Downloadable Components License Agreement
HEADSPIN SOFTWARE LICENSE ADDENDUM
1.1. "Customer Data" means all data and information, including, without limitation, any graphics or images that are created, installed, uploaded or transferred in connection with the Services by Customer.
1.2 "Internal Business" means the use of the Services for Customer's core business, but excluding any use of the Services to provide software services in the nature of a service bureau, commercial hosting, or commercial information technology services to such third parties or to resell or distribute to third parties.
1.3 "End User" means an employee of Customer who has authorized access to the Licensed Systems for business-related activity, and for which license fees have been paid.
2. OWNERSHIP AND LICENSE GRANT
2.1 SP may use its proprietary software, data and methodologies ("SP Technology") as it deems necessary to provide Services. SP retains all intellectual property rights in and to SP Technology, including any derivative works and improvements made thereto during performance of Services. The Parties stipulate and agree that Deliverables will not be considered a joint work.
2.2 SP hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, paid-up right and license to download and use the Software for the Initial Term or any Renewal Terms as necessary for Customer's internal business purposes, provided Customer complies with the restrictions set forth in Section 4 (Software License Restrictions and Customer Responsibilities). "Software" refers to SP's biometric SDK and IDE. Such internal business purposes do not include use by any parent, subsidiary, or affiliate of Customer, or any other third party, and Customer shall not permit any such use.
2.3 By accessing and using any SP Software and/or Services, Customer acknowledges and agrees to all the terms and conditions of this Addendum.
3. SERVICES AND SUPPORT
3.1 Subject to the terms and conditions of this Addendum, SP will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at SP's sole discretion, for any purpose deemed appropriate by SP. SP will use reasonable efforts to give Customer prior written notice of any such modification.
4. SOFTWARE LICENSE RESTRICTIONS AND CUSTOMER RESPONSIBILITIES
4.1 Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications. If SP authorizes Customer to distribute any such application to its end user content customers ("End Users"), Customer may do so only after effectively binding such End Users to any applicable End-User Software Agreements provided by SP for the benefit of SP.
4.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for benchmarking, timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; take any action that imposes, or may impose at Company's discretion an unreasonable or disproportionately large load on Company's infrastructure, or otherwise interfere with the proper working of the Services, or disable, bypass or otherwise attempt to interfere with any measures that Company may use to prevent or restrict access to the Services; or use the Services or Software other than in accordance with this Addendum and in compliance with all applicable laws and regulations applicable in the jurisdiction(s) in which the Services are used or accesses (including but not limited to any European privacy laws, intellectual property, consumer and child protection, obscenity or defamation), and SP shall have no liability for any action or inaction by Customer in violation of the foregoing.
4.3 Customer will cooperate with SP in connection with the performance of this Addendum and any regulatory or governmental investigation or proceeding relating to Customer's use of the Services by making available such personnel and information as may be reasonably required, and taking such other actions as SP may reasonably request, including, without limitation, providing Customer's activity logs to SP as reasonably necessary to perform support and maintenance obligations and respond to regulatory or governmental inquiries. Customer will also cooperate with SP in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
4.4 Customer will designate an employee who will be responsible for all matters relating to this Addendum ("Primary Contact"). Customer may change the individual designated as Primary Contact at any time by providing written notice to SP.
4.5 Customer shall not upload or introduce any computer virus, malware or similar item (each of the foregoing, a "Virus") into SP's computing or network environment. If Customer transfers a Virus to SP's computing or network environments, it shall reimburse SP for, and indemnify SP against, any and all claims, losses, damages or costs resulting therefrom, including without limitation any costs incurred by SP in connection with removal or recovery from the Virus,
including all costs of labor for persons employed or engaged by SP and all hardware replacement costs.
4.6 Customer hereby agrees to indemnify and hold harmless SP against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged or actual violation of the foregoing or otherwise from Customer's use of Services. Although SP has no obligation to monitor the content provided by Customer or Customer's use of the Services, SP may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
4.7 Customer will be responsible for maintaining the security of Customer's account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.
4.9 Customer acknowledges and agrees that the Services may operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"). SP is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. SP does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.
5.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Proprietary Information" of the Disclosing Party).
5.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Addendum, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document
(a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Addendum will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything to the contrary, SP may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services' performance.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Except as expressly set forth herein, SP alone will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to SP. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Addendum. This Addendum is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
6.2 SP will obtain and process content/data provided by or on behalf of Customer ("Content") only to perform its obligations under this Addendum. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content. If SP receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), SP may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify SP from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
7.1 Upon termination by SP, the licenses granted will terminate and Customer shall cease all use of the Software and delete all copies in its possession or control, and each party shall promptly return any property of the other's.
7.2 All sections of this Addendum which by their nature should survive termination will survive termination, including, without limitation, restrictions, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
8. CLIENT SOFTWARE SECURITY
8.1 SP represents and warrants that it will not knowingly include, in any SP software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices,
trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.
9.1 THE SERVICES AND SP PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS ADDENDUM ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. SP (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1 IN NO EVENT WILL SP (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS ADDENDUM, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS ADDENDUM OR OTHERWISE ARISING FROM THIS ADDENDUM, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SP HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF SP, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO SP HEREUNDER ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.