Please note that Persona may modify the terms and conditions of this Agreement in accordance with Section 13.9 (Amendments; Waivers).
- “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity
- “Authorized Users” means Customer’s and its Affiliates’ employees and contractors are acting for Customer’s benefit and on its behalf.
- “Confidential Information” means any code, inventions, know-how, product plans, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
- “Customer Data” means any data collected from or by the Persona Service on behalf of Customer and any data or content that Customer provides to the Persona Service, including Authorized Users’ account information.
- “Customer Properties” means a website, application or other service owned and operated by Customer that uses the Persona Service.
- “Customer End Users” means Customer’s end users who interact with the Persona Service for verification purposes.
- “Documentation” means the end user technical documentation for the Persona Service, as may be updated from time to time, provided by Persona on its website. Documentation is currently available at https://docs.withpersona.com/docs.
- “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Persona Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
- “Order Form” means any Persona ordering documentation, online sign-up, or subscription flow that references this Agreement, including any attached exhibits or statements of work.
- “Persona Code” means: (i) the SDK(s) and other software code provided by Persona to enable use of the Persona Service within Customer’s websites and applications and (ii) other software, if any, specified in Customer’s Order Form that is developed and provided for use by Customer under this Agreement.
- “Persona Service” means the proprietary software-as-a-service product(s) of Persona specified in Customer’s Order Form, including any Persona Code and Documentation.
- “Persona Technology” means the Persona Service, any other Persona products and services, and all related or underlying documentation, technology, code, Aggregate/Anonymous Data, logs, product usage data, know-how, logos, materials, and templates (including anything delivered as part of support or other services), and any updates, modifications or derivative works of any of the foregoing (including as may incorporate any Feedback).
- “Scope of Use” means numerical limits, descriptions of product packages and features, and other usage limits for the Persona Service included in the applicable Order Form.
- “Term” means the initial term for the applicable Persona Service specified on an Order Form, and each subsequent renewal term (if any).
Other terms are defined in other Sections of this Agreement or in the relevant policies or exhibits.
2. Account registration and use
3. Use rights
- Use of Persona Services. Subject to the terms and conditions of this Agreement, Persona grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the applicable Term to access and use the Persona Service(s) designated on Customer’s Order Form, solely for Customer’s business purposes and in accordance with the Documentation and applicable Scope of Use. The Persona Service may require installation of Persona Code within Customer’s website or applications. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Persona Code on the Customer Properties specified on Customer’s Order Form.
- Authorized Users. Customer may permit its Authorized Users to use the Persona Service, provided their use is for Customer’s benefit only and in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and their compliance with this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
- General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, distribute, or otherwise provide access to any portion of the Persona Service to a third party (except Authorized Users); (ii) incorporate the Persona Service (or any portion of it) with, or use it with or to provide, any site, product, application or service, other than on Customer Properties; (iii) modify or create a derivative work of the Persona Service or any portion of it; (iv) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Persona Service (including Persona Code), except to the extent expressly permitted by applicable law and then only with advance notice to Persona; (v) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Persona Service, or configure the Persona Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vi) access the Persona Service for the purpose of building a competitive product or service or copying its features or user interface; (vii) use the Persona Service for purposes of product evaluation, benchmarking, performance testing, or comparative analysis intended for publication; or (viii) remove or obscure any proprietary or other notices contained in the Persona Service, including in any reports or output obtained from the Persona Service.
- Fair Credit Reporting Act. The data and information provided by Persona does not constitute a “consumer report” as such term is defined under the Fair Credit Report Act (as amended) (“FCRA”), and Customer represents and warrants that it shall not use the Persona Services or any of the information provided by Persona in whole or in part as a factor in determining eligibility for credit, insurance, employment or another eligibility purpose that would qualify it as a consumer report under the FCRA.
- Beta Releases and Free Access Subscriptions. Persona may provide Customer with the Persona Service for free or on a trial basis (each a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Persona Services, integrations, or features (“Beta Releases”), which are optional for Customer to use. Persona makes no promises that future versions of Beta Releases or Free Access Subscriptions will be released or will be made available under the same commercial or other terms. Persona may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time in Persona’s sole discretion, without liability. WITH RESPECT TO BETA RELEASES, CUSTOMER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH PERSONA WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
- Affiliate Use. Customer may use the Persona Service on a Customer Property owned or controlled by an Affiliate. Customer will be responsible and liable for its Affiliates’ Customer Property and related Customer Data, and for the Affiliates’ compliance with this Agreement. Persona and Customer’s Affiliate may also enter into a separate Order Form governed by the terms of this Agreement. This will establish a new and separate agreement between the Customer Affiliate and Persona and references to Customer shall refer to such Affiliate.
4. Customer data
- Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data and Customer Properties. Customer grants Persona a non-exclusive, worldwide, royalty-free right to collect, use, modify and process Customer Data solely: (i) to provide the Persona Service and related services including for customer support and quality assurance purposes) and (ii) to generate separate anonymous data sets about product usage and/or performance that do not identify Customer, Authorized Users, or Customer End Users and that are stripped of all persistent identifiers (such as name, email address, device identifiers, and IP addresses) (“Aggregate/Anonymous Data”).
- Security. Persona will implement appropriate technical and organizational security measures designed to protect Customer Data in the Persona Service against unauthorized or unlawful processing, accidental or unlawful destruction, accidental loss or alteration, and unauthorized disclosure or access. Persona’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification. Persona’s current measures are available at https://withpersona.com/security (the “Security Standards”).
- Support. Persona will provide technical support to Customer on weekdays during the hours of 9:00 am through 6:00 pm Pacific time, with the exclusion of US Federal Holidays (the “Support Hours”). Customer may initiate a helpdesk ticket by emailing [email protected] or by accessing web-based support through its website (currently available at https://support.withpersona.com/hc/en-us). Persona will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day. Persona may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases but will have no obligation to provide support or maintenance for these items.
- Other Services. Persona may also provide onboarding, deployment and other services under this Agreement. The scope, pricing, and other terms for these additional services will be specified in an Order Form, statement of work or other document referencing this Agreement. Customer may use anything delivered as part of these additional services internally during its Term to support its authorized use of the Persona Service, subject to the restrictions above applicable to the Persona Service itself. Persona’s ability to deliver services will depend on Customer’s reasonable and timely cooperation, and the accuracy and completeness of any information from Customer needed to deliver the services. For clarity, Customer retains ownership of any Confidential Information it provides to Persona.
6. Fees and payment
- Fees. Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Persona’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Persona. Except as expressly provided in this Agreement, payments are non-refundable and non-creditable and payment obligations non-cancellable. All undisputed fees due are payable in United States dollars, unless otherwise agreed to between the parties in writing.
- Credit Card Payment Terms. If Customer elects to pay via credit card, then Customer is solely responsible for either (a) enabling auto-recharge on Customer’s payment instrument or (b) ensuring that Customer’s payment instrument has a sufficient positive balance to cover all fees due. If, for any reason, Customer has a negative balance on its account(s), then Persona reserves the right to suspend access to the Persona Services.
- Invoicing Payment Terms. If Customer elects to receive invoices and pay in arrears as agreed by Persona, then invoices will be sent to via email in accordance with the Order Form. Except as otherwise set forth in an Order Form, Customer will make all of the undisputed fees hereunder within thirty (30) days of the date of the invoice. If Customer is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then Persona may assess, and Customer agrees to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less.
- Disputes. Customer must notify Persona in writing of any good-faith invoice dispute within twenty (20) days of the applicable invoice date and reasonably cooperate with Persona in resolving any dispute. If the parties are unable to resolve a dispute within ten (10) days of Customer’s notice, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any provision in this Agreement that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.
7. Term and termination
- Term. This Agreement is effective as of the Effective Date and continues until terminated. Either party may terminate this Agreement with thirty (30) days’ advance written notice if all Terms for the Persona Service(s) have expired or are terminated as expressly permitted in this Agreement.
- Subscription Term and Renewals. By executing an Order Form for purchase of a Persona Service, Customer is agreeing to pay applicable fees for the entire Term. Customer cannot cancel or terminate this Agreement except as expressly permitted in this Agreement. If no start date is specified on the applicable Order Form, the Term starts when Customer first obtains access to the Persona Service. Each Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Term.
- Suspension of Service. Persona may suspend Customer’s access to the Persona Service(s) if Customer’s account is overdue and Customer fails to pay amounts due within ten (10) days of notice by Persona, subject to Section 6.4 (Disputes). Persona may also suspend Customer’s access to the Persona Service(s) if it determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Persona Service.
- Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
- Effect of Termination. Upon any expiration or termination of this Agreement or an Order Form, Customer’s rights to the Persona Service terminate and it must promptly: (a) stop using the applicable Persona Service(s) (including any related Persona Technology); (b) stop distributing any Persona Code installed on its Customer Properties; and (c) delete (or, at Persona’s request, return) any and all copies of the Persona Code, any Persona documentation, passwords or access codes, and any other Persona Confidential Information in Customer’s possession, custody, or control. If Persona terminates this Agreement for cause as provided in Section 7.4 (Termination for Cause), any payments for the remaining portion of the Term will become due and must be paid immediately by Customer. If Customer terminates this Agreement for cause as provided in Section 7.4 (Termination for Cause), Customer will receive a refund of any fees it has pre-paid for the terminated portion of the applicable Term. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
- Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions); 2 (Account Registration and Use); 3.3 (General Restrictions); 3.4 (Fair Credit Reporting Act) 3.6 (Beta Releases and Free Access Subscriptions); 4.1 (Rights in Customer Data); 6 (Fees and Payment); 7 (Term and Termination); 8 (Confidential Information); 9 (Persona Technology); 10 (Indemnification); 11.2 (Disclaimers); 12 (Limitations of Liability); and 13 (General).
8. Confidential information
- Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Persona, includes the subcontractors referenced in Section 13.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 8 and that these recipients are bound to confidentiality obligations no less protective than this Section.
- Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
- Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
9. Persona technology
- Ownership and Updates. This is a term-limited agreement for access to and use of the Persona Service. Customer acknowledges that it is obtaining only a limited right to use the Persona Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Persona (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Persona Technology, which is deemed Persona’s Confidential Information, and reserves all rights not specifically granted in this Agreement. Other than the Persona Code, the Persona Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Persona Service, that Persona may collect learnings, logs, and data regarding the performance and use of the Persona Service, and that Persona may make updates, bug fixes, modifications or improvements to the Persona Service from time-to-time.
- Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Persona (collectively, “Feedback”), Customer hereby grants Persona a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Persona will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Persona’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer agrees to defend Persona from and against any third-party claim to the extent resulting from Customer Properties (including services or products provided through the Customer Properties), or a breach or alleged breach of Section 3.3, 3.4 or 3.5. Customer will indemnify and hold Persona harmless from and against any damages and costs awarded against Persona or agreed in settlement by Customer (including reasonable attorney’s fees) that result from these third-party claims. Customer must not settle any claim without Persona’s prior written consent if the settlement would require Persona to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Persona may participate in a claim through counsel of its own choosing at its own expense and Customer and Persona will reasonably cooperate on the defense.
Disclaimers. ALL PERSONA TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PERSONA NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICE. PERSONA MAKES NO WARRANTY ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICE. . PERSONA’S EXPRESS SECURITY OBLIGATIONS UNDER THIS AGREEMENT ARE NOT A WARRANTY OR GUARANTEE THAT THESE MEASURES WILL PREVENT A DATA SECURITY BREACH. PERSONA WILL NOT BE RESPONSIBLE OR LIABLE FOR: (i) ANY CUSTOMER PROPERTIES, CUSTOMER DATA, OR NON-PERSONA PRODUCTS AND SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES OR OTHER PROBLEMS CAUSED BY THESE ITEMS); (ii) USE OF THE PERSONA TECHNOLOGY NOT AUTHORIZED BY THIS AGREEMENT; OR (iii) DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON THE PERSONA SERVICES. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
12. Limitations of liability
- Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PERSONA OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
- Liability Cap. EACH PARTY’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO PERSONA FOR THE APPLICABLE PERSONA SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, EXCEPT THAT THIS SECTION 12.2 DOES NOT APPLY TO: (i) DEFENSE COSTS AND DAMAGES PAYABLE BY AN INDEMNIFYING PARTY TO THIRD PARTIES UNDER SECTION 10 (INDEMNIFICATION); AND (ii) CUSTOMER’S PAYMENT OBLIGATIONS AS EXPRESSLY PROVIDED IN THIS AGREEMENT. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, PERSONA’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
- Failure of Essential Purpose. THIS SECTION 12 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in San Francisco, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the other party’s advanced written consent, except that each party may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void.
- Notices. Customer will send any notices under this Agreement to Persona, in English, at the following address, [email protected], and include “Attn. Legal Department” in the subject line. Persona may send notices to the email addresses on Customer’s account or, at Persona’s option, to Customer’s last-known postal address. Persona may also provide operational notices regarding the Persona Service or other business-related notices through conspicuous posting of the notice on Persona’s website or the Persona Service. Each party consents to receiving electronic notices.
- Relationship of the Parties. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Persona may utilize subcontractors or subprocessors in connection with its obligations under the Agreement but will remain liable to Customer for the acts or omissions of any such subcontractors or subprocessors.
- Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
- Export. Each party will comply with all applicable export control laws. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any government list of prohibited or restricted parties or located in (or a national of) a country subject to a government embargo or that has been designated by the government as a “terrorist supporting” country.
- Publicity. Customer agrees that Persona may refer to Customer’s name and trademarks in Persona’s marketing materials and website, including but not limited to displaying the Customer’s logo, solely for the purpose of identifying Customer as a customer of Persona.
- Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
- No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement, even if Customer uses the Persona Service on its Affiliate’s Customer Properties.
- Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Persona Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect. This Agreement may be signed in counterparts, including by electronic copy, each of which will be deemed an original, and all counterparts together constituting one and the same Agreement.