VERIFICATION SERVICES AGREEMENT

Last Updated: April 2024

BY INDICATING YOUR ASSENT TO ENTER INTO THIS VERIFICATION SERVICES AGREEMENT (THE “AGREEMENT”), YOU ACCEPT THE OFFER MADE BY SHEERID, INC., A DELAWARE CORPORATION (“SHEERID”), TO ACCESS AND USE THE SERVICES DESCRIBED BELOW SUBJECT TO THE TERMS OF THIS AGREEMENT AND YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO ACCESS AND USE THE SERVICES THAT SHALL BE LISTED ON EACH WRITTEN OR ELECTRONIC QUOTATION, ORDER FORM, AND/OR OTHER DOCUMENTS (EACH, AN “ORDER FORM”) THAT SHALL BE EXPRESSLY AGREED UPON BY CUSTOMER AND SHEERID (OR ONE OF SHEERID’S DISTRIBUTION PARTNERS (EACH, A “PARTNER”)). THIS AGREEMENT SHALL BE EFFECTIVE IMMEDIATELY UPON YOUR ASSENT.

1.    PURPOSE; ORDERING.

1.1.    Purpose. Customer offers discounted goods and/or services (the “Gated Offers”) to Customer’s customers and prospective customers (each, a “Consumer”) based upon certain criteria (the “Criteria”). Customer is solely responsible for determining the Criteria and for establishing the scope, nature, and duration of the Gated Offers. Pursuant to this Agreement, Customer may purchase subscriptions (each, a “Subscription”) to SheerID’s proprietary software platform (including, if applicable, the SheerID API (as that term is defined below)), which is hosted, implemented, and made available by SheerID on a software-as-a-service basis (collectively, the “Services”). The Services compare information provided by, or on behalf of, Consumers (the “Consumer Information”) to certain third-party databases (the “Databases”) and other authoritative sources (each such comparison being a “Query”) in order to provide data to Customer that shall assist Customer in determining whether to extend a Gated Offer to a specific Consumer. For the purpose of this Agreement, “SheerID API” means the application programming interface, source code, executable applications, customer portal, and other related materials made available to Customer by SheerID. SheerID may make commercially reasonable changes to the Services and Documentation (as that term is defined below) from time to time, provided that such changes do not materially degrade the performance, features, functionality, or security of the Services.

1.2.    Ordering. The details of each Subscription shall be set forth on one or more Order Forms expressly agreed upon by Customer and either SheerID or a Partner. Each Order Form shall constitute a binding commitment to purchase the Subscriptions and/or other services described on such Order Form under the terms and conditions of this Agreement. All Order Forms are incorporated herein by reference and form a part of this Agreement. In the event of a direct conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Order Form shall take precedence.

1.3.    Orders by Customer Affiliates. A Customer Affiliate (as defined below) may enter into Order Forms under this Agreement and, for purposes of each such Order Form: (a) all instances of the term “Customer” in this Agreement shall refer to the particular Affiliate that executed the Order Form; and (b) only the Affiliate that executed the Order Form will incur any obligation or liability to SheerID or the applicable Partner under that Order Form.  “Affiliate,” as used in this Agreement, means any individual or entity that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common control with the party in question, where “Control” means the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

2.   IMPLEMENTATION EFFORTS; COLLECTION AND USE OF CONSUMER INFORMATION.

2.1.   Implementation Timeline; Cooperation. The chart located at https://www.sheerid.com/implementation-services (the “Implementation Chart”), which is incorporated herein by reference, sets forth the timelines for, amount of implementation assistance included within, and other details of the various implementation packages that SheerID offers. Each Order Form shall set forth the implementation package that Customer purchases as part of its Subscription(s), and SheerID and Customer shall each use commercially reasonable efforts to implement the Services for Customer within the timeline(s) set forth in the Implementation Chart (each, an “Implementation Period”). The Services shall not be used by Customer for production purposes until SheerID has notified Customer in writing that the implementation has been completed. Customer shall cooperate fully with SheerID during the Implementation Period and will use good faith efforts to meet the requirements set forth in this Section 2.1. Customer acknowledges that the timely and successful implementation of the Services requires such cooperation by Customer. Without limiting the foregoing, Customer shall timely: (a) furnish information reasonably requested by SheerID, including all applicable Criteria; (b) provide access to Customer personnel and systems that SheerID may reasonably request; and (c) perform its obligations as necessary to complete the implementation during the Implementation Period. In the event that any failure by Customer to comply with the provisions of this Section 2.1 results in any delay or deficiency in implementation of the Services, SheerID shall not be deemed in breach of this Agreement and Customer shall not be relieved of its obligation to pay the Fees (as that term is defined below) for the Subscription at issue.

2.2.    Professional Services. Customer may purchase design, consulting, and/or other professional services that are unrelated to the implementation of a Subscription (collectively, the “Professional Services”) by mutual execution, with SheerID, of an Order Form that sets forth the applicable fees and terms for such Professional Services. SheerID shall provide all Professional Services in accordance with the specifications and schedule set forth in each such Order Form.

2.3.    Changes. Should Customer request material changes (as reasonably determined by SheerID) to: (a) its Subscription(s); (b) the implementation of the Services by SheerID; (c) SheerID’s Professional Services; and/or (d) the Documentation, SheerID shall provide a quote for additional Fees resulting from Customer’s request. Should Customer agree to SheerID’s quote, the parties shall execute an Order Form that sets forth the details and Fees related to the changes in question.

2.4.    License to Customer and Consumer Information. Customer hereby grants to SheerID a non-exclusive, royalty-free, fully paid-up, irrevocable, worldwide, license and right to access, store, reproduce, distribute, create derivative works from, and otherwise use Consumer Information (and other data provided by Customer to SheerID hereunder) only: (a) for the purpose of performing this Agreement; (b) as otherwise requested or instructed by Customer; (c) as necessary to provide, support, and improve the Services and (if applicable) Professional Services; (d) to monitor and protect the Services, including to prevent or address technical problems or violations of this Agreement; and (e) as required by applicable law.

2.5.    Metrics. SheerID shall have the right to generate anonymized and aggregated metrics, such as the aggregate number of identity verifications that SheerID has processed.

2.6.    Feedback. Customer or its Consumers may voluntarily post, submit, or otherwise communicate to SheerID questions, comments, suggestions, ideas, original or creative materials, or other information about SheerID or the Services (collectively, the “Feedback”). Customer agrees that SheerID, in its sole discretion, may treat Feedback as nonconfidential and use Feedback for any purpose (commercial or otherwise) without acknowledgment or compensation to Customer.

3.   ACCESS AND USE RIGHTS; RESTRICTIONS.

3.1.   Access to and Use of the Services. During the applicable Subscription Term (as defined below) and subject to the terms and conditions of this Agreement and any applicable Order Form(s), SheerID hereby grants to Customer the rights to: (a) implement, access, and utilize the Services (and any applicable Professional Services); (b) use the result of each Query (each, a “Result”) for the purpose of determining whether to extend a Gated Offer to a Consumer; and (c) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by SheerID, including within an Order Form or as part of the implementation process, that describes functionality of the Services, if any (collectively, the “Documentation”), in each case solely for the benefit of Customer. Customer is solely responsible for obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Services. Customer consents to SheerID’s use of strictly necessary cookies for maintaining authenticated sessions in the Customer-facing “MySheerID” account management portal. Customer’s use of any third-party applications, services, or products in connection with the Services or a Gated Offer is outside the scope of this Agreement and SheerID makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of such third-party applications, services, or products. Customer agrees that any third-party fraud prevention services used by SheerID in performance of the Services shall be made available to Customer pursuant to the terms of such third-party services, which SheerID shall provide to Customer upon request.

3.2.    General Restrictions. Except as otherwise expressly permitted under this Agreement or authorized in writing by SheerID, Customer agrees not to: (a) access, use, copy, modify, reverse-engineer, create derivative works of, or otherwise attempt to discover any portion of SheerID’s source code (including the logic and/or architecture thereof and any trade secrets included therein) for any purpose; (b) distribute, transfer, grant sublicenses, reproduce, or otherwise make available the Services (or any applicable Professional Services) to third parties; (c) use the Documentation or the output from the SheerID API to recreate or otherwise bypass the functionality of the Services; (d) use a Result to respond to a new verification request after the termination or expiration of this Agreement and/or the Order Form pursuant to which SheerID provided that Result; (e) reuse a Result related to student status; or (f) provide a Result to any third party other than a Consumer in response to a Query. For the sake of clarity, no restriction set forth in this Section 3.2 shall affect or impair Customer’s right, in its sole discretion, to determine the duration of any Gated Offer (or of a Consumer’s eligibility for such Gated Offer). With respect to implementations hosted by SheerID, SheerID shall only use a Customer-provided font if, prior to such usage, Customer provides SheerID with conclusive evidence that Customer has the right to license (or otherwise provide) such font(s) to SheerID for use with the Services.

3.3.    Specific Restrictions. Except as otherwise expressly permitted under this Agreement or authorized in writing by SheerID (including, but not limited to, in an Order Form), Customer agrees not to use the Services or Results: (a) in violation of (or in a manner that puts SheerID in violation of) any applicable law, rule, or regulation, including, without limitation, laws related to privacy, security, and export/import compliance; (b) in support of a Gated Offer that involves the sale or promotion of alcohol, tobacco, gambling, pornography, weapons (including firearms), illegal drugs (including cannabis products), and/or escort services; (c) to verify the age of a person who is twelve (12) years or younger; or (d) for purposes that are subject to the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. (the “FCRA”). Customer further agrees that SheerID is not a consumer reporting agency and none of the information provided by SheerID through the Service constitutes a “consumer report” under the FCRA. Customer certifies and agrees that it will not use the Services and/or Results, in whole or in part, as a factor in establishing a Consumer’s eligibility for credit, insurance, employment, or licensing, or for any other purpose governed by the FCRA. Moreover, Customer agrees that it will not take any “adverse action,” as that term is defined in the FCRA, against any Consumer based in whole or in part upon the Services and/or Results.

3.4.    Suspension. Without limiting any of SheerID’s other rights under this Agreement, if Customer violates or is reasonably suspected of violating this Section 3, SheerID may suspend Customer’s access to the Services. SheerID will provide reasonable notice prior to such suspension unless it determines that an immediate suspension is required to protect the safety or integrity of the Services or any other SheerID customer’s use of the Services.

4.    DELIVERY AND SUPPORT OF THE SERVICES. During the applicable Subscription Term, SheerID shall, except to the extent set forth on an applicable Order Form, provide: (a) the Services in accordance with the service levels and other requirements set forth in Exhibit A; and (b) technical support services to Customer regarding Customer’s operation and use of the Services as set forth in Exhibit B (the “Support Services”).

5.    FEES.

5.1.    Fees. Subject to the terms and conditions below, all one-time and recurring fees for, as applicable, the Services and the Professional Services (collectively, the “Fees”) will be set forth on an applicable Order Form.

5.2.    Payment Terms. Customer will pay to SheerID or the applicable Partner all undisputed Fees within 30 days, or such other period as may be specified in the Order Form, after Customer’s receipt of an invoice pertaining thereto. Customer shall remit payments to the address and/or in accordance with the wiring instructions set forth on the applicable Order Form or SheerID invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use, and other taxes (other than taxes based upon SheerID’s or the applicable Partner’s income). If Customer fails to timely pay any undisputed invoice, SheerID or the applicable Partner shall charge customer a late payment fee equal to three-quarters of a percent (0.75%) of the unpaid amount per month (or, if lower, the highest amount permitted by applicable law), compounded daily. Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement.

6.    TERM AND TERMINATION.

6.1.    Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein.

6.2.    Subscription Terms; Renewal. The term for each Subscription will be set forth in the applicable Order Form, subject to any renewal as set forth below (collectively, the “Subscription Term”), and will commence on the date set forth in each such Order Form. Thereafter, unless either party notifies the other at least 30 days prior to the commencement of a renewal term that it does not intend to renew the Subscription Term as set forth in this Section 6.2, each Subscription will automatically renew: (i) for the renewal period specified on the Order Form that is being renewed, if any, or, if not specified, for successive periods of the same duration as the Subscription Term that is being renewed; and (ii) in SheerID’s discretion, at up to a seven percent (7%) increase to the Fees applicable on the last date of the immediately preceding term.

6.3.    Termination. This Agreement, and any Order Form issued hereunder, may be terminated: (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five days for breaches of Sections 3.2, 3.3, or 8); (b) for Customers engaging SheerID to provide the Services as integrated within a Partner’s platform (a “Partner Platform”), in the event that any applicable Partner Platform is no longer available; or (c) as set forth in Section 10.

6.4.    Effect of Termination. Upon any termination of this Agreement or an Order Form, and without prejudice to any other rights or remedies that the parties may have: (a) all access and usage rights of any kind granted to Customer under this Agreement (including, but not limited to, any rights in or to the Services, the Results, the Documentation, and SheerID Marks) shall immediately cease; (b) Customer will promptly delete and/or destroy all copies of the Documentation in its possession or control; (c) Customer shall pay to SheerID any outstanding Fees that have accrued under this Agreement and/or all outstanding Order Forms prior to the date of termination; (d) each party will return or destroy all Confidential Information of the other party in its possession; and (e) SheerID shall immediately cease any use of Customer Marks.

6.5.    Survival. The following Sections will survive the termination of this Agreement: Sections 2.5 (Usage Data), 2.6 (Feedback), 3.1 (Access to and Use of the Services), 3.2 (General Restrictions), 3.3 (Specific Restrictions), 5.2 (Payment Terms), 6.4 (Effect of Termination), 6.5 (Survival), 7 (Proprietary Rights), 8 (Confidential Information), 9.3 (Disclaimers), 10 (Indemnification, Limitation of Liability), 13 (Injunctive Relief), 15 (Miscellaneous), and 16 (Dispute Resolution).

7.    PROPRIETARY RIGHTS. As between the parties, SheerID will retain all ownership rights and interest in and to the Services, the Documentation, the Feedback, and the Professional Services; all updates and/or upgrades thereto; and all intellectual property rights incorporated into or related to the foregoing. Customer has no right, license, or authorization with respect to the Services, Results, Documentation, or Professional Services except as expressly set forth in Section 3.1 (and, in each case, subject to Sections 3.2 and 3.3). The trademarks and service marks and other SheerID logos and product and service names of SheerID are trademarks of SheerID (collectively, the “SheerID Marks”). Likewise, the trademarks and service marks and other logos and product and service names of Customer are trademarks of Customer (collectively, the “Customer Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the SheerID Marks or Customer Marks, as applicable. All rights not expressly licensed by SheerID and Customer under this Agreement are reserved. Subject to Sections 2.4 and 2.5, Customer retains all right, title, and interest in and to its Confidential Information (as defined in Section 8 below) and any and all Customer Marks and other materials supplied by Customer to SheerID.

8.    CONFIDENTIAL INFORMATION. “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information and who have agreed in writing to be bound by obligations of confidentiality and non-disclosure at least as stringent as those set forth in this Section 8. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before the effective date of this Agreement without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by employees of the receiving party who have not had access to (or relied upon in any way) Confidential Information; or (d) is divulged pursuant to a request in any legal proceeding or as otherwise required by law, provided that, to the extent legally permissible, the receiving party will promptly notify the disclosing party of such requested or required disclosure and (at the disclosing party’s cost and expense) reasonably assist the disclosing party in efforts to prevent or limit such requested or required disclosure.

9.    REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.

9.1.    Mutual. Each party represents, warrants, and covenants to the other party that: (a) it has the full corporate right, power, and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party; (c) this Agreement constitutes the legal, valid, and binding obligation of such party when executed and delivered; and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules, and regulations.

9.2.    By SheerID. SheerID warrants that: (a) it shall provide Support Services and Professional Services in a professional and workmanlike manner; (b) the Services, when used in accordance with the Documentation and this Agreement, will perform in all material respects as specified in such Documentation during the applicable Subscription Term; and (c) SheerID will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Services that are intentionally designed to permit unauthorized access to or use of either the Services’ or Customer’s computer systems (collectively, “Viruses”). In the event of any breach of the warranties in this Section 9.2, SheerID shall, as its sole and exclusive liability and Customer’s sole and exclusive remedy, diligently remedy any deficiencies that cause the Support Services, the Professional Services, and/or the Services to not conform to such warranties promptly after its receipt of written notice from Customer. SheerID will not be liable to the extent that any breach of the foregoing warranties is caused by: (i) inaccurate information within any Consumer Information and/or Databases; (ii) unauthorized use of the Services by Customer or use of the Services by Customer other than in accordance with the Documentation; or (iii) Viruses introduced by Customer or its agents.

9.3.    Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY THE PARTIES AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. SHEERID DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. IN ADDITION, SHEERID SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND RELATED TO A PARTNER PLATFORM OR CONSUMER’S FRAUDULENT OR UNLAWFUL QUERIES (OR OTHER FRAUDULENT OR UNLAWFUL ACTIVITY) IN CONNECTION WITH THE SERVICES OR CUSTOMER’S SUBSCRIPTIONS.

10.    INDEMNIFICATION, LIMITATION OF LIABILITY.

10.1. Indemnification by SheerID   SheerID will, at its own expense, defend, indemnify, and hold harmless Customer and each of its officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and court costs (collectively, “Losses”) incurred by such Customer Indemnitee in connection with any claim, suit, action, or proceeding (collectively, “Actions”) brought by a third party (other than a Customer Affiliate) to the extent that such Losses arise out of or relate to a claim that: (A) Customer’s use of the Services in compliance with the Documentation and this Agreement infringes any United States copyright, trademark, or patent, or misappropriates any trade secret rights; (B) SheerID has breached the DPA (as that term is defined below); and/or (C) SheerID has violated any applicable law (including, but not limited to, data privacy laws). The foregoing obligation does not apply to any Action or Losses to the extent arising out of or relating to any: (a) access to or use of the Services or Documentation in combination with any hardware, system, software, network, or other materials or service not provided or authorized in the Documentation or otherwise in writing by SheerID and where such infringement would not have occurred but for such combination, except when: (i) the Services or Documentation caused the alleged infringement, (ii) the combination is pursuant to information or instructions provided by SheerID, or (iii) there is no commercially reasonable way to use the Services or Documentation as intended in a non-infringing manner other than in such combination; (b) modification of the Services or Documentation by or on behalf of Customer other than modifications made: (i) by or on behalf of SheerID, or (ii) with SheerID’s written approval and in accordance with SheerID’s written specifications; or (c) failure to timely implement any modifications, upgrades, replacements, or enhancements that require Customer action to implement, are made available to Customer by or on behalf of SheerID, and that SheerID discloses are necessary. If the Services (or any component thereof) become, or in SheerID’s opinion are likely to become, the subject of an infringement claim, SheerID may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement; or (b) replace or modify the Services so that they become non-infringing and remain functionally equivalent. If neither of the foregoing options is, in SheerID’s reasonable opinion, commercially reasonable, SheerID may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees.

10.2. Indemnification by Customer   Customer, at its own cost, will defend, indemnify, and hold harmless SheerID, its Affiliates and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “SheerID Indemnitee”) from and against any Losses incurred by a SheerID Indemnitee in connection with any Action brought by a third party (other than a SheerID Affiliate) that arise from or relate to: (i) Customer’s breach of Section 3.2 (General Restrictions) and/or 3.3 (Specific Restrictions); (ii) Customer’s breach of the DPA; and/or (iii) Customer’s violation of applicable law (including, but not limited to, data privacy laws).

10.3. Limitation of Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, BREACH OF THE DPA, AND/OR BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST DATA, AND/OR DAMAGE TO BUSINESS REPUTATION), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, THE TOTAL OF THE FEES PAID AND PAYABLE TO SHEERID OR A PARTNER BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.

11.    DATA PROCESSING. The Parties hereby agree that the SheerID Customer Data Processing Addendum, posted at https://www.sheerid.com/dpa/ (the “DPA”), as may be updated from time to time, is incorporated herein by reference, and Customer’s acceptance of this Agreement shall be treated as execution of the DPA, including its annexes and appendices. Schedule 1 (Details of Processing of Personal Data) of the DPA shall be completed by the Parties prior to or upon execution of this Agreement (or, if applicable, an Order Form). Schedule 1 will be incorporated fully into the DPA. The Parties acknowledge that, except with respect to Personal Data collected by SheerID in connection with Other Consumer Services (as that term is defined in this Section 11), SheerID is a Processor. Customer agrees that SheerID may present Consumers directly with offers of other SheerID services that are separate from the Services (collectively, the “Other Consumer Services”) and that SheerID is a Controller with respect to Personal Data collected through Other Consumer Services unless the Parties execute a separate agreement establishing SheerID as a Processor. For purposes of this Section 11, “Controller,” “Personal Data,” and “Processor” have the meanings given to those terms in Section 1 of the DPA.

12.    PUBLICITY. During the term of this Agreement, Customer hereby agrees that SheerID shall have the right, but not the obligation, to: (a) display Customer’s name and logo as a customer who uses the Services on the SheerID website and in press releases or other materials promoting the Services; (b) post links to Customer’s Gated Offers on the SheerID website; and (c) authorize third parties to post links to Customer’s Gated Offers on third party websites and/or mobile apps.

13.    INJUNCTIVE RELIEF. The parties acknowledge that the Services and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement without the need to prove actual damages or post a bond, including to prevent any actual or threatened unauthorized use or disclosure of a party’s Confidential Information, the Services, the Results, or any data contained therein.

14.    INSURANCE. SheerID, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$2,000,000 per occurrence combined single limit; (b) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment;  and (c) Cyber and Professional Liability Insurance with coverage in an amount equal to or greater than US$5,000,000. SheerID will provide Customer with necessary documentation, including certificates of insurance, evidencing the required coverage, if requested in writing.

15.    MISCELLANEOUS. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship, or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, pandemics, earthquakes, labor disputes and strikes, riots, war, and governmental requirements. Neither party will assign, transfer, or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except, upon prior written notice, pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes all Exhibits and Schedules hereto, the DPA, and any Order Forms agreed to by the parties in writing. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by SheerID. The terms on any purchase order or similar document submitted by Customer to SheerID will have no effect and are hereby rejected except to the extent incorporated in an Order Form. All notices, consents, and approvals under this Agreement may be delivered in writing by email (with delivery receipt requested), courier, facsimile, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form.

16.    DISPUTE RESOLUTION.

16.1.    Good Faith Efforts. Prior to commencing any litigation, the Parties agree to engage in good faith efforts to resolve any disputes that arise between them under this Agreement. Such good faith efforts shall include, but not be limited to, personal participation by a senior executive and/or attorney of each Party.

16.2.    Governing Law. Except as set forth in Section 16.4, this Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.

16.3.    Venue. Except as set forth in Section 16.4, each Party agrees: (a) to resolve all disputes arising under this Agreement in a court of competent jurisdiction located in Multnomah County, Oregon; (b) that it is subject to personal jurisdiction in Multnomah County, Oregon; (c) to waive all rights to contend that Multnomah County, Oregon, is an inconvenient or improper forum; (d) that service of any suit or legal process in person or by registered mail (or by any other method allowed by law) shall constitute adequate service of process, and to waive all rights that such service of process was inadequate; and (e) to waive any and all defenses or objections to recognition and enforcement of any judgment issued by a court that adjudicates a dispute as set forth herein.

16.4.    Certain DPA Disputes. The Parties agree that the DPA sets forth the governing law and applicable venue for certain disputes that arise under the DPA and involve data protection laws promulgated by jurisdictions other than the United States.

16.5.    Attorneys’ Fees. The Party that prevails in any dispute litigated under this Agreement shall be entitled to recover from the non-prevailing Party (in addition to any other relief awarded or granted) its reasonable attorney’s fees, court costs, and other expenses incurred in the litigation (and in connection with any appeal thereof or the enforcement of any judgment rendered therein).

EXHIBIT A – REQUIREMENTS; SERVICE LEVELS

1.    Security of Consumer Information. SheerID shall: (i) establish and maintain appropriate technical and organizational measures to protect against accidental damage to, or destruction, loss, or alteration of, Consumer Information; (ii) establish and maintain appropriate technical and organizational measures to protect against unauthorized access to the Consumer Information; and (iii) establish and maintain network and internet security procedures, protocols, security gateways and firewalls with respect to the Services.

2. Uptime Commitment. SheerID will use commercially reasonable efforts to ensure that the Services will be available at least 99.9% of the time, as measured monthly, subject to the exclusions set forth below and also excluding scheduled downtime and any time necessary to implement any updates, upgrades, or other modifications to the Services (the “Uptime Commitment”). SheerID will notify Customer at least twenty-four (24) hours prior to any scheduled downtime and will use commercially reasonable efforts to minimize the effect of such maintenance on the Services.

3. Exclusions. The Uptime Commitment shall not apply in the event of any causes beyond the control of SheerID or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the Internet generally, or any actions or inactions of Customer or any third party.

4. Uptime Tracking. Customer may track the performance of the Services by visiting the website located at: https://sheerid.statuspage.io

EXHIBIT B – TECHNICAL SUPPORT SERVICES

1.    Customer Obligations. Customer will contact SheerID by email via [email protected] and agrees to provide SheerID with all information and materials requested by SheerID for use in replicating, diagnosing, and correcting any error or other problem with the Services reported by Customer. Customer acknowledges that SheerID’s ability to provide satisfactory support services is dependent upon SheerID having the information necessary to replicate the reported problem with the Services.

2. Items Not Covered by Support Services. SheerID is not obligated to provide support services for errors or problems caused by: (a) third-party components not provided by SheerID; or (b) use of the Services other than as described in the Documentation.

3. Technical Support Services. SheerID shall provide the following technical support services for the Services:

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