obligations under this Agreement. Verifiable will not resell or distribute any Customer Data to Verifiable’s customers generally or any other third party. Customer agrees that nothing contained in this Agreement shall restrict Verifiable’s right to use, access, process, collect, disclose, share, or distribute any data that Verifiable collects or receives from one of its Data Sources, even if such information is duplicative of any Customer Data. Customer further authorizes Verifiable to aggregate a de-identified version of Customer Data with similar data from other Verifiable customers and third parties to create datasets to further develop the Verifiable’s offerings (“Training Datasets”), provided that the Training Datasets shall not identify Customer or include any Personal Data received from Customer. As between the parties, Verifiable owns all Training Data it creates. Verifiable may use Training Datasets to perform its obligations under this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to market and improve Verifiable’s services, systems, and algorithms. Customer commits to Verifiable that neither the Customer Data nor Verifiable’s use of Customer Data will: (a) violate this Agreement or any applicable Laws; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the IPR or other rights of any third party; (d) be illegal in any way or advocate illegal activity; or (e) be false, misleading, or inaccurate. Customer represents and warrants to Verifiable that Customer has all right, title, and interest in all Customer Data, and has provided all notices and disclosures and obtained all consents, permissions, and authorizations, necessary to grant Verifiable the foregoing rights and licenses. Verifiable will not be responsible or liable for any deletion, correction, destruction, damage, loss, or failure with respect to any Customer Data not caused by Verifiable’s breach of this Agreement. Verifiable may take remedial action if any Customer Data violates this Agreement, provided that Verifiable is under no obligation to review any Customer Data for potential liability. Customer acknowledges that the Verified Data provided to Customer in Verifications or otherwise is based upon the Customer Data provided to Verifiable, that the Verifications do not verify the Subject’s identity, and that any inaccuracy or incompleteness of the Customer Data may lead to errors in the Verified Data.
8.3 Verified Data. Verifiable may collect and obtain Verified Data from Data Sources or its own databases and provide the same to Customer in Verifications or otherwise. As between Verifiable and Customer, Verifiable retains all right, title, and interest, including all IPR, in and to the Verified Data. Verifiable grants Customer a nonexclusive right to use Verified Data provided (a) in a Verification solely for the purpose for which such Verification was obtained and (b) in a Packet solely to submit the Packet to the applicable regulatory agency or governing body credentialing the applicable Subject. Customer shall not copy, resell, transfer, republish or use any Verified Data for any other purpose. Verifiable warrants that it will provide the Verified Data provided to it by Data Sources in relation to the Customer Data received from Customer. VERIFIABLE DOES NOT WARRANT OR GUARANTEE THE COMPLETENESS, ACCURACY OR RELIABILITY OF ALL VERIFIED DATA AND DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Verifiable specifically disclaims any responsibility or liability for errors or omissions in Verified Data provided by Data Sources or arising from inaccuracies or omissions in Customer Data, including direct, indirect, incidental, special, or consequential damages resulting from the use of Verified Data provided by Data Sources and released to Customer under this Agreement.
8.4 Transmission of Information. Notwithstanding any other provision of this Agreement, the parties acknowledge and agree that use of the Software involves transmission of information over the Internet. Accordingly, despite the industry-standard security measures Verifiable has implemented to protect the privacy of transmitted information, Verifiable cannot and does not guarantee that all information transmitted via the Internet will be fully protected from unauthorized access or security breaches and, so long as Verifiable has maintained industry-standard security measures, Verifiable will not be liable for damages relating to any such disclosure of any such information.
Customer acknowledges that the Software, Verifications, Packets, and all Verified Data therein, as well as any and all data, information, and content presented on or through the Software, other than Customer Data, including the structure, organization, selection, coordination, and arrangements thereof, and all elements comprising the foregoing, and all server integrations, software, hardware, data, datasets, information, all other technology used by or on behalf of Verifiable to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively the “Technology”), constitute the valuable IPR of Verifiable. As an express condition to the rights granted to Customer under this Agreement, and in addition to the other conditions in this Agreement, Customer will not and will not permit any third party to: (1) use or access any Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any Technology; (3) sublicense, distribute, sell, rent, lend, loan, lease, convey, sublicense, assign, pledge, or otherwise transfer or in any way encumber any Technology or any portion thereof; (4) use any Technology for the benefit of any third party or make any Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Technology; (7) access or utilize any Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any Technology or attempt to gain unauthorized access to any Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any Technology; (10) access or use the Technology or any component thereof in order to build a competitive product or service; or (11) use the Technology for any unlawful or fraudulent purpose. All use of all Technology will be in accordance with any Documentation for the applicable Technology provided by Verifiable. All rights and restrictions in this Agreement applicable to any Technology apply to all data, information, and other elements comprising the Technology, including any enhancements, corrections, or other updates provided by Verifiable from time to time. Verifiable reserves the right to immediately suspend Customer’s access to the Technology if Verifiable reasonably believes that Customer’s use of the Technology may be in violation of this Agreement or applicable Law or present a risk of harm, loss, or liability to Verifiable or any other customer or third party.
10. Ownership and Rights
10.1 Verifiable IP. Verifiable and its licensors own and will continue to retain all right, title, and interest, in and relating to the Technology and all IPR therein and relating thereto. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any Technology, or any IPR therein or related thereto.
10.2 Customer IP. As between the parties, Customer and its licensors own and will continue to retain all right, title, and interest, in and relating to the Customer Data and all IPR therein and relating thereto. Except as set forth in this Agreement, Verifiable is granted no licenses or rights in or to any Customer Data, or any IPR therein or related thereto.
11. Termination and Effect.
11.1 Termination. This Agreement and any Order may be terminated by either party if the other party materially breaches any provision of this Agreement or such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party.
11.2 Effect of Termination. Termination of this Agreement will automatically terminate any Order under this Agreement but will not relieve either party of any rights or obligations accruing prior to such termination. Upon any termination of this Agreement or any Order: (a) all Fees owed under this Agreement prior to such termination will be immediately due and payable (including, at minimum, the Fees due under this Agreement for Offerings provided by Verifiable prior to termination); (b) Verifiable may cease providing all access to the Offerings under this Agreement or such Order; (c) all rights and licenses granted to Customer with respect to any Offerings will terminate and Customer will cease all access and use of all Offerings, provided that, subject to the terms of this Agreement, Customer may continue to use Verifications obtained prior to termination; and (d) upon written request, Verifiable shall maintain an archive of Customer Data for 30 days. Following such requested 30-day period, Verifiable shall have no responsibility to store, maintain, or archive any Customer Data, or any liability for deletion or removal of Customer Data. At the request of the other party, each party will certify in writing to its compliance with this Section. The following Sections will survive termination of this Agreement for any reason: 1, 7, 8, 9, 10, 11.2, 12, 13, 14, 15, 16, 18, 19, 20, 21, and 22.
12. Representations, Warranties, and Covenants.
12.1 General. Each party represents, warrants and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (c) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms.
12.2 Compliance. Each party represents, warrants and covenants to the other party that: (a) such party will comply with all Laws applicable to its performance under this Agreement or use of Offerings provided under this Agreement; and (b) such party’s performance under this Agreement will not cause the other party to violate any Laws applicable to such party.
12.3 No Viruses. Each party represents, warrants, and covenants to the other that it has taken commercially reasonable measures to test all data and materials provided to the other party under this Agreement, including all Customer Data and Verified Data, for the presence of any viruses, trojan horses, or other devices which would disable or impair the other party’s networks, systems, data, or software and to the best of its knowledge, no such devices are present in such data and materials.
13. Acknowledgements and Disclaimers.
13.1 Customer acknowledges and agrees that (a) Customer’s use of the Offerings does not ensure Customer’s compliance with applicable Laws and (b) Verifiable has made no representations, warranties or assurances with respect to the Offerings ability to ensure compliance with any such Laws. Verifiable shall have no obligation or liability in connection with Customer’s legal obligations and Verifiable hereby disclaims all liability with respect thereto. By way of non-limiting example only, Customer, and not Verifiable, is solely responsible for providing required disclosures and notices and obtaining required consents, permissions, and authorizations to the extent required by applicable Laws. Furthermore, Customer has and shall retain all responsibility for any decisions made or actions taken based upon any Verification generated on Customer’s behalf. Verifiable does not, and cannot, provide legal advice or other compliance related services and Customer should consult with its own legal counsel regarding Customer’s use of or requests for any Verifications, including but not limited to, the legality of using or relying on the Verified Data contained in any Verification
13.2 EACH PARTY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OFFERINGS ARE PROVIDED BY VERIFIABLE AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. VERIFIABLE EXPRESSLY DISCLAIMS, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND ANY OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.
14.1 By Customer. Customer will defend, indemnify, and hold harmless Verifiable, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs and fees (including reasonable attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claims”) brought against any of them by a third party insofar as the Claim arises out of or relates to: (a) the Customer Data or Verifiable’s permitted use of the Customer Data under this Agreement; or (b) Customer’s violation of applicable Law.
14.2 By Verifiable. Verifiable will defend, indemnify and hold harmless Customer, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by a third party insofar as the Claim arises out of or relates to the Software, or Customer’s permitted use of the Software infringing, misappropriating, or violating the third party’s IPR. Should any Claim relating to the Software infringing, misappropriating or violating a third party’s IPR be made, or in Verifiable’s reasonable opinion be likely to be made, in addition to Verifiable’s indemnification obligations under this Section, Verifiable may, at its option and expense: (i) procure for Customer the right to continue using the applicable Software; (ii) replace or modify the applicable Software so as to no longer infringe; or (iii) terminate the applicable Order and/or this Agreement. Verifiable’s obligations under this Section will not extend to, and Verifiable shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (1) Customer’s negligence or violation of Law; (2) failure by Customer to comply with the terms of this Agreement or any Documentation or instructions provided by Verifiable; (3) Customer Data; (4) any specifications or instructions provided by Customer; (5) any additions, changes, or modifications to the Technology, unless provided by Verifiable; (6) any products, services, or other offerings not provided by Verifiable; or (7) any systems, networks, databases, hardware, and software provided under any license or agreement other than this Agreement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VERIFIABLE’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE SERVICES.
14.3 Conditions. As a condition to obtaining indemnification from the other party under this Section, each party will: (a) give the other party prompt notice of any claim for indemnification, provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice.
15. Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS INTERRUPTION, TIME OPPORTUNITY, COST TO PROCURE SUBSTITUTE SERVICES, OR GOODWILL. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE SOFTWARE LICENSE FEES PAID BY CUSTOMER TO VERIFIABLE IN THE 12 MONTHS PRECEDING THE LIABILITY; PROVIDED THAT THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION) SHALL BE LIMITED TO $1,000,000. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VERIFIABLE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16. Confidentiality. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. Customer acknowledges that Verifiable may currently or in the future be developing information internally or receiving information from third parties that may be similar to or the same as Customer’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a commitment, representation or inference that Verifiable will not, without violating the terms of this Agreement, use or disclose information that Verifiable develops internally or receives from third parties, even if such information is duplicative of any Customer Confidential Information. The occurrence or existence of such use or disclosure shall not by itself be cause for any action or allegation by Customer that Verifiable has failed to observe its obligations set forth herein. If Customer provides any feedback, comments, or ideas to Verifiable regarding the Offerings or improvements thereto, Customer agrees that Verifiable will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Customer. Upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all the Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section shall continue for 3 years after the termination of this Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable Laws.
17. Export. Unless otherwise agreed by the parties in writing, the Offerings are provided only in the U.S. Any use of the Offerings outside the U.S. may be subject to U.S. export control Laws and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such Laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required.
18. Dispute Resolution. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 20 (Irreparable Harm), if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration by JAMS under its Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted confidentially at a site specified by Verifiable in Wilmington, Delaware. The arbitrator will apply the Law set forth in Section 19 (Choice of Laws; Venue) to any such arbitration and shall have the power to award any remedy available at Law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
19. Choice of Laws; Venue. This Agreement will be governed by the Laws of the State of Delaware, without regard to conflicts of Law principles thereof. Subject to Section 18 (Dispute Resolution), the federal and state courts located in Wilmington, Delaware will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts.
20. Irreparable Harm. Each party acknowledges and agrees that the other party will be irreparably harmed in the event that such party breaches Section 9 (Technology) or Section 16 (Confidentiality) and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, without the requirement of posting any bond.
21. Notices. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Notices to Verifiable shall be addressed to 9901 Brodie Lane Ste 160 #1077 Austin, TX 78748, attention “Legal Department” with a copy to legal@Verifiable.com. Notices to Customer shall be addressed to the Customer’s address set forth on the Order. Either party may change its address for notice by giving notice of the new address to the other party.
22. Additional Terms. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, epidemic, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power or telecommunications under third-party control (“Force Majeure Events”). This Agreement includes the DPA, the Exhibits referenced herein, and each Order entered into hereunder, each of which is incorporated in and made a part of this Agreement. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all other agreements or understandings, whether written or verbal, between the parties as to the subject matter of the Agreement. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. Customer hereby grants Verifiable the right to identify Customer as a user of Verifiable’s products by name and logo in Verifiable’s sales and marketing collateral. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law and the remaining provisions of this Agreement will continue in full force and effect. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. In this Agreement: (a) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (b) the singular number shall include the plural, the plural number shall include the singular; (c) if a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb); (d) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (e) a monetary amount is in U.S. dollars; and (f) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement. This Agreement may be executed simultaneously in one or more counterparts (including by electronic signature), each of which when executed will be deemed to be an original, but all of which will constitute one and the same agreement.
Last Updated: August 1, 2023
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