1. Definitions and Interpretation

1.1 In these Terms, the following terms have the meanings set out below:

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party, where “control” means ownership of more than fifty per cent (50%) of the voting interests of the subject entity.

“Application Content” means any content, data, information, materials or other works of any kind (including text, images, logos, audio-visual content, and software) submitted, transmitted, displayed, stored or otherwise made available through a Customer Application or via the Services.

“Confidential Information” means all information (whether written, oral or in some other form) disclosed to (whether directly or indirectly) from a Party to the Party other (whether before or after the Parties agreeing these Terms), including all information relating to that other Party’s or any of its Affiliates’ business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which: (a) is available to the public other than because of any breach of this agreement; (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others.

“Customer Application” means any software application, product or service that Customer or any End Customer (if applicable) makes available, or develops, that uses, calls or interacts with the Services or IDlayr API.

“Customer Data” means any data (including mobile phone numbers and related identifiers) and other information provided or made available to IDlayr by or on behalf of Customer or any End Customer (if applicable) through the use of the Services under these Terms, including any personal data contained therein.

“Data Protection Addendum” means the IDlayr data processing addendum available at https://idlayr.com/data-protection/, as updated from time to time and incorporated into these Terms.

“Documentation” means all IDlayr API instruction manuals and guides, code samples, manuals, guides, online help files and technical documentation made publicly available by IDlayr for the Services, as updated from time to time.

“End Customer” means any third-party company set out in the Order Form to whom Customer makes the Services (or any part of them) available as part of that third party’s own products or services.

“End User” means an individual who uses or is the subject of a Customer Application or an End Customer’s products or services (if applicable) that incorporate or interact with the Services (for example, a mobile subscriber, account holder or employee).

“IDlayr API” means any application programming interface for the Services (or any feature of the Services) made available by IDlayr to Customer.

“MNO” means a mobile network operator that provides telecommunication services and/or network data used by or in connection with the Services.

“MNO Approval” means any approval, onboarding, registration, vetting, use case and/or Customer or End Customer approval that an MNO requires to be completed and granted before live End User traffic or production use of the Services is permitted.

“MNO Requirements” means any terms, conditions, technical or operational requirements, policies, mandatory wording or other obligations that an MNO requires in relation to the Services, Customer, any End Customer and/or End Users (including any requirements regarding end user consent and mandated language in end user terms and privacy notices).

“Order Form” means an order form, purchase order, online sign-up, click-through agreement or similar ordering document executed or accepted by the Parties (including electronically) that references these Terms and sets out the specific Services, fees, term, usage parameters and other commercial terms agreed between the Parties.

“Privacy Policy” means IDlayr’s privacy policy available at https://idlayr.com/privacy-policy/, as updated from time to time.

“Proof of Value” means a time-bounded, limited-scope deployment of the Services described in an Order Form, which may involve use of the Services in a production or live environment with real End Users and/or live transaction data.

“Services” means all products and services that IDlayr offers and that Customer orders under an Order Form or via a customer account, including any related platform services, connectivity services, access to the IDlayr API, and any services provided on a trial, Proof of Value or free basis.

“Sites” means any websites operated or controlled by IDlayr from which the Services are made available or on which information relating to the Services is published.

“Terms” means these Terms of Service, together with any applicable Order Forms, the Data Protection Addendum, the Privacy Policy, and any other documents expressly incorporated by reference.

1.2 The clause and paragraph headings in these Terms are for convenience of reference only and shall not affect its interpretation.

2. Access and use of the services

2.1 IDlayr will make the Services available to Customer in accordance with these Terms, the Documentation and any applicable Order Forms.

2.2 IDlayr will provide the Services in accordance with laws applicable to IDlayr’s provision of the Services to IDlayr’s customers generally (without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with these Terms, the Documentation and any applicable Order Form.

2.3 Subject to Customer’s timely payment of all applicable fees and compliance with these Terms, IDlayr grants Customer a non-exclusive, non-transferable, without the right to sub-licence except as expressly permitted in these Terms to:

• use the Documentation and IDlayr APIs as needed to develop test and operate the Customer Application;
• use the Service and make the Services available to End Users in connection with the use of each Customer Application in accordance with the Documentation;
• in the case of a Proof of Value, use the Services within the scope, volumes, timeframes and other parameters set out in the applicable Order Form.

3. Customer Responsibilities and Obligations

3.1 Customer will:

• be solely responsible for all use (whether or not authorised) of the Services and Documentation under Customer’s account, including for the quality, legality and integrity of Customer Data, each Customer Application and all Application Content;
• use Services only in accordance with these Terms, the Documentation, applicable Order Forms and applicable laws;
• be solely responsible for all acts, omissions and activities of End Users, and, where applicable, End Customers, including their compliance with these Terms, Documentation, and any Order Forms;
• implement and maintain reasonable administrative, physical and technical measures to prevent unauthorised access to or use of Customer’s account and the Services, and notify IDlayr promptly upon becoming aware of any actual or suspected unauthorised access or use; and
• provide reasonable cooperation regarding information requests from law enforcement, regulators, MNOs or telecommunications providers relating to Customer’s use of the Services
• provide IDlayr with any information it reasonably requests to investigate and resolve problems relating to Customer’s account.

3.2 With regard to the Services, Customer agrees that:

• except to make the Services available to End Users in connection with the use of each Customer Application as permitted under these Terms, Customer will not transfer, resell, sub-licence, lease, licence or otherwise make available the Services to third parties or offer them on a standalone basis;
• Customer will ensure that the Services are used in accordance with all applicable law and third party rights (including MNO Requirements), as well as these Terms, as amended from time to time;
• Customer will ensure that IDlayr is entitled to use Customer Data as needed to provide the Services, including by ensuring that any End Customer (if applicable) has obtained and maintains all necessary rights, consents and authorisations to permit such use);
• Customer will not use the Services in any manner that violates any applicable law or MNO Requirement;
• you will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service; and
• Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services, except to the extent such restriction is prohibited by applicable law.

4. Customer Data

4.1 Where IDlayr processes personal data on behalf of Customer in connection with the Services, the Data Protection Addendum forms part of these Terms and applies to such processing.

4.2 IDlayr may also collect, store, use and disclose personal data as described in its Privacy Policy. By using the Services, Customer acknowledges that it has read and understood the Privacy Policy, which explains how IDlayr handles Customer Data. IDlayr may update the Privacy Policy from time to time to reflect changes in its practices or applicable law. Any updated version will be effective upon posting unless otherwise stated.

4.3 Customer’s continued use of the Services after any such update constitutes acceptance of the updated Privacy Policy. If Customer chooses to discontinue use of the Services due to any update to the Privacy Policy, such discontinuation does not relieve Customer of its obligations under any applicable Order Form, including payment commitments for the remainder of any fixed term.

4.4 Customer acknowledges that, as between the Parties, Customer (and where applicable, each End Customer) is responsible for:

• determining the purposes and lawful bases for processing Customer Data and End User personal data;
• providing all required notices and obtaining all necessary consents under applicable laws;
• ensuring that IDlayr and any applicable telecommunications providers may lawfully process such data for the purposed described in these Terms, the Data Protection Addendum and the applicable Order Form; and
• complying with all applicable MNO or telecommunications provider requirements relating to End User consent, transparency and disclosures, including the inclusion of any specific wording in End User terms, privacy notices or other End User-facing materials, as notified by IDlayr from time to time.

5. Changes to these Terms

5.1 IDlayr may update these Terms from time to time. IDlayr will notify Customer of any material updates. Notice will be given in Customer’s account portal or via an email to the email address owner of Customer’s account. If an update materially and adversely affects Customer, Customer may object in writing within thirty (30) days of the notice. If the parties cannot reach agreement within thirty (30) days, Customer may terminate the affected Services, and IDlayr will provide a prorated refund of any prepaid fees for the period after termination.

5.2 Customer’s continued access or use of the Services on or after the effective date of the update to the Terms constitutes Customer’s acceptance of the updated Terms.

5.3 Notwithstanding clause 5.1, IDlayr may not be able to provide at least thirty (30) days prior written notice where an update to these Terms is required to comply with applicable law or mandatory requirements from an MNO. In such cases, IDlayr will provide notice as soon as reasonably practicable, and Customer’s objection and termination rights under clause 5.1 will continue to apply.

6. Fees and Payments

6.1 Customer agrees to pay fees in accordance with the rates listed on IDlayr’s website, unless otherwise specified in an applicable Order Form. If an Order Form conflicts with the website pricing, the Order Form will prevail.

6.2 Customer shall be responsible for any and all additional costs, fines, or penalties imposed on IDlayr by a governmental or regulatory body or telecommunication provider that arise directly from Customer’s use of the Services.

6.3 IDlayr may modify its pricing from time to time. Any such changes shall not apply to fees that are expressly stated as fixed in an applicable Order Form during the applicable fixed-pricing term. Upon expiration of any fixed-pricing term set forth in an Order Form, or where pricing is not expressly fixed, the revised pricing shall apply. IDlayr will provide Customer with reasonable prior notice of any pricing changes (which may be provided by email or through the Services). Customer’s continued use of the Services after the effective date of a pricing change constitutes Customer’s acceptance of the revised pricing.

6.4 Unless otherwise stated in an Order Form, Customer shall pay for the Services in advance, in the currency specified by IDlayr, and without any right of set-off, deduction, or counterclaim.

6.5 IDlayr may submit recurring charges (e.g., monthly) without further authorisation from Customer until Customer provides prior written notice (received and acknowledged by IDlayr) of termination of such authorisation or a change in payment method. Such notice will not affect charges submitted before IDlayr reasonably could act on it.

6.6 Customer must provide and maintain current, complete and accurate billing information. If Customer participates in auto-reload or auto-renew payments, Customer agrees to promptly update its billing information (including billing address, credit card details or expiration dates) and to notify IDlayr or its payment processor if Customer’s payment method is cancelled, compromised, or otherwise invalid. Customer agrees that failure to maintain accurate billing information may result in continued charges, which Customer agrees to pay unless the Services have been properly terminated.

6.7 Where expressly authorised by IDlayr in writing, IDlayr may invoice Customer for the Services monthly in arrears, and payment shall be due thirty (30) days from the date of invoice, without deduction. Invoices may be sent via email to the address specified in Customer’s account, and shall be deemed received on the date sent.

6.8 Customer shall pay interest on past due amounts at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower. Customer will be responsible for all reasonable costs of collection.

6.9 To dispute an invoice, Customer must notify IDlayr in writing, identifying the disputed amount and the basis for the dispute. If the dispute is reasonable and made in good faith (as reasonably determined by IDlayr), the Parties shall discuss and attempt to resolve the dispute in a timely manner, and Customer may withhold the disputed portion of the invoice provided that all undisputed amounts are paid in full.

6.10 Billing disputes must be initiated within thirty (30) days of the date the Service was provided, by notifying IDlayr at [email protected]. After this period, Customer waives the right to dispute any fees. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute does not relieve Customer of its obligation to timely pay all undisputed amounts owed. Any unresolved disputes will be handled in accordance with clause 15. Except as expressly provided in this clause, all fees are non-refundable.

6.11 Customer’s credit limit, if applicable, shall be determined by IDlayr and may be adjusted by IDlayr from time to time.

6.12 All fees are exclusive of taxes, including without limitation any national, provincial, federal, state, local use, sales, value-added, excise, import, duty, levy, or other similar governmental taxes or assessments (“Taxes”). Customer is solely responsible for all Taxes associated with Customer’s access to and use of the Services, excluding taxes on IDlayr’s net income. Customer shall not withhold, deduct, or set off any Taxes from amounts owed to IDlayr.

7. Ownership and IP

7.1 IDlayr exclusively owns and retains all right (including intellectual property rights), title and interest in and to:

• the Services, Documentation and IDlayr’s Confidential Information;
• all anonymised or aggregated data derived from use and operation of the Services that does not identify a natural person as the source of the information; and
• any feedback, recommendations, correction or enhancement requests, suggestions, or other input provided by Customer or any End User relating to the Services (“Feedback”).

7.2 Customer exclusively owns and retains all right, title and interest in and to Customer Applications, Customer Data and Customer’s Confidential Information.

7.3 Customer may, but is not required to, provide Feedback regarding the Services. By submitting Feedback, Customer agrees that:

• IDlayr may use, reproduce, modify, create derivative works from, disclose, commercialise, and otherwise exploit such Feedback for any purpose, without restriction;
• all Feedback is owned by IDlayr; and
• Customer shall not be entitled to any compensation, reimbursement, or credit of any kind in connection with Feedback.

7.4 Customer grants IDlayr the right to use Customer’s name, logo, and a description of Customer’s use of the Services in IDlayr’s customer lists, website, marketing, or promotional materials, in each case in accordance with Customer’s applicable trademark usage guidelines provided to IDlayr in writing.

7.5 Neither Party shall issue any press release or public statement relating to these Terms or the Parties’ relationship without the prior written consent of an authorised representative of the other Party, except where required by law or regulatory obligation. Any legally required disclosure shall, where practicable, be subject to prior notice to the other Party.

8. Confidentiality

8.1 Each Party agrees to use the Confidential Information of the other Party solely for the purposes of performing its obligations or exercising its rights under these Terms (and, in the case of IDlayr, to provide and improve the Services) and to not disclose such Confidential Information to any third party without the prior written consent of the other Party, except as otherwise permitted under these Terms, as necessary to provide the Services.

8.2 Each Party shall protect the other Party’s Confidential Information using at least the same degree of care it used to protect its own confidential information of similar nature, and in no event less than reasonable care, to prevent unauthorised use or disclosure.

8.3 Each Party may disclose the other Party’s Confidential Information to its employees, officers, directors, professional advisors, representatives, actual or potential investors, and subcontractors who have a legitimate need to know such information for purposes consistent with these Terms, provided that such recipients are bound by confidentiality obligations no less protective than those set out in these Terms. Each Part remains responsible for breach of this clause 8 by its recipients.

8.4 IDlayr may disclose these Terms and related Confidential Information in connection with any actual or contemplated financing, investment, merger, acquisition, reorganisation, or non-ordinary course of corporate transaction, provided that such disclosure is made subject to confidentiality obligations substantially similar to those contained in these Terms.

8.5 Either Party may disclose the other Party’s Confidential Information to the extent required by law, legal process or court order, provided that, to the extent legally permitted, the disclosing Party gives the other Party prompt written notice of such requirement and reasonably cooperates, at the other Party’s expense, in seeking a protective order or other appropriate remedy. If such protection is not obtained, the disclosing Party may only disclose that portion of the Confidential Information that is legally required to disclose.

9. Indemnification

9.1 Customer agrees to hold defend, indemnify, and hold harmless IDlayr, its Affiliates, suppliers, and partners, and each of their respective employees, contractors, directors, officers and representatives (collectively, the “IDlayr Indemnified Parties”), from and against any and all losses, damages, liabilities, claims, demands, actions, proceedings, fines, penalties, and expenses (including reasonable attorney’s fees) (collectively, “Losses”) arising out of or in connection with:

• unauthorised, unlawful or prohibited use of the Services by Customer, its Affiliates, End Users, employees, agents or subcontractors;
• Customer Data or Application Content;
• any claim by an End User to the extent such claim seeks to impose liability or obligations on IDlayr beyond those set out in these Terms; or
• gross negligence or wilful misconduct of Customer, its Affiliates, or their respective employees, agents or subcontractors.

9.2 IDlayr shall promptly notify Customer of any claim under this clause 9, provided that any failure to provide such notice shall only affect the rights of IDlayr to the extent that Customer is materially prejudiced.

9.3 Customer shall have the right to take sole control of the defence and settlement of the indemnifiable claim at its own expense, subject to IDlayr’s prior written approval of defence counsel (not to be unreasonably withheld or delayed). Customer shall not settle any claim without IDlayr’s prior written consent if the settlement:

• includes any admission of liability or wrongdoing by an IDlayr Indemnified Party;
• imposes any obligation, restriction, or limitation on any IDlayr Indemnified Party; or
• does not include a full and unconditional release of all IDlayr Indemnified Parties.

9.4 IDlayr shall reasonably cooperate with Customer in the defence of the claim, at Customer’s expense, and may participate in the defence with counsel of its own choosing at its own expense, provided that such participation does not materially interfere with Customer’s defence.

10. Affiliates

10.1 Customer’s Affiliates are not permitted to purchase Services under the Terms accepted by Customer, unless expressly agreed in writing by IDlayr. Each of Customer’s Affiliates that wishes to purchase or use the Services must enter into its own agreement with IDlayr.

10.2 Notwithstanding clause 10.1, if any of Customer’s Affiliates access or use the Services under these Terms (whether or not authorised), Customer and such Affiliates will be jointly and severally liable for all acts and omissions of such Affiliates, including any breach of these Terms.

10.3 Any claim arising out of or relating to any of Customer’s Affiliates that use the Services under these Terms may be asserted against IDlayr solely by Customer, on behalf of the applicable Affiliate, and not directly by such Affiliate.

11. Representations, Warranties and Disclaimers

11.1 IDlayr represents and warrants that it:

• has the full corporate power and authority to enter into these Terms and perform its obligations hereunder; and
• is duly authorised to provide the Services in accordance with these Terms.

11.2 Customer represents and warrants that it:

• has provided, and will continue to provide, all required notices and has obtained; and
• will continue to obtain, all necessary rights, permissions, and consents to provide Customer Data to IDlayr and to permit IDlayr to process, use, and disclose such Customer Data in accordance with these Terms and applicable law.

11.3 IDlayr does not have any special relationship with, or fiduciary duty to, Customer. Customer acknowledges and agrees that IDlayr does not control, and shall have no responsibility or liability for the acts, omissions, availability, performance, or failures of any third party telecommunications providers, MNOs, systems or networks, including, without limitation, any suspension, interruption, degradation or termination of IDlayr’s connections.

11.4 Except as otherwise expressly set forth in these terms, and to the maximum extent permitted by applicable law, the services and IDlayr content are provided “as is”, “as available”, without warranties of any kind, whether express, implied, statutory or otherwise, including, without limitation any implied warranties of title, non-infringement, merchantability, quality (e.g., as to latency and throughput), performance, accuracy, availability, reliability, or fitness for a particular purpose, and any warranties arising from course of dealing or usage of trade.

11.5 Without limiting clause 11.4, IDlayr does not warrant that:

• the Services (or any MNOs) will be uninterrupted, timely, secure, available at any particular time or location, or error-free;
• any defects or errors will be corrected;
• the Services or any content will be free from viruses or other harmful components;
• the content on the Sites or Services (or any third party sites, networks, services linked thereto) are accurate, error-free, appropriate, compliant, or available.

11.6 Customer’s use of the services is solely at customer’s own risk. IDlayr does not warrant, endorse, guarantee, or assume responsibility for any content of, communication by, or product or service advertised or offered by, a third party through the services, and IDlayr will not be a party to or in any way be responsible for monitoring any transaction between customer and third parties.

11.7 IDlayr, may, but is not obliged to, monitor, review, or audit Customer’s use of the Services to verify Customer’s compliance with these Terms.

11.8 IDlayr may reject, refuse to transmit or post, block, or remove any posting (including Application Content), or restrict, suspend or terminate Customer’s access to all or any part of the Services at any time where IDlayr reasonably believes that Customer has breached these Terms or such action is necessary to protect the Services or IDlayr’s business or reputation.

11.9 IDlayr may access, read, preserve, and disclose any information that IDlayr reasonably believes is necessary to:

• comply with applicable law, regulation, legal process, or governmental request;
• enforce these Terms, including investigation of potential breaches;
• detect, prevent, or address fraud, security or technical issues;
• respond to support requests; or
• protect the rights, property, or safety of IDlayr, its customers, end users, or the public.

11.10 Except as expressly agreed in writing, IDlayr does not guarantee the storage or retention of Customer Data or Application Content and may delete such data in accordance with its data retention policies. IDlayr shall have no liability for any loss, deletion, or corruption of Customer Data, except to the extent caused by IDlayr’s breach of these Terms or applicable law.

12. Duration, Termination and Suspension

12.1 These Terms commence on the date accepted by Customer and shall continue for the duration specified in the applicable Order Form, unless terminated earlier in accordance with this clause 12. If no Order Form is in effect, the Terms shall continue until terminated in accordance with this clause 12.

12.2 IDlayr may terminate these Terms at any time by providing at least seven (7) days’ prior written notice to Customer.

12.3 IDlayr may suspend Customer’s access to all or any portion of the Services and/or terminate these Terms or any applicable Order Form, in whole or in part, upon written notice to Customer, if IDlayr reasonably determines that:

• Customer is in default of any undisputed payment obligation for more than ten (10) days after becoming due, or any payment method provided by Customer is invalid, cancelled, or charges are refused;
• Customer materially breaches these Terms or an Order Form and fails to cure such breach within thirty (30) days after written notice where such breach is capable of cure, or such breach that is not capable of cure;
• Customer or any End User has used the Services in a fraudulent, abusive, unlawful, or unauthorised manner, or in a manner that materially degrades or threatens the security, integrity, or performance of the Services;
• Customer becomes insolvent, enters liquidation, administration, bankruptcy, dissolution, or similar proceedings;
• IDlayr reasonably determines that continued provision of the Services (or a portion thereof) is prohibited by applicable law or regulation.

12.4 Where practicable and lawful, IDlayr will use commercially reasonable efforts to provide Customer with notice and an opportunity to cure prior to suspension or termination. IDlayr may limit any suspension to the minimum scope and duration necessary and may reinstate the Services once the underlying issue has been resolved to IDlayr’s reasonable satisfaction. Suspension under this clause 12 does not constitute termination unless IDlayr expressly notifies Customer otherwise.

12.5 Upon expiration or termination of these Terms for any reason:

• all fees or other amounts accrued by Customer through the effective termination date shall immediately become due and payable;
• Customer’s rights to access and use the Services shall cease as of the effective termination date; and
• any prepaid but unused fees shall be refunded only if termination is not due to Customer’s breach.

12.6 The following provisions shall survive expiration or termination of these Terms or any Order Form:

• Clause 6, 7, 8, 9, 11, 12.5, 12.6, 13, 14, 15 and 16, together with any provisions that by their nature should survive.

12.7 Following any suspension or termination of these Terms, Customer may request post-termination assistance (including data retrieval), subject to IDlayr’s then-current policies, advance payment of applicable fees, and acceptance of all additional terms specified by IDlayr in writing.

13. Limitation of Liability

13.1 Notwithstanding anything to the contrary in these terms, to the maximum extent permitted by applicable law, in no event shall IDlayr, its affiliates, or their respective partners, suppliers, licensors, content providers, directors, officers, employees, or agents, be liable under the law of any contract, tort, warranty, strict liability, negligence or any other legal or equitable theory with respect to the services or other subject matter of this agreement for:

• any special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, or any loss of profits, goodwill, revenue, income, business, data or interruption of business, or the cost of procurement of substitute goods, technology, rights or services (however arising and even if advised of the possibility of such damages);
• any liability that exceeds the greater of £50,000 GBP or the amount of fees actually paid to IDlayr in the six (6) months preceding the event giving rise to the claim;
• Use of or inability to use the services in connection with emergency services, including emergency calling, dispatch, or response systems.

13.2 Nothing in this Agreement shall limit or exclude the liability of either party, as applicable, for:

• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
• fraud or fraudulent misrepresentation; and
• any matter in respect of which it would be unlawful to exclude or restrict liability.

14. Governing Law and Jurisdiction

14.1 These Terms shall be governed by and construed in accordance with the laws of:

• England and Wales if Customer’s principal place of business is outside of the United States; and
• the State of Delaware if Customer’s principal place of business is inside of the United States,
• in each case without reference to conflicts of law principles.

14.2 The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.

14.3 Without limiting the preceding language, the Parties agree to submit, for purposes of these Terms, to the jurisdiction and venue of:

• the courts of London, England if Customer’s principal place of business is outside of the United States; and
• the state and federal courts located in the State of Delaware if Customer’s principal place of business is inside of the United States.

14.4 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THE SERVICES OR THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DATE THE CLAIM FIRST ACCRUES. ANY CLAIM NOT BROUGHT WITHIN THIS PERIOD IS PERMANENTLY BARRED.

15. Arbitration and Dispute Resolution

15.1 In the event either Party has a dispute or claim against the other Party (except with respect to billing disputes), the disputing Party shall provide written notice to the other Party. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both Parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.

15.2 If negotiations fail to resolve the dispute within thirty (30) days, and/or small claims court is not a valid option due to the side or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorised use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent IDlayr or Customer from terminating Services in accordance with these Terms.

15.3 A Party who intends to seek arbitration must first send to the other Party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location of arbitration will be:

• in London, England and in accordance with the rules then in effect of the International Chamber of Commerce if Customer’s principal place of business is outside of the United States; and
• in New York, New York, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, if Customer’s principal place of business is inside of the United States, in which case this dispute resolution provision will be governed by the Federal Arbitration Act and not by any state or national law concerning arbitration.

15.4 The amount of any settlement offer made by Customer or IDlayr shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or IDlayr is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. The prevailing Party in any action or proceeding to enforce these Terms shall be entitled to recover its reasonable legal or solicitors’ fees and costs.

15.5 Each Party waives its right to a trial by jury for claims subject to arbitration hereunder. The arbitrator may award relief only in favour of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES THAT ANY CLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MAY BE BROUGHT ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING. CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO PARTICIPATE IN OR BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST IDLAYR, INCLUDING ANY RIGHT TO SEEK RELIEF ON A CLASS-WIDE BASIS. The arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.

15.6 Notwithstanding the foregoing, each Party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.

16. Miscellaneous

16.1 Entire Agreement. These Terms constitute the entire agreement between the Parties with respect to the Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and IDlayr with respect thereto. No oral or written information or advice given by IDlayr or its employees and other representatives will create any obligations or warranty on behalf of IDlayr unless otherwise agreed in writing signed by an authorised IDlayr representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer, even if signed by the Parties after the date hereof, shall have no force or effect.

16.2 Language. In the event that the Parties have executed versions of these Terms drafted in more than one language, the English language version shall govern and prevail.

16.3 Modifications and Waivers. Except as expressly provided elsewhere in these Terms, these Terms may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on IDlayr’s behalf may only be given by an authorised signatory of IDlayr. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

16.4 Severability. If any provision of these Terms, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that these Terms will otherwise remain in full force and effect and enforceable.

16.5 Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labour difficulties, war, sabotage, pandemic, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided nor permit Customer to terminate any Services except as expressly provided herein.

16.6 Notices. Customer authorises IDlayr to provide notices relating to these Terms (e.g., service updates, breach, suspension, and termination notices) by email to the email address associated with Customer’s account. Customer is responsible for keeping its contact details current. Notices sent by email will be deemed received when sent to the last email address on record, unless IDlayr received a delivery failure notice. Notices to IDlayr under these Terms must be sent in writing to Customer’s account manager, with legal notices sent to:

4Auth Limited
35 Ballards Lane
London, N3 1XW,
United Kingdom
Attn: Legal Department
Email: [email protected]

Unless otherwise stated, notices under these Terms will be in writing and will be deemed to have been duly given when received:

• if personally delivered or sent by certified or registered mail, return receipt requested;
• when receipt is electronically confirmed, if transmitted by facsimile or email; or
• the day after it is sent, if sent via next day delivery by recognised overnight delivery service.

16.7 Relationship of the Parties. The relationship of the Parties shall not be that of partners, agents or joint venturers for one another, and nothing contained in these Terms shall be deemed to constitute a partnership or agency agreement between the Parties for any purpose. IDlayr and Customer shall be independent Parties and shall discharge their contractual obligations at their own risk subject to the terms of these Terms.

16.8 Assignment. These Terms inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign these Terms without IDlayr’s prior written consent.