Pro Insight Trial Agreement
Last updated May 6, 2022
This Pro Insight Trial Agreement, as may be amended from time to time (the “Agreement”) is entered into as of the date You accept it (the “Effective Date”), by and between Ekata, Inc., a Delaware corporation and wholly owned subsidiary of Mastercard with offices at 1301 Fifth Avenue, Suite 1600, Seattle, WA 98101 (“Ekata”), and You (together, the “Parties,” and each individually, a “Party”).
In this Agreement, “You” or “Customer” means the person accepting this Agreement or other entity on whose behalf such person is accepting this Agreement. The word “your/s” shall be construed accordingly.
If You accept this Agreement on behalf of a legal entity, You represent and warrant that: (i) You are authorized to bind this entity to this Agreement; (ii) You have read and understand this Agreement; and (iii) You agree to the terms and conditions of this Agreement on behalf of this entity.
Ekata provides identity verification and fraud prevention products and services. Ekata and Customer desire to enter into an arrangement by which Ekata will make the Services (as defined below) available to Customer on a trial basis for a limited time (the “Trial”). For this purpose, the Parties agree as follows:
“Services” means the product identified below, including Ekata Data, that Ekata makes available to Customer as described in this Agreement.
|Web Portal: Customer will use https://app.ekata.com/ to interact with the Services to query the Ekata Data.
- Account and Access to the Services. When You request a Trial, Ekata will create a user account for You and/or your Users (the “User Account”). Access to the Services is subject to Ekata’s approval and User Account activation.
- Trial Period. The Trial will commence on the date the Customer’s User Account is activated and will last for a minimum of, the earlier to occur, (i) 7 days from the date of such User Account activation; or (ii) 50 Queries. Ekata will communicate the duration of your Trial to You by displaying notices in accordance with the “Notices” section in Exhibit A (the “Trial Period”).
- This Agreement commences on the Effective Date and ends at the end of the Trial Period, unless terminated earlier in accordance with this Agreement.
- Additional terms. The terms attached hereto as Exhibit A are an integral part of, and shall apply to, this Agreement.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person.
“Customer Data” means electronic data and information submitted by or for Customer to the Services.
“DPA” means a Data Processing Agreement that is made a part of this Agreement.
“Ekata Data” means information that Ekata provides or otherwise makes available to Customer through the Services. Ekata Data includes but is not limited to information from publicly available sources, third-party data providers, and Metadata.
“Metadata” means pseudonymized data that Ekata derives or generates from its analysis of Customer Data. Examples of Metadata include the number of times a data element has been queried in a period of time (velocity) or the last time a data element has been seen (recency) and hashed, encrypted Customer Data. Metadata does not constitute Customer Data.
“Person” means and includes any individual, partnership, joint venture, corporation, company, bank, trust, unincorporated organization, government, or any department, agency, or instrumentality thereof.
“Query” means a request for information submitted by Customer to the Services, and the return of a result to the Customer, regardless of the relevance of that result to Customer, unless the result is a “null result.” A “null result” occurs when the response from the Services asks Customer to clarify input elements of its original search.
“User” means an employee, contractor or agent of Customer who is authorized by Customer to access or use the Services, and who has been provided a user id and password or other account credential.
- Our Commitments to You.
2.1 Services Ekata will make the Services available to You during the Trial Period pursuant to this Agreement. Certain functionalities or aspects of the Services might not be available in the context of a Trial. You will access Ekata Data through the Services, and we will provide the web portal(s) to enable your access. Ekata provides the Services by employing machine learning techniques that identify patterns in data by using algorithmic models. These models leverage Ekata Data, Customer Data, and data provided by Ekata’s other customers. When You submit Customer Data to the Services, Ekata may analyze Customer Data in conjunction with Ekata Data and other customers’ data to create Metadata to provide results to your query.
2.2 Security of Customer Data. Ekata will maintain a security program with reasonable and appropriate administrative, physical, and technical safeguards designed to protect your Customer Data against unauthorized access or disclosure. As part of these safeguards, we cryptographically hash your Customer Data when we use them in our algorithmic models. For more information on Ekata’s security initiatives, please see our Security Overview and FAQ, available at https://ekata.com/security-overview-and-faq/.
2.3 Data Protection.
2.3.1 DPA. To the extent You submit personal data to the Services, our DPA, available at https://ekata.com/ekata-agreements-and-terms/, shall apply, and it is made a part of this Agreement by reference. Customer’s acceptance of this Agreement will also be treated as its execution of the DPA. You acknowledge that Ekata does not merely process data but also controls the purpose and means of the data processing contemplated by this Agreement.
2.4 Compliance with Laws. Each Party shall fulfill its obligations as stated in this Agreement in accordance with all applicable laws and regulations, including, without limitation, the Foreign Corrupt Practices Act, the U.K. Bribery Act, and all other applicable anti-corruption and anti-bribery laws. In connection with the Customer’s use of the Services, the Customer shall comply with all applicable export, re-export, and import control laws and regulations of all applicable jurisdictions, and the Customer shall not export or re-export the Services. The Customer shall not engage in any activities related to these Agreement with a Person who is identified on the lists of specially designated nationals or blocked parties maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, or other relevant jurisdiction. Such list is currently accessible at: http://www.treasury.gov/ofac. Customer agrees that access to the Services is contingent on satisfactory completion of full know-your-customer (KYC) due diligence and sanctions screening (against US OFAC and other relevant lists). Ekata reserves the right to deny or suspend access to the Services or terminate this Agreement if Customer does not provide the information required by Ekata to perform such due diligence and sanctions screening or if such due diligence or sanctions screening is not completed to Ekata’s satisfaction.
- Your Responsibilities.
3.1 Generally. You will be responsible for your and each User’s compliance with this Agreement and applicable laws. You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services. In the event of unauthorized access or use of the Services through your account or by any other means, or if You suspect someone else has used your account, You should immediately notify Ekata, in any event no later than twenty-four (24) hours after becoming aware of such unauthorized access or use or from the moment You suspect there has been an unauthorized access or use, by contacting (i) your Ekata account representative or Customer Support at https://support.ekata.com/hc/en-us and (ii) Ekata’s legal team at firstname.lastname@example.org. Without prejudice to your obligation to notify Ekata of an unauthorized access or use (or suspected access or use), You shall not be responsible for unauthorized access caused by our gross negligence or willful misconduct. You are solely responsible for ensuring that your use of the Services, including your provision of Customer Data to Ekata as contemplated hereunder, does not violate the laws of the applicable jurisdictions in which You do business. Any use of the Services in breach of this section by You or any Users may result in Ekata’s immediate suspension of the Services.
3.3 Purposes and Restrictions.
3.3.1 General Restrictions. Customer will not: (a) make any Services available to anyone other than Customer and Users for the purposes authorized herein; (b) use the Services for the benefit of anyone other than Customer; (c) falsify or alter any unique identifier assigned to Customer, or otherwise obscure or alter the source of queries to the Services; (d) permit direct or indirect access to or use of the Services in a way that circumvents any usage limits; (e) reproduce, modify, distribute, disassemble, reverse engineer or create derivative works based on any portion of the Services; (f) violate or attempt to violate the security of the Services, or introduce any malicious code into the Services; (g) use the Services to build a competitive product or service; or (h) submit Customer Data to the Services that contain any information deemed “sensitive” under applicable law (such as government identification numbers, financial account information, or information related to children).
3.3.2 Purposes and Data Use Restrictions. Customer agrees to use the Ekata Data in a non-production environment solely for its own internal evaluation purposes to determine suitability of Ekata Data for identity verification and fraud detection and prevention use cases only and whether it has an interest in obtaining a commercial license from Ekata. Customer will not use the Ekata Data for any other purpose and will not: (a) transfer the Ekata Data to any third party; (b) use the Ekata Data in violation of any applicable law, rule, or regulation or in violation of any third-party right; (c) merge stored Ekata Data with other data unless it is coded or tagged to indicate Ekata as its source; or (d) use the Ekata Data for file download in a fixed page format (i.e., create a printable, downloadable directory of personal information). Within five business days of the end of the Trial Period, Customer agrees to permanently destroy all Ekata Data provided to Customer under this Agreement (and all copies thereof) and, if requested, to certify such destruction in writing.
You acknowledge that the Services are not provided by a “consumer reporting agency” as that term is defined in the Fair Credit Reporting Act (“FCRA”) and the Ekata Data do not constitute “consumer reports” as defined in the FCRA. Accordingly, the Ekata Data may not be used as a factor in determining eligibility for credit, insurance, employment or any other purpose in which a consumer report may be used under the FCRA (or any similar consumer credit law in the United States of America or otherwise).
3.4 User Accounts. You agree that the account information You provide will be accurate and complete at the time You provide it and You will maintain and update such information to keep it accurate and complete. We may contact You and require confirmation of your account information before You use or continue to use the Services. We reserve the right to terminate any licenses granted hereunder and to refuse to provide You access to the Services if, in our sole discretion, we determine that any of your account information is, or appears to be, inaccurate, incomplete, or fraudulent.
- Proprietary Rights.
4.1 Customer Data.
4.1.1 Ownership of Customer Data. As between Ekata and You, You own and retain all right, title, and interest in and to your Customer Data. You grant Ekata a limited, royalty-free, non-exclusive, worldwide right and license to store, access, use, copy, and create derivative works from the Customer Data, as set forth in this Agreement.
4.1.2 Use of Customer Data. You agree that Ekata may analyze and store Customer Data for as long as reasonably necessary (but not longer than three years) to provide identity verification and fraud detection services. Ekata stores Customer Data in a securely encrypted format, to provide applicable customer service to You, and to apply machine learning techniques that help Ekata identify patterns in the data. When Ekata applies machine learning to Customer Data, these data (a) will be pseudonymized through cryptographic hashing, (b) will be aggregated with data from other customers, and (c) will not be made available to any other customer. For clarity, no Metadata provided through the Services includes any identifiers that indicate that You are a source of Metadata.
4.2 Ekata Data and the Services.
4.2.1 As between Ekata and You, Ekata owns all rights, title and interest in and to the Services, the Ekata Data, and Metadata, and any enhancements or modifications thereto. No rights are granted to You hereunder other than as expressly set forth herein. Subject to your compliance with all of the terms and conditions of this Agreement, and in consideration of your promises reflected herein and your payment of related taxes, Ekata grants to You a limited, royalty-free, non-exclusive, worldwide right and license to access and use the Services, as set forth in this Agreement.
4.2.2 Feedback. You grant Ekata a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Ekata services any suggestion, enhancement request, or other feedback provided by You or the Users relating to the Services.
- Fees and Taxes.
5.1 Fees. There are no fees associated with the provision of the Services under this Agreement.
5.2 Taxes. All payments made, consideration provided, and the value of services rendered by Ekata under this Agreement shall be exclusive of any applicable sales tax, withholding tax, use tax, goods and services tax, value-added tax (VAT), stamp duties, business occupation tax, or any other applicable tax or charge of a similar nature (collectively, “Taxes”). Unless otherwise set forth in this Agreement or required by applicable law, Customer has the sole obligation to collect, report, and remit any Taxes. Where applicable, it is the Customer’s responsibility to furnish Ekata with valid certificates or other evidence supporting applicable exemptions from sales, use, or excise taxes. Each Party shall be responsible for its own income taxes, personal property taxes, payroll taxes, and similar taxes.
- Term and Termination.
6.1 Termination by Either Party. Each Party may terminate this Agreement for cause if the other Party (i) materially breaches this Agreement, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or cancellation or readjustment of substantially all of its obligations.
6.2 Termination or suspension by Ekata. At any time, Ekata may terminate or suspend this Agreement for any reason, in its sole discretion.
6.3 Surviving Provisions. The sections titled “Proprietary Rights,” “Surviving Provisions,” “Confidentiality,” “Disclaimers,” “Limitation of Liability,” “Indemnification,” “Miscellaneous” and the subsection titled “Taxes” will survive any termination or expiration of this Agreement, and the section titled “DPA” will survive any termination or expiration of this Agreement for so long as Ekata retains possession of Customer Data.
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Ekata includes the Services, including Ekata Data, Metadata, and the terms and conditions of this Agreement.
Confidential Information does not include any information that (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation hereunder, (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) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of similar kind, but not less than reasonable care, and will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. Except as otherwise authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those employees, contractors and agents who need access for purposes consistent with this Agreement. Customer will not disclose the terms of this Agreement to any third party other than legal counsel and accountants who are bound by professional obligations of confidentiality. Ekata may disclose Customer’s Confidential Information to Ekata’s Affiliates, Ekata subcontractors, to legal counsel and accountants who are bound by professional obligations of confidentiality, or as otherwise provided in this Agreement.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if compelled by law or regulation, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- Representations and Warranties.
8.1 Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Disclaimers. Ekata expressly disclaims liability for Customer’s reliance on, and does not represent or endorse the accuracy, completeness, or reliability of any Ekata Data or other information displayed, uploaded, or distributed through the Services. Except as expressly provided herein, the Ekata Data and Services are distributed “as is” and “as available” without warranties of any kind.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EKATA AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE. NO INFORMATION OR ADVICE PROVIDED BY EKATA, ITS AFFILIATES, OR BY ITS EMPLOYEES, CONTRACTORS OR AGENTS, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED HEREUNDER.
- Indemnification and Defense.
You will defend Ekata, its Affiliates, and its third-party data providers against any claim, demand, or proceeding made or brought against them by a third party (a) alleging that any Customer Data or your use of Customer Data with the Services infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Services in an unlawful manner or in violation of the Agreement (a “Claim Against Ekata”), and will indemnify Ekata from any damages, costs and attorney fees finally awarded as a result of a Claim Against Ekata, provided that Ekata (c) promptly gives You written notice of the Claim Against Ekata, (d) gives You sole control of the defense and settlement of the Claim Against Ekata (except that You may not settle any Claim Against Ekata unless it unconditionally releases Ekata from all liability), and (e) gives You reasonable assistance, at your expense. Customer’s defense and indemnification obligations do not apply if a Claim Against Ekata arises from Ekata’s breach of this Agreement.
- Limitation of Liability.
10.1 Limitation of Liability. IN NO EVENT SHALL EKATA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIVE THOUSAND DOLLARS ($5,000). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.2 No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Ekata may change, suspend or discontinue any aspect of the Services at any time, including the availability of any feature, database, or content. If You believe that any such change would have a material adverse effect on your use of the Services, your exclusive remedy is to stop using the Services.
12.1. Notices. Ekata may provide You notice of changes or any other matter by displaying notices to You generally through the Ekata web site or customer portal or, at Ekata’s option, by using any contact information You have provided to Ekata. You agree that notice by the foregoing means shall be deemed complete when posted by Ekata or transmitted to You. All legal notices to Ekata shall be delivered in writing and must be sent by either overnight courier or certified mail, return receipt requested to:
Attn: Legal Department
1301 Fifth Avenue, Suite 1600
Seattle, WA 98101
with a copy (which shall not constitute notice) to: email@example.com.
12.2 Time Limitation on Claims and Causes of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement or your use of the Services and Ekata Data must be filed within one year after such claim or cause of action arose. Any claim not filed within the foregoing one-year period shall be forever barred.
12.3 Governing Law, Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws principles. Each Party irrevocably consents to the exclusive jurisdiction of the courts of Westchester County in the State of New York, and the federal courts situated in the Southern District of New York, in connection with all proceedings related to this Agreement.
12.4 Third-Party Beneficiaries. Except when Ekata’s third-party data providers are specifically referenced, there are no third-party beneficiaries under this Agreement.
12.5 Confirmation of Compliance. Upon Ekata’s request, but no more than once in a three-month period, Customer shall demonstrate, to the reasonable satisfaction of Ekata, Customer’s compliance with this Agreement.
12.6 Waiver, Severability and Assignment. Ekata’s failure to enforce a provision is not a waiver of its right to do so later. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You may not assign any of your rights under this Agreement without Ekata’s written consent. Ekata may assign its rights to Ekata’s Affiliates, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Ekata’s assets.
12.7 No Agency. The Parties are independent contractors. Nothing herein will be construed to create a partnership, joint venture or any type of agency relationship between the Parties.
12.8 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Ekata and You regarding your use of the Services, including Ekata Data, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Titles and headings of sections of this Agreement are for convenience only and do not affect the construction of any provision of this Agreement.