Please read these Terms and Conditions (“Terms” or “Terms and Conditions”) carefully. The Terms constitute an agreement between Intellicheck, Inc. (“Intellicheck,”) and the entity, organization or individual (“Customer”) accessing or using our cloud-based software as a service (SaaS) (“Intellicheck Platform”). These Terms also govern the use of any applications, software, services, and other offerings made available through our platform (“Intellicheck Services”).
BY CLICKING THE “ACCEPT” BOX, OR USING THE SERVICES, CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, PLEASE DO NOT ACCESS, BROWSE, OR OTHERWISE USE THE INTELLICHECK PLATFORM OR INTELLICHECK SERVICES.
Intellicheck’s collection and use of personal information in connection with the Intellicheck Platform is described in our Privacy Policy, found at Privacy Policy.
1. Services
Subject to the terms and conditions of this Agreement, Intellicheck will provide to Customer access to Intellicheck Services and third party services (“Third Party Services”) via the Intellicheck Platform as identified on the Order Form attached as Exhibit A and incorporated into this Agreement(“Order Form”) or through the Intellicheck PlatformUser Interface (“PUI”). Any issues arising under the third party service level agreements will relate solely to the applicable third party service and are the responsibility of the third party service provider.
The Intellicheck Platform provides users with the ability to analyze and authenticate components of identification cards and other government forms of identification containing magnetic stripe, barcode, and smart chip information, subject to any legal or governmental restrictions (“Permitted Purpose”).Conditioned upon Customer’s full compliance with this Agreement and obtaining an active subscription or other registration, Customer may access and use the Intellicheck Platform and Intellicheck Services solely for the Permitted Purpose.
If Customer is an entity or organization and has a valid subscription or other registration with Intellicheck to use the Intellicheck Platform and Intellicheck Services, Customer may authorize employees to access and use the Intellicheck services as part of Customer’s subscription (“Employee User”).Employee Users represent that they have the authority to be bound by the terms of this Agreement.
2. Updates
Included with the Intellicheck Platform are corrections, modifications, and enhancements (“Updates”). Intellicheck may incorporate the Updates or other changes to the Intellicheck Platform at any time and from time to time without prior notification to the Customer.Additional features to the Intellicheck Platform may be added by Intellicheck from time to time (“Additional Features”). Customer will have the option of accepting such Additional Features if such Additional Features involve additional fees or entering into a new agreement.
3. Supplemental Terms for Certain Intellicheck Services
Customer’s use of the Intellicheck Services may be subject to additional terms separate from this Agreement including, but not limited to terms of the Apple App Store, Google Play Store, Amazon Appstore for Android,Windows Apps Microsoft Store or other similar service that lawfully enables download of the Intellicheck Platform (each an “App Store” and collectively the “App Stores”) (and the applicable terms for each, “App Store Terms”). In the event of a conflict between the App Store Terms and this Agreement, the App Store Terms will governCustomer’s use of the Intellicheck Platform and Intellicheck Services only to the extent of the conflict.
4. User Restrictions
Customer may not: (i)rent, lease, sell, subcontract, sublicense, lend, transfer, copy, distribute, publicly perform, publicly display, “timeshare,” make available over a network or otherwise allow access to the Intellicheck Services by any other entity;(ii) modify, adapt, alter, translate, prepare derivative works from, or decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from any portion of the Intellicheck Services or any internal data files generated by the Intellicheck Services; (iii) remove, obscure, or alter Intellicheck’s or any of its supplier’s copyright notices, trademarks, or other proprietary rights notices or legends affixed to or contained within the Intellicheck Services; (iv) make any attempt to unlock or bypass any initialization system or encryption technique within the Intellicheck Services,(v) transmit viruses or any other malicious code to the Intellicheck Services or overburden or interfere with the integrity or performance of the Intellicheck Services; (vi) use the Intellicheck Services for any purpose other than the scanning, parsing, analyzing, verifying, or authenticating of a government-issued identification document or other identification document(s) using Intellicheck technology;(vii) except as expressly provided herein, provide, disclose, divulge, or make the Intellicheck Platform available to, or permit use of the Intellicheck Platform by, any third party for any unlicensed use, or (viii) use or permit use of the Intellicheck Services for any purpose not authorized by law.
5. Registration
Any user of the Intellicheck Platform must register in order to access or use the Intellicheck Services. The number of authorized users, the duration of Customer’s use, and the availability of Intellicheck Services or functionality and features within the Intellicheck Platform are subject to the type of registrationCustomer has made or subscription Customer purchases and Customer’s payment of applicable subscription fees.
If Customer is accessing or using the Intellicheck Platform as an Employee User, Customer agrees and acknowledges that Customer’s ability to access and use the Intellicheck Platform and the availability of Intellicheck Services and features or functionalities in the Intellicheck Platform are subject to the type of registration or subscription selected by that entity or organization and both their compliance and Customer’s compliance with this Agreement.
6. Account
To use the Intellicheck Platform, Customer will be required to establish a user account (“Account”). In order to establish an Account, Customer may need to provide certain personal information about themselves, including their first and last names. All information provided during Account registration by Customer must be true and accurate. Collection and use of Customer’s personal information is subject to Intellicheck’s PrivacyPolicy found at https://www.intellicheck.com/privacy-policy.
Customer is entirely responsible for the security andconfidentiality of their Account and password (including an Employee User’sAccounts if Customer is an entity or organization). Further, Customer isentirely responsible for any and all activities that occur under their Account,even where their username, password, and otheraccess information or codes are usedby someone else (including an Employer User’s Accounts if Customeris an entity or organization).
Customer agrees to immediately notify Intellicheck of any unauthorized use of their Account orany other breach of securityof which Customerbecomes aware of or suspect(including an EmployerUser’s Account if Customer isan entity or organization). Customer is responsible for taking precautions andproviding security measures best suited for their situation and intended use ofthe Intellicheck Platform. Please note that anyone with Customer’s Accountcredentials may access Customer’s Account – it is the Customer’s responsibilityto protect their Account information.
7. Intellectual Property Rights
Customer acknowledges that, as betweenCustomer and Intellicheck, Intellicheck and its suppliers own allIntellectual Property Rights in the Intellicheck Platform and Intellicheck Services. “Intellectual Property Rights” means:(i) copyrights and other rights associated with works of authorship; (ii) trademarks, service marks, trade names and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and(v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force, and all similar rights throughout the world. Intellicheck acknowledges, however, that Intellicheck has no proprietary interest or license in trade names, service marks, data, or information, supplied or input to the Intellicheck Platform by or on behalf of Customer except for the limited license hereby granted to use any such information and materials solely and as reasonably required to perform Intellicheck’s obligations under this Agreementor enhance Intellicheck products and services. Customer may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify any intellectual property that will infringe on Intellicheck’s IntellectualProperty Rights.
Intellicheck and its licensors retain full copyright ownership and protection in all material contained in or on the Intellicheck Platform and Intellicheck Services (including all digital images, software, HTML code and other code, or business methods) with the exception of third party content. Intellicheck does not condone copyright infringement in connection with the Intellicheck Platform or Intellicheck Services and will remove allegedly infringing content if properly notified of the infringement. Intellicheck reserves the right to terminate Customer’s account if Customer or their Authorized Employee infringe or violate the intellectual property, proprietary or legal rights of others.
8. Data Rights
Any content or information provided to Intellicheck byCustomer that may be used to provide or improve the Intellicheck Services (“CustomerData”) is and will remain the property of Customer or its suppliers or icensors. Customer hereby grants Intellicheck a non-exclusive right and license to use and reproduce any content or information provided to Intellicheck by Customer in connection with performance of services forCustomer and to enhance Intellicheck’s products and services. Customer is responsible for obtaining all necessary rights to the Customer Data. Nothing inthis Agreement restricts Intellicheck from collecting, using and analyzing general information and data from its customers (including Customer) for purposes of improving and enhancing the quality and nature of services offered by Intellicheck, or to market or publish general information and statistics, provided that Intellicheck does not specifically identify Customer or disclose any personally identifiable information in the course of collecting, using, analyzing, marketing or publishing such information or data.
9. Service Level Agreement
Intellicheck will use its commercially reasonable efforts to comply with the Service Level Agreement (“SLA”) relating to the uptime for the Intellicheck Services attached as Exhibit B. Customer’s exclusive remedy for failure to meet the SLA is as set forth in the SLA. Any service level agreements for Third Party Services are included within thePUI.
10. Fair Credit Reporting Act
Customer acknowledges and agrees that Intellicheck does not assemble or evaluate any information whatsoever that will be collected, used, or is expected to be used in a consumer report. As such, the parties understand and believe that Intellicheck is not (i) a “consumer reporting agency” as defined in the FairCredit Reporting Act, 15 U.S.C. 1681 et seq., as amended (“FCRA”), and the CustomerData has not been collected by Intellicheck in whole or in part for the purpose of furnishing “consumer reports” as defined in the FCRA; or (ii) a furnisher of information to consumer reporting agencies as described in the FCRA. Customer certifies that it shall not use the data retrieved or generated through its use of the Intellicheck Platform to determine eligibility for (A) credit or insurance, (B) employment purposes, or(C) any other purpose authorized under Section 604 of the FCRA.
11. Integration of Application Programming Interface
Within thirty (30) days of entering into thisAgreement, Customer will: (i) modify its application programming interface to provide data on each transaction conducted by Customer on the Intellicheck Platform as described in Intellicheck’s Application ProgramingInterface (“API”) as updated from time to time (“Transaction Data”) and (ii) certify to Intellicheck the accuracy of the Transaction Data. Additionally, within thirty (30) days of entering into this Agreement, Company shall certify to Intellicheck that Customer has integrated with Intellicheck’s API correctly and is providing transaction feedback.
Prior to Intellicheck providing production credentials to Customer, Intellicheck shall verifyCustomer’s certification by having Intellicheck’s implementation team: (i)complete an API integration validation on API request and response (additional details will be provided after issuing the API keys) and (ii) validate that transaction monitoring feedback is occurring.
12. Fees and Payments
a. Fees. Customer will pay the fees set forth in the OrderForm in Exhibit A (“Fees”). After the first year of the Initial Term (as defined in Section 13), Intellicheckmay increase the Fees for the Intellicheck Services annually by the greater of: a) five percent (5%); or (b) the percentage rate of increase equal to the change in the Consumer Price Index forUrban Wage Earners and Clerical Workers as reported by the United StatesDepartment of Labor, Bureau of Labor Statistics. The pricing information provided in the Order Form or otherwise provided to Customer by Intellicheck is Intellicheck’s confidential information.
b. Payments. Customer will be invoiced for the amounts and prices set forth in the Order Form. Payments to Intellicheck will be made in United States dollars to the address provided by Intellicheck toCustomer. All payments are due upon receipt of the invoice. If Customer fails to pay the recurring subscription fee required to maintain their selected type of subscription,Customer will not be permitted to further use the Intellicheck Platform andCustomer will lose access to Intellicheck Services. All payment obligations are non-cancellable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under the applicable Order Form.
c. Past-DuePayments. Past due payments and charges will be subject to a late payment charge calculated at an annual rate of five percentage points (5%) over the prime rate (as provided by the U.S.Federal Reserve) during delinquency. If the amount of such charge exceeds the maximum permitted by law, such charge will be reduced to such maximum. If Intellicheck incurs any fees or expenses for collection of monies owed,Customer will be responsible for reimbursing Intellicheck for any such expenses. In any case such payment is not paid in full when due, in addition to any other remedy otherwise available to Intellicheck. If payment is not received within 30 days after an invoice is sent to Customer by Intellicheck, Intellicheck reserves the right to terminate access to the Intellicheck Services, at its sole discretion, until payment is satisfied. In the event the account becomes delinquent and satisfactory arrangements have not been made for payment, Customer agrees to pay all collections costs and reasonable attorney fees.
d. Taxes. Customer will bear all taxes, duties, levies and similar charges (and any related interest and penalties), however designated, imposed as a result of the existence or operation of this Agreement. Fees due to Intellicheck under this Agreement do not include U.S. or foreign sales and use taxes. If Intellicheck is required by applicable law to collect and remit such taxes based on the Intellicheck Services provided to Customer under this Agreement, Intellicheck will, to the extent reasonably feasible, include such taxes on the invoice to Customer in accordance with thisAgreement. Notwithstanding the exclusion of any U.S. or foreign sales and use tax from any invoice,Customer is solely responsible for all U.S. and foreign sales anduse taxes imposed on the Intellicheck Servicesprovided to Customerunder this Agreement. Customer shall indemnify Intellicheck for any claims against Intellicheck for all such taxes. Customer will not be responsible for or pay any penalties or interest imposed with respect to taxes Intellicheck collects from Customer but fails to properly calculate or remit, but will be responsible for the amount of any such taxes. Intellicheck will be responsible for all taxes based upon its net income.
13. Term and Termination
a. Term. This Agreement will commence on the date the parties sign this Agreement (“Term”). The Agreement will remain in full force and effect for an initial period of two (2) years until terminated in accordance with this Section 13 (“Initial Term”). Thereafter, this Agreement will automatically renew for one successive year (“Renewal Term”) unless either party provides thirty(30) days written notice of termination prior to the end of the Initial Term or the Renewal Term, or until terminated in accordance with this Section 13.
b. Termination. Either party may terminate this Agreement if any of the following events occur: (i) the other party materially breaches thisAgreement (after receiving written notice of such breach and fails to cure that breach within 30 days); (ii) the other party’s activities under this Agreement violate applicable law; or (iii) the other party becomes insolvent, enters into bankruptcy or other similar proceedings, or attempts to make an assignment for the benefit of creditors. In the event of a termination, subject to the other terms and conditions of this Agreement, either party will be eligible to seek those remedies available to it in accordance with applicable laws.
c. Effect of Termination. Upon termination or expiration of this Agreement, (i)all of Customer’s rights to use the Intellicheck Platform will immediately cease; (ii) Customer will immediately cease all use of the Intellicheck Platform and (iii) Customer must immediately un-install and delete or destroy all copies of the Intellicheck Platform that remain in the Customer’s possession or control and cease using the Intellicheck Platform. Intellicheck will have no obligation to continue to store or permitCustomer to retrieve any data, content, information, or any other materials that the Customer stores on the Intellicheck Platform following any termination of this Agreement. Termination under this section does not excuse any of Customer’s obligations to pay any Fees specified in Section 12.
d. Survival. The provisions regarding fees and payment obligations, licensing, feedback, terms and termination, disclaimer of warranties, limitations of liability, indemnification, and jurisdiction and applicable law will survive the expiration or termination of this Agreement for any reason. All other rights and obligations of the parties will cease upon termination of the Agreement.
14. Accurate Records
Customer will keep full, clear, and accurate records with respect to their use of the Intellicheck Platform and will furnish any information which Intellicheck may reasonably prescribe from time to time to enable Intellicheck to ascertain whether Customer is in full compliance with the terms of this Agreement. Customer will retain such records for at least five (5) years. Intellicheck and its agents will have the right to make examinations, during normal business hours, of all records and accounts bearing upon the amounts of fees payable to it under this Agreement. Prompt adjustment will be made by the proper party to compensate for any errors or omissions disclosed by any such examination. The cost of any examination will be paid for by Intellicheck unless the examination reveals an underpayment by Customer.
15. Feedback
By submitting any ideas, feedback, or proposals (“Feedback”) to Intellicheck through the Intellicheck Platform or other means, Customer acknowledges and agrees that: (a) Feedback provided to Intellicheck does not contain Customer or any third party’s confidential or proprietary information; (b) Intellicheck is not under any obligations of confidentiality with respect to the Feedback; (c)Intellicheck may freely use, reproduce, distribute, and otherwise exploit the Feedback for any purpose; and (d) Customer is not entitled to any compensation of any kind from Intellicheck.
16. Data Security
Intellicheck agrees during the Term of this Agreement to implement reasonable security measures to protect the Customer Data and will, at a minimum, utilize industry standard security procedures.
Customer and Intellicheck, each agree that at all times during the Term of this Agreement, each will be in compliance with all prevailing local, state, or national laws in reference to general data protection and data privacy including those laws, policies and regulations dealing with the protection of personally identifiable information. Failure to comply with this undertaking shall be deemed to be a material breach of this Agreement.
17. Compliance with Laws
Customer will comply with all applicable federal, state, and local laws, regulations and ordinances governing its use of the Intellicheck Platform, including applicable privacy laws, and Customer will not use the Intellicheck Platform to violate any applicable federal, state or local law, regulation or ordinance.
18. Infringement Claims
In the event of any third party claim that the Intellicheck Platform or Customer’s use or possession of the Intellicheck Platform: (i) infringes that third party’s intellectual property rights, (ii)results in any product liability claims; (iii) results in any claims that the Intellicheck Platform fails to conform to any applicable legal or regulatory requirement; or (iv) results in any claims under consumer protection or similar legislation, Intellicheck, and not any App Store operator, will be solely responsible for responding to and resolving such claims. Note that the warranty disclaimers and limitation of liability set forth in Sections 22 and 23 apply to any such claims.
If a third party claims that any portion of the Intellicheck Platform or Intellicheck Services directly infringe or misappropriate any U.S. Intellectual Property Rights, Intellicheck will (as long as Customer is not in default under this Agreement or any other agreement with Intellicheck) defend Customer against such claim at Intellicheck’s expense and pay all damages that a court finally awards, provided that Customer promptly notifies Intellicheck in writing of the claim, allows Intellicheck to control response to the claim, and cooperates with Intellicheck in the defense of a claim and any related settlement negotiations. If such a claim is made or appears possible, Intellicheck may, at its option, secure for Customer the right to continue to use the affected portion of the Intellicheck Platform or Intellicheck Services, modify or replace the affected portion of the Intellicheck Platform or Intellicheck Services so that it is non-infringing, or, if neither of the foregoing options is reasonable in Intellicheck’s judgment, require Customer to forego or return the affected portions of the Intellicheck Platform in its possession (if any) or cease use of the affected portions of the Intellicheck Services for a credit equal to the portion of previously paid fees allocable to the remaining term of the affected Intellicheck Platform or Intellicheck Services. However, Intellicheck has no obligation for any claim based on the combination, operation, or use of the Intellicheck Platform with any product, data or apparatus not provided or authorized in writing by Intellicheck or the unauthorized or non-compliant use of the Intellicheck Platform. THIS PARAGRAPH STATES INTELLICHECK’S SOLELIABILITY AND ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
19. Use of Information Collected by the Intellicheck Platform
Before submitting any third-party personal information to the Intellicheck Platform or in connection with Intellicheck Services,Customer will obtain all permissions, consents, and authorizations necessary to provide such information to Intellicheck and for Intellicheck and Intellicheck’s affiliates to use such information to perform the services within the Intellicheck Platform in accordance with Intellicheck’s PrivacyPolicy, as required by law. If applicable law allows Customer to provide the information without doing the foregoing, Customer represents and warrants thatCustomer has abided by that law and that it allows Intellicheck to receive, use, and disclose the information to perform the services in the Intellicheck Platform in accordance with Intellicheck’s Privacy Policy without any further action on Intellicheck’s part.
Customer represents, warrants and agrees that they will not sell, distribute, publish, transfer or otherwise make available any third-party personal information collected via the Intellicheck Platform, unless Customer has obtained prior consent from the third party concerned or is authorized or required to do so by applicable law or contract.
20. Customer’s Conduct and Warranties
By using or accessing the Intellicheck Platform,Customer represents, warrants and agrees that Customer will not do anything that is illegal, infringing, fraudulent, malicious or could expose Intellicheck or users of the Intellicheck Platform to harm or liability (including without limitation through transmission of harmful code or offensive content, or access to or transmission of proprietary information), and Customer will not attempt, encourage or facilitate any of the above.
If Customer is a Company,Customer represents and warrants that Customer has taken all necessary actions to authorize the EmployeeUser to assent to this Agreement and have granted the Employee User sufficient authority to bind the Employee User to this Agreement.
Customer is solely responsible for their AuthorizedEmployee’s use of the Intellicheck Platform and Customer will ensure that they comply with this Agreement. Customer is liable for all acts and omissions of their Authorized Employee in relation to the Authorized Employee’s use of the Intellicheck Platform and theAuthorized Employee’s compliance with this Agreement.
21. Indemnification
Customer agrees to release, discharge, defend, indemnify and hold harmless Intellicheck and its parents, subsidiaries, officers, directors, employees and agents, assigns, licensors and suppliers from and against any claims, actions or demands, liabilities and settlements, including, without limitation, legal and accounting fees, related to or arising out of use in any way of the Intellicheck Platform, Customer’s breach of this Agreement, Customer’s failure to comply with applicable law (including applicable privacy laws),Customer’s failure to obtain the appropriate permissions, consents, and authorizations as required under this Agreement or Customer’s violations of any rights of another. Intellicheck will provide Customer with prompt notice of any such claim, suit or proceeding and reasonably cooperate with Customer, at Customer’s expense, in Customer’s defense of any such claim, suit or proceeding.
22. Warranty Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES ALL RISKS ARISING OUT OF CUSTOMER’S USE OF THE INTELLICHECK PLATFORM AND INTELLICHECK SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE INTELLICHECK PLATFORM, INTELLICHECK SERVICES AND ANY RELATED SUPPORT SERVICES (IF ANY) ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS AND WITHOUT ANY ASSURANCE, OR WARRANTY,CONDITION OR DUTY OF OR REGARDING: FUNCTIONALITY; PRIVACY; SECURITY; ACCURACY;AVAILABILITY; REPAIRS; OR LACK OF:NEGLIGENCE, INTERRUPTION, VIRUSES OR OTHER HARMFUL CODE, COMPONENTS, OR TRANSMISSIONS; OR THE NATURE OR CONSEQUENCES OF AVAILABLE CONTENT. THE INTELLICHECK PLATFORM AND INTELLICHECK SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY. THE CONTENT OR ANY OTHER INFORMATION MADE AVAILABLE THROUGH THE INTELLICHECK PLATFORM AND INTELLICHECK SERVICES DO NOT CONSTITUTE ADVICE OF ANY KIND AND SHOULD NOT BE RELIED UPON IN ANY WAY. INTELLICHECK IS NOT LIABLE FOR ANY OMISSIONS OR ERRORS OF THE INTELLICHECK PLATFORM. INTELLICHECK, OUR AFFILIATES,LICENSORS, AND SUPPLIERS MAKE NO WARRANTY AND HEREBY DISCLAIM ANY IMPLIED,STATUTORY OR OTHER WARRANTY, INCLUDING ANY WARRANTY OF TITLE, QUIET ENJOYMENT,NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK (IN CONNECTION WITH THE INTELLICHECK PLATFORM) AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. SHOULD THE INTELLICHECK PLATFORM PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INTELLICHECK SHALL CREATE A WARRANTY. CUSTOMER AGREES THAT CUSTOMER WILL OBTAIN (INCLUDING,WITHOUT LIMITATION, THROUGH DOWNLOAD) ANY CONTENT OR PRODUCTS ENTIRELY AT CUSTOMER’S OWN RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING INFRINGEMENT, BREACH OF CONTRACT, CONSEQUENCE OR DAMAGE, INCLUDING (WITHOUT LIMITATION) DAMAGE TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
23. Limitation and Exclusion of Remedies and Damages
CUSTOMER CANNOT RECOVER AND IN NO EVENT WILL INTELLICHECK, INTELLICHECK’S AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR, ANY COSTS, DAMAGES AND EXPENSES WHATSOEVER (INCLUDING,WITHOUT LIMITATION, PUNITIVE, INCIDENTAL, SPECIAL, INDIRECT AND CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR DAMAGES RESULTING FROM LOST OR CORRUPTED DATA OR BUSINESS INTERRUPTION OR ANY LOSS OR DAMAGES RESULTING FROM LICENSED APPLICATION FAILURE, MALFUNCTION, SHUTDOWN, FAILURE TO ACCURATELY TRANSFER ORREAD INFORMATION, FAILURE TO PROVIDE CORRECT INFORMATION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES) RESULTING FROM OR RELATED TO THE USE OR INABILITY TO USE THE INTELLICHECK PLATFORM OR INTELLICHECK SERVICES, HOWEVER CAUSED, OR THE CONTENT OF THE INTELLICHECK PLATFORM OR INTELLICHECK SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT INTELLICHECK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INTELLICHECK WILL BE LIABLE TO CUSTOMER ONLY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY CUSTOMER, NOT TO EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO ALL ORPART OF THE LIABILITY. THIS IS CUSTOMER’S EXCLUSIVE REMEDY. NEITHER PARTY WILLBE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OFITS ESSENTIAL PURPOSE. INTELLICHECK FULLY DISCLAIMS ANY LIABILITY FOR ANY LOSS,DAMAGES OR OTHER LIABILITY THAT MAY ARISE FROM (i) CUSTOMER’S NON-COMPLIANT USEOF THE INTELLICHECK PLATFORM OR (ii) THE DATA RETRIEVED OR GENERATED THROUGH ITS USE OF THE INTELLICHECK PLATFORM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY AS SPECIFIED HERE AND TO THE LEAST EXTENT AS ALLOWED BY LAW, SUCH EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
24. Miscellaneous
a. Headings. The headings of the sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.
b. Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of the rights or obligations expressed in this Agreement without the other party’s prior written approval, which will not be unreasonably withheld. However, either party may assign the Agreement in their entirety to any of their affiliates or to a successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
c. Notices. All legal notices will be deemed effective when sent to the address set forth in the signature block below as follows:(i) if hand-delivered, upon delivery,(ii) if sent by reputable overnight courier, three
(3) days after sending; or (iii) if sent by email, immediately upon confirmation of the successful transmission to recipient.
d. Choice of Law and Venue. This Agreement, including its formation, is governed by the laws of the State of New York, without giving effect to conflicts of laws principles that would require a different result.Any claim, action or judicial proceeding arising out of or related to this Agreement will be brought in the state courts located in CentralI slip (Suffolk County),NY, or a federal court in the Eastern District of New York. The parties agree to the exclusive jurisdiction of those courts for any such proceeding.
e. Force Majeure. Neither party will be liable or deemed to be in default for any delay or failure in performance of any obligation under thisAgreement or interruption of service to the extent resulting directly or indirectly from acts of God, civil or military authority, acts of the public enemy, acts of terrorism, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, or any other cause beyond the reasonable control of such party. The party claiming such force majeure event must give timely written notice to the other party and will use due diligence to mitigate the situation.Such force majeure does not relieve the non-performing party of liability in the event of its concurrent negligence, in the event of its failure to use due diligence to remove the cause of the force majeure in an adequate manner and with all reasonable dispatch, or in the event such default or delay could have been prevented by reasonable precautions or could have been circumvented by the non-performing party through the useof alternate sources, work around plans or other means.
f. Relationship ofParties. Intellicheck and Customer are independent contractors under this Agreement, and nothing in this Agreement will be construed to create a partnership, joint venture, franchise or Customer or fiduciary relationship between them. Neither party has any authority to enter into agreements of any kind on behalf of the other party and neither party will attempt to or create any warranty or other obligation, express or implied, on behalf of the other party.
g. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties as to the subject matter discussed and merges all prior discussions between them. For clarification, the terms of any confidentiality or non-disclosure agreement entered into between the parties will remain in full force and effect.
h. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law or unenforceable, the remaining provisions of this Agreement will remain in full force and effect and this Agreement will be construed without such provision.
i. Amendment. This Agreement may only be amended by a writing of subsequent date signed by both parties.
j. Effect of Waiver. The waiver of a breach of any term included in this Agreement will in no way be construed as a waiver of any other term or waiver of such breach on other occasions.
k. Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered, will be deemed to be an original, and all counterparts together will constitute one and the same agreement. Any photocopy or electronic scan of thisAgreement or counterparts will be deemed to be the equivalent of an original.