These Terms of Software-as-a-Service (“Terms”) govern the relationship between AuthMind Inc. (“AuthMind”) and the entity or individual agreeing to these Terms (“Customer”). By executing a proposal, purchase order, or any other form that references these Terms (“contract”) or by using or accessing any AuthMind Services (defined below), Customer agrees to these Terms. AuthMind and Customer are each referred to in these Terms as a “party” or, together, as the “parties.” 

 

1. Software-as-a-Service; Subscription

a. AuthMind provides a proprietary software as a service designed to integrate with Customer’s network, system and software infrastructure (“customer environment”) and to analyze identity risks related to the customer environment (the “Services”). Such Services and AuthMind’s subscription offering(s) thereof (the “Subscription”) are further detailed at: http://www.AuthMind.com/. 

b. AuthMind agrees to provide Customer the Services as set forth in an applicable proposal and to make the Services available to Customer in accordance with these Terms and the terms of an applicable proposal executed by Customer and AuthMind (collectively, the applicable contract, these Terms, and any other terms or agreements incorporated herein by reference or attachment, the “Agreement”).

c. Subject to Customer’s compliance with the terms and conditions of these Terms and any Agreement, as of the Effective Date, AuthMind grants to Customer a non-transferable, non-sub-licensable, non-exclusive, limited, and revocable license to access and use the Service included in the selected Subscription. 

d. Customer acknowledges and agrees that AuthMind may, at any time, or from time to time, without notice, update, upgrade, modify, replace, or otherwise change the Services, format, and/or features of the Services; provided that such updates, upgrades, modifications, replacements or other changes (a) do not negatively and materially affect the purpose of the Services, or (b) are reasonably necessary to comply with any applicable legal requirement.

 

2. Use of Service

a. Access and Usage. Customer may authorize its employees, service providers, and other third parties (“Representatives”) to access the Service with user credentials, which access must be for the sole benefit of Customer and in compliance with these Terms. Customer is responsible for such Representatives compliance with these Terms.

b. Customer Responsibilities. Customer and its users (i) must keep its user credentials secure and confidential; (ii) is solely responsible for Customer Data (defined below) and all activity in its Service account; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and notify AuthMind promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the scope of the license granted herein and in compliance with applicable laws.

 

3. Fees and Payments

a. Fees. Customer agrees to pay all fees for any AuthMind Services as set forth in the Agreement. Unless otherwise set forth in an Agreement, fees are quoted and payable in U.S. dollars. 

b. Payment Terms. Fees are due and payable in accordance with the payment terms in the Agreement. If payment terms are not specified in an Agreement, fees shall be invoiced in full as of the Effective Date of such Agreement and are payable net thirty (30) days from the date of invoice. Renewal fees shall be invoiced in full each year thirty (30) days prior to the anniversary of the Effective Date and are due on the renewal date. 

c.  Taxes.  Fees shall be exclusive of all taxes and duties of any kind (including sales, excise or use tax, taxes in lieu thereof, or any other taxes or surcharges which may apply and any interest and penalties), which shall be borne and paid by Customer. If any such tax or duty has to be withheld or deducted from any payment, Customer shall gross-up the payment by such amount to ensure that after such withholding or deduction, AuthMind shall receive a net amount equal to the full amount of the relevant price had payment not been subject to tax withholding.

d. Fees Based on Purchase, Not Use. All fees are based on AuthMind Services purchased, and not actual usage. With respect to a Subscription, all Services must be consumed during the applicable Subscription. No refund of prepaid fees or any reduction in fees is available if Customer or its Representatives do not access the Services.

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4. Intellectual Property

a. Customer Data. As between AuthMind and Customer, Customer shall retain exclusive ownership of all right, title, and interest in and to all Customer Data, subject to the permissions granted to AuthMind below. For purposes of these Terms, “Customer Data” means data, information, or other content, in any form or medium, provided by or on behalf of Customer to AuthMind (through software or otherwise collected by the Service) including all associated intellectual property rights therein; provided, that Customer Data does not include Usage Data (defined below) or Feedback (defined below). Customer hereby grants AuthMind the right to use, store and modify the Customer Data for the purpose of AuthMind performing the Services hereunder. Customer agrees that AuthMind may use Customer Data for its internal business purposes, including without limitation, to improve the content and functionality of the Service; to protect against, identify or address wrongdoing or fraud; to enforce these Terms; to manage Customer’s account and registration and provide Customer with customer service; and to generally manage the Service and its business. 

b. AuthMind Property. AuthMind and its third-party licensors shall retain exclusive ownership of all right, title, and interest in and to their Confidential Information (as defined below) and to the AuthMind Services (or any component thereof) worldwide including, without limitation, the software, workflow processes, user interface, designs, know-how, and any other technologies provided by AuthMind as part of the Service, and to all associated intellectual property rights included therein (collectively, “AuthMind IP”). For avoidance of doubt, AuthMind IP includes Usage Data and  any information, data, or other content derived from AuthMind’s monitoring of Customer's access or use of the Services but does not include Customer Data. AuthMind reserves all rights unless expressly granted in these Terms. 

c. Restrictions. The Customer may not (i) sell, resell, rent, lease or sub-lease the Service or use it in a service provider capacity, unless otherwise provided under an another agreement with AuthMind; (ii) use the Service for any, unlawful or tortious purpose or in such manner or in violation of third-party rights; (iii) interfere with or disrupt the integrity or  performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) reverse engineer the Service; (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; or (vii) remove or modify any proprietary marking or restrictive legends in the Service.

d. Feedback. If Customer or any of its Representatives sends or transmits any communications or materials to AuthMind suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), AuthMind is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to AuthMind on Customer’s behalf, and on behalf of its employees, contractors, agents and/or users, all right, title, and interest in, and AuthMind is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although AuthMind is not required to use any Feedback.

e. Usage Data. Notwithstanding anything to the contrary in the Agreement, AuthMind may collect and use during and after the Term all aggregate, non-identifiable data in the Service for purposes of enhancing the Service, technical support, and other business purposes. For purposes of these Terms, “Usage Data” means any and all information reflecting the access or use of the Services by or on behalf of Customer or any user, including any end user profile-, visit-, session-, impression-, click through-, or click stream-data, and any statistical or other analysis, information, or data based on or derived from any of the foregoing/technical information and metrics about Customer's and its users' access to or use of the Services, such as end user profile-, visit-, session-, impression-, click through-, or click stream-data.  

 

5. Representations and Warranty; Disclaimer

a. AuthMind. AuthMind represents that the AuthMind Services will materially conform to the specifications described in the applicable proposal and/or Agreement and that AuthMind will perform the Services in good faith and in a professional manner.

b. Customer. Customer represent and warrant that it has the right, authority, and capacity to enter into this Agreement and to be bound by these Terms and that all registration information that it submits or that is submitted on its behalf is complete, accurate and truthful. Further, Customer represents and warrants to AuthMind that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by AuthMind and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.

c. DISCLAIMER.  THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION, AUTHMIND DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AUTHMIND MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. WHILE AUTHMIND TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, AUTHMIND DOES NOT GUARANTEE THAT THE SERVICE AND THE ACCESS TO THE SERVICE CANNOT BE COMPROMISED. NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO ANY WARRANTY OR THIS DISCLAIMER.

 

6. Mutual Confidentiality

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). AuthMind’s Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of these Terms. The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the Agreement for a period of three (3) years after the expiration or earlier termination of the Agreement

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) the Recipient can demonstrate in its records that such information was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information, as can be demonstrated. If the Recipient is required or becomes compelled to disclose any Confidential Information of the Discloser pursuant to law or a judicial or administrative order or decree, the Recipient may disclose Confidential Information to the extent legally permissible and required by law or court order but will provide Discloser with advance notice to seek a protective order.

d. No License. The party disclosing its Confidential Information grants no license under any intellectual property rights strictly by the disclosure of its Confidential Information. The parties understand and acknowledge that Confidential Information is being provided by the Discloser without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.

e. Trade Secret. Notwithstanding any other provision in the Agreement, the Recipient's obligations under this with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Recipient or any of its Representatives.

 

7. Third Party Technology

Certain supported third-party web services or technology that the Service integrates with may be made available within the Service if Customer has an account and agreement with the applicable third party. AuthMind does not warrant and/or make any representations as to the effectiveness, sufficiency, or safety of any third-party web service or technology. The Customer assumes all risks from the use thereof, understanding that these are not AuthMind products, services, or systems. Customer acknowledges that AuthMind has no liability regarding those web services or technology, and Customer’s agreement with that third-party solely governs Customer’s access and usage of that web service or technology.

 

8. Limitation of Liability

a. EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL AUTHMIND OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE AGREEMENT, OR ITS SUBJECT MATTER (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OR DAMAGE OF DATA, RECORDS, OR INFORMATION; LOST PROFITS AND ANY FAILURE OF DELIVERY OF THE SERVICE), REGARDLESS OF WHETHER AUTHMIND WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR SUCH WAS FORESEEABLE.

b. LIMITATION. TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, AUTHMIND’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE AGREEMENT, OR FROM THE SERVICES (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THESE TERMS OR THE AGREEMENT.

c. FURTHER EXCLUSIONS. IN NO EVENT WILL AUTHMIND BE LIABLE, WHETHER DIRECTLY OR INDIRECTLY, FOR ANY CLAIM OR DAMAGES ARISING FROM: (A) AUTHMIND’S COMPLIANCE WITH CUSTOMER’S SPECIFICATIONS, INSTRUCTIONS, OR TECHNICAL INFORMATION; (B) MODIFICATIONS NOT MADE BY AUTHMIND; (C) USE OR COMBINATION OF THE SERVICES WITH OTHER TECHNOLOGY WHERE THE ALLEGED ISSUE WOULD NOT HAVE OCCURRED BUT FOR SUCH COMBINATION; OR (D) TECHNOLOGY NOT PROVIDED BY AUTHMIND.

 

9. Term and Termination

a. Term. These Terms are effective as of the day of Subscription to the Service (“Effective Date”) and, unless terminated earlier pursuant to any of the provisions herein, will continue in effect until such date of expiration as set forth in the applicable Agreement. Unless otherwise specified in the applicable Agreement, the initial term will be one (1) year from the Effective Date.

b. Renewal. Unless otherwise specified in the Agreement, at the end of the initial term, the Subscription will be automatically renewed for subsequent one (1) year terms. Either party may cancel such automatic renewal by notifying the other party in writing at least thirty (30) days prior to the applicable renewal.

c.   Suspension of Service for Violations of Law. AuthMind may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law or any provision of these Terms, including failure to pay the amount due to AuthMind in a timely manner. AuthMind will attempt to provide adequate notice.T

d. Termination.  In addition to any other express termination rights set forth in the applicable Agreement, Customer or AuthMind may terminate an Agreement: (i) during any trial period, immediately for any reason with written notice to the other Party; (ii) if the other party materially breaches these Terms, and such breach is incapable of cure or, being capable of cure, remains uncured for 10 days after the non-breaching Party provides the breaching Party written notice of such breach; or (iii) effective immediately upon written notice to the other Party, if the other Party becomes insolvent or is generally unable to pay its debts, enters bankruptcy or insolvency proceedings (voluntarily or involuntarily); or has a receiver or trustee appointed.

e. Effect of Expiration; Termination. As of the date of expiration or termination, any and all fees owed to AuthMind for Services performed, delivered, or accessed before such expiration or termination will be immediately due and payable, and Customer will promptly pay such fees. With respect to any reasonably disputed amounts, the Parties agree to negotiate in good faith, and the Customer will pay such amounts at the time of, and to the extent required by, resolution of the dispute. As of the date of expiration or termination, (i) all rights to access or use the Services will immediately terminate, and Customer and its users will immediately cease accessing or using the Services (AuthMind may disable all Customer and user access).

 

10.   Miscellaneous

a. Name Use. Customer permits AuthMind to use Customer’s name and logo for their internal and external customer lists and other marketing materials. 

b. Equitable Relief. Each party acknowledges and agrees that any breach or threatened breach by a party of its obligations under these Terms or violation of the other party’s intellectual property rights or the Confidentiality provisions of these Terms would cause irreparable injury or harm to the other party for which monetary damage would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled, without the requirement of posting a bond or other security, to seek equitable relief (including injunctive relief and specific performance) in addition to any and all other rights and remedies that may be available to it in respect of such breach.

c. Entire Agreement; Changes. These Terms constitute the entire agreement between the parties, and supersede all prior or contemporaneous negotiations, agreements, and representations, whether oral or written, related to this subject matter. No amendment to or modification of these Terms is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.

d. Electronic Notice. For purposes of service messages and notices about the Services, Customer agrees that AuthMind may place a notice across its pages or online forums to alert Customer of important notices. Alternatively, notice may consist of an email to an email address associated with the Customer's account. Customer understands that AuthMind has no liability associated with Customer’s failure to maintain accurate contact information or other information.

e. No Assignment. Neither party may assign or transfer these Terms to a third party, except that these Terms may be assigned as part of a merger, or sale of all or substantially all the business or assets, of a party without the prior consent of the other Party.

f. Independent Contractors. The parties are independent contractors with respect to each other. Nothing in these Terms is intended to, or should be construed to, create a partnership, agency, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

g. Severability. If any term of these Terms is invalid or unenforceable in any applicable jurisdiction, the other terms will remain in effect. Upon such determination, the parties shall negotiate in good faith to modify the Terms to affect the original intent of the parties as minimally as possible

h. Force Majeure. Neither party is liable or responsible to the other party for any failure or delay in fulfilling or performing any obligation in these Terms (except for any payment obligations) when such failure or delay is caused by any circumstance beyond such party’s control (a “force majeure event”), including acts of God; flood, fire, earthquake, explosion; pandemics; war, invasion, hostilities, terrorist threats or acts; national or regional emergencies; labor stoppages or slowdowns; and shortage of adequate power or telecommunication providers. The party suffering a force majeure event shall give notice within ten (10) calendar days of the force majeure event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized.

i. Governing Law; Forum. These Terms are governed by the laws of Delaware (USA), without regard to conflict of law principles. Any dispute arising out of or related to these Terms may only be brought to the courts of Delaware. Both parties consent to the exclusive jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in these Terms prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other non-prevailing party. UNLESS PROHIBITED BY GOVERNING LAW OR VENUE, EACH PARTY IRREVOCABLY AGREES TO WAIVE JURY TRIAL.

j. No Additional Terms. AuthMind rejects additional or conflicting terms of any Customer form or document.

k. Survival of Terms. Any terms that by their nature should survive termination or expiration of these Terms, will survive any termination or expiration.

l. Heading. Heading, section, paragraph, and subparagraph references contained herein are for reference purposes only and in no way define, limit, or construe the scope or extent of any paragraph or section.

m. Counterparts. To the extent this Agreement or any portion thereof requires signature, this Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement or any portion thereof delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy.