This Persona Trial Agreement ("Agreement") is entered into the date the Order Form referencing this Agreement is fully executed ("Effective Date") by and between Persona Identities, Inc., with offices at 981 Mission Street #95, San Francisco, CA 94103 ("Persona"), and the customer identified on the applicable Order Form ("Customer"). Persona and Customer may be referred to individually as a "Party" and collectively as the "Parties."
1. Definitions
In addition to any terms defined in the body of this Agreement, the following definitions apply:
1.1 "Confidential Information" means any non-public information disclosed by one Party ("Disclosing Party") to the other ("Receiving Party") in connection with the trial. Without limiting the foregoing, Customer Data is Customer’s Confidential Information, and Persona Technology is Persona’s Confidential Information.
1.2 “Customer Data” means any data collected by the Service on behalf of Customer and any data or content that Customer provides to the Service.
1.3 “Documentation” means the end user technical documentation for the Service available at https://docs.withpersona.com/docs/getting-started.
1.4 “End Users” means end users who interact with the Service for verification purposes.
1.5 “Order Form” means the Persona trial order form that references this Agreement.
1.6 “Service” means Persona’s proprietary software-as-a-service product(s) specified in Customer’s Order Form, including any code and Documentation.
1.7 “Persona Technology” means (i) Persona’s SDK(s) and other software code provided by Persona to enable use of the Service within Customer’s websites and applications, (ii) the Service, (iii) any other Persona products and services, (iv) all related or underlying documentation, technology, code, logs, product usage data, know-how, logos, materials, and templates (including anything delivered as part of support or other services), and (v) any updates, modifications or derivative works of any of the foregoing.
1.8 “Trial Term” means the duration of the trial specified on the Order Form.
2. Trial Services.
2.1 Persona Trial. Persona grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Trial Term to access and use the Service specified on the Order Form solely for evaluation purposes, and in accordance with the Documentation. The specific details of the trial, including the number of records, duration, any applicable fees and payment terms, and other relevant parameters, will be outlined in the Order Form. Customer agrees to be bound by the terms set forth in the Order Form, which is incorporated herein by reference.
2.2 Restrictions. Customer must not: (i) provide access to any portion of the Service to a third party except End Users; (ii) modify or create a derivative work of the Service or any portion of it; (iii) 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 the Service, except to the extent expressly permitted by applicable law and then only with advance notice to Persona; (iv) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Service; (v) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (vi) use the Service for purposes of product evaluation, benchmarking, performance testing, or comparative analysis intended for publication; or (vii) remove or obscure any proprietary or other notices contained in the Service, including in any reports or output.
2.3 Customer Obligations. Customer agrees to: (i) provide all required privacy disclosures and obtain any necessary consents to allow the Service to be used and to permit Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement; and (ii) use the Service in compliance with all applicable laws and regulations.
3. Customer Data.
3.1 Data Security. Persona will implement commercially reasonable administrative, technical, and physical measures to protect Customer Data against unauthorized access, use, or disclosure. If the parties execute a Persona Data Processing Addendum (“DPA”), upon execution it will be incorporated into this Agreement by reference.
3.2 Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data. Customer grants Persona a non-exclusive, worldwide, royalty-free right to collect, use, modify and process Customer Data to provide the Service and related services (including for customer support), and for quality assurance and fraud prevention.
3.3 CCPA. The parties’ rights and obligations under the California Consumer Privacy Act are set forth in the Persona CCPA Addendum available at https://withpersona.com/ccpa-addendum (the “CCPA Addendum”). The CCPA Addendum forms a part of and is incorporated into this Agreement by reference.
4. Confidentiality.
Receiving Party agrees to (a) use Confidential Information solely for the purposes of this Agreement; (b) not disclose Confidential Information to any third party without prior written consent, except as required by law; and (c) protect Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event less than a reasonable standard of care.
5. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 4 - CONFIDENTIALITY (WHICH, EXCLUDING DATA BREACHES, IS NOT SUBJECT TO THIS CAP), NEITHER PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING FOR ANY DATA BREACH, WILL EXCEED FIFTY THOUSAND DOLLARS (US $50,000).
6. Term and Termination.
6.1 Term. This Agreement is effective on the Effective Date and expires on the earlier of: (i) expiration of the Trial Term; (ii) termination in accordance with this Agreement; (iii) the Parties entering into a definitive agreement for the Service.
6.2 Suspension. Persona may temporarily suspend Customer’s access to the Service 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 Service.
6.3 Termination. Either party may terminate this Agreement, including the Order Form, if the other party: (i) fails to cure any material breach of this Agreement within ten (10) 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.
6.4 Effect of Termination. Upon termination, (i) each Party will return or destroy the other Party’s Confidential Information and on request certify such return or destruction in writing, and (ii) Customer shall stop using the Service and immediately return or destroy any copies of the Persona Technology.
6.5 Survival. Upon termination of this Agreement, any provisions that, by their nature, are intended to survive shall remain in full force and effect.
7. Persona Technology
7.1 Ownership and Updates. Customer acknowledges that no ownership rights are transferred to Customer under this Agreement. Persona retains all rights, title and interest (including all intellectual property rights) in and to all Persona Technology, and reserves all rights not specifically granted in this Agreement.
7.2 Feedback. Customer may provide feedback about the Service to Persona. Persona and its affiliates may use any such feedback without restriction and without obligation to Customer.
8. Disclaimer
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PERSONA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. PERSONA WILL NOT BE RESPONSIBLE OR LIABLE FOR: (i) ANY CUSTOMER WEBSITES, APPLICATIONS, OR CUSTOMER DATA; (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. STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
9. Miscellaneous.
9.1 Governing Law. This Agreement is governed by the laws of the State of California, without regard to its conflict of law principles. The exclusive venue for disputes is the state or federal courts located in San Francisco, California, and the parties waive any objection to such forum to the maximum extent permitted under law.
9.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the trial and supersedes all prior or contemporaneous agreements, understandings, and communications related to the trial. In the event of any inconsistency between the Agreement and the Order Form, the Order Form shall prevail. For clarity, to the extent the parties have previously executed a nondisclosure or similar agreement, such agreement shall remain in effect pursuant to its terms with respect to matters outside the scope of the trial. This Agreement may only be modified by a written amendment signed by both Parties.
9.3 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party.
9.4 Counterparts. This Agreement may be executed in counterparts, each of which constitutes an original and all of which constitute one and the same instrument.