ENGLISH – UNITED STATES
IMPORTANT: BY ACCESSING THE DOCUMENTATION OR BY USING THE IPSIDY APPLICATION PROGRAMMING INTERFACE (“API”) OR SOFTWARE DEVELOPMENT KIT (“SDK”)FOR ANY OF THE IPSIDY APP, IPSIDY WALLET OR CARDLOKTM APPLICATIONS (EACH AN “IPSIDY APP”), YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING LICENSE TERMS & CONDITIONS OF USE:
IPSIDY API & SDK LICENSE AGREEMENT & TERMS AND CONDITIONS OF USE
Effective September 1, 2019
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT & TERMS AND CONDITIONS OF USE CAREFULLY BEFORE DOWNLOADING OR USING THE API, SDK OR DOCUMENTATION. BY ACCEPTING THESE TERMS AND CONDITIONS, OR DOWNLOADING OR USING YOUR IPSIDY API, SDK OR DOCUMENTATION YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD ANY DOCUMENTATION OR USE THE IPSIDY API OR SDK.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH IPSIDY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
1. Defined Terms
The capitalized words and expressions below shall have the meanings set against each of them for the purposes of these Terms and Conditions:
(a) “AAA” means the American Arbitration Association.
(b) “AAA Rules” means the AAA’s Consumer Arbitration Rules.
(c) “Arbitrator” means the person appointed to act as arbitrator under the terms of Arbitration Agreement in these Terms and Conditions.
(d) “API” means the Ipsidy application programming interface which enables access to the Ipsidy Apps and Ipsidy’s Services.
(e) “Certification” means Ipsidy’s testing and certification process described in section 6.
(f) “Customer” means the company, entity or other business or organization using the Ipsidy Services in connection with its business, or other organizational activity.
(g) “Customer Application” shall have the meaning set forth in Section 3(a) below.
(h) “Developer Tools” means the API and the SDK licensed hereunder, together with the Documentation.
(i) “Documentation” means any documentation that Ipsidy provides in relation to the Ipsidy App Software, the Ipsidy App, the API and the SDK, including all developer guides and user guides or manuals, in whatever form or medium, they may be provided.
(j) “Ipsidy” means Ipsidy Inc. a Delaware, USA corporation.
(k) “Ipsidy App” means the application provided by Ipsidy downloaded to a mobile device for the purposes of accessing services offered by Ipsidy, including the Services, including without limitation the Ipsidy application, Access by Ipsidy Concierge App, Ipsidy Mobile Wallet, Ipsidy MPOS Application, Ipsidy Agent App and CardLok, as well as each application, system, or database which is provided by Ipsidy and which is accessible by other means such as an Internet browser, or desktop application.
(l) “Ipsidy App Software” means the Original Ipsidy App Software and the Ipsidy App Software Updates whether provided in read only memory, on any other media or in any other form.
(m) “Ipsidy App Software Updates” means the Original Ipsidy App Software as may be updated or replaced by feature enhancements, software updates or system restore software provided by Ipsidy.
(n) “Ipsidy Platform” shall mean the processes, procedures, computer software, hardware and related equipment, used to receive, route, process, manage and store messages and data for the purposes of the Services, which are provided, operated or maintained by Ipsidy directly or by its affiliates or third parties under contract with Ipsidy.
(o) “License” means the license to use the Developer Tools granted to you by these Terms and Conditions.
(p) “Original Ipsidy App Software” means the software (including embedded software and third-party software), documentation, interfaces, content, fonts and any data that is downloaded with User’s Ipsidy App, or is otherwise used with or for the purposes of any Ipsidy App.
(q) “SDK” means the Ipsidy software development kit comprising the group of tools that enable the programming of the Ipsidy App family of mobile applications.
(r) “Services” means Ipsidy’s and third-party services and web sites, which may be provided or accessible by using the Ipsidy App, including but not limited to AccessTM, ProofTM, TimeTM, TransactTM, and VerifiedTM by Ipsidy and Ipsidy PaymentsTM.
(s) “Test Environment” means the system which Ipsidy makes available for developers to test the software that they develop using the Developer Tools, prior to Ipsidy providing access to any Ipsidy App and Ipsidy Services.
(t) “these Terms and Conditions” means these terms and conditions of use of the Developer Tools , as they may be amended from time to time by Ipsidy in accordance with the procedures described in these Terms and Conditions.
(u) “User” means any person (including You) who uses an Ipsidy App to utilize any of the Ipsidy Services and in these Terms and Conditions such term may be qualified by reference to the particular Service e.g. “Access User” shall mean a User of the Access Service.
(v) “You” (whether or not capitalized) means (i) the person who downloads the Developer Tools and shall include your assignees and successors in title; (ii) the company or other legal entity You represent, or for which you are undertaking development; and (iii) the Customer.
2. General License Grant.
(a) Ipsidy hereby grants to You a limited, non-exclusive, non-transferable License to use the Developer Tools only in accordance with these Terms and Conditions. The Developer Tools are not sold to You and You acknowledge that Ipsidy and its licensors retain ownership of all copyright, trade secrets, patent rights, trademarks and all other intellectual property rights in and to the Developer Tools, the Documentation, the Ipsidy App Software and all Ipsidy trademarks used in these Terms and Conditions and reserve all rights not expressly granted to You.
(b) Ipsidy, at its discretion, may make available future Ipsidy App Software Updates for various devices and may modify the Developer Tools. The Ipsidy App Software Updates, if any, and resulting Developer Tools Updates may not necessarily include all existing software features or new features that Ipsidy releases for newer or other models of devices. The terms of this License will govern any modified Developer Tools provided by Ipsidy that replace or supplement the current Developer Tools, unless such Developer Tools Update is accompanied by a separate license in which case the terms of that license will govern.
3. Permitted License Uses and Restrictions.
(a) Subject to these Terms and Conditions, the License to use the Developer Tools granted hereunder is for the sole purpose of developing, modifying or integrating to applications for any Customer that will access any Ipsidy App and the Ipsidy Services (“Customer Application”). This License does not grant you any rights to use the Developer Tools, the Documentation, any Ipsidy proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third party devices and accessories, or third-party software applications based on or derived from the Ipsidy App Software, for use with such devices.
(b) Unless otherwise directed by Ipsidy, You shall use only the current release version(s) of the Developer Tools or any other supported version of the Developer Tools provided hereunder; provided, however, that, to the extent reasonably practicable, Ipsidy shall allow You a commercially reasonable period of time, after any Developer Tools modification is specified for use and/or access hereunder, to implement such modified Developer Tools.
(c) You may not, and you agree not to or enable others to copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Developer Tools any Ipsidy App Software, or any services provided by the Ipsidy App Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Ipsidy App Software).
(d) You shall ensure that all trademarks, trade names, copyright notices and other proprietary and confidentiality notices or designations, of Ipsidy, or any other person, are reproduced on all Documentation copies made by You. You agree not to, and not to permit any other person to: (a) copy, modify, translate, create derivative works based on, market, sell, or distribute the Documentation, except as expressly provided herein; or (b) remove or alter in any manner any trademarks, trade names, copyright notices or other proprietary or confidentiality notices or designations contained or displayed therein.
(f) You agree to use the Developer Tools in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the Developer Tools.
(g) You agree to comply with Ipsidy’s policies and procedures relating to security and data privacy both in connect with the development and use of the Customer Application and in relation to your, or Customer’s or any User’s access to the Test Environment and the Ipsidy Platform
4. No Transfer.
You may not rent, lease, lend, sell, redistribute, or sublicense the Developer Tools, or the Documentation.
5. Consent to Collection, Transfer and Use of Personal Data.
(a) When you register to download or access the Developer Tools, your name, organization and e-mail address and certain Customer information are sent to Ipsidy in order to allow Ipsidy to grant you this License and to monitor those who have access to Ipsidy’s Developer Tools and Ipsidy’s Test Environment.
(b) By downloading or using the Developer Tools, you are consenting to the transfer to and use by Ipsidy of all required data to enable Ipsidy to facilitate your access to the Ipsidy App, the Services and the Test Environment.
(d) You also acknowledge that when Customer and its User’s use the Customer Application or thereby access or use any Ipsidy App or Services, you may be required to make appropriate disclosure of Ipsidy’s role as a data processor on your behalf or on behalf of Customer and to obtain Customer and User’s consent thereto. You accept that it is your responsibility to comply with all applicable data privacy laws and regulations relating to Customer’s and Users’ use of the Ipsidy App and Services, including making required disclosure and obtaining all necessary consents, including but not limited to the matters set forth in this Section.
6. Controls and Restrictions on Use.
(a) Ipsidy maintains certain controls on the use of its Developer Tools which are designed to safeguard the integrity of the Ipsidy Platform and Services to ensure that each Customer Application that You develop and use conforms to a series of criteria to ensure it will not cause degradation of the Ipsidy Platform and is fit for the purpose of using the Ipsidy Services. Upon request by You, Ipsidy shall provide access to the Test Environment to enable you to undertake your testing process before launching your Customer Application
(b) If Ipsidy determines, in its sole discretion, that You or the Customer Application are not accessing the Ipsidy Platform, or using the Services in accordance with Ipsidy’s prevailing operating standards and controls and the Terms and Conditions of this License, Ipsidy may at its sole discretion and without notice to you restrict the volume and frequency of transactions that You may submit to the Ipsidy Platform using the Developer Tools, including suspending access to the Services and your use of the Developer Tools..
(c) In the event Ipsidy determines in its sole discretion that Your use of the Services or the Customer Application do not conform to Ipsidy’s prevailing operating standards and controls and the Terms and Conditions of this License, or may have a detrimental effect on any part of the Ipsidy Platform, and without prejudice to any other rights that Ipsidy may have with respect to a breach of this License (including the general provisions of Section 8), Ipsidy may upon notice terminate this License following which you shall cease to use the Developer Tools and will cease to have any access to or use of the Services or the Ipsidy Platform..
7. Ipsidy Services
7A. Transact by Ipsidy
(a) Overview. Transact by Ipsidy allows Users to store in a virtual wallet within the Ipsidy App representations of certain supported payment cards and to use supported devices to make contactless payments in select stores, or within third party apps and to make contactless rewards cards transactions in select stores using Transact. The Transact features of the Ipsidy App Software are only be available in select regions, with select card issuers, and with select merchants. Features may vary by region, issuer, and merchant.
(b) LIMITATION OF LIABILITY. IN ADDITION TO THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY SET FORTH ELSEWHERE IN THIS LICENSE, IPSIDY DOES NOT ASSUME ANY LIABILITY FOR PURCHASES, PAYMENTS, TRANSACTIONS, OR OTHER COMMERCIAL ACTIVITY MADE USING TRANSACT, AND CUSTOMER AGREES TO LOOK SOLELY TO AGREEMENTS WITH CUSTOMER’S BANK, PAYMENT NETWORK, OR OTHER ORGANIZATION WHICH ISSUED THE RELEVANT PAYMENT CARD TO RESOLVE ANY QUESTIONS OR DISPUTES RELATING TO SUCH CARDS, VIRTUAL SUPPORTED CARDS AND ASSOCIATED COMMERCIAL ACTIVITY.
7B. Access by Ipsidy
(a) Overview. The Access by Ipsidy Service, allows Customer to control access to the building or other secure location, which Customer owns, operates or manages.
(b) Disclaimer – Customer & Grantor. Access by Ipsidy provides a means of authenticating the identity of persons that are invited into the building or other secure location by Customers and Grantors. Ipsidy has no responsibility for ensuring that such invitees are appropriate persons to enter the building or the location, nor for their conduct once inside. It is the sole responsibility of the Customer and Grantors to decide whom to invite and whom to admit into the building or secure location, even if such persons are appropriately authenticated by means of the Ipsidy App and the Access Service. Ipsidy has no liability whatsoever for any costs, losses or damages of any description arising from the activities, or presence of any person whom Customer and Grantor decide to invite and admit into their location.
7C. Verified by Ipsidy
(a) Overview. The Verified by Ipsidy Service, allows Customer to authenticate the identity of persons with whom Customer is dealing.
(b) Disclaimer – Customer. Verified by Ipsidy provides a means of authenticating the identity of persons with whom Customer is dealing and is only one of several factors to be used by a Customer in authenticating such persons. Ipsidy has no responsibility for ensuring that such persons are account holders of Customer, or are otherwise persons entitled to do business with Customer. It is the sole responsibility of the Customer to decide with which persons to do business and what activities to allow them to perform, even if such persons are appropriately authenticated by means of the Ipsidy App and the Verified Service. In addition, Ipsidy has no control over free-form content comprised within messages that may be initiated using the Ipsidy App and the Services, and it is the sole responsibility of Customer to supervise the activities of its agents using the Ipsidy App, to ensure that such content and activities comply with Customer’s standards and applicable law. Ipsidy has no liability whatsoever for any costs, losses or damages of any description arising from (i) the activities of any person with whom Customer decides to do business and allows to undertake certain activities; or (ii) any inappropriate or unlawful content included in any message using the Services by Customer’s agents.
(a) Overview. Proof is an additional Service, comprised within the Verified by Ipsidy Service, which is used to enable Users to remotely provide identification documents to Customers, for the purposes of proving the User’s identity, generally at the time the User opens an account with the Customer. Such documents may for example be a passport, national identity card, or driver’s license. If expressly offered as part of the Proof Service Ipsidy may in addition transmit the document data and live photograph to the governmental entity that issued the document for verification.
(b) Disclaimers-Customer. Proof provides a means of authenticating the identity of persons with whom Customer is dealing and is only one of several factors to be used by a Customer in authenticating such persons and deciding whether to do business with such persons. The Proof Service is intended only to replace a face-to-face manual check of an identification document by Customer. Ipsidy has no responsibility for ensuring that any identification document presented is in fact genuine and is not obligated to verify such document with the governmental entity that issued it, unless such verification is expressly a part of the Proof Service. If the Proof Service expressly includes verification of the particular identification document with the governmental entity that issued it, then only such governmental entity is responsible for determining whether, or not the particular document is genuine. In the case of such a governmental verification, Ipsidy’s sole responsibility is to communicate with and transmit the relevant data between the governmental entity and the Customer. It is the sole responsibility of the Customer to decide with which persons to do business and what activities to allow them to perform, even if such persons are appropriately authenticated by means of the Proof Service. Ipsidy has no liability whatsoever for any costs, losses or damages of any description arising from the activities of any person with whom Customer decides to do business and allows to undertake certain activities.
(a) This License is effective until terminated. Your rights under this License and any agreement to provide Services will terminate automatically or otherwise cease to be effective with or without notice from Ipsidy if you fail to comply with any term(s) of this License, (including but not limited to the circumstances described in Section 6(c) above).
(b) If Customer fails to pay when due any Fees payable for the Services, Ipsidy may but shall not be required to give notice of such past due, returned or rejected payment but shall in any event be entitled to terminate this License and any agreement for Services. If Customer subsequently pays the amount due, Ipsidy may but shall not be obliged to restore Services and may impose conditions on such restoration at its sole discretion.
(c) Any time to pay, or cure any breach, or any other indulgence granted to You, or to any Customer shall not be deemed a waiver of any breach by You or Customer, nor a waiver, or limitation on Ipsidy’s rights to terminate this License and any agreement for Services by reason of such breach. Nor shall such grant to time to pay, or cure any breach, or other indulgence apply to any subsequent breach of these terms and conditions by You, or any Customer.
(d) Upon the termination of this License, you shall cease all use of the Developer Tools and the Documentation. Sections 4, 5, 7A(b), 7B(b), 7C(b), 7D(b), 8, 9, 10, 12, 13, 14, 15, 16 and 18 of these Terms and Conditions shall survive any such termination.
9. Disclaimer of Warranties.
(a) If you are a developer or Customer who is a consumer (someone who uses the Ipsidy App Software outside of your trade, business or profession, or as otherwise defined by applicable law), you may have legal rights in your State or country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
(b) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, IPSIDY APP SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE IPSIDY APP SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, IPSIDY APP SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND IPSIDY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
(d) IPSIDY DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR USE OF THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, OR THE IPSIDY APP SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, OR THE IPSIDY APP SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY CUSTOMER APPLICATION, DEVICE, THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THE IPSIDY APP SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF CUSTOMER APPLICATION, OR ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES.
(e) YOU FURTHER ACKNOWLEDGE THAT THE IPSIDY APP SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE IPSIDY APP SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING WITHOUT LIMITATION THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
(f) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY IPSIDY OR AN IPSIDY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION REGARDING THE DEVELOPER TOOLS, THE SERVICES OR ANY OTHER MATTER COVERED BY THE TERMS OF THIS LICENSE. SHOULD THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
10. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL IPSIDY, ITS AFFILIATES, DIRECTORS, OFFICERS, STOCKHOLDERS, EMPLOYEES OR AGENTS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE AND SERVICES OR ANY CUSTOMER APPLICATION OR THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE DEVELOPER TOOLS, DOCUMENTATION, THE TEST ENVIRONMENT, THE IPSIDY APP SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF IPSIDY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL IPSIDY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FEES PAID BY YOU TO IPSIDY FOR USE OF THE SERVICES BY MEANS OF THE DEVELOPER TOOLS, DURING THE PERIOD OF SIX (6) MONTHS PRIOR TO THE RELEVANT INCIDENT. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. Digital Certificates.
The Ipsidy App Software contains functionality that allows it to accept digital certificates either issued from Ipsidy or from third parties. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY IPSIDY OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IPSIDY MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES.
12. Export Control.
You may not use or otherwise export or re-export the Developer Tools except as authorized by United States law and the laws of the jurisdiction(s) in which the Developer Tools was obtained. In particular, but without limitation, the Developer Tools may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By downloading the Developer Tools, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Developer Tools for any purposes prohibited by United States law.
13. Government End Users.
The Developer Tools and Documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to these Terms and Conditions. Unpublished-rights reserved under the copyright laws of the United States.
14. Controlling Law and Severability.
This License will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
BY AGREEING TO THIS LICENSE, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST IPSIDY ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION AGREEMENT. THIS WILL PREVENT YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST IPSIDY, AND ALSO PREVENT YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST IPSIDY BY SOMEONE ELSE.
(a) Agreement to Binding Arbitration Between You and Ipsidy. You and Ipsidy agree that any dispute, claim or controversy arising out of or relating to (i) this License or the existence, breach, termination, enforcement, interpretation or validity thereof, or (ii) your access to or use of the Developer Tools, Ipsidy Apps or any Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Ipsidy, and not in a court of law.
(b) Prohibition of Trial by Jury and Class Actions. You acknowledge and agree that you and Ipsidy are each waiving the right to a trial by jury, and may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Ipsidy otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Ipsidy each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights
(c) Rules and Governing Law. The arbitration will be administered by the American Arbitration Association in accordance with the AAA’s Commercial Arbitration Rules then in effect, except as modified by this Arbitration Agreement. Further information about the AAA and the AAA Rules are available at https://www.adr.org/. Notwithstanding any choice of law or other provision in this License, the parties agree and acknowledge that the interpretation and enforcement of this Arbitration Agreement shall be governed by the Federal Arbitration Act.
(d) Arbitrator Authority. The parties agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of the Prohibition of Trial by Jury and Class Actions section above, shall be for a court of competent jurisdiction to decide.
(e) Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration by certified mail or e-mail as specified in the AAA Rules. You should send this notice to Ipsidy Inc. 670 Long Beach Boulevard, Long Beach, NY 11561 United States of America, Attn: General Counsel or (b) by email from the email address associated with your Account to: legal@Ipsidy.com. Ipsidy will send any notice to you to the address or e-mail address we have on file associated with your Developer Tools or Ipsidy App; it is your responsibility to keep your address up to date. All information called for in the notice must be provided including a description of the nature and basis of the claims the party is asserting and the relief sought. The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.
(f) Location and Procedure. Unless you and Ipsidy otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Ipsidy submit to the Arbitrator, unless you request a hearing, or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(g) Arbitrator’s Decision. The Arbitrator will render an award within the time frame specified in the AAA Rules. An Arbitrator’s decision shall be final and binding on all parties. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of reasonable attorneys’ fees and expenses, to the extent provided under applicable law. Ipsidy will not seek, and hereby waives all rights Ipsidy may have under applicable law to recover, attorneys’ fees and expenses if Ipsidy prevails in arbitration.
(h) Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
(i) Severability and Survival. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from this License; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
16. Complete Agreement; Governing Language.
This License constitutes the entire agreement between you and Ipsidy relating to the Developer Tools and the Documentation and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Ipsidy. Any translation of this License is done for local requirements, or for convenience and in the event of any conflict between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
17. Third Party Acknowledgements.
Portions of the Developer Tools and Ipsidy App Software may utilize or include third party software and other copyrighted material. Acknowledgements, licensing terms and disclaimers for such material are contained in the Documentation, and your use of such material is governed by their respective terms.
18. Notices From Ipsidy.
If Ipsidy needs to contact you about your product or account, you consent to receive the notices by email, or if no email address is provided by text message to the telephone number which is currently registered by You and is associated with your device for the use of the Ipsidy App. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.
19. Changes to this License
Ipsidy may amend this License from time to time, including the Arbitration Agreement set forth in Section 15. Amendments will be effective upon Ipsidy’s posting of such updated License at this location, or in the amended or supplemental terms of the applicable Service. Your continued access or use of the Developer Tools, Ipsidy App or any Service after such posting confirms your consent to be bound by this License, as amended. If Ipsidy changes this License after the date you first agreed to this License (or to any subsequent changes to this License), you may reject any such change by providing Ipsidy written notice of such rejection within 30 days of the date such change became effective, as indicated in the first sentence of this paragraph. This written notice must be provided either (a) by mail or hand delivery to our head office at Ipsidy Inc. 670 Long Beach Boulevard, Long Beach, NY 11561 United States of America, Attn: General Counsel or (b) by email from the email address associated with your Account to: legal@Ipsidy.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this License. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of this License, including the Arbitration Agreement, as of the date you first agreed to this License (or to any subsequent changes to this License).
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