IMPORTANT NOTICE PLEASE READ CAREFULLY
THIS TERMS OF SERVICE AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION, A CLASS ACTION WAIVER, SIGNIFICANT LIMITATIONS ON LIABILITY, AND DISCLAIMERS OF WARRANTIES. BY INSTALLING, ACCESSING, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY ALL OF THESE TERMS. IF YOU DO NOT AGREE, DO NOT INSTALL, ACCESS, OR USE THE SERVICES.
REGULATORY NOTICE:
VeriSanction is a software tool that assists Customer with identity verification, KYC/AML workflow management, and sanctions screening. VeriSanction is not a compliance officer, investment adviser, broker-dealer, futures commission merchant, money services business, bank, or legal advisor. Customer remains solely and exclusively responsible for all regulatory compliance obligations, compliance determinations, recordkeeping decisions, suspicious activity reporting, and supervisory activities required under applicable law.
ECONOMIC BARGAIN NOTICE: The Services are offered at a low, commodity-level subscription price that expressly reflects the allocation of risk set forth in Sections 10 (Disclaimers of Warranties), 11 (Limitation of Liability), and 12 (Indemnification) of this Agreement. Customer acknowledges that Company would not be willing to license the Services at the stated fees without the benefit of these provisions, and that Customer is capable of obtaining insurance, alternative software, or other protection against the excluded risks.
1. Definitions
1.1 "Agreement" means this Terms of Service Agreement, including any schedules, order forms, and documents incorporated by reference.
1.2 "Company," "we," "us," or "our" means Lamaute Labs LLC, a Washington limited liability company.
1.3 "Customer," "you," or "your" means the individual or entity that has purchased, licensed, accessed, or otherwise uses the Services, and any Authorized User acting on its behalf.
1.4 "Services" means the VeriSanction desktop software application and all related features, including without limitation the Dashboard, Screening, Adjudication, Monitoring, Audit Trail, Cost Tracking, Settings, and User Management views; updates and upgrades thereto; and any technical support provided by Company.
1.5 "Software" means the VeriSanction desktop application installed and operated on Customer's systems.
1.6 "KYC/AML Checks" means identity verification, sanctions screening, and related checks performed through the Services on a pay-as-you-go basis, which rely in whole or in part on third-party data sources including, without limitation, Plaid Inc. and government sanctions list publishers.
1.7 "Customer Data" means all data, information, records, and content that Customer or its Authorized Users input into, generate through, or store within the Services, including identifiers of persons and entities submitted for screening.
1.8 "Third-Party Services" means services, data, software, and APIs provided by third parties that the Services integrate with or rely upon, including, without limitation, Plaid Inc. and government sanctions list publishers (collectively, "Upstream Data Providers" ).
1.9 "Authorized User" means an employee, contractor, or agent of Customer who is authorized by Customer to access and use the Services under Customer's Subscription.
1.10 "Subscription" means an annual paid license to install and operate the Software, which includes software updates and standard technical support.
1.11 "Data Protection Laws" means all applicable laws, regulations, and binding guidance relating to privacy, data protection, or the processing of personal data, including, to the extent applicable, Regulation (EU) 2016/679 (General Data Protection Regulation, "GDPR"), the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act (together, "CCPA"), and the UK Data Protection Act 2018.
1.12 "Personal Data" means any information relating to an identified or identifiable natural person, as defined under applicable Data Protection Laws.
2. ACCEPTANCE AND ELIGIBILITY
2.1 Acceptance. By installing, accessing, or using the Services, Customer agrees to be bound by this Agreement. If Customer is accepting this Agreement on behalf of an entity, the individual doing so represents and warrants that they have the authority to bind such entity.
2.2 Business Use; Sophisticated Party. The Services are intended solely for use by businesses, regulated financial services entities, and other commercial entities (including marketplaces) in connection with lawful KYC, AML, and sanctions compliance workflows or other legitimate operational risk-management purposes. Customer represents and warrants that it is accessing and using the Services for legitimate business purposes and not as a consumer, that it is a sophisticated commercial party, and that it has had the opportunity to review this Agreement (including its risk-allocation provisions) with counsel of its choosing.
2.3 Eligibility. Customer represents and warrants that:
(a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization;
(b) it has full power and authority to enter into and perform its obligations under this Agreement; and
(c) neither Customer nor any of its directors, officers, principals, owners, or Authorized Users is a person or entity subject to sanctions administered by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC") or any other applicable sanctions authority, including without limitation any person or entity identified on OFAC's Specially Designated Nationals and Blocked Persons List ("SDN List").
3. LICENSE GRANT; RESTRICTIONS
3.1 License. Subject to Customer's compliance with this Agreement and timely payment of all applicable fees, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Subscription term to:
(a) install and use the Software on devices owned or controlled by Customer; and
(b) permit its Authorized Users to access and use the Services solely for Customer's internal business purposes.
3.2 Restrictions. Customer shall not, and shall not permit any third party to:
(a) copy, modify, translate, or create derivative works of the Services;
(b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services, except to the extent such restriction is prohibited by applicable law;
(c) sell, rent, lease, sublicense, distribute, or assign rights to the Services;
(d) use the Services to build a competitive product or service;
(e) remove or alter any proprietary notices;
(f) use the Services in violation of any applicable law, regulation, or third-party right;
(g) circumvent or attempt to circumvent any licensing, access, or metering controls; or
(h) use the Services to process data on behalf of any third party without Company's express prior written consent.
3.3 Reservation of Rights. All rights not expressly granted to Customer are reserved by Company and its licensors. No implied licenses are granted under this Agreement.
4. SUBSCRIPTION, FEES, AND PAYMENT
4.1 Annual Subscription. The Software is licensed on an annual subscription basis. The Subscription includes software updates released during the term and standard technical support as described in Company's then-current support documentation. Subscriptions automatically renew for successive one-year terms at Company's then-current rates unless either party provides written notice of non-renewal at least thirty (30) days before the end of the then-current term. CUSTOMER ACKNOWLEDGES THAT, UPON AUTO-RENEWAL, ITS PAYMENT METHOD ON FILE WILL BE CHARGED UNLESS CUSTOMER TIMELY CANCELS. Customer may manage auto-renewal preferences through its account settings at any time.
4.2 Pay-As-You-Go KYC/AML Checks. KYC/AML Checks are billed on a pay-as-you-go basis at Company's then-current per-check rates. Fees for KYC/AML Checks are incurred at the time the check is initiated, whether or not the check returns a match, is inconclusive, or is cancelled by Customer after submission. All KYC/AML Check fees are non-refundable once the check has been initiated.
4.3 Taxes. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities. Customer is responsible for all such taxes other than taxes based on Company's net income.
4.4 Payment Processing. Subscription fees are processed through Company's third-party payment processor. Payment processing fees charged by such processor are deducted from any refund issued to Customer and are not reimbursable by Company. Customer is solely responsible for any transaction, foreign exchange, or chargeback fees imposed by its financial institution.
4.5 Late Payments. Any undisputed amount not paid when due shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, from the due date until paid. Company may suspend Services for any account more than fifteen (15) days past due following written notice.
4.6 Price Changes. Company may modify Subscription and per-check fees upon not less than thirty (30) days' written notice prior to the start of any renewal term. Fee changes will not affect the then-current paid term.
5. THIRTY-DAY MONEY-BACK GUARANTEE
5.1 Guarantee. Company offers a thirty (30) day money-back guarantee on the initial annual Subscription purchase by a new Customer. If Customer is not satisfied with the Software for any reason, Customer may request a refund of the Subscription fee by submitting a written request to team@verisanction.com within thirty (30) calendar days of the date of the Subscription purchase. No proration applies; a timely request received on day 1 or day 30 is treated identically under this Section.
5.2 Refund Amount. Subject to the eligibility requirements and exclusions in Sections 5.3 and 5.4, the refund shall equal the full first-year Subscription fee paid by Customer, less:
(a) any payment processing fees charged by Company's third-party payment processor (which are not reimbursed to Company and therefore are not recoverable by Customer); and
(b) any taxes, levies, or duties that have been remitted by Company to a taxing authority.
5.3 Eligibility. The money-back guarantee is available only to:
(a) first-time purchasers of a VeriSanction annual Subscription (one claim per Customer, including its affiliates and related entities);
(b) accounts in good standing that have not materially breached this Agreement, where "material breach" for purposes of this Section 5.3(b) means non-payment of undisputed fees, unauthorized use of the Services, or breach of Section 3.2 (Restrictions), breach of Section 2 (Acceptance and Eligibility), breach of any obligation under Section 6 (Customer Responsibilities and Regulatory Compliance), or breach of Section 7 (Data, Privacy, and Local Storage); and
(c) claims submitted in writing to team@verisanction.com within thirty (30) calendar days of the Subscription purchase.
5.4 Exclusions. The thirty-day money-back guarantee does not apply to, and Company will not refund:
(a) pay-as-you-go KYC/AML Check fees (these fees reflect irrevocable costs paid by Company to Upstream Data Providers and are non-refundable in all circumstances once the check has been initiated);
(b) payment processing fees retained by the payment processor;
(c) taxes, levies, or duties remitted to taxing authorities;
(d) renewals of previously purchased Subscriptions;
(e) fees for professional services, onboarding, training, or custom work;
(f) any fees where Customer has materially breached this Agreement (as defined in Section 5.3(b)); or
(g) Customers who have previously received a refund under this Section.
5.5 Refund Processing; Termination. Approved refunds will be processed within fifteen (15) business days of approval to the original payment method. Upon issuance of a refund, Customer's license to the Software automatically terminates, Customer shall immediately cease all use of the Software, and Customer shall uninstall and destroy all copies of the Software in its possession or control. This money-back guarantee is Customer's sole and exclusive remedy for dissatisfaction with the Services during the first thirty (30) days.
6. CUSTOMER RESPONSIBILITIES AND REGULATORY COMPLIANCE
6.1 Customer Is the Responsible Party; VeriSanction Is a Tool Only. Customer acknowledges and agrees that it is, and at all times shall remain, the sole and exclusively responsible party for compliance with all laws, regulations, rules, and supervisory obligations applicable to its business, including but not limited to the federal securities laws, the Commodity Exchange Act, the Bank Secrecy Act ("BSA"), the USA PATRIOT Act, OFAC regulations, and applicable state and international laws. VeriSanction is a software tool that assists Customer with workflow, nothing more. VeriSanction does not make compliance determinations on Customer's behalf, does not render regulatory judgments, does not approve or reject persons or transactions, and does not act as Customer's compliance function. Company is not, and under no circumstance shall be deemed, a compliance officer, compliance consultant, outsourced chief compliance officer, investment adviser, broker-dealer, futures commission merchant, commodity trading advisor, commodity pool operator, money services business, bank, registered agent, or legal advisor to Customer. No statement, output, recommendation, flag, score, or other response produced by the Services constitutes advice of any kind, and Customer shall not represent to any regulator, auditor, or third party that Company or the Services perform any compliance function on Customer's behalf.
6.2 Acknowledgment of Regulatory Frameworks. Customer acknowledges that, depending on the nature of its business, it may be subject to obligations including, without limitation:
• SEC Rule 206(4)-7 under the Investment Advisers Act of 1940, which requires registered investment advisers to adopt, implement, and annually review written compliance policies and procedures reasonably designed to prevent violations, and SEC Rule 38a-1 under the Investment Company Act of 1940, imposing analogous obligations on registered investment companies;
• CFTC Regulation 1.11 (risk management programs for futures commission merchants), CFTC Regulation 1.31 (recordkeeping), and CFTC Regulation 42.2 (compliance with BSA requirements);
• FINRA Rules 3110 (Supervision), 3310 (Anti-Money Laundering Compliance Program), and 4511 (General Recordkeeping Requirements);
• Bank Secrecy Act / Anti-Money Laundering obligations under 31 U.S.C. § 5311 et seq. and the implementing regulations at 31 C.F.R. Chapter X, including customer identification program (CIP), customer due diligence (CDD), beneficial ownership, and suspicious activity reporting requirements;
• OFAC sanctions regulations under 31 C.F.R. Chapter V, including screening against the Specially Designated Nationals and Blocked Persons List and other sanctions lists; and
• any other applicable federal, state, self-regulatory organization, and international laws, rules, and guidance.
Customer represents that it has independently evaluated the Services and determined they are appropriate for Customer's business and regulatory requirements. Company makes no representation or warranty that use of the Services, alone or in combination with other tools, will satisfy any particular regulatory obligation.
6.3 Supervisory Review. Customer is solely responsible for reviewing, validating, and making final determinations regarding all outputs of the Services, including screening results, potential matches, false positives, false negatives, and any adjudication recommendations. Customer shall implement appropriate supervisory procedures, escalation protocols, and human review consistent with its regulatory obligations.
6.4 Data Retention and Recordkeeping Are Customer's Responsibility. Because Customer Data is stored locally on Customer's systems, Customer is the sole owner, custodian, and controller of all data retention, backup, archival, destruction, and recordkeeping policies and practices. Customer is solely responsible for ensuring that its data retention practices satisfy applicable regulatory retention periods, including, where applicable, SEC Rule 17a-4, SEC Rule 204-2, CFTC Regulation 1.31, FINRA Rule 4511, and 31 C.F.R. § 1020.410 and similar BSA recordkeeping rules. Company does not retain Customer Data on Company-controlled systems in the ordinary course of operation of the Software and has no obligation to preserve, back up, store, or produce Customer Data. Customer assumes all risk of data loss, corruption, or destruction.
6.5 Authorized Users and Access. Customer is responsible for:
(a) maintaining the security and confidentiality of all credentials used to access the Services;
(b) all activities that occur under its accounts and those of its Authorized Users;
(c) ensuring that Authorized Users comply with this Agreement; and
(d) promptly notifying Company of any unauthorized access or use.
6.6 Lawful Basis for Data. Customer represents and warrants that it has all necessary rights, consents, lawful bases, and authorizations required to submit Customer Data to the Services and to cause the Services to process such data, including all disclosures and consents required under applicable privacy, data protection, and consumer protection laws. Customer acknowledges and agrees that, as between the parties, Customer is the data controller of any Personal Data contained within Customer Data, and Customer bears sole responsibility for establishing and maintaining a lawful basis for all processing activities it initiates through the Services.
7. DATA, PRIVACY, AND LOCAL STORAGE
7.1 Local Storage. The Software stores Customer Data locally on devices and systems controlled by Customer. Company does not maintain a cloud database of Customer Data and does not have routine access to Customer Data in the ordinary course.
7.2 Transmission to Upstream Data Providers. To perform KYC/AML Checks, the Services transmit identifiers submitted by Customer to Upstream Data Providers, including Plaid Inc., for the purpose of performing identity verification and sanctions list matching. Customer acknowledges and consents to such transmission. Customer is responsible for ensuring that it has obtained all required consents and provided all required notices to the individuals whose information is submitted.
7.3 Telemetry and Diagnostic Data. Company may collect limited, non-content operational telemetry data (including license validation pings, error and crash logs, Software version information, feature-usage metrics, and aggregated performance statistics) for the purpose of operating, supporting, and improving the Services. Company does not collect or transmit the substantive content of Customer Data as part of such telemetry. Company's collection and use of telemetry data is further described in Company's Privacy Policy, available at https://verisanction.com/privacy, which is incorporated by reference.
7.4 Security. Company implements reasonable administrative, technical, and physical safeguards in connection with the distribution of the Software. Customer is responsible for implementing and maintaining appropriate safeguards for the systems on which the Software operates and the Customer Data stored thereon, including encryption, access controls, endpoint security, network security, and physical security.
7.5 Data Protection Roles.
(a) General. Given the local-storage architecture of the Software, Company does not, in the ordinary course of operation of the Software, access, store, or process substantive Customer Data on its own systems and, accordingly, does not act as a data controller of substantive Customer Data. Customer is solely responsible for its obligations as a data controller with respect to Customer Data.
(b) Transmission Processing. To the extent that the transmission of identifiers to Upstream Data Providers at Customer's direction constitutes "processing" of Personal Data under applicable Data Protection Laws, Customer acknowledges that Company acts as a data processor (or sub-processor, as applicable) on Customer's behalf with respect to such transmission, and Customer shall ensure that it has all necessary consents, notices, and lawful bases to engage Company for such purpose.
(c) Telemetry Processing. To the extent that the telemetry data described in Section 7.3 constitutes Personal Data, Company acts as a data controller with respect to such data and shall process it in accordance with Company's Privacy Policy.
(d) Data Processing Addendum. For Customers resident in the European Union, European Economic Area, United Kingdom, or Switzerland, or for Customers whose use of the Services involves Personal Data subject to the GDPR, Company shall make available a Data Processing Addendum upon request and upon mutual execution by the parties.
8. THIRD-PARTY SERVICES AND DATA PROVIDERS
8.1 Reliance on Upstream Data Providers. The Services rely on data, APIs, and services provided by Upstream Data Providers, including, without limitation, Plaid Inc. and the publishers of government sanctions lists (such as OFAC, the United Nations, the European Union, His Majesty's Treasury, and others). Company does not control, and expressly disclaims any responsibility, obligation, representation, or warranty with respect to, the availability, accuracy, completeness, timeliness, currency, fitness, or reliability of any Upstream Data Provider or any data, output, or result supplied by any Upstream Data Provider.
8.2 No Responsibility for Gaps, Outages, Errors, or Third-Party Failures. Without limiting the generality of Section 8.1, and notwithstanding anything to the contrary in this Agreement, Company shall have no liability, obligation, or responsibility whatsoever for, and Customer fully, finally, and irrevocably waives and releases Company from any and all claims arising out of or relating to:
(a) any interruption, suspension, degradation, latency, downtime, error, bug, or termination of services by or affecting any Upstream Data Provider;
(b) any gap, delay, omission, inaccuracy, error, staleness, or incompleteness in data supplied by any Upstream Data Provider, including, without limitation, any failure of a sanctions list (such as the OFAC SDN List) to be timely updated, any lag between a sanctions designation and its appearance in Upstream Data Provider data, and any data that was correct at one time and later becomes incorrect;
(c) any false positive, false negative, missed match, or inaccurate adjudication that arises in whole or in part from Upstream Data Provider data;
(d) any change in the terms, pricing, scope, format, coverage, or availability of Upstream Data Provider services, including Upstream Data Provider decisions to terminate, deprecate, rate-limit, or modify APIs;
(e) any act, omission, error, breach, or misconduct of any Upstream Data Provider;
(f) any data security incident, breach, or unauthorized disclosure originating with or affecting any Upstream Data Provider; or
(g) any fine, penalty, enforcement action, or loss suffered by Customer that is attributable in whole or in part to any of the foregoing.
Customer's sole recourse with respect to any such matter is directly against the relevant Upstream Data Provider, not against Company. Customer acknowledges that Company is a mere conduit to Upstream Data Provider services and has not independently verified, and does not undertake any duty to verify, the correctness of any Upstream Data Provider data.
8.3 Third-Party Terms. Customer's use of Upstream Data Provider services may be subject to separate terms imposed by those providers. Customer is responsible for reviewing and complying with all such terms.
8.4 Upstream Data Provider Integrations. Company shall use commercially reasonable efforts to maintain integrations with then-current Upstream Data Providers and shall provide Customer with notice within a reasonable time after Company confirms that an Upstream Data Provider has become unavailable for a period expected to exceed thirty (30) consecutive days. This covenant does not constitute a guarantee of continued availability.
8.5 No Service Level Agreement. Company does not provide any service level agreement, uptime commitment, performance guarantee, or availability guarantee with respect to the Services or any Upstream Data Provider. The Services are provided on an as-available basis, and Customer acknowledges that the Services may be unavailable at any time for any reason, including scheduled maintenance, unscheduled downtime, or Upstream Data Provider failures.
9. INTELLECTUAL PROPERTY
9.1 Company IP. As between the parties, Company and its licensors own all right, title, and interest in and to the Services, the Software, and all related documentation, including all intellectual property rights therein. Nothing in this Agreement transfers any ownership interest to Customer.
9.2 Customer Data. As between the parties, Customer owns all right, title, and interest in and to Customer Data. Customer grants Company a limited, non-exclusive, royalty-free license to process Customer Data solely to the extent necessary to provide the Services (including, where applicable, to transmit identifiers to Upstream Data Providers at Customer's direction).
9.3 Feedback. If Customer provides any suggestions, enhancement requests, recommendations, or other feedback regarding the Services ("Feedback"), Customer grants Company a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable license to use such Feedback for any purpose without restriction or compensation.
10. DISCLAIMERS OF WARRANTIES
10.1 AS-IS. THE SERVICES, THE SOFTWARE, AND ALL RELATED OUTPUTS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, UNINTERRUPTED OR ERROR-FREE OPERATION, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
10.2 No Warranty as to Results. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL DETECT ALL SANCTIONED PERSONS OR ENTITIES, THAT THE SERVICES WILL PRODUCE ACCURATE OR COMPLETE RESULTS, THAT THE SERVICES WILL BE FREE FROM FALSE POSITIVES OR FALSE NEGATIVES, THAT UPSTREAM DATA PROVIDERS' DATA WILL BE CURRENT OR COMPLETE, OR THAT USE OF THE SERVICES WILL ENSURE COMPLIANCE WITH ANY LAW OR REGULATION. CUSTOMER ACKNOWLEDGES THAT SANCTIONS SCREENING IS INHERENTLY PROBABILISTIC AND REQUIRES HUMAN JUDGMENT AND SUPERVISORY REVIEW.
10.3 No Professional Advice. THE SERVICES DO NOT CONSTITUTE LEGAL, FINANCIAL, ACCOUNTING, COMPLIANCE, OR OTHER PROFESSIONAL ADVICE. CUSTOMER SHOULD CONSULT QUALIFIED PROFESSIONALS REGARDING ITS SPECIFIC REGULATORY AND LEGAL OBLIGATIONS.
11. LIMITATION OF LIABILITY
11.1 Acknowledgment of Bargain. Customer acknowledges that:
(a) the Services are commodity-priced software licensed at a low annual fee;
(b) Customer has had the opportunity to negotiate this Agreement or reject it;
(c) Customer may obtain insurance, redundant services, or other protection against the excluded risks at Customer's own expense; and
(d) the provisions of this Section 11 (together with Sections 10 and 12) are a material and essential element of the bargain between the parties, without which Company would not have agreed to license the Services at the stated fees.
11.2 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS, OR SUPPLIERS (COLLECTIVELY, THE "COMPANY PARTIES" ) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITY, GOODWILL, REPUTATION, DATA, USE, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Aggregate Liability Cap Tiered. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS SET FORTH IN THIS SECTION. THIS CAP APPLIES IN TIERS, AS FOLLOWS:
(a) Primary Cap. The total aggregate liability of the Company Parties shall not exceed the greater of (i) the amounts actually paid by Customer to Company for the Services in the three (3) months immediately preceding the event giving rise to liability, or (ii) one hundred U.S. dollars (US$100.00). This amount reflects the parties' agreed allocation of risk and corresponds to the commodity-level pricing of the Services.
(b) First Fallback. If, and only to the extent that, a court or arbitrator of competent jurisdiction finally determines that the Primary Cap is unenforceable, unconscionable, or otherwise invalid, the parties agree that the total aggregate liability of the Company Parties shall instead be capped at five hundred U.S. dollars (US$500.00) in the aggregate.
(c) Second Fallback. If, and only to the extent that, a court or arbitrator of competent jurisdiction finally determines that both the Primary Cap and the First Fallback are unenforceable, unconscionable, or otherwise invalid, the parties agree that the total aggregate liability of the Company Parties shall instead be capped at the total fees actually paid by Customer to Company under this Agreement in the twelve (12) months immediately preceding the event giving rise to liability.
(d) Ultimate Fallback. If, and only to the extent that, all of the foregoing caps are finally determined to be unenforceable, the parties agree that the total aggregate liability of the Company Parties shall be limited to the maximum amount permitted by applicable law, which the parties intend to be the lowest enforceable cap available under governing law.
11.4 Construction of Tiered Cap. The parties intend that each of the tiered caps in Section 11.3 be independently enforceable, and the invalidation of any one tier shall not affect the enforceability of any other tier. If any portion of Section 11.3 is held unenforceable in a given jurisdiction, the next applicable tier shall apply in that jurisdiction, and the unaffected tiers shall remain fully enforceable in all other jurisdictions.
11.5 Specific Exclusions; No Liability for Certain Matters. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement or in any Upstream Data Provider terms, the Company Parties shall have no liability whatsoever for any claim, loss, damage, fine, penalty, cost, or expense arising out of or relating to:
(a) false positives, false negatives, missed matches, missed alerts, inaccurate scores, or inaccurate adjudication recommendations produced by or in connection with the Services;
(b) regulatory fines, civil money penalties, deferred prosecution agreements, consent orders, enforcement actions, investigations, or sanctions imposed by any federal, state, self-regulatory, or international authority on Customer or its affiliates;
(c) any act, omission, outage, latency, error, or data gap of any Upstream Data Provider (including Plaid Inc. and sanctions list publishers), including any failure to timely update sanctions lists;
(d) loss, corruption, deletion, or destruction of Customer Data, regardless of cause, given that Customer Data is stored locally on Customer systems and is under Customer's sole control;
(e) Customer's failure to comply with any law, regulation, or supervisory obligation;
(f) any decision, action, or omission by Customer or any third party in reliance (in whole or in part) on the Services or their outputs;
(g) any claim brought by a third party (including a regulator, customer of Customer, or individual whose data was processed);
(h) business interruption, reputational harm, or lost profits arising from the use or unavailability of the Services; or
(i) any matter outside Company's direct and reasonable control.
11.6 Essential Purpose; Failure of Remedy. The parties agree that the limitations set forth in this Section 11 shall apply notwithstanding the failure of essential purpose of any limited remedy. Some jurisdictions do not allow the exclusion or limitation of certain damages; in such jurisdictions, the Company Parties' liability shall be limited to the maximum extent permitted by applicable law.
11.7 Single Recovery. The aggregate caps in this Section 11 are cumulative across all claims, causes of action, and counterparties on the Customer side (including affiliates and Authorized Users), such that the Company Parties' total liability to Customer and all persons or entities claiming through or under Customer shall not, in the aggregate, exceed the applicable cap.
12. INDEMNIFICATION
12.1 Indemnification by Customer. Customer shall defend, indemnify, and hold harmless the Company Parties from and against any and all claims, demands, actions, investigations, losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:
(a) Customer's use of the Services;
(b) Customer Data or Customer's submission of data to the Services;
(c) Customer's violation of this Agreement or any applicable law or regulation;
(d) Customer's compliance, regulatory, reporting, or recordkeeping decisions;
(e) any claim by a third party (including any regulator or individual whose information was processed) relating to Customer's business or use of the Services, except to the extent such claim arises from Company's infringement of that third party's intellectual property rights as set forth in Section 12.2; or
(f) Customer's negligence, gross negligence, or willful misconduct.
12.2 Indemnification by Company. Company shall defend, indemnify, and hold harmless Customer from and against any and all claims, demands, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' fees) arising out of any third-party claim that the Software, when used as authorized under this Agreement, infringes any valid U.S. patent, copyright, trademark, or trade secret of such third party.
If any such claim is made, or in Company's reasonable opinion is likely to be made, Company may, at its sole option and expense: (i) procure for Customer the right to continue using the Software; (ii) modify or replace the Software to make it non-infringing, provided the modified or replacement Software has materially equivalent functionality; or (iii) terminate this Agreement and refund to Customer a pro-rata portion of the Subscription fee paid by Customer for the then-current term. This Section 12.2 states Company's entire liability and Customer's exclusive remedy for claims of intellectual property infringement.
The obligations set forth in this Section 12.2 shall not apply to any claim to the extent it arises from: (A) Customer's use of the Software in combination with other products, services, data, or processes not provided or authorized by Company, if the claim would not have arisen absent such combination; (B) modifications to the Software made by any party other than Company; (C) Customer's failure to implement an update or upgrade provided by Company that would have avoided the infringement; or (D) Customer's use of the Software in a manner not authorized by this Agreement.
12.3 Indemnification Procedures. The indemnified party shall: (a) promptly notify the indemnifying party in writing of any claim for which indemnification is sought; (b) give the indemnifying party sole control of the defense and settlement of such claim, provided the indemnifying party may not enter into any settlement that imposes any liability or material obligation on, or admits fault by, the indemnified party without the indemnified party's prior written consent (not to be unreasonably withheld); and (c) provide reasonable cooperation to the indemnifying party, at the indemnifying party's expense. The indemnified party may participate in the defense at its own expense. Failure to provide prompt notice shall not relieve the indemnifying party of its obligations hereunder except to the extent the indemnifying party is materially prejudiced by such failure.
12.4 Exclusive Remedy. Except with respect to (a) a party's indemnification obligations under this Section 12, (b) a party's breach of Section 7 (Data, Privacy, and Local Storage) to the extent such breach results in unauthorized disclosure of Personal Data, (c) Customer's breach of Section 3.2 (Restrictions), or (d) a party's gross negligence or willful misconduct, each party's liability to the other shall be subject to and capped in accordance with Section 11.
13. TERM AND TERMINATION
13.1 Term. This Agreement commences on the Effective Date and continues for the duration of the Subscription term, including renewals, until terminated in accordance with this Section.
13.2 Termination for Convenience. Either party may elect not to renew the Subscription upon written notice in accordance with Section 4.1.
13.3 Termination for Cause. Company may suspend or terminate this Agreement and Customer's access to the Services immediately upon written notice if Customer:
(a) materially breaches this Agreement and fails to cure such breach within ten (10) days after written notice;
(b) fails to pay any amount when due;
(c) becomes subject to bankruptcy, insolvency, or similar proceedings; or
(d) uses the Services in a manner that Company reasonably believes violates law, infringes third-party rights, or creates risk to Company or any Upstream Data Provider.
13.4 Effect of Termination. Upon termination or expiration of this Agreement:
(a) all rights and licenses granted to Customer shall immediately terminate;
(b) Customer shall immediately cease all use of the Services and uninstall and destroy all copies of the Software;
(c) all accrued payment obligations shall become immediately due; and
(d) Customer remains solely responsible for its Customer Data, which resides on Customer's systems.
13.5 Survival. Sections 1, 3.2, 3.3, 5.4–5.5, 6, 7.5, 8, 9, 10, 11, 12, 13.4, 13.5, 14, 15, and 16, and any other provisions that by their nature are intended to survive, shall survive termination or expiration of this Agreement.
14. DISPUTE RESOLUTION
14.1 Informal Resolution. Before initiating any formal proceeding, the parties shall attempt in good faith to resolve any dispute by written notice to the other party describing the dispute and proposed resolution. If the dispute is not resolved within thirty (30) days of such notice, either party may initiate arbitration in accordance with this Section.
14.2 Binding Arbitration. ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, INCLUDING THE FORMATION, INTERPRETATION, BREACH, OR TERMINATION THEREOF, SHALL BE RESOLVED EXCLUSIVELY BY FINAL AND BINDING ARBITRATION ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES (OR, IF APPLICABLE, ITS STREAMLINED ARBITRATION RULES). THE ARBITRATION SHALL BE CONDUCTED BY A SINGLE ARBITRATOR, SEATED IN KING COUNTY, WASHINGTON, AND CONDUCTED IN THE ENGLISH LANGUAGE. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
14.3 Class Action Waiver. CUSTOMER AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, OR CONSOLIDATED PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING.
14.4 Exceptions. Notwithstanding the foregoing, either party may:
(a) bring an individual action in small claims court; and
(b) seek injunctive or other equitable relief in any court of competent jurisdiction to prevent or restrain infringement or misappropriation of intellectual property rights or breach of confidentiality obligations.
14.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Subject to Section 14.2, the state and federal courts located in King County, Washington shall have exclusive jurisdiction for any actions not subject to arbitration.
14.6 Time Limitation. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION FIRST ACCRUED; OTHERWISE, SUCH CLAIM IS PERMANENTLY AND IRREVOCABLY BARRED. If, and only to the extent that, applicable law prohibits contractual shortening of the statutory limitations period applicable to a particular claim, the parties agree that the maximum limitations period permitted by such law shall apply to that claim.
15. EXPORT CONTROL AND SANCTIONS
15.1 Export Compliance. The Services and related technology are subject to U.S. export control laws, including the Export Administration Regulations (15 C.F.R. Parts 730–774) and economic sanctions administered by OFAC. Customer represents and warrants that:
(a) it is not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. sanctions;
(b) neither Customer nor any of its directors, officers, principals, owners, or Authorized Users is a Specially Designated National or otherwise a prohibited or restricted party under applicable sanctions or export laws; and
(c) it will not use, export, re-export, or transfer the Services in violation of such laws.
15.2 Compliance Responsibility. Customer is responsible for obtaining any required export licenses or authorizations and for compliance with all applicable export, re-export, and sanctions laws and regulations.
16. GENERAL PROVISIONS
16.1 Entire Agreement. This Agreement, together with any order forms or schedules expressly incorporated by reference, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. Any terms in a Customer purchase order or similar document are expressly rejected and of no effect.
16.2 Amendments. Company may modify this Agreement from time to time by posting an updated version on its website and/or providing notice to Customer. Material changes will be effective thirty (30) days after notice. Customer's continued use of the Services after the effective date of any changes constitutes acceptance of those changes. If Customer does not agree to any modification, Customer's sole remedy is to cease using the Services and terminate this Agreement in accordance with Section 13.2.
16.3 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without Company's prior written consent. Any purported assignment in violation of this Section is void. Company may assign this Agreement without consent in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets.
16.4 Notices. All legal notices to Company shall be in writing and sent to:
Lamaute Labs LLC
704 228th Ave NE, Unit #1154
Sammamish, WA 98074
Email: support@verisanction.com
Notices to Customer may be provided by email to the address on file or through the Services. Notices are deemed given upon receipt (if sent by email to Customer, upon transmission to Customer's email address on file; if sent by certified mail, upon signature of recipient or refusal of delivery).
16.5 Force Majeure. Neither party shall be liable for any delay or failure to perform (other than payment obligations) due to causes beyond its reasonable control, including acts of God, war, terrorism, civil unrest, government action, labor disputes, internet or utility failures, pandemics, or failures of Upstream Data Providers.
16.6 Independent Contractors. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, fiduciary, or employment relationship. Neither party has the authority to bind the other.
16.7 No Third-Party Beneficiaries. Except as expressly stated with respect to the Company Parties under Section 12 (Indemnification), this Agreement does not confer any rights or remedies on any third party.
16.8 Severability; Waiver. If any provision of this Agreement is held unenforceable, the remaining provisions shall continue in full force and effect, and the unenforceable provision shall be reformed to the minimum extent necessary to make it enforceable while preserving the parties' intent. No waiver is effective unless in writing signed by the waiving party, and no waiver of any breach shall constitute a waiver of any subsequent breach.
16.9 Construction. Headings are for convenience only and do not affect interpretation. The word "including" and its variants mean "including without limitation." The parties have had the opportunity to review this Agreement with counsel, and any ambiguity shall not be construed against the drafter.
16.10 U.S. Government End Users. The Services are "commercial items" as defined in 48 C.F.R. § 2.101. If acquired by or on behalf of the U.S. Government, use, duplication, or disclosure is subject to the restrictions set forth in this Agreement.
16.11 Electronic Acceptance; Counterparts. This Agreement may be accepted electronically (e.g., by clickthrough or continued use) and/or executed in counterparts, each of which is deemed an original and all of which together constitute one instrument.
17. CONTACT INFORMATION
17.1 Customer Support. For questions about the Services, billing inquiries, or technical support, please contact: support@verisanction.com. Company will use commercially reasonable efforts to respond to support inquiries within two (2) business days.
ACKNOWLEDGMENT. BY INSTALLING, ACCESSING, OR USING THE SERVICES, OR BY CLICKING A BUTTON OR CHECKBOX INDICATING ACCEPTANCE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT IN ITS ENTIRETY, UNDERSTANDS ITS TERMS, HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, AND AGREES TO BE LEGALLY BOUND BY ALL OF ITS TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION THE BINDING ARBITRATION PROVISION IN SECTION 14.2, THE CLASS ACTION WAIVER IN SECTION 14.3, THE LIMITATIONS OF LIABILITY IN SECTION 11, AND THE INDEMNIFICATION OBLIGATIONS IN SECTION 12. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER MUST NOT INSTALL, ACCESS, OR USE THE SERVICES.