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Identidad Terms Of Acceptable Use

Please review these General Terms and Conditions (“Terms”) carefully, as they form a part of the legal agreement between you (“you,” “your,” or “Customer”) and Identidad (defined below) regarding the Services (defined below).  You or Identidad may also be referred to individually as a “Party” and together as “Parties” in these Terms.  In these Terms, we refer collectively to these Terms, the Product Specific Terms, any applicable Service Level Agreement (“SLA”) and applicable Order Form(s) (defined below) as the “Agreement”.  The Agreement sets out the full terms of the legal agreement between you and us in relation to the Services.  All references in this Agreement (and any documents included or referenced in it) to any documents or links shall refer to such documents or links as may be amended or updated from time to time.

1. Definitions. Capitalized terms not otherwise defined throughout this Agreement shall have the meanings assigned to them in this Section:

 

(a) “Affiliate” of a Person means any other Person controlling, controlled by, or under common control with, the initial Person. As used herein, the term “control” and its correlatives means the power to direct the business and affairs of a Person, whether by ownership of voting equity securities, by agreement, or otherwise. 

 

(b) “Identidad” or “we,” “us,” or “our” means Identidad Advertising Development, LLC and its Affiliates. 

 

(c) “Person” means an individual or any entity, regardless of its corporate form, and it includes unincorporated entities such as partnerships, trusts, and joint ventures. 

 

(d) “Services” means all products and services provided by us or our Affiliates that are (i) ordered by you under any applicable ordering document (including applicable technical documentation made available to you through a Site) between the Parties or pursuant to a Reseller Sales Agreement (as defined below) that specifies pricing and other commercial terms (“Order Form”); or (ii) used by you.

 

2.Your Account

(a) Account Creation. You may be asked to create an account in order to use the Services. If you are required to create an account to use the Services, you must (i) be legally able to represent the company or business contracting our Services; and (ii) review and accept this Agreement on its behalf. To create an account, you will be asked to provide registration information including your email address and/or phone number and create a password. You agree to provide true, current, and complete information when creating an account, and to keep that information true, current, and complete during your use of the Services. 

 

(b) Affiliate Accounts. If any of your Affiliates want to use the Services: (a) each Affiliate must accept these Terms individually and create their own account, which may require a separate Order Form; or (b) you may allow your Affiliates to use the Services without entering into a separate Order Form by providing such Affiliate(s) a login ID, password, and/or API key to access and use the Services. If you provide Affiliate(s) with access to your account, this Agreement applies to each Affiliate, and you are directly and primarily responsible for all access to and use of the Services by your Affiliates. In such case, references in these terms to “you” includes a reference to your relevant Affiliates and any users of your account, login ID, password, and/or API key from time to time.

3. Our Services

(a) Services. The Services are designed and intended for commercial use only and are not intended for personal or private individual or consumer use. As our Services are business oriented, you should understand that our Services do not provide access to emergency services or emergency service providers including the police, fire departments, or hospitals, or otherwise connect to public safety answering points. You should ensure that you have separate access to those services using your regular communication channels such as a landline or cellphone. 

 

(b) Our Affiliates. Our Affiliates may provide the Services, or a portion thereof (including ancillary services, such as billing), to you in accordance with this Agreement. Where this Agreement refers to obligations you owe us and obligations we owe to you, we may exercise our rights and entitlements and discharge our obligations through our Affiliates. 

 

(c) Changes to the Services. From time to time, we may change the features and functions of the Services. If we make material changes, we will make reasonable efforts to notify you of such changes, such as posting an announcement on our website or sending you an in-application notice or e-mail. Your continued use of the Services following the posting or notice of the changes will constitute your acceptance of such changes. If you do not agree to such changes, you must stop using the Services immediately. If applicable law requires us to give you specific notice of any such change, we will notify you in accordance with Section 13 (Changes to These Terms). While we endeavor to keep our Site informative and up to date, you acknowledge and agree that not all features and functions described on the promotional or descriptive sections of the Site from time to time may be available to you and your use of our Services will be made as available in-application once you become a customer. 

 

(d) Account Suspension. While we have no obligation to screen or monitor any content or communications, we may suspend your, and your Affiliates’, account(s) immediately if we reasonably determine: (i) that you or any users of your Customer Application (as defined below) have materially breached any part of this Agreement, including our Product Specific Terms and any limitation included in an Order Form or on a Site; (ii) that our provision of your or another user’s use of the Services is or becomes prohibited by applicable law or regulation or the terms of any third-party providers; (iii) there is any use of the Services by you or any users of your Customer Application that in our judgment threatens the security, integrity, or availability of the Services or constitutes fraudulent or illegal activity; or (iv) that your account information is untrue or incomplete. If we suspend your account due to your actions or omissions pursuant to this Section or Section 5 (Fees and Payment Terms), to the greatest extent permitted by applicable law, we will have no liability for any damages, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur as a result. You will remain responsible for the Fees (defined below) during any suspension. 

 

(e) Maintenance and Downtime. Our Services may become temporarily unavailable for a number of foreseen or unforeseen reasons, including: (i) to perform scheduled or unscheduled maintenance, modifications, or upgrades; (ii) due to hardware failures, power outages, or failures of third-party providers; (iii) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services rely; or (iv) as required for legal or regulatory reasons. We will make a reasonable effort to notify you in advance of any scheduled Services’ unavailability. Except as provided for in an Order Form, on a Site, or SLA, to the greatest extent permitted by applicable law, we will have no liability for any damages, losses (including any loss of data or profits), or any other consequences that you may incur as a result of unavailability of Services or the failure to provide notice of unavailability. 

 

(f) Beta Products. We may invite you to test products or features of our Services that are not generally available to all of our customers or to the public (collectively, “Beta Products”). We are not obligated to provide Beta Products to any customer or to our general customer base and may choose to change or discontinue any Beta Product at any time. 

 

(g) SLA. If one or more SLAs are in effect and are applicable to the Customer, the Customer may have the right to claim service credits in accordance with the SLA (if any such credits are afforded under the terms of the SLA). However, Beta Products are inherently less mature than other functionalities and so they, and any Services provided for free, are explicitly excluded from any SLA commitments.

4. Responsibilities.

(a) Our Responsibilities. We will put forth our reasonable commercial efforts to make the Services available to you in accordance with this Agreement and applicable law. We reserve the right to select the technical methods necessary to ensure and/or optimize delivery of the Services in accordance with this Agreement. Unless otherwise expressly set forth in writing, we do not guarantee any performance level or the continued availability of the Services. 

 

 

(b) Your Responsibilities. 

 

 

(i)You agree to use the Services only in accordance with how the Services have been made available to you by us, this Agreement (including any applicable Documentation, Product Specific Terms, and Order Form(s)), documentation on the Site, and applicable law. 

 

(ii)You will be solely responsible for: (A) all use of the Services under your account, including prohibited acts such as reverse engineering, copying, disassembling, decompiling, or modifying, copying, or creating derivative works of any part of the Services (or any of them); (B) all acts, omissions, and activities of anyone who accesses or otherwise uses your account or any Customer Application (defined below) including your end users, and their compliance with this Agreement; (C) any data and other information or content submitted by you or for you (or by a user of your Customer Application) under the Agreement and processed or stored by the Services (“Customer Data”); and (D) all applications, web domains, devices, and communication channels owned or controlled by Customer or third parties, or made available to customer or its actual users which access, use, interact with, integrate or depend on the Services (each, a “Customer Application”). 

 

(iii) You will not transfer, resell, lease, license, or otherwise make the Services available to third parties (except as specifically permitted under the Agreement to allow users to access the Services via a Customer Application). You agree to provide prompt and reasonable cooperation regarding information requests we receive from law enforcement, regulators, or telecommunications providers. 

 

(iv) You are solely responsible for preventing unauthorized access to or use of the Services through your account and will notify us promptly of any such unauthorized access to or use of your account or the Services and you will continue to be charged in respect of any such access. We may suspend your account if we believe it has been compromised.  However, we do not police for and cannot guarantee we will learn of, or prevent, any inappropriate access to your account and use of our Services. 

 

(v) You will not use our Services, or permit them to be used, to transmit inappropriate content, such as content that: (A) is unsolicited; (B) violates any legal, regulatory, self-regulatory, governmental, statutory, or telecommunication network operator’s requirements or codes of practice; (C) is pornographic, abusive, racist, obscene, offensive, threatening, harassing, defamatory, discriminatory, misleading, or inaccurate; (D) is harmful, including but not limited to hate speech; (E) encourages violence, discrimination, or illegal, unethical, or immoral actions.  We may remove any inappropriate content from the Services and/or suspend your access to the Services without prior notice where we become aware of such inappropriate usage. 

 

(vi) We are not liable for any damages, liabilities, losses (including any loss of data or profits), or any other consequences you may incur as a result of any suspension or removal of content by us in accordance with this Section 4. 

 

(c) Identidad Partners.  This Agreement specifies the terms and conditions on which the Services will be provided by us.  In the event you purchase our Services through an authorized Identidad partner (“Identidad Reseller”), such purchase will be subject to a separate agreement or ordering document between you and the Identidad Reseller, which shall address, as between you and the Identidad Reseller, relevant applicable terms (“Reseller Sales Agreement”).  In the event of any conflict or inconsistency between this Agreement and the Reseller Sales Agreement, this Agreement exclusively governs and shall take precedence in respect of the Services provided by us.  Any disputes, queries, or other matters related to the Reseller Sales Agreement shall be handled directly between you and the Identidad Reseller.  If you fail to fulfill your payment or other obligations to the Identidad Reseller, we and/or the Identidad Reseller may suspend provision of the Services to you.  The Identidad Reseller may exchange information (including Customer Data) with us, and vice versa, for the sole purpose of the Reseller Sales Agreement and this Agreement and you consent to such information exchange. 

 

5. Fees and Payment Terms.

(a) Price Quotations. Unless specified otherwise in the price quotation or by Identidad in writing, all price quotations are non-binding and may be adjusted at any time, particularly if other or additional information is provided. (

 

b) Fees and Billing Information. You agree to pay all fees in accordance with the then current applicable rates, which may be updated from time to time (“Services Fee”). Service Fees will be made available to you on the Site or will be otherwise specified in writing by us (including, if applicable, in any invoice). Where we list or agree the Services Fees in an Order Form with you, we reserve the right to update fees from time to time. In the event of any Services Fee updates, we will take commercially reasonable steps to notify you of such changes taking effect which may be satisfied by notifying you via an in-application notice on the Site or otherwise. You will provide complete and accurate billing and contact information and notify us of any changes to such information. Your use of the Services may be subject to certain usage limitations listed in the Order Form or in documentation on the Site (“Limitations”). If your use of the Services exceeds those Limitations, you will pay the applicable overage fee (“Overage Fee”) listed for such services in the Order Form or as described on a Site. Overage Fees will be considered part of the Services Fee and will be deducted from any advance payment or deposit received from you or will be charged to the credit card or other payment information on file, as applicable in accordance with Section 5 (Fees and Payment Terms) of these Terms. 

 

(c) Taxes. All Service Fees are exclusive of any: (i) applicable taxes, levies, duties, or other similar exactions by a legal, governmental, or regulatory authority in any applicable jurisdiction, including sales, use, value-added, consumption, communications, digital services tax or withholding taxes; and (ii) other indirect taxes, including any related interest and/or penalties and other government duties, as well as any other costs including transaction costs or bank transfer fees (collectively, “Taxes”). Taxes, other than the withholding taxes, will be shown as a separate line item on an invoice. You are responsible for all Taxes associated with the Services and these Terms, excluding any taxes based on our net income (being corporate income tax), property, or employees. If you are exempt from any Taxes, prior to each order you are responsible with providing us with a valid tax exemption certificate or a value added tax identification number (“Tax Exemption”). If for any reason the appropriate taxing authorities determine that you are not exempt from any Taxes and we pay such Taxes, we will invoice you or may deduct the said amounts from your Prepaid Balance, including any applicable interest or penalties imposed by the appropriate taxing authorities. You may withhold or directly pay Taxes with your purchase of the Services if required to do so by applicable law, but we will not be responsible for the determination of, or the application of such Taxes. In circumstances where you withhold Taxes, you undertake to provide us with necessary documentation to evidence such withholding is required and has been done in accordance with applicable law. If and to the extent a withholding of Taxes is required by law, the Services Fees will be increased with such additional amounts as will ensure that the net amount we receive equals the full amount as would have been received by us had the withholding not been required. 

 

(d) Surcharges. All Services Fees are exclusive of any applicable government, regulatory, or communications service (for example, communications providers or telecommunication provider (e.g., carrier)) fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges associated with your use of the Services. When required by applicable law or otherwise at our election, Communications Surcharges will be shown as a separate line item on an invoice. Communications Surcharges may change at any time. 

 

(e) Currency. All Fees shall be paid in United States dollars unless a different currency is specified in writing by us. We reserve the right to convert the currency of any third-party fees applicable to our services (including any Communications Surcharges or third party service provider fees) in any Order Form or invoice and to update such currency conversation from time to time and, where applicable, will do using a recognized conversion service selected by us at the relevant time. 

 

(f) Payment Terms. Payment obligations are non-cancelable and Services Fees, Taxes, and Communications Surcharges (collectively, “Fees”) once paid, are non-refundable to the greatest extent permitted by applicable law. Except as otherwise set out in an applicable Order Form(s) and subject to Section 5(i) (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method: (i) if we agree that you may remit fees using a credit card, you represent and warrant that you are authorized to use that credit card, that any and all Fees may be billed to that credit card, and that payment of such Fees will not be declined, and you expressly authorize us and/or our third-party payment processor to charge the applicable Fees on said credit card; or (ii) if we agree that you may remit fees using a direct debit, standing order or other form of automatic bank or payment mandate (“automatic debit mandate”), you represent and warrant that you are authorized to apply that automatic debit mandate, that any and all Fees may be discharged using that automatic debit mandate, that payment of such Fees will not be declined, and you expressly authorize us and/or our third-party payment processor to implement the automatic debit mandate; or (iii) if we agree that you may remit fees by means of an invoice, invoices will be sent to you at the frequency set out in the applicable Order Form and you will pay the Fees due within fifteen (15) days of the date of the invoice. We reserve the right to require you to set up an automatic debit mandate in order to use our Services. 

 

(g) Late Payment. If you fail to pay the Fees in a timely manner, we may: (i) assess and apply a late fee of the lesser of 1.5% per month on the value of the unpaid Fees or the maximum amount allowable by applicable law; and/or (ii) suspend the Services to all of your accounts until the Fees are paid in full (including any Fees due under a credit limit invoice under Section 5(f) (Payment Terms)). 

 

(h) Collection Notices. If you still fail to pay the Fees after we send you a notice via email, we may send overdue payment reminder notifications via alternate means of communication such as SMS and any other communication channels available using the contact information provided by you. You agree to receive such communications via those means. We may also use the services of an external debt collection agency and/or assign your debt to a debt factoring agency and may share your information with them for the purposes of fee collection and associated communications. 

 

(i) Payment Disputes. You must notify us in writing within fifteen (15) days of the invoice date for any Fees that you wish to dispute, or you will not be able to bring a dispute. So long as you act promptly and cooperate with us to reach a resolution, we will not charge you a late fee or suspend the provision of the Services for unpaid Fees that are in dispute, unless we determine your dispute is not reasonable or brought in good faith. All undisputed Fees remain due according to schedule. 

 

(j) Affiliate Billing. Our Affiliates may directly bill you: (i) for the Services they provide; or (ii) as a billing agent or representative for us or another Affiliate of ours providing the Services.

6.Intellectual Property and Data

(a) Ownership of the Services. We and/or our licensors, as applicable, own and reserve all right, title, and interest, including intellectual property rights, in and to the Services, any documentation, including user and developer manuals, service manuals, product data sheets, and/or other documentation released to you in connection with the Services (collectively “Documentation”), and all modifications, extensions, customizations, scripts, or other derivative works of the Services and the Documentation. You may not reverse engineer, copy, disassemble, or decompile the Services, or remove any copyright, trademark or other proprietary rights notices contained in or on the Service. 

 

(b) Our Data. We own and reserve all intellectual property rights in and to any data that is derived from the use of the Services, including data that does not directly or indirectly identify you, your Affiliates, or users of your Customer Application, and, subject to applicable law, data that is de-identified and aggregated such that it does not identify the identity of you or users of your Customer Application to any third party (collectively, “Identidad Data”). We grant to you a worldwide, limited-term, non-exclusive, non-transferable, royalty-free license during the applicable Term to access and use the Identidad Data solely for your use of the Services in accordance with the Agreement. 

 

(c) Your Data. You exclusively own and reserve all intellectual property rights in and to each Customer Application and Customer Data. You grant us and our Affiliates the right to process Customer Data as necessary to provide the Services in a manner consistent with this Agreement. If a privacy policy or other data management document is made available to you, we may also store, use, and/or process your data as expressly set forth in such document. 

 

(d) Application License. For the sole purpose of providing the Services, you grant us and our Affiliates a worldwide, royalty-free, non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute, any Customer Data introduced by you or on behalf of you into the Services, such as, but not limited to, software or web applications you create in the course of using the Services. The rights granted under this clause shall not be deemed to have lapsed as a consequence of any non-use under applicable laws. 

 

(e) Feedback. We appreciate any suggestions, recommendations, or feedback regarding our Services or otherwise, but please note that they are entirely voluntary, and we own and reserve all intellectual property rights in and to any feedback provided by you or any users of your Customer Application or our Services through your account. Where the foregoing assignment of right is prohibited by applicable law, you hereby grant us an exclusive, transferable, worldwide, perpetual, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all feedback as we may determine in our sole discretion.

7. Confidentiality

(a) Definition. “Confidential Information” means any information or data disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”) that is marked as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure (e.g., Order Forms, Customer Data, pricing). Confidential Information does not include any information which: (i) is independently publicly available; (ii) was rightfully known by Receiving Party prior to disclosure by Disclosing Party; (iii) was lawfully disclosed to Receiving Party by another party not under any obligation or breach of confidentiality; or (iv) is independently developed by or for Receiving Party without use of or reference to the Confidential Information of Disclosing Party. 

 

(b) Use and Disclosure. Unless agreed to in writing, Receiving Party will not: (i) use any Confidential Information of Disclosing Party for any purpose other than fulfilling Receiving Party’s rights and obligations under the Agreement; or (ii) disclose Confidential Information to any third party except for entities (e.g., Affiliates, contractors, legal counsel) (collectively, “Representatives”) who have a “need to know” in order for Receiving Party to fulfill its rights and obligations under these Terms. Representatives will be bound to protect Confidential Information under the same terms of confidentiality as the Receiving Party, and Receiving Party will be responsible for any breach by Representatives of those obligations. 

 

(c) Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by regulation, law, subpoena, court order, contractual obligations with telecommunications providers, or in response to an emergency disclosure request, provided: (i) Receiving Party promptly gives Disclosing Party prior notice of the compelled disclosure to the extent legally permitted and to the extent practicable in the circumstances (for example, in cases of an emergency disclosure request giving prior notice may not be practicable); (ii) Receiving Party discloses only the Confidential Information legally required or set out in the emergency disclosure request (as the case may be); and (iii) Receiving Party provides reasonable assistance, at Disclosing Party’s sole expense, if Disclosing Party wishes to contest the disclosure.

 

 

8. Representations, Warranties, and Disclaimer.

(a) Your Representations and Warranties. You represent and warrant that you have obtained all the necessary permissions or consents to deliver Customer Data to us for use and disclosure pursuant to this Agreement and that none of the Customer Data or Customer Applications violates any applicable law or any third party’s intellectual property or other right. (

 

b) Authority. Each Party represents and warrants that it has the legal right and authority to enter into the Agreement, to perform its obligations under the Agreement, and to grant the rights and licenses described in the Agreement. 

 

(c) Anti-Corruption and International Trade Laws. You represent and warrant that you, and any users of your Customer Application or our Services through your account, will comply with all applicable anti-corruption, anti-money laundering, sanctions, export laws, controls, and regulations, and all applicable local and international trade laws, regulations, and governmental orders of the United States of America, the United Nations, the European Union, the United Kingdom or any other relevant governmental authority (“Trade and Anti-Corruption Laws”), including obtaining all necessary licenses and/or government approvals, including to use the Services and to conduct your business. You are solely responsible for the authorization and management of user accounts across geographic locations. You will promptly notify us in writing of any actual or potential violation of Trade and Anti-Corruption Laws in connection with your use of the Services and will take all appropriate actions to remedy or resolve such violations, including any actions requested by us. 

 

(d) Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN AN ORDER FORM OR SLA, IF ANY, (i) THE SERVICES ARE PROVIDED “AS IS” “WHERE-IS” AND “WITH ALL FAULTS” AND (ii) TO THE GREATEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS (EXPRESS, IMPLIED, OR STATUTORY) INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, OR ANY WARRANTIES RELATED TO THIRD-PARTY TELECOMMUNICATIONS PROVIDERS, RESELLERS OR PARTNERS. YOU ACKNOWLEDGE THE INTERNET AND TELECOMMUNICATION PROVIDERS ARE INHERENTLY INSECURE. IF ANY PART OF THIS SECTION IS DETERMINED TO BE UNENFORCEABLE SUCH THAT WARRANTIES AND REPRESENTATIONS CANNOT BE EXCLUDED, THEN ALL SUCH EXPRESS AND IMPLIED WARRANTIES WILL, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE OF THE AGREEMENT, AND NO WARRANTIES OR CONDITIONS WILL APPLY AFTER THAT PERIOD. 

 

(e) Exclusive Remedies. To the greatest extent permitted by applicable law, our sole obligation, and your sole and exclusive remedy, in the event of any failure of any express representation or warranty made to you will be for us to, at our option: (i) take commercially reasonable efforts to correct the material failure; or (ii) refund to you the Fees you actually paid for the time period during which the material failure affected the Services.

9. Indemnification.

(a) Indemnification by You. Regardless of fault, you will indemnify, defend, and hold harmless us and our Affiliates and each of their respective officers, directors, and personnel (collectively, “Indemnified Parties”) on written demand against all damages, fines, penalties, settlement amounts pre-approved by us, costs, expenses, taxes, and other liabilities (including reasonable attorneys’ fees) (“Losses”) incurred or awarded against Indemnified Parties in connection with any claim, action, demand, suit, or proceeding (“Claim”) arising out of or in connection with your or any users of your Customer Application or our Services through your account: (i) breach of any of the terms of this Agreement; (ii) infringement or misappropriation of a third party’s intellectual property rights; (iii) violation of applicable laws, including applicable data protection laws; (iv) negligent or more culpable (including criminal) acts or omissions. Without limiting or affecting our other rights and remedies under this Agreement, if and to the extent that we incur or are notified that we will suffer any Losses.

10. Limitation of Liability.

(a) Limitation on Indirect, Consequential, and Related Damages. TO GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY RELATED TO THE AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, REPUTATION, SALES, DATA, OR DATA USE, BUSINESS INTERRUPTION OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY. 

 

(b) Limitation of Liability. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR (AND, IF APPLICABLE, YOUR AFFILIATES’) SOLE AND EXCLUSIVE REMEDY FOR ANY UNAVAILABILITY, NON-PERFORMANCE, OR OTHER FAILURE BY US TO PROVIDE AN SLA ELIGIBLE SERVICE (AS DEFINED IN THE SLA) IS THE RECEIPT OF A SERVICE CREDIT (IF ELIGIBLE) IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE SLA, IF ANY. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NEVER EXCEED THE AMOUNTS ACTUALLY COLLECTED BY USE FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER THE ACTION IS IN CONTRACT OR TORT OR OTHERWISE. WE WILL HAVE NO LIABILITY REGARDING (i) CUSTOMER APPLICATIONS, (ii) BETA PRODUCTS, OR (iii) LOSS OF OR DAMAGE TO CUSTOMER DATA WHILE IN TRANSIT VIA THE INTERNET OR A TELECOMMUNICATIONS NETWORK. 

 

(c) Limitation of Liability Absolute. THE LIMITATIONS OF LIABILITY AND DAMAGES SHALL APPLY REGARDLESS OF ANY PARTY’S REMEDIES’ FAILURE OF THEIR ESSENTIAL PURPOSE.

11. Publicity.

You grant us the right to use your name, logo, and a description of your use case to refer to you on our website, customer lists, or marketing or promotional materials, subject to your standard trademark usage guidelines, if any, expressly provided to us.

12. Term, Termination, and Survival

(a) Term. These Terms commence on the date you accept them (or, where an Order Form applies, on the date specified in the Order Form, whichever is earlier) and continue until all Order Forms or Services used by you on the Site have expired or have been terminated or, in respect of Services you use via our Site without a specified duration, you no longer use any Services and unregister your account. 

 

(b) Order Form Term. We will specify your subscription period to the Services in the applicable Order Form or in the customer portal on the Site (the “Initial Term”). Unless otherwise noted in the Order Form or on the Site, subscriptions will automatically renew for additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the Term. The applicable fee for any Renewal Term will be determined using the then-current list price applicable on the Site for such renewed Services unless different renewal pricing is specified in the Order Form. 

 

(c) Termination for Material Breach and Other Grounds. We may terminate the affected Order Form(s) or Services used by you in the event of a material breach, entirely or in part, if, after providing written notice of the breach, you do not remedy the breach within fifteen (15) days. In the event of your material breach, we may also: (i) terminate the Agreement; (ii) close all of your accounts; and/or (iii) prohibit you from creating any new accounts. We may also terminate or suspend this Agreement or the provision of certain Services with immediate effect by notifying you in the event we have substantiated reason to believe that your use of the Services: (i) would constitute a breach of third-party application terms (including those set out in the Product Specific Terms) or the terms of this Agreement in respect thereof; (ii) is contrary to applicable laws, regulations, or public order; or (iii) includes transmission of inappropriate content. 

 

(d) Termination for Insolvency. Either Party may, with immediate effect, terminate this Agreement (and we may close your account) by written notice in the event the other Party becomes subject of a petition in bankruptcy or any other proceeding relating to insolvency, suspension of payments, receivership, or liquidation. 

 

(e) Payment upon Termination. If this Agreement or any Order Form is terminated for any reason, you will pay us any unpaid Fees covering the remainder of the Term of all Order Forms or Services used by you in the customer portal on the Site. In no event will termination relieve you of your obligation to pay any Fees payable to us for the period prior to the effective date of termination. 

 

(f) Consequences of Termination or Expiration. Upon the effective date of termination or expiration of the Agreement or any Order Form: (i) all rights, licenses, and subscriptions granted to you under any affected Order Form and the Agreement will immediately terminate; (ii) you will immediately cease all use of, and access to, your account and the relevant Services; (iii) you will cause any users of your Customer Application or our Services through your account to immediately cease all use of, and access to, your account and the relevant Services; and (iv) you will immediately either return or destroy (at our discretion) all Data, our Confidential Information, and any user IDs that are in your possession. 

 

(g) Survival. The provisions of this Agreement which, by their terms, are intended to survive the termination of this Agreement, shall so survive, including Sections _____.

13. Changes to These Terms.

From time to time, we may update this Agreement. If we make material changes, we will notify you, such as by posting an announcement on our website or sending you an in-application notice or email. To the greatest extent permitted by applicable law, the new Agreement will take immediate effect, and your continued use of the Services following our posting or notice of the changes will constitute your acceptance of the updated Agreement.

14. Governing Law and Dispute Resolution.

(a) Governing Law. This Agreement, and any dispute, claim, or controversy (whether in contract, tort, or statute) arising out of or related to this Agreement, the Services, any transactions contemplated hereunder, or the relationship of the Parties (collectively “Disputes”) shall be governed by and construed in accordance with the laws of the state of Florida, without regard to any conflicts of laws and principles. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded. 

 

(b) Dispute Resolution. Except for collections actions, each Party agrees that all Disputes shall be resolved exclusively by binding arbitration before a single arbitrator appointed by the American Arbitration Association (“AAA”). The arbitration shall be conducted pursuant to the AAA commercial arbitration rules then in effect. The arbitrator shall have sole authority to resolve arbitrability disputes. The arbitrator may, in its discretion, issue temporary and permanent injunctions, award specific performance, declaratory, or injunctive relief. The arbitrator may award the prevailing Party its attorney’s fees and cost, including the cost of the arbitral tribunal. The arbitration proceedings shall be conducted in English in Miami, Florida, or by remote means (if determined by the arbitrator). 

 

(c) Class Action Waiver. To the greatest extent permitted by applicable law, the Parties agree that neither Party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action.

 

 

15. General.

(a) Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (i) the applicable Order Form or the customer portal on the Site; (ii) Product Specific Terms; (iii) any applicable SLA; (iv) these Terms; and (v) the applicable Documentation. 

 

(b) Relationship. Each Party is an independent contractor in the performance of this Agreement and nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Neither Party has the authority to commit the other Party in any way and will not attempt to do so or imply that it has the right to do so. Nothing in these Terms is intended to prevent: (i) us from marketing, licensing, selling, or otherwise providing Services to any third party; and (ii) you from obtaining services similar to the Services from a third party. 

 

(c) Severability. If a court of competent jurisdiction holds any provision of these Terms to be contrary to applicable law, that provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the greatest extent allowed by law and the remaining provisions of these Terms will remain in full force and effect. 

 

(d) Notices. If you need to provide notice to us under these Terms, you may do so in writing via email to yellowpush@identidadtech.com or by overnight courier (FEDEX, DHL, UPS) at our address: 3001 SW 3rd Avenue, Miami, FL. If we need to provide notice to you, we will do so, at our election, in writing via email to the email address you designate in your account or by letter to the address associated with your account. It is your responsibility to keep all email and postal addresses associated with your account current and accurate. Unless otherwise expressly provided in this Agreement, please note that communications through our general support messaging system or to your account representative will not constitute legal notice where notice is required to us under this Agreement or any law or regulation. 

 

(e) Force Majeure. Except for the payment of Fees, each Party will be excused from any failure or delay of performance to the extent caused by unavoidable events beyond its reasonable control and not caused by it such as natural catastrophes, laws, orders, regulations, directions or actions of governmental authorities, act of war, hostility, or sabotage, failure of telecommunication or digital transmission links, or failure of any third-party operating systems, platforms, applications, or networks, not under the Party’s reasonable control. All Parties will take reasonable actions to minimize the consequences of these events. In addition, a Party will be excused from future performance under this Agreement, if: (i) the other Party becomes, directly or indirectly, subject to sanctions or restrictive measures imposed by competent governmental authorities; or (ii) the performance of any aspect of this Agreement would require that Party to engage in a transaction with a person, directly or indirectly, subject to such sanctions or restrictive measures. 

 

(f) Waiver. No failure or delay by either Party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each Party to be legally binding. With the exception of the rights explicitly provided in this Agreement, each Party waives any rights to wholly or partially terminate or rescind this Agreement or to claim termination, rescission, or amendment of this Agreement, to the greatest extent permitted by applicable law. 

 

(g) Assignment. You may not assign or transfer any rights or obligations under this Agreement (including under all Order Forms) in whole or in part, whether by operation of law or otherwise, without our prior written consent. We may freely assign this Agreement and any of our obligations hereunder to any Person. Any attempted assignment or transfer by either Party in violation hereof will be void at inception. Subject to the foregoing, each and all of the provisions in this Agreement will be binding on and inure to the benefit of the parties to this Agreement and their respective administrators, successors, and permitted assigns. 

 

(h) Entire Agreement. This Agreement represents the full and complete contract between the Parties, superseding all prior proposals, statements, or agreements, and neither Party has entered into this Agreement in reliance on any representations or warranties other than as set out in this Agreement. Additionally, your purchase of any Services is not contingent on, and you have not relied on, the delivery of any future functionality, regardless of any communication about our products. The Parties agree that any term or condition contained in any Customer provided documentation (such as a purchase order) is void unless such documentation is expressly signed by us with an intention to be bound by it. 

 

(i) Electronic Signature and Counterparts. Your use of our Services indicates acceptance of this Agreement. If and to the extent that we enter into an Agreement with you that requires signature, each of us agree to the use of electronic signatures and that we will each be bound by them. Any Order Form or other document governed by this Agreement may be executed in two or more counterparts (including by combination of electronic and non-electronic signatures), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 

 

(j) General Construction. References in this Agreement (including all referenced documents comprising part of this Agreement) to “include”, “including”, “included”, and “for example” (and like words) shall, as the context so requires, be read to refer to those words without limitation. Throughout this Agreement, each gender and number shall include all genders and numbers as the context requires. Headings are for convenience only. This Agreement shall be interpreted without giving effect to any interpretive principle requiring ambiguities to be resolved against a Party solely by reason of its involvement in the drafting of the instrument.