This Services Agreement (this "Agreement") is made and entered into between Identivend LLC, (“Provider”) and ("Operator"). When the operator purchases age verification software from the provider, Identivend, they agree to the following:
1. Identivend LLC. offers identity-related services, including the user login platform known as the Secure Identity Platform and the user enrollment functionality known as Secure Private Sign-up, for websites and software platforms owned or operated by Operator for use with individuals that use an Operators vend site (Customer). Identivend LLC will provide the identity related services on the terms set forth in this Agreement and in accordance with the terms and conditions of use available at www.identivend.com (the "Terms and Conditions"). The Terms and Conditions may be modified by Identivend LLC, in its sole discretion, from time-to-time and such Terms and Conditions are incorporated into this Agreement by reference. Identivend LLC reserves the right to add materials and features to, and to discontinue offering any of the materials and features that are currently a part of, the Identivend LLC.
2.1 Engagement for Operator Services. Operator will perform certain services as described in this Agreement and on Exhibit A. including the promotion of, and the cooperation with Identivend LLC to promote, the Identivend LLC Services on or with the Vend sites.
2.3 Additional Operator Obligations.
Operator will not, directly or indirectly, (a) use the Identivend LLC Services or the Identivend LLC Materials except as expressly permitted in this Agreement, (b) reverse engineer, decompile, disassemble or attempt to discover the source code for the Identivend LLC Services, \(c) modify, alter or create any derivative works of the Identivend LLC Services, (d) remove, alter or obscure any copyright, trademark or other proprietary rights noticed on or in the Identivend LLC Services or Identivend LLC Materials, (e) use the Identivend LLC Services or Identivend LLC Materials for the purpose of developing a competing product or service, (f) use the Identivend LLC Services or Identivend LLC Materials to engage in or in connection with any fraudulent activity, (g) use the Identivend LLC Services or Identivend LLC Materials in violation of any law or regulation. Operator will return to Identivend LLC any compensation it receives under this Agreement that was procured through any fraudulent activity or in violation of the terms of this Agreement as reasonably determined by Identivend LLC.
3.1 "Confidential Information" means (a) any and all data and information of any type whatsoever directly or indirectly related to Identivend LLC, its technology, intellectual property, products, candidates, business, assets, finances, operations or opportunities or the Identivend LLC Services, (b) the existence and terms of this Agreement and the nature and scope of the Identivend LLC Services, (c) any information that may be made known to Operator including any such information that Identivend LLC has received from others that Identivend LLC is obligated to treat as confidential or proprietary, and (d) any and all data and information generated or obtained by or on behalf of Operator that contains, reflects, or is derived from any of the foregoing; in any case whether in writing, or in oral, graphic, electronic or any other form, and whether disclosed, generated or obtained before or after the Effective Date. Confidential Information does not include information that (i) is in or enters the public domain without breach of this Agreement through no fault of Operator or (ii) Operator receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
3.2 Nondisclosure and Nonuse. Operator will hold all Confidential Information in strict confidence and will not disclose any Confidential Information to any third party. Operator will not use any Confidential Information for the benefit of itself or any third party or for any purpose other than to perform the Services for the sole and exclusive benefit of Identivend LLC or its designee. Operator will not reproduce Confidential Information in any form except as required to accomplish Operator's obligations under this Agreement. Operator will use the same degree of care in protecting the Confidential Information as Operator uses to protect Operator’s own confidential information from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Operator will immediately give notice to Identivend LLC of any unauthorized use or disclosure of the Confidential Information. Operator will assist Identivend LLC in remedying any such unauthorized use or disclosure of the Confidential Information. Operator acknowledges that each obligation in this Section 3 is necessary and reasonable in order to protect the Confidential Information, and that monetary damages would be inadequate to compensate Identivend LLC for any breach of this Section 3. Accordingly, Operator acknowledges and agrees as follows: (a) any such violation or threatened violation will cause irreparable injury to Identivend LLC; and (b) in addition to any other remedies that may be available to Identivend LLC at law, in equity or otherwise, Identivend LLC will be entitled to obtain injunctive relief against any threatened breach of this Section 3 or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting a bond (or other security).
3.3 Permitted Disclosure. Operator’s nondisclosure obligations under Section 3.2 do not apply to the extent that Operator is required to disclose information by applicable law, regulation or order of a governmental agency or a court of competent jurisdiction; provided, however, that Operator will provide reasonable advanced written notice thereof to Identivend LLC, consult with Identivend LLC with respect to such disclosure, provide Identivend LLC sufficient opportunity to object to any such disclosure, or to request confidential treatment thereof (if applicable), and cooperate with Identivend LLC in objecting to, narrowing the scope of, or obtaining a protective order or confidential treatment of such disclosure.
3.4 Ownership and Return of Confidential Information and Identivend LLC Property. All Confidential Information and any materials (including documents, drawings, papers, media, tapes, models, apparatus, sketches, designs and lists) relating thereto (collectively, the "Identivend LLC Property"), are the sole and exclusive property of Identivend LLC. Upon termination or expiration of this Agreement, or within 5 days after receipt of any request by Identivend LLC, Operator will (a) destroy or deliver to Identivend LLC, at Identivend LLC's option, (i) all Identivend LLC Property and (ii) all materials in Operator’s possession or control that contain or disclose any Confidential Information, and (b) not use the Confidential Information in any way for any purpose.
4. Representations and Warranties.
4.1 General Representations and Warranties. Operator represents, warrants, and covenants that (a) Operator's execution and delivery of this Agreement and Operator’s performance of Operator’s obligations under this Agreement will not result in Operator’s breach of or default under any agreement or arrangement by which Operator is bound, (b) this Agreement is valid, binding and enforceable against Operator in accordance with its terms (c) the person signing this Agreement on Operator's behalf has been duly authorized and empowered to enter into this Agreement, (d) Operator has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (e) Operator is validly existing and in good standing under the laws of the place of its establishment or incorporation.
THE IDENTIVEND LLC SERVICES AND IDENTIVEND LLC MATERIALS ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND. OPERATOR ACKNOWLEDGES AND AGREES THAT IDENTIVEND LLC OBTAINS ITS DATA FROM THIRD-PARTY SOURCES, WHICH MAY OR MAY NOT BE ACCURATE. OPERATOR WILL NOT RELY ON IDENTIVEND LLC FOR THE ACCURACY OR COMPLETENESS OF INFORMATION MADE AVAILABLE VIA THE IDENTIVEND LLC SERVICES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN TRADE, BY COURSE OF DEALING, OR OTHERWISE, AND IDENTIVEND LLC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. OPERATOR IS SOLELY RESPONSIBLE FOR ASSESSING WHETHER ANY PARTICULAR USE CASE OF THE IDENTIVEND LLC SERVICES OR IDENTIVEND LLC MATERIALS COMPLIES WITH APPLICABLE LAW, AND IDENTIVEND LLC DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY PARTICULAR USE CASE FOR THE IDENTIVEND LLC SERVICES OR IDENTIVEND LLC MATERIALS COMPLIES WITH APPLICABLE LAW.
FURTHER, IDENTIFICATION SOFTWARE IS NOT A REPLACMENT OR SUBSTITUTE FOR SUPERVISION OF VENDING ACTIVITIES. OPERATOR BEARS SOLE RESPONSIBILITY FOR ENSURING THAT DISTRIBUTION OF ANY PRODUCTS IS IN COMPLIANCE WITH ALL FEDERAL, STATE, AND LOCAL LAWS.
5. Indemnification and Limitation of Liability.
5.1 Indemnification. Operator, at Operator's sole expense, will defend and hold Identivend LLC and its affiliates and its and their respective directors, officers, shareholders, employees, contractors, and agents (collectively, "indemnitees") harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), or claims (groundless or otherwise) ("Claims"), and indemnify the indemnitees for any and all damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including reasonable attorneys' fees, expert witnesses' costs and fees, costs, penalties, interest and disbursements) arising from or relating to any Claim (including third-party claims), whether successful or not, caused by, arising out of or resulting from (a) any actual or alleged breach of this Agreement by Operator, (b) any actual or alleged negligent act or willful misconduct by Operator, or (c) Operator's performance of the Operator Services. Identivend LLC will have the right to approve any counsel retained to defend against any Claim in which Identivend LLC
is named a defendant and will not unreasonably withhold such approval. Operator will not settle or compromise any such Claim without Identivend LLC's written consent. If, in Identivend LLC's reasonable judgment, a conflict exists between the interests of Identivend LLC and Operator in such a Claim, Identivend LLC may retain its own counsel whose reasonable fees will be paid by Operator. The Indemnitee will (x) give prompt written notice of the Claim to Operator once the Indemnitee becomes aware of it, (y) grant Operator, subject to Section 5.1, the option to solely control the defense (including the right to use its own counsel) and settle the Claim (except that the Indemnitee must first approve in writing any settlement that requires an affirmative obligation of the Indemnitee), and (z) provide reasonable cooperation to Operator and assistance in the Claim's defense or settlement.
5.2 Limitation of Liability.
EXCEPT WITH RESPECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL:
(A) IDENTIVEND LLC BE LIABLE TO OPERATOR OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, NOR
(B) IDENTIVEND LLC'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PAID OR PAYABLE TO OPERATOR UNDER THIS AGREEMENT DURING THE 6-MONTH PERIOD IMMEDIATELY BEFORE THE FIRST EVENT GIVING RISE TO SUCH LIABILITY.
(C) IDENTIVEND LLC SHALL NOT BE LIABLE FOR PRODUCTS LIABLITY AS TO PRODUCTS VENDED BY OPERATOR NOR SHALL IDENTIVEND LLC BE LIABLE FOR ANY VENDING, DISPENSING, OR ERRORS IN APPROVAL OR DENIAL OF SALE.
6. Term and Termination.
This Agreement commences on the Effective Date and will continue for a period of 18 months unless earlier terminate as set forth below (the "Term"). Either party may terminate this Agreement for its convenience upon 30 days' prior written notice to the other party. In addition, Identivend LLC may terminate this Agreement immediately upon written notice to Operator if Identivend LLC reasonably determines that Operator has committed a material breach of this Agreement. Sections 2.3, 3.2, 4, 5, and 7 will survive expiration or termination of this Agreement.
7. General Provisions.
7.1 Entire Agreement. This Agreement, including all exhibits to this Agreement and the Terms and Conditions, all of which are incorporated into this Agreement by reference, sets forth the entire agreement and understanding of the parties relating to this Operatorship arrangement, and supersedes all prior or contemporaneous arrangements (including any previous Operator Agreements), written or oral, with respect to such subject matter.
7.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado and the United States without regard to its conflict of laws principles that would require the application of the laws of another jurisdiction. The parties explicitly disclaim the application of the UN Convention on the Sale of Goods. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except for requests for preliminary injunctive relief, any dispute, controversy, or claim arising under, out of, or relating to this Agreement, and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, will be finally determined by arbitration conducted by binding arbitration in El Paso County, Colorado by such arbiter as the parties can agree upon. If the parties are not able to agree on an arbiter, then each party shall nominate an arbiter and the arbiters shall select a third arbiter to hear the matter in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who will be: (a) fluent in written and spoken English; and (b) skilled and experienced in advertising technology. The place of such arbitration will be in El Paso County, Colorado, United States. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbitral award in any court of competent jurisdiction. The arbiter will issue a written opinion setting forth the arbiter's decision and the reasons therefore within 30 days after the arbitration proceeding is concluded.
7.3 Further Assurances. The parties agree to execute such additional documents and perform such acts as are reasonably necessary to effectuate the intent of this Agreement, including to modify this Agreement as necessary (without diminution in economic value to either party).
7.4 Publicity. Operator consents to (a) Identivend LLC's use of Operator's name and logo, including those set forth in Exhibit C, on Identivend LLC's websites and publicly-available printed materials, identifying Operator as an Operator of Identivend LLC's and describing Operator's use of Identivend LLC's products and services, and (b) a press release with respect to Operator's use of Identivend LLC's products and services.
7.5 Feedback. Notwithstanding any terms to the contrary in the Agreement, any suggestions, comments or other feedback provided by Operator to Identivend LLC with respect to the Identivend LLC Services or Identivend LLC (collectively, "Feedback") will constitute Confidential Information of Identivend LLC and will be owned by Identivend LLC. Operator hereby assigns all of its rights, title and interest in and to the Feedback, including all intellectual property rights embodied in or related to the Feedback.
7.6 Assignment and Limitations. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Operator, by operation of law or otherwise, without the prior written consent of Identivend LLC, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Identivend LLC may freely transfer, assign or delegate this Agreement, in whole or in part, without Operator's prior written consent.
7.7 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless made in a non-preprinted agreement clearly understood by the parties to be a modification or waiver, and signed and delivered by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
7.8 Notices. Any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.
7.9 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
7.10 Counterparts. This Agreement may be executed by the parties by exchange of signature pages by mail, facsimile, email or other electronic means (if email or electronically, signatures in Adobe PDF, via electronic signature or similar format), in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument.