ALGOFACE
FREEMIUM 2D-FLT SOFTWARE DEVELOPMENT KIT (SDK)
LICENSE AGREEMENT
This Freemium 2D-FLT SDK End User License Agreement (this “Agreement”) is between AlgoFace, Inc., a Delaware corporation (“AlgoFace” or “Licensor”), and you as the end user (the “Licensee”) and is effective upon Licensee’s acceptance of this Agreement or download of the Freemium 2D FLT software (the “Effective Date”). If you are using the Freemium 2D FLT software on behalf of a company, organization or other entity, you represent and warrant that you have all requisite authority to bind such entity to the terms of this Agreement.
Please note that AlgoFace may modify the terms and conditions of this Agreement in accordance with Section 9.2 (Amendment; Waiver).
Background
AlgoFace is making available a proprietary closed-source freemium version of its 2D facial landmark tracker SDK (the “Freemium 2D FLT”) for evaluation and testing purposes only. This Freemium 2D FLT is not for any commercial or production use and has been limited in the number of daily impressions it will process per day which still allow for integration, evaluation and testing but at a lesser speed than our Premium 2D FLT.
1. Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Confidential Information” means any information or data disclosed by Licensor that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of Licensee; (b) was properly known to Licensee, without restriction, prior to disclosure by Licensor; (c) was properly disclosed to Licensee, without restriction, by another person with the legal authority to do so; or (d) is independently developed by Licensee without use of or reference to Licensor’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by AlgoFace for the Freemium 2D FLT.
“Licensee Applications” means a software or hardware application or other service owned or operated, by Licensee, that incorporates or interoperates with the Freemium 2D FLT.
2. AlgoFace Freemium 2D FLT
2.1 License Grant. Subject to Licensee’s compliance with the terms and conditions of this Agreement, AlgoFace hereby grants Licensee a non-exclusive, non-transferrable, non-sublicensable, non-commercial, single mbachine, single user, right and license, during the Freemium term set forth in this Agreement, to install, access and use the Freemium AlgoFace 2D FLT SDK (in object code form only) for purposes of evaluation only.
2.2 Licensee Responsibilities. Licensee will (i) be solely responsible for all use of the Freemium 2D FLT including in connection with Licensee Applications, (ii) use at least industry standard efforts to prevent unauthorized access to or use of the Freemium 2D FLT and notify AlgoFace promptly of any such unauthorized access or use, and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Freemium 2D FLT, including as set forth in the Documentation. Licensee will be solely responsible for its failure to maintain such equipment, software, hardware and services, and AlgoFace will have no liability for such failure. Furthermore, Licensee agrees to: (i) maintain a privacy policy that complies with applicable law on its Licensee Applications; (ii) provide all required disclosures to its end users and obtain any necessary rights, releases, and consents to allow the Freemium 2D FLT to be evaluated on Licensee Applications as required by applicable laws and regulations, and (iii) agrees that any necessary releases or consents are maintained for any photographs and/or videos which contain human faces.
2.3 Proprietary Rights. As between the parties, AlgoFace exclusively owns all right, title and interest in and to the Freemium 2D FLT and AlgoFace’s Confidential Information, and Licensee exclusively owns, all rights, title and interest in and to the Licensee Application (excluding the Freemium 2D FLT) including any Licensee data generated in connection with the use of the Freemium 2D FLT. Licensee has obtained all necessary rights for any third party technology used in connection with AlgoFace’s Freemium 2D FLT, including as necessary to not adversely affect or interfere with AlgoFace’s proprietary rights.
2.4 Feedback. Licensee may from time to time provide AlgoFace with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Freemium 2D FLT. AlgoFace will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. AlgoFace will have the full, unencumbered right, without any obligation to compensate or reimburse Licensee, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
3. Confidentiality.
3.1 Confidentiality. Licensee agrees that it will use the Confidential Information of Licensor solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without Licensor’s prior written consent, except as otherwise permitted hereunder. However, Licensee may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case Licensee will provide Licensor with prior written notification thereof, will provide Licensor with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Licensor agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 3, Licensor will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Licensee will promptly notify Licensor in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
4. No Warranties and Disclaimers
4.1 NO IMPLIED OR OTHER WARRANTIES. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THAT CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, THE FREEMIUM 2D FLT AND DOCUMENTATION IS PROVIDED ‘AS-IS’ WITHOUT ANY WARRANTY WHATSOEVER AND LICENSOR MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE, REGARDING OR RELATING TO THE FREEMIUM 2D FLT, DOCUMENTATION OR CONTENT THEREIN OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO LICENSEE PURSUANT TO THIS AGREEMENT OR OTHERWISE. LICENSEE ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF THE FREEMIUM 2D FLT TO ACHIEVE LICENSEE’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE FREEMIUM 2D FLT. LICENSOR MAKES NO WARRANTY THAT THE FREEMIUM 2D FLT OR DOCUMENTATION WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE, OR THAT IT IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, ACCESSIBILITY, PERFORMANCE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE FREEMIUM 2D FLT AND THE ACCOMPANYING WRITTEN MATERIALS OR USE THEREOF. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE HEREBY AGREES THAT THE FREEMIUM 2D FLT MAY NOT BE OR BECOME AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM MANAGEMENT, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS AND OR INTERNET INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS AND OMISSIONS OF THIRD PARTIES.
5. Indemnification.
5.1 Indemnification by Licensee. Licensee will defend AlgoFace against any claim, lawsuit or proceeding made or brought against AlgoFace by a third party, including all related liability, damages, costs, fees, and expenses caused in whole or in part by (A) the Licensee Application; (B) use of the Freemium 2D FLT by Licensee; or (C) modification of the Freemium 2D FLT by or on behalf of Licensee, unless caused by the gross negligence or willful misconduct of AlgoFace.
6. Limitation of Liability; No Liability for Consequential Damages.
LICENSEE ASSUMES THE ENTIRE COST OF ANY DAMAGE RESULTING FROM LICENSEE’S USE OF THE FREEMIUM 2D FLT AND THE INFORMATION CONTAINED IN OR COMPILED BY THE FREEMIUM 2D FLT, AND THE INTERACTION (OR FAILURE TO INTACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY LICENSEE OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA LOSS, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE FREEMIUM 2D FLT, OR THE INCOMPATIBILITY OF THE FREEMIUM 2D FLT WITH ANY HARDWARE SOFTWARE OR USAGE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR NOT OF SUCH DAMAGES. IN NO EVENT WILL LICENSOR’S TOTAL LIABILITY TO LICENSEE FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE EXCEED ONE HUNDRED DOLLARS ($100). THE ABOVE LIMITATIONS WILL ONLY APPLY TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS AND REGULATIONS.
7. Restrictions
7.1 License Key. Licensee may not give, make available, give away, sell or otherwise transfer Licensee’s registration License Key or any copy thereof to a third party. The Freemium 2D FLT’s License Key may not be distributed, except as provided herein, outside of the area of legal control of the person who accepted this Agreement, without written permission of Licensor. Doing so will be considered a material breach of this Agreement and violation of AlgoFace’s intellectual property rights.
7.2 Technology Restrictions; Compliance with Law. Licensee will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, clone, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Freemium 2D FLT or any subset of the Freemium 2D FLT; (b) copy the Freemium 2D FLT onto any public or distributed network; (c) attempt to probe, scan or test the vulnerability of the Freemium 2D FLT, breach the security or authentication measures of the Freemium 2D FLT or willfully render any part of the Freemium 2D FLT unusable; (d) extract or use any functionality of the Freemium 2D FLT other than as part of normal operation of the Freemium 2D FLT described in the documentation and as integral part of the operation and functionality of Licensee’s evaluation; (e) use or access the Freemium 2D FLT to develop a product or service that is competitive with AlgoFace’s products or engage in competitive analysis or benchmarking; (f) transfer, distribute, rent, sell, resell, loan, lease, license, sublicense, publish, display, distribute, transfer, permit third parties to benefit from the use or functionality of the 2D FLT via a time sharing, service bureau or other arrangement, or assign Freemium 2D FLT or otherwise offer the Freemium 2D FLT on a standalone basis or otherwise; (g) modify any proprietary rights notices which appear in the Freemium 2D FLT or components thereof; (h) export, re-export, or transfer any Freemium 2D FLT or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or otherwise in violation of any applicable export control laws and regulations; or (i) otherwise use the Freemium 2D FLT in violation of any applicable international, national, state, regional and local laws, including, without limitation, privacy, copyright, export control, and obscenity law, or outside the scope expressly permitted hereunder.
8. Termination
8.1 Term. The term of this Agreement will commence on the Effective Date and shall continue in perpetuity, unless otherwise stated in the download email provided by Licensor, or otherwise terminated pursuant hereto.
8.2 Termination. Licensee may stop using the Freemium 2D FLT and terminate this Agreement at any time by providing AlgoFace with written notice of termination (read receipt confirmation e-mail to suffice). AlgoFace may terminate this Agreement and Licensee’s access to the Freemium 2D FLT upon fifteen (15) days’ prior written notice to Licensee (e-mail to suffice) or immediately upon no notice if Licensee has breached this Agreement.
8.3 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the terms and conditions relating to proprietary rights, use and technology restrictions, confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below.
9. General
9.1 Publicity. Licensee agrees that AlgoFace may refer to Licensee’s name and trademarks in AlgoFace’s investor materials, marketing materials and website; however, AlgoFace will not use Licensee’s name or trademarks in any other publicity (e.g., press releases, Licensee references and case studies) without Licensee’s prior written consent (which may be by email).
9.2 Amendment; Waiver. AlgoFace reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. Any modifications to this Agreement shall become effective upon the date of posting. No waiver by AlgoFace of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by AlgoFace to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.3 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.5 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.6 Governing Law. This Agreement will be governed by the laws of the State of Arizona, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.7 Notices. Any notice required or permitted to be given hereunder will be given in writing by e-mail and deemed received with a read receipt confirmation to Notice@algoface.ai, or such other address designated pursuant to this Section.
9.8 Entire Agreement. This Agreement comprises the entire agreement between Licensee and AlgoFace with respect to the Freemium 2D FLT and its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). If Licensee is an existing customer of AlgoFace, Licensee’s existing customer agreement will remain in effect with respect to the AlgoFace products and services purchased by Licensee, and this Agreement will only apply with respect to Licensee’s use of the Freemium 2D FLT. No oral or written information or advice given by AlgoFace, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.9 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.10 Government Terms. AlgoFace provides the Freemium 2D FLT, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Licensee (or any of its Licensees) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Freemium 2D FLT, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Freemium 2D FLT was developed fully at private expense.
9.11 Interpretation. For purposes hereof, “including” means “including without limitation”.
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