TERMS AND CONDITIONS


1.              SAAS SERVICES AND SUPPORT

1.1            Subject to the terms of this Agreement, Smile ID will use commercially reasonable efforts to provide Partner the Services and sufficient technical support required to operate the Smile Identity Platform (SDKs, APIs and SmartSelfie" technology) for mobile users via Android and iOS SDK and web applications library, as available, for purposes of enrollment and authentication. Smile ID confirms that it will support all Android versions from Android 4.4.2. and above.

1.2            Smile ID will provide a simulated server to facilitate SDK integration and testing prior to Partner integrating the Smile Identity API calls to Partner's private servers.

1.3            As part of the registration process, Partner will create administrative user names and passwords for Partner's Smile ID account.  Smile ID reserves the right to refuse registration of, or cancel passwords it deems inappropriate or insecure.

1.4            Smile ID will provide Partner access to an API to download images - ("Partner Data") - generated by any implementations of the Smile ID SDK or Smile Identity libraries in Partner native Android or iOS applications or web applications.

1.5            Human / Manual Review Turnaround

In the provision of the Service Smile ID makes use of a human / manual review process. The turnaround time for Smile to complete a single manual review is set at 24 hours. For the avoidance of doubt, Smile is to complete the manual review for any specific user within 24 hours.

 

2.              RESTRICTIONS AND RESPONSIBILITIES

Partner will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Smile ID or authorized within the Services).
For the avoidance of doubt, "derivative works" are defined as any
 revisions, alterations, translations, or expansions of the Smile ID Services, or any other form in which Smile ID Services or Documentation are transferred, or adapted provided however that Partner shall be entitled without limitations to develop its own solutions and services and to own the intellectual properties thereto, notwithstanding that such solutions and services may serve the same need as the Services provided by Smile ID in this agreement. Partner will also not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Partner for use on Partner premises or devices, Smile ID hereby grants Partner a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.1            Further, Partner may not remove or export from the Country of operation  or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the Country of operation or the United States Department of Treasury Office of Foreign Assets Control. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227_7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation."  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.2            Partner represents, covenants, and warrants that Partner will use the Services only in compliance with Smile ID"s standard published usage policies then in effect (the "Policy") and all applicable local laws and regulations.  Partner hereby agrees to indemnify and hold harmless Smile ID against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys" fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Partner's use of Services. Although Smile ID has no obligation to monitor Partner's use of the Services, Smile ID may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.

2.3            Partner shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment").  Partner shall also be responsible for maintaining the security of the Equipment, Partner account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Partner account or the Equipment with or without Partner's knowledge or consent.

2.4            The Partner confirms that any image capture screen that is powered by the Smile Identity library must include the Smile Identity registered trademarks as provided by Smile Identity. For clarity, an example of such a trademark is SmartSelfie".

2.5            The Partner warrants that Partner will share the "User Consent and Indemnity Declaration" (attached in Appendix I) with the User before Smile ID performs a validation on said User. In the case where Partner fails to share the "User Consent and Indemnity Declaration" with the User, the Partner confirms that any liability that results after Validation of said User will be completely borne by the Partner.

 

3.              CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1            Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party"s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party).  Proprietary Information of Smile ID includes non-public information regarding features, functionality and performance of the Service as well as all pricing and payment terms provided to Partner.  Proprietary Information of Partner includes non-public data and non-public information regarding features, functionality, performance and business information of Partner systems / platforms provided by Partner to Smile ID to enable the provision of the Services ("Partner Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. 

3.2            Partner shall be able to access all Partner generated data and shall always retain access to such data, as well a right to access any data that is based on or derived from the Partner Data.  Smile ID shall own and retain a right to (a) the Services and Software, improvements, enhancements or modifications thereto, or other technology developed by Smile ID in connection with Implementation Services, Services or support, and (c) all intellectual property rights related to any of the foregoing.  These rights be limited to Smile ID property and will not include intellectual property developed by Partner to implement Smile ID Services.  

3.3            Smile ID will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Smile ID offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, provided that Smile ID shall be responsible for any misuse of that information and data.

4.              PAYMENT OF FEES

4.1            Partner will pay Smile ID the then applicable fees described in this Form for Services and Implementation Services in accordance with the terms therein (the "Fees"). Partner shall be billed for such usage and Partner agrees to pay the Fees in the manner provided herein. If Partner believes that Smile ID has billed Partner incorrectly, Partner must contact Smile ID no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Smile ID"s Partner support department. Smile ID may choose to change support contacts or support communication methods over time, provided Smile ID gives Partner at least 10 days" notice prior to a change in customer support contact or communication method.

4.2            Smile ID will bill Partner monthly, on the 1st of the month. Full payment for invoices issued each month must be received within fourteen (14) days from the date of the invoice.  Unpaid amounts are subject to a finance charge of 5% per month on any outstanding balance, accrued on a daily basis, or the maximum rate permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service after 10 days" notice has been given to Partner and Partner has refused to comply. Partner shall be responsible for all taxes (sales tax, value added tax, duties, levies, etc.) associated with Services (other than U.S. taxes based on Smile ID"s net income). 

5.              TERM AND TERMINATION

5.1    Subject to earlier termination as provided below, this Agreement is for one (1) year and shall be automatically renewed for additional periods of the same duration, unless either party requests termination at least ninety (90) days prior to the end of the then-current term. Smile ID and Partner retain the right to modify the terms of the Agreement before such renewal.

 

5.2    In addition to any other remedies it may have, either party may also terminate this Agreement upon ninety (90) days" notice (or immediately with 10 days" notice in the case of nonpayment, material breach of this Agreement, or insolvency of either party).  Partner will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

 

5.3        In the case where the Partner subscribes for another service being provided by Smile ID, and the payment for the service is not currently covered by this existing agreement; Smile ID at its discretion reserves the right to call for an addendum to this agreement.

 

6.              WARRANTY AND DISCLAIMER

Smile ID shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Smile ID or by third-party providers, or because of other causes beyond Smile ID"s reasonable control, but Smile ID shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Smile ID does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND SMILE ID DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.              INDEMNITY & LIMITATION OF LIABILITY

SMILE ID SHALL HOLD PARTNER HARMLESS FROM LIABILITY TO THIRD PARTIES RESULTING FROM INFRINGEMENT BY THE SERVICE OF ANY UNITED STATES PATENT OR ANY COPYRIGHT OR MISAPPROPRIATION OF ANY TRADE SECRET, PROVIDED SMILE ID IS PROMPTLY NOTIFIED OF ANY AND ALL THREATS, CLAIMS AND PROCEEDINGS RELATED THERETO AND GIVEN REASONABLE ASSISTANCE AND THE OPPORTUNITY TO ASSUME SOLE CONTROL OVER DEFENSE AND SETTLEMENT; SMILE ID WILL NOT BE RESPONSIBLE FOR ANY SETTLEMENT IT DOES NOT APPROVE IN WRITING. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SMILE ID AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SMILE ID"S REASONABLE CONTROL.

8.              MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Partner except with Smile ID"s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. This Agreement contains the entire agreement between the parties and there are no other representations, promises or conditions. No agency or joint venture, or employment is created as a result of this Agreement and Partner does not have any authority of any kind to bind Smile ID in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by Laws of England without regard to the conflicts of laws provisions therein.


APPENDIX I - User Consent and Indemnity Declaration

The employee/candidate/individual/user hereby authorises Partner to conduct an information search and various information verifications on myself.

 

I further duly authorize Smile Identity the verification supplier of the Partner to forward my fingerprints and any personal information to verification suppliers, information suppliers and third parties acting on behalf of Smile Identity to verify information of myself which includes but is not limited to qualification, certification, employee background screening, employee verification, employee references, criminal records, driver"s license validation, passport validation, identity verification and any other personal information required to validate, verify and confirm my information using the Smile Identity system, database and software to obtain all required data and information.

 

I authorize the verification, information and third-party suppliers of Smile Identity to furnish information of my fingerprints and any personal information which includes but is not limited to qualification, certification, employee background screening, employee verification, employee references, criminal records, driver"s license validation, passport validation, identity verification and any other personal information to Smile Identity and its customer.

 

I unconditionally indemnify the Partner, Smile Identity, and any verification, information and third party supplier, directors, shareholders and employees, directly and indirectly associated with the aforesaid parties against any liability, claims, legal action that may result from furnishing, acquiring, hosting or storing, personal and any other verification information as stipulated in this document on the Smile Identity system, applications and databases at any given time after the effective date and signature of this consent.

 

I understand that it is a condition of the Partner, Smile Identity, and any verification, information and third-party supplier that the information furnished and stored by them and hosted, managed and updated on the Smile Identity system, applications and databases are done for my application, proposed employment, past and existing employment and past, existing and future verification purposes.

 

I understand and agree that this consent and indemnity declaration will remain valid indefinitely for all existing and future personal and verification requests, screening, validation and confirmation of information regarding myself and state Partner's Core Service and status provided in electronic or hardcopy format and that Smile Identity may host such information on its systems and databases.

 

The personal information will be stored and managed by Partner, Smile Identity, and any verification, information and third-party supplier in accordance with global best practices.