Master Services Agreement

This Master Services Agreement (“Agreement”) is made and entered into by and between Identyo, an Oregon company, located at 450 Powerhouse Drive, #429, Bend, Oregon 97702, and the company that is executing this Agreement (hereinafter “Customer”).

NOW THEREFORE, in consideration of the mutual obligations and responsibilities of the parties, the total sufficiency of which is hereby acknowledged, the parties agree as follows:  

1. PURPOSE AND SCOPE.  

1. Master Services Agreement.  This Agreement establishes the general terms and conditions with respect to Identyo provision of Services to Customer. “Service” means, collectively, the Software (as defined below) and any other services provided to Customer by Identyo, as set forth in a Work Statement. This Agreement, together with all Work Statement and other documents incorporated into the Agreement, by reference are, collectively, the “Agreement.”

2. Work Statement.  The Services to be provided, and any additional Service-specific terms and conditions, will be set forth in a separate document, or documents, as applicable, governed by this Agreement (“Work Statement”). Customer execution of a Work Statement constitutes a binding commitment to purchase the items specified in such Work Statement.

3. Order of Precedence.  To the extent any terms and conditions of this Agreement conflict with the terms and conditions of a Work Statement, the terms and conditions of the Work Statement shall control.

2. CONFIDENTIALITY.  The parties agree as follows with respect to Confidential Information:

1. Confidential Information.  In connection with this Agreement each party may disclose or make available (the “Disclosing Party”) Confidential Information to the other party (the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and Personal Information, in each case whether or not marked, designated or otherwise identified as “confidential.” Identyo Confidential Information includes: (i) the Software, documentation, methodologies; (ii) test results, reports and analysis relating to the functionality of the Software; (iii) any product roadmaps, business plans, marketing plans, financial information, programmers’ notes, technical data, specifications, testing methods, research and development activities and customer and supplier information that is provided or made available to Customer from time to time during the term of this Agreement, in each case excluding Customer Confidential Information.

2. Unless expressly stated otherwise in this Agreement, each party will maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care as it uses to maintain its own Confidential Information, but in no event less than reasonable care.  Each party shall ensure that access to the other party’s Confidential Information shall only be provided to those individuals who need access in order to fulfill their obligations under this Agreement and are bound by obligations of confidentiality.

3. Exceptions.  Confidential Information shall not include information that:  (a) is or becomes publicly available without breach of this Agreement; (b) the receiving party receives from a third party who is entitled to disclose such information to the receiving party without restriction on disclosure and without a breach of a nondisclosure obligation; (c) was known by the receiving party prior to receiving the information from the disclosing party; (d) can be evidenced to have been independently developed by the receiving party without reference to the Confidential Information.  Nothing in this Agreement shall prevent the receiving party from disclosing Confidential Information as required to comply with orders of a governmental entity, provided that prior to the disclosure, the receiving party shall: (x) give the disclosing party prior written notice of any government order, and (y) cooperate fully with the disclosing party, at the disclosing party’s expense, to seek a protective order or other remedy to protect any such information or disclosure.

4. Return of Confidential Information.  The parties agree that, upon termination of this Agreement, and upon the disclosing party’s request, the receiving party shall return to the disclosing party, or destroy (and certify the destruction thereof), all Confidential Information in the receiving party’s possession, custody or control.  

3. CUSTOMER CONTENT.

1. Customer Obligations.  Customer is solely responsible for the development, content, maintenance, and use of any data, text, audio, video, images or other content or information that Customer provides to Identyo in connection with delivery of the Services (“Customer Content”).  Customer is solely responsible for:  (a)  compliance with applicable law in regard to Customer Content; (b) any claims relating to Customer Content; and (c) properly handling and processing notices sent to Customer (or any of Customer affiliates) by any person claiming that Customer Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.  

2. Customer Warranties.  Customer represents and warrants to Identyo that: (i) Customer or Customer licensors own all right, title, and interest in and to Customer Content; and (ii) Customer has all necessary rights in Customer Content to grant those rights and use to Identyo as contemplated under this Agreement. Further, Customer also represents, warrants and covenants that (a) it has the right and authority to provide Customer Content to Identyo to enable Identyo to perform the Services consistent with this Agreement, (b) such Customer Content has been obtained by Customer in compliance with applicable law, (c) at the time Customer delivers Customer Content to Identyo, no customer identified in such Customer Content provided to Identyo (x) is the subject of a subsisting opt-out or subsisting unsubscribe request directed to Customer by such individual electing not to receive commercial marketing communications from Customer or (y) has otherwise requested that Customer not contact such individual by email, (d) the delivery of the Customer Content to Identyo for the purposes of Identyo performing the Services will not violate the terms of Customer’s privacy policy or terms of service (applicable to the Customer Content); (e) Customer is not bound by any valid and enforceable contract or agreement of any kind that conflicts with the terms of this Agreement; and (f) Customer’s use of the Services and Software will, in all respects, comply with applicable law including data protection laws.

3. Customer Rights.  As between Customer and Identyo, Customer or Customer licensors own all right, title, and interest in and to Customer Content.  Except as provided herein, Identyo obtains no rights under this Agreement from Customer or Customer licensors to Customer Content, including any related intellectual property rights.  Customer consents to Identyo’s use of Customer Content to provide the Services and/or Software to Customer.  Identyo will not access or use Customer Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body.

4. PROPRIETARY RIGHTS.

1. Ownership.  Each party shall retain all right, title, and interest in any copyrights, trademarks, patent rights, and other intellectual property rights or proprietary rights it has acquired or developed prior to or outside the scope of the Agreement. Customer shall retain all right, title, and interest, including copyrights, trademarks and patent rights, in any and all Customer Content provided under the Agreement, which expressly includes and any and all derivative works flowing from any of the foregoing.  Identyo shall own and retain all right, title and interest, including copyrights, trademarks and patent rights, in any and all Software provided under the Agreement and any and all derivative works flowing from any of the foregoing.  Neither party will acquire any right, title, or interest in the intellectual property rights of the other party by virtue of its performance under the Agreement. All rights not expressly granted are reserved exclusively by the respective owner; there are no implied rights.  

2. License Rights.  

1. Identyo Grant to Customer.  Subject to and conditioned on Customer compliance with the terms and conditions of the Agreement, Identyo hereby grants Customer a non-exclusive, non-sublicenseable, and non-transferable license during the Term to use the software in machine-readable, object or executable code including all related images, animations, video, audio, and other content incorporated in such software program and all enhancements, upgrades, updates, modifications, revisions, copies and extensions that may be provided by Identyo from time to time (collectively “Software”).  Customer may use the Software solely for its own internal business purposes.
2. General Restrictions.  Customer may not copy the Software, in whole or in part.  Customer also shall not use or allow the use of the Software for any of the following purposes:

1. By persons not employed by or under an independent contractor relationship with Customer that will bind such persons to the terms of the Agreement; or
2. As essential equipment in the operation of any nuclear facility, aircraft navigation, medical or communications systems or air traffic control machines, or any other use in which the failure of the Software could lead to death, personal injury or severe physical or environmental damage.

2. Customer Grant to Identyo.  Customer grants Identyo, for the Term, a limited, non-exclusive, worldwide, non-transferable, royalty-free license to reproduce, transmit, perform, copy, display, distribute, create derivative works for the sole purpose of formatting, and otherwise use any Customer’s Content for the sole and limited purpose of fulfilling its obligations under this Agreement.  Identyo agrees any use of Customer trademarks or service marks will inure solely to the benefit of Customer, and that Identyo will not at any time acquire any rights in Customer trademarks or service marks.  Customer shall not take any action that jeopardizes any of Customer rights in any Customer intellectual property.  Identyo may not obscure, alter, or remove any copyright, patent, trademark, service mark, or proprietary rights notices on any Customer materials.

3. Customer Conduct.  Neither Customer nor any employee, contractor or non-employee authorized by Customer to use the Services (“User”), use the Services, in any manner or for any purpose other than as expressly permitted by this Agreement.  No User may, or may attempt to:  (a) modify, alter, tamper with, repair, or otherwise create derivative works of any Software included in the Services; (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any Software included in the Services; (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, where applicable; or (d) resell or sublicense the Services.  Customer also agrees not to:  (i)  develop methods to enable unauthorized parties to use the Software (or any copy thereof), or to develop any other product containing any of the concepts and ideas contained in the Software; or (ii) remove any copyright or other proprietary notices from the Software or any copies thereof.

1. Customer Obligations.  Customer is responsible for instructing its Users on the confidentiality of account names and passwords. Customer agrees to promptly notify Identyo if an account name or password is lost, stolen, or otherwise compromised. Customer will not (i) breach or attempt to breach the security of the Software or of any network, servers, data, computers, or other hardware relating to or used in connection with the Software, or of any third party that is hosting or interfacing with any part of the Software; or (ii) use or distribute through the Software any software, files, or other tools or devices designed to interfere with or compromise the privacy, security, or use of the Software or the operations or assets of any other customer of Identyo or any third party.  Customer will comply with the user authentication requirements for use of the Software.  Customer is solely responsible for monitoring the administration of access to and use of the Software by its Users.  Any failure by a User to comply with the Agreement, shall be deemed a material breach by Customer, and Identyo shall not be liable for any damages that Customer or any third party incurs resulting from such breach.  Customer must immediately take all necessary steps, including providing notice to Identyo as required herein, to affect the termination of access for any User if there is any compromise in the security of that access identity or if unauthorized use is suspected or has occurred.

2. Certification.  Customer agrees that within 30 days of a written request from Identyo or Identyo’s authorized representative, Customer will fully document and certify that Customer use of the Software conforms to the Agreement.

4. Retained Rights in Software.  Identyo reserves all rights not expressly granted hereunder.  In particular, Customer acknowledges and agrees that the use rights granted herein do not constitute a sale of the Software, or any portion or copy thereof, and as such, the Software is licensed only and are not sold.  Customer acknowledges and agrees that Identyo, and/or it’s third party licensors, is and shall remain the sole and exclusive owner of all right, title and interest in and to the Software, and any and all related materials, and all intellectual property rights and other proprietary rights associated therewith or embodied therein.  Customer further agrees not to challenge Identyo’s ownership of and rights in and to the Software, and the related materials, including without limitation, all copyrights and other intellectual property rights and any associated proprietary rights.  Any license rights granted to Customer in the Software under this Agreement are conditional on Customer’s continued compliance with this Agreement and will immediately and automatically terminate if Customer fails to comply with any term or condition of this Agreement.

5. Non-Assertion.  During and after the Term, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Identyo or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services purchased and/or licensed by Customer hereunder.  

5. Suggestions.  Customer may, but is not required to, provide suggestions, data or other information (“Suggestions”) to Identyo regarding possible improvements in the operation, functionality or use of the Services.  If Customer provides any Suggestions to Identyo, Identyo will own all right, title, and interest in and to the Suggestions, even if Customer has designated them as confidential.  Identyo will be entitled to use the Suggestions without restriction and without compensation to Customer.  Customer hereby irrevocably assigns to Identyo all right, title, and interest in and to the Suggestions and agrees to provide Identyo any assistance to document, perfect, and maintain Identyo’s rights.

6. Injunctive Relief.  Customer acknowledges and agree that any violation of the terms of this Agreement would irreparably harm Identyo and that Identyo may enforce the terms of this Agreement through injunctive relief, specific performance, or such other temporary, preliminary or permanent injunctive relief, without limitation to any other rights and remedies available to Identyo.

7. DATA PRIVACY AND SECURITY.  Customer acknowledges and agrees that Identyo will collect, process, use, and/or store certain “Personal Data” (as defined under applicable law), which is necessary to deliver the Services.  Identyo (i) has established and shall maintain appropriate technological security measures to protect against unauthorized access to any Personal Data maintained within its systems; (ii) shall not use Personal Data for any purpose other than to provide Services; (iii) shall not disclose Personal Data to any person not authorized by Customer, except as necessary to comply with applicable law; (iv) shall not sell Personal Data; (v) will act solely on the instructions (as set forth in this Agreement) of Customer in respect of all Personal Data, unless otherwise prohibited by applicable law; and (vi) will promptly inform Customer in a timely manner of any confirmed security incident associated with Personal Data, complaint concerning disclosure, or other unauthorized use of Personal Data.  

8. PAYMENT AND TAXES.

1. Payment.  Payments will be made in accordance with the schedule contained in the applicable Work Statement.  All amounts payable under this Agreement will be made in U.S. dollars without setoff or counterclaim, and without any deduction or withholding. Unless otherwise stated in a Work Statement, all invoiced amounts are due within thirty (30) days following Customer receipt of invoice.  Identyo may charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

2. Taxes.  Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement.  All fees payable by Customer are exclusive of applicable taxes and duties, including, without limitation, VAT, excise taxes, sales and transaction taxes, and gross receipts taxes.  

9. LIMITED WARRANTIES AND DISCLAIMERS.

1. Identyo warrants that:

1. all Services will be performed in a professional manner, in accordance with industry standards; and

2. Software will not be designed to include any “back door,” “Trojan horse,” “worm,” “drop dead device,” “preventative routines,” or other similar computer software routines; and

3. the execution, delivery, and performance of this MSA has been and shall be duly authorized; and

4. performance of its obligations will not conflict with, result in a breach of, or constitute a default under any other material agreement to which it is a party.

2. General Disclaimer.  THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE NOT TRANSFERRABLE AND MAY NOT BE ASSIGNED.  THESE WARRANTIES ARE THE EXCLUSIVE WARRANTIES PROVIDED BY IDENTYO IN CONNECTION WITH THE SERVICES, PROFESSIONAL SERVICES.  ACCORDINGLY, UNLESS OTHERWISE SET FORTH IN THIS SECTION, THE SOFTWARE, AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND.  EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, IDENTYO DOES NOT MAKE, IDENTYO AND ITS SUPPLIERS AND LICENSORS HEREBY EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY, OR ANY OTHER REPRESENTATIONS OR WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.  IF ANY APPLICABLE LAW OR STATUTE OF A JURISDICTION CONFLICTS WITH THESE WARRANTIES OR CONDITIONS, THEN THESE WARRANTIES AND CONDITIONS SHALL BE MODIFIED ONLY TO THE EXTENT NECESSARY TO COMPLY WITH ANY SUCH LAW OR STATUTE AND AVOID THE CONFLICT.  

3. High Risk Activities.  THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK APPLICATIONS”).  Identyo and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Applications.

4. No Other Warranties.  THESE TERMS AND CONDITIONS AND ANY RELATED SALES TERMS AND CONDITIONS TOGETHER (“WARRANTY TERMS”) CONSTITUTE THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN CUSTOMER AND IDENTYO REGARDING WARRANTIES FOR THE SERVICES.  THESE WARRANTY TERMS SUPERSEDE ANY PRIOR AGREEMENTS OR REPRESENTATIONS – INCLUDING BUT NOT LIMITED TO REPRESENTATIONS MADE IN ANY IDENTYO SALES LITERATURE, PROPOSAL OR ADVICE GIVEN TO CUSTOMER BY IDENTYO OR AN AGENT OR EMPLOYEE OF IDENTYO – THAT MAY HAVE BEEN MADE IN CONNECTION WITH CUSTOMER’S PURCHASE OF THE SERVICES.  NO CHANGE TO THE TERMS OF THESE LIMITED WARRANTIES IS VALID UNLESS MADE IN WRITING AND SIGNED BY AN AUTHORIZED OFFICER OF IDENTYO.  IDENTYO IS NOT LIABLE UNDER THE LIMITED WARRANTIES SET FORTH IN THIS SECTION FOR CLAIMS OF THIRD PARTIES AGAINST CUSTOMER FOR ANY REASON.  THE DISCLAIMERS SET FORTH IN THIS SECTION AND THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION BELOW SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN.  

5. Warranty Claims.  Any action for a breach of the limited warranties set forth in this Section must be commenced within 1 year from the date when the breach was or should have been discovered.

10. LIMITATION OF LIABILITY.  IDENTYO AND ITS AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF ANY OF THEM HAVE BEEN ADVISED OF OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.  FURTHER, NEITHER IDENTYO NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE OR LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH:  (a) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF:  (i) ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; (ii) IDENTYO’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR ANY PART OR PORTION THEREOF; OR (iii) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (d) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA.  IN ANY CASE, IDENTYO AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAYS IDENTYO UNDER THE WORK STATEMENT FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

11. FORCE MAJEURE.  Identyo and its affiliates shall not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, denial-of-service attacks, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, or epidemics and pandemics.

12. EXPORT.  Customer agrees that it will not export, re-export, resell, ship or divert, directly or indirectly, any Services, technical data, or Software furnished hereunder in any form or direct the Services, technical data, or Software to any country for which the United States Government or any agency thereof at the time of export or re-export requires an export license or other governmental approval without first obtaining such license or approval. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. Customer is solely responsible for compliance with applicable laws related to the manner in which Customer chooses to use the Services, including (i) Customer transfer and processing of Customer Content, (ii) the provision of Customer Content to end users, and (iii) specifying the region in which any of the foregoing occur.

13. TERM AND TERMINATION.

1. Term.  The term of the Agreement (“Agreement Term”) will commence on the Effective Date and will remain in effect until terminated by Customer or Identyo in accordance with these terms.  Each Order Form will specify the period of time for which the license granted thereunder and/or the Services are to be provided (each a “Term”).  

2. Termination. In addition to any express termination right described in this Agreement:

1. Identyo may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any undisputed amount within 30 days after being due.

2. Either party may terminate this Agreement, effective on written notice to the other party, if the other party: (i)materially breaches this Agreement, and the breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the breaching party receives notice of the breach; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; or (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law.

3. Effect of Termination.  Upon any termination of this Agreement:  (a) all Customer rights under this Agreement immediately terminate; (b) except as otherwise set forth herein, Customer remain responsible for all fees and charges Customer have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination; (c) Customer will immediately return or, if instructed by Identyo, destroy all Identyo Content in Customer possession, custody or control; and (d) those provisions that by their nature are intended to survive termination of the Agreement shall so survive.

14. INDEMNIFICATION.

1. Indemnity.  Customer will defend, indemnify, and hold harmless Identyo, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives, for, from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and legal costs) arising out of or relating to any third party claim concerning:  (a) Customer or any of Customer employees’, agents’, representatives’ or end users’ use of the Services (including any activities under a Software account); (b) the breach of this Agreement or any violation of applicable law by Customer or any Customer employees, agents, representatives or end users; (c) Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third party rights in and to Customer Content or by the use, development, design, production, advertising or marketing of Customer Content; or (d) a dispute between Customer and any of Customer customers or end users as a result of Customer use of the Services.  If Identyo or its affiliates are obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Customer will also reimburse Identyo its reasonable attorneys’ fees and legal costs.

15. Process.  Identyo will promptly notify Customer of any claim subject to this Section, but Identyo’s failure to promptly notify Customer will only affect Customer obligations under this Section to the extent that such failure prejudices Customer ability to defend the claim.  

16. PUBLICITY.  Unless Customer requests otherwise by providing notice to Identyo, Identyo may use Customer trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports, and website listings (including links to Customer website) for the purpose of advertising or publicizing Customer use of the Services.

17. NOTICE.  Unless otherwise set forth in this Agreement, notice to a party must be given: (i) by facsimile transmission; or (ii) by personal delivery, overnight courier or registered or certified mail.  Notices must be sent to the fax number of the other party listed in this Agreement or addressed to the address of the other party listed in this Agreement, or such other fax number or address as a party may subsequently designate in a notice to the other party.  Notices provided by personal delivery will be effective immediately.  Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent.  Notices provided by registered or certified mail will be effective three business days after they are sent.

18. ENTIRE AGREEMENT.  This Agreement includes any Work Statement(s) and is the entire agreement between Customer and Identyo regarding the subject matter of this Agreement.  This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Identyo, whether written or verbal, regarding the subject matter of this Agreement.  Identyo will not be bound by any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by Customer in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any request for bid or proposal, or other questionnaire, or (c) related to any invoicing process that Customer submits or requires Identyo to complete.  If the terms of this document are inconsistent with the terms contained in any Work Statement ​(s), the terms contained in the Work Statement will control.  No modification or amendment of any portion of this Agreement will be effective unless in writing and signed by the parties to this Agreement.  

19. NO WAIVERS.  The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party’s right to enforce such provision at a later time.  All waivers by a party must be provided in a notice to be effective.

20. GOVERNING LAW; VENUE. The laws of the State of Oregon, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between the parties.  Any dispute relating in any way to the Services or this Agreement will only be adjudicated in a state or federal court located in Deschutes County, Oregon.  Each party consents to exclusive jurisdiction and venue in these courts.  Notwithstanding the foregoing, either party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, its affiliates’ or any third party’s intellectual property or other proprietary rights.  The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

21. ASSIGNMENT.  Customer may not assign this Agreement or any Work Statement, or delegate any of its rights, obligations or responsibilities hereunder without Identyo’s prior written consent, such consent not to be unreasonably withheld.  Identyo may assign or otherwise transfer this Agreement without Customer consent (a) in connection with a merger, acquisition or sale of all or substantially all of its assets, or (b) to any affiliate or as part of a corporate reorganization; and, effective upon such assignment or transfer, the assignee/transferee is deemed substituted for the assignor/transferor as a party to this Agreement and the assignor/transferor is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

22. RELATIONSHIP OF THE PARTIES.  Identyo and Customer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.

23. NO THIRD-PARTY BENEFICIARIES.  Unless otherwise set forth in this Agreement, the terms of this Agreement do not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

24. COUNTERPARTS AND FACSIMILE SIGNATURES.  This Agreement may be executed by facsimile or by electronic signature (in a format approved by Identyo), and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute one and the same instrument.

25. LANGUAGE.  All communications and notices made or given pursuant to this Agreement must be in the English language.  If Identyo provides a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

26. SEVERABILITY.  If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.  Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion.  If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative