SERVICE TERMS AND CONDITIONS
These Terms and Conditions set out the basis upon which you, the "Customer" or the "Authorized User" (as the context permits) subscribes to and/or uses the LiveEnsure® service (the "Services" (as defined further below)) made available by LiveEnsure Inc, the "Supplier", via the Internet on a pay-per-use or subscription basis for your business purposes.
LiveEnsure Inc. is a company registered in the State of Delaware. All communications in relation to these terms and conditions should be sent via post or by email. By subscribing to or using the Services you agree to be bound by these Terms and Conditions.
"Authorized Users" means those employees, agents, end users, customers and independent contractors of the Customer who are authorized by the Customer to use the Services, as further described in clause 1.2.
"Customer Data" means the data inputted by the Customer, Authorized Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
"Services" means the Subscription and pay as you go services provided by the Supplier to the Customer under these terms and conditions via http://www.liveensure.com/tsandcs.html or any other website notified to the Customer by the Supplier from time to time, with a specification as set out at www.liveensure.com which may be amended and varied from time to time. It may also be described briefly as a Software as a Service multi-factor authentication application that provides mutual authentication for the Authorized User and the site. The Customer purchases and integrates the Service, into his own site or application, at this website. The Service requires the Authorized Users to register one or many devices with which they access the Customers service/website/application. The registered device is then used as one of the factors in a synthesized multi-factor authentication process which is designed to protect against man-in-the-middle, man-in-the-browser and phishing and pharming attacks. The Customer may bundle or integrate the Service into his own products/services and will be charged on a usage or pay as you go basis or other agreed pricing method such as Subscription. The Service effectively allows the Customer to trust an Authorized User in all subsequent interactions with his product/service following the initial registration. Authorized Users obtain their mobile applications via the respective app stores and are subject to those app and store terms, conditions and end-user license agreements.
"Software" means the online software and mobile applications provided by the Supplier as part of the Services.
"User Subscriptions" means the User Subscriptions purchased by the Customer pursuant to clause 5 which entitle Authorized Users to access and use the Services in accordance with this agreement.
1. USER SUBSCRIPTIONS
1.1 Subject to these Terms and Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable and non-sub-licensable right to permit the Authorized Users to use the Services during the Subscription Term solely for the Customer's internal business operations and as intended by the Supplier in the description of the Services.
1.2 In relation to the Authorized Users, the Customer undertakes that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services; and
(c) each Authorized User shall keep a secure password as well as secure challenge questions and responses for his use of the Services and that each Authorized User shall keep his password and responses confidential.
1.3 An Authorized User shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property;
and the Supplier reserves the right, without liability to the Customer, to disable an Authorized User's access to any material that breaches the provisions of this clause.
1.4 An Authorized User shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or (e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 1; and
1.5 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services.
1.6 The rights provided under this clause 1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
1.7 The Supplier reserves the right to modify or cease providing the Services for any reason, at any time without notice, writing or cause. It is the sole discretion of the Supplier to offer or not offer these services at their discretion, timing, location, duration or purpose.
2.1 The Supplier shall, during the subscription term, provide the Services to the Customer on and subject to these terms and conditions.
2.2 The Supplier shall use commercially reasonable endeavors to make the Services available with an industry standard uptime rate (99%), except for planned maintenance carried out during the maintenance windows of weekends and/or 10pm to 2am US ET.
2.3 The Supplier may perform unscheduled maintenance during normal business hours, provided that the Supplier has used reasonable endeavors to give the Customer at least [2 hours] notice in advance.
3. CUSTOMER DATA
3.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer grants Supplier a worldwide, nonexclusive license to use the Customer Data to provide Customer the Services.
3.2 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-up Policy available by inquiring at liveensure.com as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
3.3 The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.liveensure.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
3.4 If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Authorized Users are located in order to carry out the Services and the Supplier's other obligations under this agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and
(e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
3.5 The Supplier does not intend to store any Customer data. The Customer will however be required to supply personal information to the Suppliers third party payment providers.
4. SUPPLIER'S OBLIGATIONS
4.1 The Supplier shall use commercially reasonable efforts to:
(a) Ensure that the Service is provided free from material defects and failure.
(b) Provide the necessary support via e-mail in the event of user and technical problems.
(c) Provide changes and/or updates to the Services, API and mobile apps from time to time in its discretion;
4.2 The Supplier shall comply with all appropriate laws that apply to the provision of the Service.
5. CUSTOMER'S OBLIGATIONS
5.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier; in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorized Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorized User's breach of this agreement;
(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) refrain from offering, reselling, packaging or providing the Service in territories not permitted by the Supplier;
(g) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
6. CHARGES AND PAYMENT
6.1 The Customer shall pay subscription and usage fees where applicable to the Supplier for the User Subscriptions and usage rates for the respective package selected on the order form which are set out at www.liveensure.com or any accompanying and duly executed subscription or purchase agreement and in accordance with this clause 5.
6.2 The Customer shall provide to the Supplier's third party payment provider valid, up-to-date and complete credit card details, valid PayPal account or approved purchase order information acceptable to the Supplier and or it's third party payment provider and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides either:
(a) its credit card details or PayPal account handle to the Supplier, the Customer hereby authorizes the Supplier to bill such credit card:
(i) for the subscription fees payable in respect of the initial subscription term; and
(ii) on or about the 1st day of each month during the remaining subscription term for the subscription fees payable; or
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
(i) for the subscription and usage fees payable in respect of the Initial Subscription Term ( where applicable ); and
(ii) at least 30 days prior to the due date for payment for the subscription and usage fees payable in respect of the next Renewal Period (if applicable) , and the Customer shall pay each invoice within 30 days after the date of such invoice.
6.3 If the Supplier has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate, or the maximum rate allowed by law, if lower, at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
6.4 All amounts and fees stated or referred to in these terms and conditions:
(a) shall be payable in the currency specified in the order form;
(b) are subject to clause 10.1, non-cancelable and non-refundable;
(c) are exclusive of value added tax unless otherwise expressly stated.
6.5 The Supplier shall be entitled to increase the subscription and or usage fees and shall give at least 30 days notice of any such increase to the Customer.
7. PROPRIETARY RIGHTS
7.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services.
7.2 The Supplier confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with these terms and conditions.
7.3 In the event of potential or actual limitations, constraints, rights, restrictions or lack of permissions for any reason, the Service may not be made available to the Customer by the Supplier within a particular territory, region, country or network or during a specific or unlimited period of time. The Supplier is under no obligation to provide the Service to the Customer under these conditions, restrictions or within the region or time period in question. The Supplier may also refuse to provide the Service to any or all Customers at its sole discretion and without penalty or recourse. The Supplier is also under no obligation to provide an alternative Service to the Customer under these conditions.
8.1 Each party may be given access to confidential information from the other party in order to perform its obligations under these terms and conditions. A party's Confidential information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party without use of the disclosing party’s confidential information, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body, providing that the receiving party provide prior written notice of and reasonable assistance in contesting any such requirement.
8.2 Each party shall hold the other's confidential information in confidence and, unless required by law, not make the other's confidential information available to any third party, or use the other's confidential information for any purpose other than the implementation of this agreement.
8.3 Each party shall take all reasonable steps to ensure that the other's confidential information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms and conditions.
8.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of confidential information caused by any third party.
8.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier's confidential information.
8.6 The Supplier acknowledges that the Customer Data is the confidential information of the Customer.
8.7 This clause 7 shall survive termination of this agreement, however arising.
9.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and
(c) the Customer is given sole authority to defend or settle the claim.
10. LIMITATION OF LIABILITY
10.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services are provided to the Customer on an "as is" basis.
10.2 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
10.3 Supplier shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and Supplier's total aggregate liability under this agreement shall be limited to the total subscription fees paid for the User Subscriptions during the 30 days immediately preceding the date on which the claim arose.
11. TERM AND TERMINATION
11.1 This agreement shall, unless otherwise terminated as provided in this clause 11, commence on the effective date and shall continue for the initial subscription term and, thereafter, this agreement shall be automatically renewed for successive periods of one (1) calendar month (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, before the end of the initial subscription term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable initial subscription term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement; and the initial subscription term together with any subsequent Renewal Periods shall constitute the Subscription Term.
11.2 On termination of this agreement for any reason:
(a) all licenses granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemics, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
13. TRANSFER OF RIGHTS AND OBLIGATIONS
13.1 These terms and conditions are binding on the Customer and the Supplier, and on respective successors and assigns.
13.2 The Customer may not transfer, assign, charge or otherwise dispose of these terms and conditions, or any of your rights or obligations arising under them, without our prior written consent.
13.3 The Supplier may transfer, assign, charge, sub-contract or otherwise dispose of any of their rights or obligations arising under these terms and conditions, at any time during the Subscription term.
14.1 No waiver by the Supplier of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to the Customer in writing.
14.2 Unless specifically provided otherwise, rights arising under these terms and conditions are cumulative and do not exclude rights provided by law.
If any of these terms and conditions are found by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
16. ENTIRE AGREEMENT
16.1 These terms and conditions, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
16.2 The Customer acknowledges and agrees that in accepting these terms and conditions it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter, other than as expressly set out in these terms and conditions.
17. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18. GOVERNING LAW AND JURISDICTION
18.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of the state of Delaware and the United States.