Dated: May 2022
PLEASE REVIEW THIS AGREEMENT CAREFULLY. ONCE YOU CLICK “GET STARTED”, THIS AGREEMENT BECOMES A BINDING LEGAL COMMITMENT BETWEEN YOU AND TELESIGN. IF YOU DO NOT WANT TO BE BOUND BY THIS AGREEMENT, DO NOT CLICK THE “GET STARTED” BUTTON AND DO NOT USE TELESIGN’S SERVICES.
This Evaluation Agreement (“Agreement”) is executed as of the Effective Date described in section 2.1 below by Telesign Corporation, a California corporation located at 13274 Fiji Way Suite 600, Marina del Rey, CA 90292 (“Telesign”) and the company you enter in the Company field of the application form (“Company”) (each a “Party”, and collectively, the “Parties”).
WHEREAS, Telesign is a provider of mobile identity and fraud prevention services, as described in Attachment 1 hereto (the “Services”); and
WHEREAS, Company has reviewed preliminary information regarding the Services and would like to evaluate the Services during the Evaluation Period defined in section 2.1 below.
NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises, agreements and conditions stated herein, the Parties agree as follows:
1. Definitions. Unless the context requires otherwise, the following terms shall have the meaning set out in this section 1:
“Acceptable Use Policy” or “AUP” means the Company’s and Users’ obligations regarding use of the Services and Licensed Data as set out in https://www.telesign.com/acceptable-use-policy, as may be updated by Telesign from time to time at its discretion. Any references to Client or Client Data in the Acceptable Use Policy shall be deemed to be references to the Company and Company Data respectively.
“Affiliate” means a company, person or entity that is owned or controlled by, that owns or controls or is under common ownership or control with a Party. Ownership shall mean direct or indirect ownership of more than 50% of the shares in a company or entity, and control shall mean any power to appoint persons to the board of directors of a company or entity.
“API” means application programming interface made available to Company by Telesign that allows Company to create applications to make use of the Services.
“Applicable Law” means any statute, statutory instrument, regulation, order and other legislative provision, including any delegated or subordinate legislation, and any judgment of a relevant court of law or decision of a tribunal or competent authority, to the extent any of the foregoing applies to a Party’s performance of obligations under this Agreement in the relevant jurisdiction.
“Company Data” means any information transmitted by or on behalf of Company during the execution of an electronic request to the Services, including any information about an identified individual, or an individual whose identity may be inferred or determined from the information therein.
“Data Processing Addendum” or “DPA” means the addendum located at https://www.telesign.com/DPA in effect upon the Effective Date of this Agreement, and as may be updated by Telesign from time to time in its discretion provided any such updates do not result in the material degradation of the original privacy and security protections as may be required by Applicable Law.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks, services marks, trade names, internet domain names, copyrights (including copyrights in computer software), moral rights, rights in knowhow and any renewals or extensions of the foregoing, and all other proprietary rights, and all other equivalent or similar rights which may subsist anywhere in the world, including any renewals or extensions thereof.
“Licensed Data” means the results returned to Company by or on behalf of Telesign in response to Company submitting Company Data as part of the Services.
“SDK” means a software development kit made available to Company by Telesign to enable Company to develop applications to make use of the Services.
“Services” means all products offered by Telesign, as described at https://www.telesign.com/services or otherwise provided by Telesign, and including any services delivered or accessed via an SDK or the Client Portal (including but not limited to outbound and inbound SMS messages and telephone calls to and from Users). Any references to Client or Client Data in the Services description shall be deemed to be references to the Company and Company Data respectively.
“Transaction” means each submission of Company Data to the Services by or on behalf of Company or a Company Affiliate or any User, including but not limited to any submission of voice or SMS content, or any other request to the Client Portal for any Service. Any submission of SMS content that requires splitting into more than one message shall be treated as a separate Transaction for each SMS sent or received by Telesign.
“User” means any customer, client or other user of Company’s services in respect of whom Company Data is submitted.
2.1 The Effective Date of this Agreement (the “Effective Date”) shall be the date that Telesign creates the Company’s TelePortal online profile, which shall be confirmed by email to the contact email address you have previously advised to Telesign. The Agreement shall continue for thirty (30) days commencing on the Effective Date (“Evaluation Period”). his Agreement shall automatically terminate on the expiration of the Evaluation Period (unless terminated earlier in accordance with its terms), unless Telesign and the Company mutually agree to extend the Evaluation Period.
2.2 Subject to the terms and conditions of this Agreement, Telesign shall provide to Company the Services described on Attachment 1 attached hereto during the Evaluation Period. Such Services will be provided via Telesign’s API, SDK or if agreed by Telesign, Company may submit a batch file in a format to be determined by Telesign in order to evaluate the Services.
2.3 Company agrees to use the Services solely for its own internal analysis to determine the acceptability of the Services and whether Company has an interest in obtaining, as appropriate, the Services from Telesign for use by Company. Company is prohibited from using the Services for any other purposes whatsoever in the absence of a signed master services agreement (“MSA”). If Company deems Telesign's Services acceptable and requests Telesign to provide Services beyond the scope of the evaluation described herein, the Parties shall negotiate and execute a mutually acceptable MSA prior to any such use by Company.
2.4 Telesign retains all right, title, and interest, including all Intellectual Property Rights, relating to or embodied in the Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Services, including without limitation any upgrades, updates, or modifications thereof or otherwise. Such Intellectual Property Rights are licensed, not sold, solely for use by Company under the terms of this Agreement. The SDK is licensed to Company in accordance with Telesign’s SDK license agreement, which is available at https://www.telesign.com/telesign-sdk-license-agreement/ the terms of which may be amended by Telesign from time to time at its discretion.
2.5 Company may evaluate the Services at no charge up to a maximum of the Transactions as set out in the Attachment 1 herein for each of the Services (“Maximum Transactions”) during the Evaluation Period. If Company exceeds the number of Maximum Transactions allowed, Telesign may invoice Company for such Transactions in excess of the Maximum Transactions in accordance with the fees set out in Attachment 1 or at such fees as may be confirmed by Telesign via email from firstname.lastname@example.org during the Evaluation Period. Any such fees shall be payable within 30 days of the date of invoice.
2.6 Company agrees that in the event the Company shall use the Services in its live production environment, the provision and use of all Services is subject to the terms and conditions set out in the Master Services Agreement located at https://www.telesign.com/master-services-agreement/.
2.7 Telesign may, from time to time during or after the Evaluation Period, request the Company to provide additional information and datasets which may allow for obtaining better performance from the Services through Company specific calibrations or to provide Company with additional insights into the output and quality of the Services. The types of information and datasets needed shall be mutually agreed upon by the Parties at the time of request.
3.1 The Parties shall each perform its obligations under this Agreement in compliance with all Applicable Laws relating to the protection of privacy and data, in the provision and use of the Services, including the Results File. Telesign shall process and protect Company Data in accordance with the Data Processing Addendum.
3.2 Subject to the Data Processing Addendum, Company Data may be stored and processed in the United States or any other countries in which Telesign maintains facilities. Company consents to any such transfer and appoints Telesign to conduct such a transfer on Company’s behalf in order to provide the Services. Company shall provide all Users with any disclosure or explanation required by Applicable Laws concerning the Company’s use of the Services, and obtain and secure any necessary consent and authorizations from Users that may be required by Applicable Laws in order to authorize Telesign’s provision of the Services, or otherwise ensure a lawful basis for Telesign’s provision of the Services and processing of Company Data.
3.3 Company acknowledges that some Licensed Data received from certain Telesign Services may include data obtained from relevant telecommunications operators and/or carriers (“the Carriers”) and that evaluation of such Telesign Services by Company may be conditional upon receipt of consent from the Carriers. In the event such consent is required for the evaluation under this Agreement, Company must first complete an Onboarding Form, which Company agrees, shall be submitted by Telesign on Company’s behalf to the Carriers to obtain the Carrier’s consent. Company further consents to Telesign sharing details of the Company’s proposed evaluation of such Telesign Services with the Carriers, which may include Company’s Confidential Information, in order to provide the Carriers with additional context to the information provided by Company in the Onboarding Form. In the event the Carriers shall require Company to update or change its processes, terms of service, use or policies as set out in the Onboarding Form, Company agrees that it must comply with such requirements in order to obtain the consent from the Carriers. Company further agrees that Telesign shall not be obliged to allow Company to evaluate such Telesign Services until and unless Company has obtained the requisite consent from the Carriers nor shall Company hold Telesign liable in the event the Carriers not approve the Company’s evaluation of such Telesign Services.
4.1 As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, the terms and conditions of this Agreement, screen shots of the Services, term sheets, pricing in proposals, business and marketing materials, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2 Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing or receiving the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement, moreover, each Party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such Party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such Party. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a commercially reasonable degree of care.
4.3 If the Receiving Party is compelled by Applicable Law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.4 Upon completion of the Evaluation Period, the Receiving Party shall upon request by the Disclosing Party destroy or delete (at Receiving Party’s discretion), the Confidential Information and all copies thereof and shall provide a written certification to the Disclosing Party as to the destruction or deletion of the Confidential Information from their computer systems. Company agrees to hold the processes and methodology of the Services in strict confidence and not to disclose such processes and methodology to any third party or to use it for any purpose other than as specifically authorized herein. Further, Company agrees that any results of its evaluation of the Services and/or reports generated thereby (“Results File”) shall be considered and treated as Confidential Information. Company shall, within ninety (90) days of receipt of the Results File, destroy or delete the Results File and provide certification to Telesign that the Results File, including any copies thereof, has been destroyed or been wiped from Company’s data servers and backup servers, and may not be recovered in any way by Company. The Parties’ obligations under this Section shall survive any termination of this Agreement.
5.1 Telesign warrants and represents that: (a) it owns or licenses all Intellectual Property Rights required to provide the Services and has the authority to grant the rights subject to the terms and conditions set forth herein; (b) the Services will not infringe the Intellectual Property Rights of any third party; and (c) it will perform the Services in compliance with all Applicable Laws.
5.2 Company warrants and represents that, in the use of the Services, it will: (a) comply with the Acceptable Use Policy; and (b) obtain and maintain all necessary licenses, consents and permissions necessary for Telesign to perform its obligations under this Agreement, including the provision of the Services.
5.3 EXCEPT AS PROVIDED FOR HEREIN, THE SERVICES ARE SUBSCRIBED TO COMPANY “AS IS” AND WITH ALL FAULTS. EXCEPT AS PROVIDED FOR HEREIN, TELESIGN DOES NOT MAKE ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES, OR THE HARDWARE OR SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTY THAT PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY ACKNOWLEDGES THAT TELESIGN SECURES INFORMATION FROM THIRD PARTY SOURCES AND NEITHER TELESIGN NOR ANY OF ITS THIRD PARTY SOURCES WARRANT THAT THE INFORMATION WILL BE ACCURATE OR ERROR FREE.
5.4 Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, its affiliates, and their respective officers, directors, agents and employees (the “Indemnified Party”) against all liabilities, costs, expenses, damages and losses suffered or incurred by the Indemnified Party arising out of any claim made by any third party related to or arising from: (i) any actual or alleged infringement or violation of any Intellectual Property Rights of any person or entity; and/or (ii) any breach of an express warranty set out in this Agreement by the Indemnifying Party; except to the extent that such claim arises due to any act or omission of the Indemnified Party.
5.5 Other than in respect of any indemnity given pursuant to section 5.4, each Party’s aggregate liability to the other Party arising from or relating to this Agreement or the subject matter hereof, under any legal theory (whether in contract, tort, or otherwise), will in no event exceed ten thousand US dollars (USD 10,000.00). In no event shall either Party be liable for any indirect, special, incidental, or consequential damages of any kind, including, without limitation, lost income, lost profits, present and future, regardless of whether such liability is based on breach of contract, breach of warranty (express or implied), active or passive negligence, intentional or unintentional tort, strict liability, violation of statute, ordinance or regulation, failure of consideration, or other basis, arising out of the provision of the Services. Notwithstanding the foregoing, Company shall be responsible to pay for all Transactions in excess of the Maximum Transactions in accordance with the fees set out in Attachment 1.
5.6 Telesign reserves the right to suspend or terminate the Services provided under this Agreement at any time in its discretion.
6.1 Company may not assign this Agreement without the prior written consent of Telesign which will not be unreasonably withheld.
6.2 Failure or delay by either Party in exercising any right or power hereunder shall not operate as a waiver of such right or power. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.
6.3 Company acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services. Without limiting the foregoing, Company acknowledges that the Services are or may be subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Company agrees not to export or re-export the Services in any form in violation of the export laws of the United States or any foreign jurisdiction. Company will defend, indemnify, and hold Telesign harmless from and against any violation of such laws or regulations.
6.4 The laws of the State of California shall exclusively govern this Agreement, without regard to any contrary conflicts of laws principles. In event of a dispute arising under this Agreement, each Party will make reasonable, good-faith efforts to resolve such dispute informally. The parties agree to waive jury trial as to any claim, controversy or dispute arising under or related to this Agreement. All legal disputes arising from this Agreement shall be resolved in the Federal and/or State Courts of the County of Los Angeles, California.
6.5 This Agreement, together with Attachment 1 attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the Parties. The terms of this Agreement may only be amended by a separate writing signed by both Parties. The Parties hereby agree to the execution of this Agreement in one or more counterparts, and/or by electronic signature, including the use of the platform and processes of DocuSign, Inc. as may be updated from time to time.
6.6 Sections 2.3, 2.4, 4, 5.1-5.5, 6.3 shall survive the termination or expiry of this Agreement.
*Passthrough fees shall be charged at the rates set out in the Meta - WhatsApp list price schedule
**Telesign reserves the right to provide, modify, discontinue any Services for evaluation at its sole discretion with no liability to the Company under this Agreement.
***Some PhoneID Add-ons may not be available for evaluation in some countries or additional third-party consent may be required.