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SMILE IDENTITY SAAS SERVICES AGREEMENT.

DEFINITIONS

Services: Usage of the Smile Identity (Smile ID) Platform, as available, to execute the following the (“Service(s)”):

  1. User Registration and KYC Services:
    1. Capture of customer images (Selfie and photo of ID card, when required) during Registration of a User;
    2. Proof of Liveness Check during registration, and Human Review when required,
    3. Verify User ID number to the ID Issuing Authority and return of User Personal Information
    4. Face Matching - Matching of Selfie to the photo on file at the ID Issuing Authority, when available, with algorithmic confidence scores and human review as needed. OR comparison to a photo of the ID card provided by Partner, when required.
  2. Authentication or Biometric Authentication:
    1. Proof of Liveness Check during Authentication.
    2. Compare Incoming Selfie to Registered Selfie and human review as needed. Services Fees:
      • Service Fees are payable in advance for each User action, subject to the terms of Section 5 herein.
      • Service Fees consist of the below: Add Partner pricing as per Standard Pricing Table
  3. “Action” - is defined as any one or combination of:
    • “Registration” or “User Registration” – is defined as a User who has been successfully registered into the Smile Identity system by Partner via the Smile Identity Platform.
    • “Human review” – is defined as the process or action whereby a human reviews, or determines, the result of a Registration or Authentication, whether done manually by the human or otherwise.
    • “Proof of Liveness Check” – is an anti-spoofing (anti-presentation attack) measure built into the Smile Identity solution meant to identify whether the face submitted for authentication is real and the face is live.
    • “KYC Services” – is defined as the process of attempting to ascertain or validate details about an User’s identity including their Personal Information and comparing the User's face (as provided by the User)to a photo of the User on file with the ID Issuing Authority or photo of a physical ID Card.
    • “Authentication” – is defined as the process or action whereby Smile Identity attempts to verify data, from or of, a User, against data captured at the time of Registration. Authentication includes Proof of Liveness Check.
  4. “Call” –is defined as an API (application program interface) call / query to any ID Issuing Authorities responsible for issuing accepted User identity credentials.
  5. “ID Issuing Authority” – is defined as the Government or third-party authority or database which issues the identity card or identity credentials to a User in the country of operation. Examples of ID Issuing Authorities relevant to this agreement include:
    • Kenya
      • IPRS (Integrated Population Registration System)
    • Ghana:
      • Voters Card (Electoral Commission)
      • SSNIT (Social Security and National Insurance Trust)
      • Passport (Ministry of Foreign Affairs and Regional Integration)
      • DVLA (Driver and Vehicle Licensing Authority)
    • Nigeria:
      • NIBSS (Nigeria Inter-Bank Settlement System)
      • NIMC (National Identity Management Commission)
      • Passport (Nigeria Immigration Services)
      • INEC (Nigeria’s Independent Electoral Commission – issuer of Voters Cards)
      • Drivers License (Federal Road Safety Commission)
      • Corporate Affairs Commission
      • Tax Identification Number
      • Bank Account Verification Service
      • Phone Number Verification Service
    • South Africa
      • National Identity Card (Department of Home Affairs)
  6. “Incoming Selfie” – is defined as the Selfie captured by a User subsequent to that User having successfully been registered onto the Smile Platform. This would be the case each time a User wants to perform Authentication.
  7. “Personal Information” – is defined as the Personal Data (as defined in the Data Processing Agreement) of a User which includes, but is not limited to, the User's First Name, Last Name / Surname, Date of Birth, Gender and biometric data of a User.
  8. “Registered Selfie” – is defined as the Selfie captured by the User during the registration process.
  9. “Smile Platform” – is defined as the Smile SDKs (software development kits), APIs, enterprise portal and SmartSelfie™ technology used to register Users via Android or iOS SDK, API’s and JavaScript web application library, and to execute any one Action or a combination of Actions.
  10. “User” – is defined as an individual, being a natural person, for which the User or Partner has requested any Action to be performed and or any Action has been performed via the Smile Platform.
  11. Implementation Services: Smile Identity will use commercially reasonable efforts to provide Partner the services described in the section SAAS SERVICES AND SUPPORT.

TERMS AND CONDITIONS

  1. SAAS SERVICES AND SUPPORT
    1. Please read these Terms and Conditions (“Terms”), which set forth the legally binding terms and conditions between you and Smile Identity Inc. (referred to as “Smile ID" or the "Company”). It governs your access to, and the use of Smile ID’s website and all Services offered by Smile ID.
    2. Your access to use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms and all applicable laws, regulations, and all conditions or policies referenced here apply to all visitors, Users and others who access or use the Service.
    3. The Service is offered subject to the terms of ID Issuing Authorities and third-party providers (as set out in the Smile Identity Data Processing Agreement) that may be utilized in delivery of the Service, and subject to acceptance of all the terms and conditions contained in these Terms and all other operating rules, policies, and procedures that may be published on the website by the Company, which are incorporated by reference, including operating rules, policies, and procedures of third-party service providers to the website that are referenced herein. These Terms apply to every user of the Service.
    4. By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the Terms, then you may not access the Service.
    5. The Service is offered subject to the terms of the Agreement, Smile ID will use commercially reasonable efforts to provide the Partner the Services and sufficient technical support required to operate the Smile Platform.
    6. Other terms are defined in other sections of this Agreement or in the relevant Service-specific terms or policies.
    7. The headings in this Agreement are for convenience only and shall not affect their interpretation
    8. In these Terms, unless the context otherwise requires:
      • "Equipment” means including, but not limited to, modems, hardware, servers, software, operating systems, networking, web servers;
      • "Documentation" means the specifications, user manuals and training materials or any other documentation that Smile ID makes generally available to all Partner relating to the use and operation of the Service;
      • “Partner” means the person, company, partnership or other legal entity with whom Smile ID enters into the Agreement and whose details are listed in the information schedule and for whom Smile ID has agreed to provide the Services in accordance with these Terms. This includes a representative, employee, director, consultant, customer, client, contractor or contracted third party of the Partner who is utilizing the Smile ID Services;
      • “Services” means all or any of the services to be provided by Smile ID for the Partner (and ultimate User) as outlined in the Agreement;
    9. Smile ID will provide a simulated server to facilitate SDK integration and testing prior to Partner integrating the Smile Identity API calls to Partner’s private servers.
    10. As part of the registration process, Partner will create administrative user names and passwords for Partner’s Smile ID account. Smile ID reserves the right to refuse registration of, or cancel passwords it deems inappropriate or insecure.
    11. Smile ID will provide Partner access to an API to download images and associated Personal Data (“Partner Data”) generated by any implementations of the Smile Platform.
    12. Human / Manual Review Turnaround In the provision of the Services, Smile ID makes use of a human / manual review process. The turnaround time for Smile ID to complete a single manual review will be agreed in a separate service level agreement to be finalized between the parties and incorporated by reference into this Agreement.
  2. RESTRICTIONS AND RESPONSIBILITIES
    1. Partner will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Smile ID or authorized within the Services).
    2. For the avoidance of doubt, “derivative works” are defined as any revisions, alterations, translations, or expansions of the Services, or any other form in which Services or Documentation are transferred, or adapted.
    3. Partner will also not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Partner by Smile ID for use on Partner premises or devices, Smile ID hereby grants Partner a non-exclusive, non-transferable, non-sub-licensable license to use such Software during the term of the Agreement (as defined in clause 6 below) only in connection with the Services.
    4. Further, Partner may not remove or export from the country of operation or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the country of operation or the United States Department of Treasury Office of Foreign Assets Control. As defined in Federal Acquisition Regulation ("FAR") section 2.101, the Software and Documentation are “commercial items” and according to Defense Federal Acquisition Regulation ("DFAR") section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
    5. Partner warrants that it possesses the requisite licence, permits, authorizations, and regulations to perform its obligations under these Terms.
    6. Partner represents, covenants, and warrants that Partner will use the Services only in compliance with Smile ID’s standard published usage policies then in effect (the “Policy”) and all applicable local laws and regulations. Smile ID Partner Usage Policy can be located at: https://docsend.com/view/ptd2rjcerd6rr9e4 Partner hereby agrees to indemnify and hold harmless Smile ID against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Partner’s use of Services provided that same is not as a result of any negligence, default or breach on the part of Smile ID. Although Smile ID has no obligation to monitor Partner’s use of the Services, Smile ID may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
    7. Partner shall be responsible for obtaining and maintaining any Equipment and ancillary services needed to connect to, access or otherwise use the Services. Partner shall also be responsible for maintaining the security of the Equipment, Partner account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Partner account or the Equipment with or without Partner’s knowledge or consent.
    8. Partner confirms that any image capture screen that is powered by the Smile Identity library must include the Smile Identity registered trademarks as provided by Smile Identity. For clarity, an example of such a trademark is SmartSelfie™.
    9. Partner warrants that Partner will share a consent agreement equivalent to the “SMILE IDENTITY DATA CONSENT TEMPLATE” with the User and receive consent from said User to such agreement before Smile ID performs a validation on said User. Where Partner fails to share a consent agreement equivalent to the “SMILE IDENTITY DATA CONSENT TEMPLATE” with the User, the Partner agrees that any liability that results after validation of said User will be completely borne by the Partner. The Partner hereby indemnifies and holds Smile ID harmless from any and all losses arising from any claim or action brought against Smile ID arising from or due to the Partner's breach of its obligation set out in this Agreement.
    10. Partner agrees to and is bound by the SMILE IDENTITY DATA PROCESSING AGREEMENT.
    11. Partner grants Smile ID permission to use the Partner's name and logo in marketing materials of Smile ID.
    12. Smile ID grants Partner permission to use Smile ID’s name and logo in Partner’s marketing materials.
  3. PROHIBITED ACTIVITIES
    1. Partner shall not utilize the website or the Services in connection with any transaction that is illegal or involves any illegal items or is for any illegal purpose.
    2. Smile ID, with prior notification to Partner, may close, suspend, or limit your access to the website or Services or refuse to complete a transaction that Smile ID has reason to believe is unauthorized or may violate any law, rule or regulation.
    3. Partner is solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to use of the Services. In connection with your use of the website, you will not assist or enable others to:
      • breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or these Terms;
      • engage in fraudulent or suspicious activities;
      • use the website or Services for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies endorsement, partnership or otherwise misleads others as to your affiliation with Smile ID;
      • use the Services in connection with the distribution of unsolicited commercial messages ("spam");
      • use the website to with the intention to circumvent any Service Fees or for any other reason;
      • discriminate against or harass anyone on the basis of race, tribe, origin, religion, gender, physical or mental disability, medical condition, marital status, or age, or otherwise engage in any abusive or disruptive behavior;
      • take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Smile Platform or Software;
      • violate or infringe anyone else’s rights or otherwise cause harm to anyone; or
      • provide false, inaccurate or misleading information.
  4. CONFIDENTIALITY; PROPRIETARY RIGHTS
    1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Smile ID includes non-public information regarding features, functionality and performance of the Service as well as all pricing and payment terms provided to Partner. Proprietary Information of Partner includes non-public data and non-public information regarding features, functionality, performance and business information of Partner systems / platforms provided by Partner to Smile ID to enable the provision of the Services (“Partner Data”). The Receiving Party agrees to take reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Proprietary Information that:
      1. is or becomes generally available to the public; or
      2. was in the Receiving Party's possession or known by it prior to receipt from the Disclosing Party; or
      3. was rightfully disclosed to the Receiving Party without restriction by a third party; or
      4. was independently developed without use of any Proprietary Information of the Disclosing Party; or
      5. is required to be disclosed by law.
    2. Partner shall be able to access all Partner Data and shall always retain access to such data, as well a right to access any data that is based on or derived from the Partner Data. Smile ID shall own and retain a right to:
      1. the Services and Software, improvements, enhancements or modifications thereto,
      2. other technology developed by Smile ID in connection with Implementation Services, Services or support, and
      3. all intellectual property rights related to any of the foregoing. These rights are limited to Smile ID property and will not include intellectual property developed by Partner to implement Smile ID Services.
    3. Partner consents, agrees and warrants that Smile ID will be authorized, free and able (during and after the term of the Agreement) to:
      1. use such information and data, including Partner Data and data provided by Users, to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Smile ID offerings; and
      2. disclose such data solely in aggregate or other de-identified form in connection with its business, provided that Smile ID shall be responsible for any misuse of that information and data.
  5. FEES
    1. Partner will pay Smile ID the then applicable fees described in this Agreement in accordance with the terms therein indicated as Service Fees (the “Fees”). Partner shall be invoiced for such usage and Partner agrees to pay the Fees in the manner provided herein. If Partner believes that Smile ID has invoiced Partner incorrectly, Partner must contact Smile ID no later than 30 days after the closing date on the first invoice statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Smile ID’s Partner support department which can be contacted at support@smileidentity.com. Smile ID may choose to change support contacts or support communication methods over time, provided Smile ID gives Partner at least ten (10) days’ notice prior to a change in customer support contact or communication method.
    2. Partner is to deposit funds, as directed by Smile ID, in advance of its use of the Services into the chosen bank account of Smile ID. The amount of funds deposited by Partner shall be agreed in advance between the Parties subject always to the Minimum balance of funds as set out in clause 5.4 and clause 5.6
    3. The Fees will be deducted by Smile ID from the balance of funds held in favour of the Partner in respect of each Service performed.
    4. Partner undertakes to ensure that it maintains the Minimum balance of funds with Smile ID. The "Minimum balance of funds" is to be no less than $100 (One Hundred US Dollars).
    5. Partner agrees and acknowledges that if the Partner’s balance of funds held by Smile ID is less than the required Minimum balance of funds ($100), Smile ID can suspend the Service with two (2) days notice, until a top-up deposit is made by the Partner to ensure the Minimum balance of funds have been restored.
    6. Partner may not deposit less than $500 (Five Hundred US Dollars) at any one time. Partner therefore cannot deposit funds into the Smile ID designated bank account to top-up the Partner balance of funds if the deposit amount is less than $500 (Five Hundred US Dollars).
    7. Fees are exclusive of and Partner shall be responsible for all taxes (sales tax, use tax, GST, value added tax, withholding, duties, levies, etc.) that are applicable to or result from the Partner's purchase or use of the Services.
    8. For local currency payments, Smile ID will use the prevailing official exchange rate provided by the central bank of applicable country of operation accordingly. In the event that the official exchange rate changes, Smile ID reserves the right to change price based on the official exchange rate and notify partners two (2) weeks in advance. Except as otherwise expressly set forth in this Agreement, all Fees are non-refundable and are not subject to deduction or set off.
  6. TERM AND TERMINATION
    1. Subject to earlier termination as provided below, this Agreement is for one (1) year (calculated with effect from the Effective Date) and shall be automatically renewed for additional periods of the same duration, unless either Party requests termination at least ninety (90) days prior to the end of the then-current term. Smile ID and Partner retain the right to modify the terms of this Agreement before such renewal.
    2. In addition to any other remedies it may have, either Party may also terminate this Agreement upon ninety (90) days’ notice (or immediately with ten (10) days’ notice in the case of non-payment, material breach of this Agreement, or insolvency/bankruptcy of either Party). Partner will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement, will survive this agreement for a period of two (2) years after termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
    3. In the case where the Partner subscribes for another service being provided by Smile ID, and the payment for the service is not currently covered by this existing agreement; Smile ID at its discretion reserves the right to call for and Partner agreed to enter into an addendum to this Agreement.
    4. Upon any termination or expiration hereof, Partner and all Users will immediately cease access to and use of the Service and delete (or, at Smile IDs request, return) any and all copies of the Documentation, and any other Smile IDs Proprietary Information. Following termination or expiration of this Agreement, Smile ID may delete any data stored by Smile ID at any time. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other contractual or legal remedies.

  7. WARRANTY AND DISCLAIMER

    Smile ID shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Smile ID or by third-party providers, or because of other causes beyond Smile ID’s reasonable control, but Smile ID shall use reasonable efforts to provide not less than seven (7) days advance notice in writing or by e-mail of any scheduled service disruption. SMILE ID DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES SMILE ID MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS"

  8. SECURITY
    1. Smile ID will use available technology, where appropriate, to protect the security of communications made as it offers the Services.
    2. Notwithstanding the above, Smile ID does not accept liability for security, authenticity, integrity or confidentiality of any transactions and other communications made through their Service provided that such liability is not borne out of negligence or omission on the part of Smile ID.
    3. Partner is aware that internet connections may be susceptible to interference or interception by third parties. Despite its best efforts, Smile ID makes no warranties that the services it offers are free from interference and unlawful used.
    4. Partner should take appropriate steps to keep information and any data in its possession as well as equipment secure.

  9. INDEMNITY & LIMITATION OF LIABILITY

    SMILE ID SHALL HOLD PARTNER HARMLESS FROM LIABILITY TO THIRD PARTIES RESULTING FROM INFRINGEMENT BY THE SERVICE OF ANY REGISTERED PATENT IN THE COUNTRY OF OPERATION OR ANY COPYRIGHT OR MISAPPROPRIATION OF ANY TRADE SECRET, PROVIDED SMILE ID IS PROMPTLY NOTIFIED OF ANY AND ALL THREATS, CLAIMS AND PROCEEDINGS RELATED THERETO AND GIVEN REASONABLE ASSISTANCE AND THE OPPORTUNITY TO ASSUME SOLE CONTROL OVER DEFENSE AND SETTLEMENT; SMILE ID WILL NOT BE RESPONSIBLE FOR ANY SETTLEMENT IT DOES NOT APPROVE IN WRITING.

  10. FORCE MAJEURE

    A Party hereof shall not be liable to the other for any delay or failure to perform its obligations under this Agreement if the delay or failure is due to causes beyond its reasonable control, such as acts of God, civil unrest, epidemics, pandemics, insurrection or civil disorder, war or military operations, national or local emergency, acts or omissions of government, or other competent authority, industrial disputes of any kind (whether or not involving the party’s employees), fire, lightning, explosion, flood, subsidence, weather of exceptional severity, acts of omission of persons whom the Party is not responsible, or any other cause whether similar or dissimilar outside the Party’s reasonable control.

  11. SEVERABILITY

    If any provision of this Agreement is found to be unenforceable or invalid in whole or in part, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

  12. ENTIRE AGREEMENT

    This Agreement is not assignable, transferrable or sub-licensable by either Party except with the other Party’s prior written consent. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement contains the entire agreement between the Parties and there are no other representations, promises or conditions, provided that nothing in this clause shall limit either Party’s liability for fraudulent misrepresentation.

  13. VARIATION/AMENDMENT
    1. Smile ID reserves the right, upon obtaining the written consent of the Partner, to change the Terms under which the Services are offered. The most current version of the Terms will supersede all previous versions. Smile ID will communicate any such changes in advance. However, Smile ID also encourages you to periodically review the Terms to stay informed of updates.

  14. NOTICES

    All notices under this Agreement will be in writing and addressed to the other Party such address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice. Any such notice will be deemed to have been duly given:

    1. when receipt is electronically confirmed, if transmitted by e-mail;
    2. if sent by certified or registered mail, seven (7) days after posting and proof that the envelope containing the notice of communication was properly addressed, and prepaid registered and a receipt to that effect shall be sufficient evidence that notice or communication has been duly served.
  15. DISPUTE RESOLUTION
    1. Any dispute, controversy, difference, claim or question which may arise at any time between the parties touching upon the construction of this Agreement, on their respective rights and liabilities with respect hereto or otherwise arising in respect of matters the subject of this Agreement parties shall be dealt with amicably.
    2. Any disputes arising under or in connection with the validity, interpretation and performance of the Terms between Smile ID, Partner or/and any third parties that cannot be resolved amicably by the parties through negotiation within 30 (thirty) days shall be resolved in a process as advised by California registered attorneys appointed by Smile ID.

  16. GOVERNING LAW

    This Agreement shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof.

  17. MISCELLANEOUS
    1. No failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of any breach of this Agreement by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
    2. No agency or joint venture, franchise or employment is created as a result of this Agreement and either party does not have any authority of any kind to bind the other party in any respect whatsoever.
    3. Except as otherwise set forth herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by each Party.

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