Saas Services Agreement
Saas Services Agreement
1. USER NOTICE OF AGREEMENTS
CAREFULLY READ THE FOLLOWING AGREEMENTS! THE SAAS AGREEMENT AND THE DATA PROCESSING AGREEMENT CONTAIN IMPORTANT INFORMATION ABOUT TERMS, CONDITIONS, RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS OF PARTIES. BY CLICKING ON THE “ACCEPT” BUTTON, THE USER IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT AND USER AUTHORISED REPRESENTATIVE REPRESENTS THAT HE/SHE IS DULY AUTHORISED TO COMMIT USER TO THE TERMS AND CONDITIONS OF THE AGREEMENTS AND TO SIGN THE AGREEMENTS ON BEHALF OF USER
2.1. Smile ID will use commercially reasonable efforts to provide User the services described in the section SAAS SERVICES AND SUPPORT SERVICES.
2.2. The Service is offered subject to the terms of this Agreement, the Data Processing Agreement (DPA) and as may be contained in the Order Form(s).
2.3. The headings in this Agreement are for convenience only and shall not affect their interpretation
2.4. In the interpretation of this Agreement, the contra proferentem rule of construction shall not apply (this Agreement being the product of negotiations between the Parties), nor shall this Agreement be construed in favour of or against either Party by reason of the extent to which either Party or its professional advisers participated in the preparation of this Agreement.
3.1. “Authentication” or “ Biometric Authentication” is defined as the process or action whereby Smile ID attempts to verify data, from or of, a User, against data captured at the time of Registration and may include:
- a. Proof of Liveness Check during Authentication.
- b. Compare Incoming Selfie to Registered Selfie and human review as needed
3.2. “Documentation“ means the specifications, user manuals and training materials or any other documentation that Smile ID makes generally available to all Users relating to the use and operation of the Service.
3.3. “Equipment“ means including, but not limited to, modems, hardware, servers, software, operating systems, networking, and web servers.
3.4. “Human Review“ is the process or action whereby a human reviews or determines the result of a Registration or Authentication, whether done manually by the human or otherwise.
3.5. “ID Issuing Authority” is defined as the Government or third-party authority or database which issues the identity card or identity credentials to a User in the country of operation.
3.6. “Party” refers to either Smile ID or the User in this agreement; both are jointly referred to as “ Parties” in the Agreement.
3.7. “Proof of Liveness Check” is an anti-spoofing (anti-presentation attack) measure built into the Smile ID solution meant to identify whether the face submitted for authentication is real and the face is live.
3.8. “Registration” or “User Registration” are defined as a User who has been successfully registered into the Smile ID system .
3.9. “Services” is defined as the usage of the Smile Identity (Smile ID) Platform, as available, to execute any or all the following the (“Service(s)”):
- a. Authentication or Biometric Authentication
- b. Proof of Liveness Checks during Authentication.
- c. Verify the User ID number to the ID Issuing Authority and return of User Personal Information.
- d. Face Matching - Matching of Selfie to the photo on file at the ID Issuing Authority, when available, with algorithmic confidence scores and human review as needed or comparison to a photo of the ID card provided by the User, when required.
3.10. “User” means a corporate entity, company, or other legal entity with whom Smile ID enters into the Agreement and for whom Smile ID has agreed to provide the Services in accordance with these Terms. This includes a representative, employee, director, consultant, customer, client, or contracted third party of the User who is utilising the Smile ID Services.
3.11. “Order Form” means each fully executed Smile ID order form that incorporates these Terms and the SaaS terms (together, the "Agreement") and describes the Services to be provided by Smile ID from time to time as agreed. In the event of conflict between the Order Form and these Terms, the Order Form will prevail.
4.1. SaaS Services
- 4.1.1. These terms and conditions govern User access to and the use of Smile ID’s website and all Services offered by Smile ID. User access to the Service is conditioned on acceptance of and compliance with these Terms.
- 4.1.2. The Service is offered subject to the terms of ID Issuing Authorities and third-party providers (as set out in theSMILE ID DATA PROCESSING AGREEMENT) that may be utilised in the delivery of the Service and subject to acceptance of all the terms and conditions contained in these Terms and all other operating rules, policies, and procedures that may be published on the website by the Company, which are incorporated by reference, including operating rules, policies, and procedures of third-party service providers to the website that are referenced herein. These Terms apply to every user of the Service.
- 4.1.3. User is solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to the use of the Services.
4.2. Support Services
- 4.2.1. Smile ID will provide a simulated server to facilitate SDK integration and testing prior to User integrating the Smile Identity API calls into User’s private server.
- 4.2.2. As part of the registration process, User will create administrative user names and passwords for User’s Smile ID account. Smile ID reserves the right to refuse registration of or cancel passwords it deems inappropriate or insecure.
- 4.2.3. Smile ID will provide User access to an API to download images and associated Personal Data (“User Data”) generated by any implementations of the Smile Platform.
- 4.2.4. Smile ID may choose to change support contacts or support communication methods over time, provided Smile ID gives User at least five (5) days' notice prior to a change in customer support contact or communication method.
- 4.2.5. Smile ID may use a human/manual review process in provisioning the service under this agreement. Smile ID will use its best effort to complete a single manual review within 3 minutes.
- 5.1.1. User will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Smile ID or authorised within the Services).
- 5.1.2. For the avoidance of doubt, “derivative works” are defined as any revisions, alterations, translations, or expansions of the Services or any other form in which Services or Documentation are transferred or adapted.
- 5.1.3. User will also not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party without the express approval of Smile ID; or remove any proprietary notices or labels.
- 5.1.4. With respect to any Software that is distributed or provided to User by Smile ID for use on User premises or devices, Smile ID hereby grants User a non-exclusive, non-transferable, non-sublicensable licence to use such Software during the term of the Agreement only in connection with the Services.
- 5.1.5. Further, User may not remove or export from the country of operation or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the country of operation or without the prior written approval of Smile ID.
- 5.1.6. User warrants that it possesses the requisite licence, permits, authorizations, and regulations to perform its obligations under these Terms.
- 5.1.7. User represents, covenants, and warrants that User will use the Services only in compliance with SMILE ID USAGE POLICY and all applicable local laws and regulations.
- 5.1.8. User represents and warrants that the person agreeing to the terms and conditions of this Agreement has the been duly authorised to do so and has the power and capacity to bind the User.
- 5.1.9. User represents and warrants that the entry into and performance of these Terms will not:
- (i) result in a breach or violate any instrument, judgement/law or decree of any court or governmental agency to which the User is a party to or by which it is bound;
- (ii) result in or constitute a breach or default of any other instrument to which the User is bound;and/or
- (iii) conflict with, result in a breach of, constitute a default under, or accelerate performance under the terms of any contract, agreement or deed to which the User may be bound or affected;
- 5.1.10. User shall be responsible for obtaining and maintaining any Equipment and ancillary services needed to connect to, access or otherwise use the Services. User shall also be responsible for maintaining the security of the Equipment, User account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of User account or the Equipment with or without User’s knowledge or consent.
- 5.1.11. User agrees to and is bound by the SMILE ID DATA PROCESSING AGREEMENT.
- 5.1.12. User grants Smile ID permission to use the User's name and logo in marketing materials of Smile ID.
- 5.1.12.Smile ID grants User permission to use Smile ID’s name and logo in User’s marketing materials.
- 5.2.1. User shall not utilise the website or the Services in connection with any transaction that is illegal or involves any illegal items, or is for any illegal purpose.
- 5.2.2. Smile ID may close, suspend, or limit your access to the website or Services or refuse to complete a transaction that Smile ID has reason to believe is unauthorised or may violate any law, rule or regulation. Smile ID shall subsequently notify User of its actions within twenty-four hours (24) of taking such action
6.1. Parties understand that the other Party has disclosed or may disclose business, technical or financial information relating to the Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of Smile ID includes non-public information regarding features, functionality and performance of the Service as well as all pricing and payment terms provided to the User. Proprietary Information of User includes non-public data and non-public information regarding features, functionality, performance and business information of User systems/platforms provided by User to Smile ID to enable the provision of the Services (“User Data”). The Party that receives such information (the “Receiving Party”) agrees to take reasonable precautions to protect such Proprietary Information. The Party that shares the information (the “Disclosing Party”) agrees that the foregoing shall not apply with respect to Proprietary Information that:
- 6.1.1. is or becomes generally available to the public; or
- 6.1.2. was in the Receiving Party's possession or known by it prior to receipt from the Disclosing Party; or
- 6.1.3. was rightfully disclosed to the Receiving Party without restriction by a third party; or
- 6.1.4. was independently developed without use of any Proprietary Information of the Disclosing Party; or
- 6.1.5. is required to be disclosed by law.
6.2. User shall retain access to all User Data, as well as a right to access any data that is based on or derived from the User Data. Smile ID shall own and retain a right to:
- 6.2.1. the Services and Software, improvements, enhancements or modifications thereto,
- 6.2.2. other technology developed by Smile ID in connection with Implementation Services, Services or support, and
- 6.2.3. all intellectual property rights related to any of the foregoing. These rights are limited to Smile ID property and will not include intellectual property developed by the User to implement Smile ID Services.
6.3 User consents agrees and warrants that Smile ID will be authorized, free and able (during and after the term of the Agreement) to:
- 6.3.1. use such information and data, including User Data and data provided by Users, to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Smile ID offerings; and
- 6.3.2. disclose such data solely in aggregate or other de-identified form in connection with its business, provided that Smile ID shall be responsible for any misuse of that information and data.
7.1. User will pay Smile ID the applicable fees as agreed in accordance with the terms therein indicated as Service Fees (the “Fees' ). User may be invoiced for such usage, and the User agrees to pay Fees in the manner provided by Smile ID.
7.2. Fees are exclusive of taxes, and the User shall be responsible for all taxes (sales tax, use tax, GST, value-added tax, withholding, duties, levies, etc.) that are applicable to or result from the User's purchase or use of the Services.
7.3. For local currency payments, Smile ID will use the prevailing official exchange rate provided by the central bank of the applicable country of operation accordingly.
7.4. Smile ID reserves the right to change prices for the service provided that the User is issued fifteen (15) days notice of any such changes in advance.
7.5. Pay-As-You-Go Users shall pre-fund wallets to the value of the Services to be consumed.
7.6. Except as otherwise expressly set forth in this Agreement, all Fees are non-refundable and are not subject to deduction or set off.
8.1. This Agreement is valid for one (1) year (calculated with effect from the Commencement Date) and shall be automatically renewed for additional periods of the same duration unless:
- 8.1.1. Either Party requests termination at least thirty (30) days prior to the end of the then-current term.
- 8.1.2. Where the Service is unused for 90 days; the agreement shall be deemed terminated.
8.2. This Agreement may be terminated immediately with two (2) day's notice in the event of:
- material breach of this Agreement;
- insolvency/bankruptcy of either Party;
- the passing of a resolution to wind up either Party;
- the appointment of an administrator or receiver; or
- the loss of the licence of either Party.
8.3. User will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement will survive this agreement for two (2) years after termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8.4. In the case where the User subscribes for another service being provided by Smile ID, and the payment for the service is not currently covered by the existing Order Forms, Smile ID, at its discretion, reserves the right to call for and User agrees to execute a new Order Form to cover such services.
8.5. Upon any termination or expiration hereof, User will immediately cease access to and use of the Service and delete (or, at Smile ID’s request, return) any and all copies of the Documentation and any other Smile ID’s Proprietary Information. Following termination or expiration of this Agreement, Smile ID may delete any data stored by Smile ID at any time.
9.1. User warrants that explicit consent shall be sought, received and documented from the user before processing of personal data.
9.2. Smile ID shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Smile ID or by third-party providers, or because of other causes beyond Smile ID’s reasonable control, but Smile ID shall use reasonable efforts to provide not less than seven (7) days advance notice in writing or by e-mail of any scheduled service disruption.
9.3. SMILE ID DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SMILE ID MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS.”
10.1. Smile ID will use available technology, where appropriate, to protect the security of communications made as it offers the Services.
10.2. Notwithstanding the above, Smile ID does not accept liability for security, authenticity, integrity or confidentiality of any transactions and other communications made through their Service, provided that such liability is not borne out of negligence or omission on the part of Smile ID.
10.3. User is aware that internet connections may be susceptible to interference or interception by third parties. Despite its best efforts, Smile ID makes no warranties that the services it offers are free from interference and unlawful use.
10.4. User should take appropriate steps to keep information and any data in its possession as well as equipment secure.
11.1. User hereby agrees to indemnify and hold harmless Smile ID against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from User’s use of Services provided that same is not as a result of any negligence, default or breach on the part of Smile ID. Although Smile ID has no obligation to monitor User’s use of the Services, Smile ID may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
11.2. Smile ID liability to the User shall not exceed the amounts paid to Smile ID by the User under this Agreement during the twelve (12) month period immediately preceding the date a Party notifies the other of the claim. This limitation applies to all causes of action, including without limitation any action for breach of contract, breach of warranty, negligence, strict liability, misrepresentation and other tort.
11.3. SMILE ID SHALL HOLD USER HARMLESS FROM LIABILITY TO THIRD PARTIES RESULTING FROM INFRINGEMENT BY THE SERVICE OF ANY REGISTERED PATENT IN THE COUNTRY OF OPERATION OR ANY COPYRIGHT OR MISAPPROPRIATION OF ANY TRADE SECRET, PROVIDED SMILE ID IS PROMPTLY NOTIFIED OF ANY AND ALL THREATS, CLAIMS AND PROCEEDINGS RELATED THERETO AND GIVEN REASONABLE ASSISTANCE AND THE OPPORTUNITY TO ASSUME SOLE CONTROL OVER DEFENCE AND SETTLEMENT; SMILE ID WILL NOT BE RESPONSIBLE FOR ANY SETTLEMENT IT DOES NOT APPROVE IN WRITING.
12.1. Force Majure
- 12.1.1. A Party hereof shall not be liable to the other for any delay or failure to perform its obligations under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as acts of God, civil unrest, epidemics, pandemics, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government, or other competent authority, industrial disputes of any kind (whether or not involving the party’s employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts of omission of persons whom the Party is not responsible, or any other cause whether similar or dissimilar outside the Party’s reasonable control.
- 12.2.1. If any provision of this Agreement is found to be unenforceable or invalid in whole or in part, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- 12.2.2. This Agreement together with its schedules, annexures, Data Processing Agreement, and executed order form(s), contains the entire agreement between the Parties, and there are no other representations, promises or conditions, provided that nothing in this clause shall limit either Party’s liability for fraudulent misrepresentation.
12.3. Entire Agreement
- 12.3.1. This Agreement together with its schedules, annexures, Data Processing Agreement, and executed order form(s), contains the entire agreement between the Parties, and there are no other representations, promises or conditions, provided that nothing in this clause shall limit either Party’s liability for fraudulent misrepresentation.
12.4 Assignment and Transfer
- 12.4.1. This Agreement is not assignable, transferrable or sub-licensable by either Party except with the other Party’s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
- 12.5.1. Smile ID reserves the right to change the Terms under which the Services are offered. The most current version of the Terms will supersede all previous versions. Smile ID will communicate any such changes in advance. However, Smile ID also encourages you to periodically review the Terms to stay informed of updates.
All notices under this Agreement will be in writing and addressed to the other Party such address as may at the
relevant time have been notified pursuant to this provision to the Party giving the notice. Any such notice will
be deemed to have been duly given:
- a. when receipt is electronically confirmed if transmitted by email;
- b. if sent by certified or registered mail, seven (7) days after posting and proof that the envelope containing the notice of communication was properly addressed and prepaid registered and a receipt to that effect shall be sufficient evidence that notice or communication has been duly served.
12.7. Dispute Resolution
- 12.7.1. Any dispute, controversy, difference, claim or question which may arise at any time between the parties touching upon the construction of this Agreement, on their respective rights and liabilities with respect hereto or otherwise arising in respect of matters the subject of this Agreement parties shall be dealt with amicably.
- 12.7.2. Any disputes arising under or in connection with the validity, interpretation and performance of the Terms between Smile ID, User or/and any third parties that cannot be resolved amicably by the Parties through negotiation within 30 (thirty) days shall be resolved by arbitration in the territory where the Service is delivered or where the Service is delivered in multiple territories the laws of England and Wales shall apply.
- 12.7.3. Where the Services are delivered in only one territory, the forum shall be any arbitration panel/tribunal or center established under applicable law (the “Domestic Tribunal”), and the rules of Domestic Tribunal shall apply. The seat of arbitration shall be the territory in which the services are delivered. The number of arbitrators shall be one. The arbitrator shall be appointed by the Domestic Tribunal.
- 12.7.4. Where the Services are delivered in multiple territories, the dispute shall be resolved by the London Court of International Arbitration (LCIA) in accordance with the LCIA Rules and the seat of arbitration shall be London. The number of arbitrators shall be one. The arbitrator shall be appointed by the LCIA.
12.8. Governing Law
- 12.8.1. This Agreement shall be governed by the laws of the territory where the Service is delivered; however, where the Service is delivered in multiple territories, the laws of England and Wales shall apply.
- 12.9.1. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of this Agreement by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
- 12.9.2. No agency or joint venture, franchise or employment is created as a result of this Agreement, and either party has no authority to bind the other Party in any respect whatsoever.
- 12.9.3. Except as otherwise set forth herein, no supplement, modification, or amendment of this Agreement will be binding unless executed in writing by each Party.