Last Updated: August 31st, 2021
These Terms of Service (these “Terms of Service”) are a legal agreement between you and OwnID, Inc. (“OwnID”). These Terms of Service specify the terms under which you may access and use OwnID’s website located at www.ownid.com (the “Site”) and/or proprietary management console for embedding OwnID’s password-less widget into Customer’s registration and login pages for Customer’s end users (the “Service”).
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, CLICKING “I AGREE,” OR OTHERWISE MANIFESTING YOUR ASSENT TO THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
IF YOU ARE A CUSTOMER (AS DEFINED BELOW), ALL ORDER FORMS (AS DEFINED BELOW) WILL BE GOVERNED BY THESE TERMS OF SERVICE AND YOUR EXECUTION OF AN ORDER FORM CONSTITUTES ACCEPTANCE OF THESE TERMS OF SERVICE.
For avoidance of doubt, these Terms of Service shall apply to and bind, any and all Customers who:
(i) have purchased a subscription to the Company’s Service(s) (as defined below) through the Site (and not by way of an Order Form), or
(ii) are receiving the Service pursuant to an agreement between such Customer and an authorized reseller or distributor acting on behalf of the Company.
“Affiliate" means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization, or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization, or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
"Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, invention, work of authorship, software, database, data, know-how, software, design, and/or other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, re-examinations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Customer” means the entity that enters into any Order Forms hereunder.
“Feedback” means any suggestions, feedback, comments or other input related to the Service or the Site, or any enhancements, improvements, modifications or derivative works of the Service or the Site, that are provided by Customer or any User, or any Site User.
"Order Form" means an order form for the Service (or similarly titled document, e.g. “Statement of Work”, “Proposal”, “Work Order” or “Purchase Order”), which is executed by an authorized representative of Customer and OwnID and which will be governed by the terms and conditions set forth herein.
“Site User” means any visitor to or user of the Site who is not a Customer.
"Subscription Scope" means any Service usage and/or consumption limitations and parameters set forth in the Order Form.
"Users" means an Employee of Customer or Customer’s Affiliate authorized to access and use the Service.
“Usage Data” means non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or use of the Service by Customer and its Users.
2. Site Users
As a Site User, you can browse the public-facing areas of the Site and access and use all publicly-available content, features and functionality on the Site. However, you cannot use the Service. In order to use the Service, you must be Customer or an authorized User of a Customer. We reserve the right to modify the Site and the content, features or functionality of the site, and/or terminate these Terms and Conditions and your access to the Site, at any time, with or without notice to you.
3. Modifications to these Terms of Service
3.1 You understand that Company may alter, amend, change, waive, terminate or modify any term contained within these Terms of Service at any time. Should Company alter, amend, change, waive, terminate or modify any term contained within these Terms of Service, it shall provide notice by:
(A) Posting the new Terms of Service to the Site;
(B) Sending electronic mail to the email address Customer provided when creating its account (where available and applicable) or other means pursuant to these Terms of Service; and/or
(C) As otherwise required by law.
3.2 If you continue to use the Site or the Service after receiving notice, your continued use shall constitute acceptance of the modified terms.
3.3 You agree to review these Terms of Service and the incorporated documents periodically to be updated of any such changes.
4. The Service
4.1 Subject to Customer’s compliance with its obligations under this Agreement, Company will provide Customer with the Service. Company hereby grants to Customer a worldwide, nonexclusive, non-transferable, non-sublicensable, non-assignable, royalty-free, limited license during the respective Subscription Term (as defined under the Order Form) to access and use the Servicesolely for Customer’s internal use (collectively the “Subscription”). Customer shall be responsible for all Users’ access to and use of the Service. Access to the Service is conditional upon (a) the integration of Customer’s identity management platform with the Company’s management console, which shall be done in accordance with the documentation provided by the Company on the Site or otherwise communicated directly by Company to Customer, and (b) the advance payment by the Customer of the Subscription Fees (as defined below).
4.2 Additional Services. The Parties may execute additional Order Forms for additional or different features of the Service, and such additional Order Forms shall be incorporated into this Agreement.
4.3 After Customer receives access to Service, it shall then set up an administrative account with the Company, by submitting the information requested in the applicable Service interface (“Account”), and each User shall set up a user account (each, a “User Account”, and references herein to the “Account” shall be deemed to include all such Use Accounts if applicable). Customer represents that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Account. Customer will require and will be solely liable to ensure that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person.
5. Term and Termination
5.1 Term. This Agreement shall commence as of the commencement date set forth under the Order Form and will continue for the Initial Subscription Period(s) set forth under the Order Forms executed pursuant hereto, unless terminated earlier as provided in this Agreement. Unless otherwise specified in the Order Form, upon the lapse of each Initial Subscription Period, this Agreement (and the respective Order Form) shall automatically renew for subsequent periods of equal length (each, a “Renewal Subscription Term”, and collectively with the Initial Subscription Period – the “Term”), unless either Party notifies the other Party of its intent not to renew at least thirty (30) days prior to the beginning of the Renewal Term. The expiration or termination of one Order Form but not of this Agreement shall not affect any other Order Form.
5.2 Termination for Breach. If either Party materially breaches this Agreement, the non-breaching Party may terminate this Agreement upon provision of written notice to the other Party, provided that the breaching Party has failed to cure such breach within sixty (60) days following its receipt of such notice specifying the material breach (except that for payment defaults, such cure period will be seven (7) days).
5.3 Termination for Bankruptcy. Each Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (a) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (b) the other Party makes a general assignment for the benefit of its creditors; (c) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other Party is liquidating, dissolving or ceasing normal business operations.
5.4 Effects of Termination. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate, and (b) Customer shall cease all access and use of the Service thereunder. Upon termination, all outstanding Subscription Fees and other charges that accrued as of termination shall become immediately due and payable, and if necessary Company shall issue a final invoice therefor. Sections 7 (Intellectual Property Rights) through 12 (Miscellaneous) shall survive termination of this Agreement and any Order Form, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
6. Restrictions and Responsibilities You shall not, and, if applicable, Customers shall ensure that Users do not, do or permit or encourage any of the following license restrictions (in whole or in part): (a) copy, "frame" or "mirror" the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or Site to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service or Site; (d) modify, alter, adapt, arrange, or translate the Service or Site; (e) systematically collect any data from the Service or Site (by scraping or otherwise), attempt to re-identify de-identified data from the Service's platform, decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or Site; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service or Site; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service or Site; (h) make a derivative work of the Service or Site, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service or Site; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of licenses, servers, nodes, or users that directly access or use the Service of Site (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent the restrictions on use contained herein or, if applicable, the Subscription Scope; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service or Site; (l) take any action that imposes or may impose (as determined in OwnID's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service or Site, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) exceed the Subscription Scope, if applicable, or otherwise access or use the Service or Site other than as expressly permitted herein or in the applicable Agreement.
7. Intellectual Property Rights
7.1 OwnID reserves all rights, title and interest in and to the Service and the Site and all related software and technology, as well as all improvements and modifications to and derivative works of any of the foregoing, together with all related intellectual property rights. No rights are granted to you or, if applicable, any User, hereunder, whether by implied license, estoppel, operation of law or otherwise, other than the limited license expressly set forth above. Without limiting the foregoing, OwnID (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to:
(a) The Service and the Site, all content appearing therein, all related software and technology and all related intellectual property rights in the foregoing;
(b) its Confidential Information;
(c) All Usage Data;
(d) Any non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Service; and
(d) any and all suggestions, improvements, derivative works, enhancement requests and/or modifications of/to any of the foregoing, regardless of inventorship or authorship, including, without limitation, all Feedback.
7.2 Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this paragraph. OwnID shall not be required to make any payment or provide any royalty or attribution to you or any third party in connection with any such assignment.
8. Data Privacy and Data Security
8.2 Confidentiality of PII. OwnID shall ensure that personnel who it authorizes to process PII have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality.
8.3 Security. Company will undertake all reasonable security measures required in accordance with applicable privacy and security regulations. Notwithstanding the above, Company shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of data caused by Customer or any third party acting on behalf of Customer.
9.1 The Customer shall pay Company a non-refundable annual or monthly fee in accordance with the terms of the relevant Order Form or as set forth on the Site (the “Subscription Fee“). Unless expressly stated otherwise in the Order Form: (a) all payments under this Agreement are non-refundable and are without any right of set-off or cancellation; (b) all Subscription Fees are payable, and shall be invoiced, in advance, and shall be paid against an invoice to be issued by Company concurrently with or immediately after the execution of the Order Form (or the purchase of the Service through the Site, as applicable).
9.2 The Subscription Fee is subject to change, either: (a) upon Subscription renewal, or (ii) during the Subscription Term, upon a change in the Subscription Scope.
9.3 Company reserves the right to temporarily suspend provision of the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach under Section 6 (Restrictions and Responsibilities); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Service, including if the Service's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law or at the request of governmental entities.
9.4 If a purchase order (or purchase order number) is required by Customer in order for an invoice to be paid, Customer shall promptly provide such purchase order (or number) to Company.
9.5 Payment Processing. Company may make available to Customer various payment processing methods to facilitate the payment of the Subscription Fees through the Site. Customer must abide by any relevant Terms of Service or other agreement, whether with Company or a third party, that governs the use of a given processing method. Company may add or remove payment processing methods at its sole discretion and without notice to Customer. Customer agrees to pay for the Service and that Company may charge Customer’s credit card or other form of payment that Customer indicates for any Service.
10. Confidential Information
10.1 Each party acknowledges that it may have access to certain confidential information of the other party (“Confidential Information”). Confidential Information will include all information in any form that under the circumstances of its disclosure, should reasonably be considered confidential, including but not limited to trade secrets. Each party agrees that it will not use Confidential Information of the other party in any way, except as expressly required for the purposes of this Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary on a need to know basis) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information.
10.2 Without limiting the generality of the above, Company’s Confidential Information shall also include (a) the Order Form, and (b) the Service and all Intellectual Property embodied therein and all Intellectual Property rights relating thereto.
11. Disclaimer of Warranties; Limitation of Liability
11.1 Disclaimer of Warranties. THE SERVICE IS PROVIDED AND MADE AVAILABLE HEREUNDER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. COMPAMY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING, WITHOUT LIMITATION, THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE FOREGOING, OR AS REGARDS COMPLIANCE WITH ANY LAWS OR REGULATIONS. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.
11.2 Limitations of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 10 (CONFIDENTIAL INFORMATION), A BREACH BY CUSTOMER OF THE SUBSCRIPTION, AND/OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(C) ANY LOSS OF, OR DAMAGE TO, DATA, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
11.3 Aggregate Liability. THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
11.4 THE FOREGOING EXCLUSIONS AND LIMITATIONS SET OUT IN THIS SECTION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
12.1 External Sites. The Site may contain links to third-party websites (“External Sites”). The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. OwnID is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk
12.2 Relationship of the Parties. Nothing in this Agreement shall in any way be construed to constitute either Party as an agent, partner, joint-venturer, employee or representative of the other Party, and both Parties shall remain independent contractors.
12.3 Publicity. The Company may use Customer’s name and logo on the Site and in its promotional materials to state that Customer is a customer of the Company.
12.4 Notices. Any written notice connected with this Agreement will be sufficiently made on the mailing date if sent by, either: (a) registered, certified or first class – postage prepaid mail to the Party, or (b) electronic mail, in each case to the address set forth in the Order Form or provided by Customer upon subscribing through the Site. In addition, notice by the Company to Customer for any reason (including changes to these Terms of Service, the Site, the Subscription Fees or similar matters, may be provided by a general posting on the Site.
12.5 Force Majeure. If any performance (excluding payment obligations) under this Agreement by either party is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below), the party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such party so affected shall promptly notify the other party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement and/or in any purchase orders accepted pursuant to this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, "Force Majeure" means: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the Subscription and/or Company’s Intellectual Property Rights. Any problems relating to hosting of the Service by a third party is deemed beyond the reasonable control of the Company.
12.6 Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, OwnID may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party's assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section, this Agreement will bind and benefit each Party and its respective successors and assigns.
12.8 Waiver of Breach. No waiver by either Party of any breach of this Agreement will constitute a waiver of any other breach of the same or other provisions of this Agreement. No waiver by either Party will be effective unless made in writing and signed by an authorized representative of that Party.
12.9 Severability. If any provision in this Agreement is invalid or unenforceable in any circumstance, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
12.10 Entire Agreement. This Agreement, together with any outstanding Order Forms executed pursuant thereto, constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other communications between Company and Customer.
12.11 Interpretation and Priority of Documents. In the case of conflicts or inconsistencies between the terms of this Agreement and any Order Form, the terms of the Order Form will prevail, except as specifically stated otherwise. Unless designated as replacing a specific outstanding Order Form, a new Order Form will be considered to be in addition to then-outstanding Order Forms.