UR® ENCODER: GOVERNMENT / NOT-FOR-PROFIT LICENSE
UR® ENCODER SOFTWARE LICENSE AGREEMENT
(COMMERCIAL ENTITIES REQUIRE AN ADDITIONAL COMMERCIAL LICENSE)
This UR® ENCODER SOFTWARE LICENSE AGREEMENT (this "Agreement") is effective as of the date ("Effective Date") it is entered into by and between FaceTec, Inc. ("Licensor"), a Delaware corporation, and the Entity (as defined below) that accepts and enters into this Agreement ("Licensee") (each, a "Party", or together, the "Parties").
THIS LICENSE TO ACT AS A UR® CODE ISSUER IS INTENDED TO BE FREE AND PERPETUAL FOR ANY LEGAL IDENTITY ISSUING AUTHORITY OR NON-PROFIT ENTITY (OR A COMMERCIAL ENTITY THAT QUALIFIES AS A PERMITTED LICENSEE) SO LONG AS IT REMAINS A PERMITTED LICENSEE (AS DEFINED BELOW) AND EXCEPT AS OTHERWISE SET FORTH HEREIN. ANY LICENSEE THAT IS A COMMERCIAL LICENSEE (AS DEFINED BELOW) MAY ONLY USE THE ENCODER SOFTWARE FOR ITS OWN COMMERCIAL PURPOSES IF LICENSEE HAS A SEPARATE COMMERCIAL AGREEMENT IN EFFECT WITH LICENSOR. IF LICENSEE IS A COMMERCIAL LICENSEE AND DESIRES TO USE THE UR® ENCODER FOR ITS OWN COMMERCIAL PURPOSES (OUTSIDE OF THE LICENSED PURPOSE), LICENSEE SHOULD CONTACT LICENSOR FOR A COMMERCIAL AGREEMENT.
Please read this Agreement carefully, as it (among other things) requires in Section 12 that Licensor may elect to require Licensee and Licensor to resolve any dispute by arbitration rather than by litigation before a court and restricts class action claims.
1. Definitions.
1.1 "Affiliate" means any Entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Party in question.
1.2 "Authorized Licensee" means any Entity that has separately entered into a UR® Encoder license agreement with Licensor.
1.3 "Biometric Information" means data that depict physical, biological traits, characteristics, or measurements of or relating to an identified or identifiable person's body, including depictions or images, or copies of an individual's facial features. Biometric information includes images and data derived from such images to the extent that it would be reasonably possible to identify the person from whose information the data had been derived. Both an image of a person's face and any derivative face data that are sufficiently unique to the individual depicted in the data to identify them constitute biometric information.
1.4 "Commercial Agreement" means a separate agreement executed by Licensee and Licensor that permits Licensee to use the Encoder Software for Licensee's own commercial purposes.
1.5 "Commercial Entity" means an Entity that is (i) organized for commercial purposes, and (ii) is not a Legal Identity Issuing Authority or Non-Profit Entity.
1.6 "Commercial Licensee" means any Licensee that is not a Permitted Licensee.
1.7 "Documentation" means the documentation made accessible by Licensor and all documents, user manuals, guides, handbooks, technological documentation, and other materials relating to the operation, use, and functionality of the Encoder Software, including, without limitation, the documentation made available by Licensor at dev.urcodes.com, as may be updated from time to time, all of which are exclusively owned by Licensor.
1.8 "Encoder Software" or "ES" means the UR® Encoder, Documentation, and the UR® Codes generated from the UR® Encoder.
1.9 "Entity" means any person, partnership, corporation, share company, cooperative, limited liability company, association, trust, joint venture, business, investment entity or organization.
1.10 "Legal Identity Issuing Authority" means any (i) nation, region, state, county, city, town, village, district, or other jurisdiction, unit or subdivision, (ii) supranational, multinational, sovereign, federal, state, local, municipal, foreign or other government, (iii) department, agency or instrumentality of a foreign or other government, including any state-owned or state controlled instrumentality of a foreign or other government, (iv) governmental authority of any nature (including any governmental agency, branch, department, division or other entity and any court or other tribunal), (v) public international organization, bilateral, multilateral or multinational organization or authority or (vi) body exercising, or entitled to issue legally recognized identity documents to its residents, citizens, or constituents.
1.11 "Licensed Purpose" means (i) with respect to Licensee, performance of services on behalf of a Legal Identity Issuing Authority or Non-Profit Entity that is an Authorized Licensee to enable any such Authorized Licensee to use the UR® Encoder to generate UR® Codes, and (ii) with respect to any Authorized Licensees, use of the UR® Encoder to generate UR® Codes pursuant to the terms of this Agreement.
1.12 "Fees" means, in respect of Commercial Licensees, a fee to license the ES for commercial use that is payable to Licensor for the use of and access to the ES as set forth in a Commercial Agreement between Licensee and Licensor.
1.13 "Non-Profit Entity" means any Entity that (i) is organized for purposes other than generating profit and in which no part of the organization's income is distributed to its members, directors, or officers, and (ii) is designated (and remains in good standing) as a non-profit entity by a government authority in its applicable jurisdiction of organization or residence, and may include but is not limited to the following types of entities or organizations: non-government organizations ("NGOs"), churches, public schools, colleges and universities, public charities, public clinics and hospitals, amateur sports organizations, political organizations, legal aid societies, volunteer services, organizations, labor unions, professional associations, research institutes, museums, and some governmental agencies. For the avoidance of doubt, an individual cannot be a Non-Profit Entity.
1.14 "Personal Data" means any information that is linked or reasonably linkable to an identified or identifiable individual, and includes "personal data," "personal information," "personally identifiable information," and other equivalent or similar terms under applicable law. For the avoidance of doubt, Personal Data includes Biometric Information.
1.15 "Permitted Licensee" means any Entity that is a (i) Legal Identity Issuing Authority, (ii) Non-Profit Entity, or (iii) a Commercial Entity that is using the UR® Encoder solely in the performance of services on behalf of a Legal Identity Issuing Authority or Non-Profit Entity for the Licensed Purpose; provided, (a) in no event will a person or Entity be eligible to be a "Permitted Licensee" for purposes of this Agreement without the prior written consent of Licensor in the event such person or Entity is or has been involved in litigation, arbitration or any other dispute with Licensor (a "Prohibited Licensee"), and (b) in the event that Licensor determines in its absolute and sole discretion that a person or Entity is a Prohibited Licensee, the Agreement shall be subject to immediate termination by Licensor, and upon receiving written notice of such termination such Prohibited Licensee shall immediately cease using the ES.
1.16 "UR® Code" means digitally signed biometric barcodes that store encoded face vector data, personal identity data and other data. The UR® Code software supports the encoding of UR® Code data.
1.17 "UR® Encoder" means Licensor software that encodes personal information and Biometric Information and generates a UR® Code.
2. License Grant; License Restrictions; Ownership.
2.1. Subject to the terms and conditions of this Agreement, and provided that a Commercial Agreement is in effect if Licensee is a Commercial Licensee, Licensor hereby grants to Licensee a license to use the ES. The license is a non-exclusive, non-sublicensable, and non-transferable license to install, use, and copy the object code of the UR® Encoder, UR® Codes and Documentation. For purposes of this license grant, the term "copy" shall mean the ability to reproduce the digital image file of a single UR® Code for its intended use (e.g., printing or digital display). The term of the Agreement shall be subject to the terms set forth in Section 8 herein. Any Licensee that intends to perform services on behalf of a Legal Identity Issuing Authority or Non-Profit Entity to enable any such Entity to use the UR® Encoder to generate UR® Codes and any other features created by Licensor in the future, must first ensure that such Entity becomes an Authorized Licensee by entering into a UR® Encoder license with Licensor.
2.2. Licensee (and its Authorized Licensees) will not: (a) except as otherwise set forth herein, transfer, distribute, sublicense, rent, lease, or loan the ES or any part thereof to any third party (other than, in the case of a Commercial Entity that is using the ES solely for the Licensed Purpose, to Authorized Licensees); (b) use the ES in violation of applicable law; (c) use the ES to develop services or products for sale or include any components of the ES in any product (except as may be provided in any Commercial Agreement); (d) make the ES available to the public in any manner; (e) remove any product identification, proprietary, copyright, trademark or other notices contained in the ES; (f) copy, translate, port, modify, make derivative works of, disassemble, decompile, or otherwise reverse engineer, or otherwise attempt to learn, derive or discover the source code, source files, structure, underlying techniques, underlying ideas or underlying algorithms of, the ES by any means; (g) publicly disseminate performance information or analysis (including without limitation, benchmarks) from any source relating to the ES; or (h) use the ES in conjunction with any external tools or software designed for cryptographic analysis, decryption, or security testing.
2.3. Licensee may allow its employees and contractors to use the ES solely for the purposes and subject to the terms of this Agreement. Licensee shall be responsible for the acts and omissions of all Licensee personnel as if the same were performed by Licensee.
2.4. Except for the licenses expressly granted in this Agreement, nothing in this Agreement or the provision of the ES conveys or otherwise provides to Licensee (or any Authorized Licensee) any title, interest or any intellectual property rights in or to: (a) the ES, or (b) know-how, ideas, or any other subject matter protectable under laws applicable to intellectual property rights of any jurisdiction.
2.5. As between Licensee and Licensor, Licensor and its Affiliates and any permitted assignee are the sole and exclusive owners of the ES, including all intellectual property rights therein. The trademarks, service marks, and logos of Licensor that are used and displayed in connection with the ES (the "Licensor Trademarks") are registered and unregistered trademarks or service marks of Licensor. Licensee shall not use the Licensor Trademarks without Licensor's prior authorization. Licensee shall print or publish the image file as it is rendered and output by the ES and shall not manipulate or remove any portion of the image file generated from the ES, or otherwise cover or obfuscate any part of the barcode, including the center area of the code (any such violation, a "Display Breach"). Licensee shall be liable to Licensor for any Display Breach of liquidated damages of $5,000 for each occurrence of breach, and $50,000 for each occurrence of intentional breach or repeated breaches, provided Licensor reserves all other rights and remedies including actual damages and injunctive relief with respect to any Display Breach. The Parties agree that it would be difficult or impossible to determine the amount of actual damages in the event of a Display Breach, and further agree that the foregoing amount is not a penalty, but a fair and reasonable estimate of actual damages.
2.6. In the event that it uses UR® Codes publicly, Licensee gives its approval and consent for Licensor and any permitted assignees to include Licensee's organization in its publicly disclosed list of UR® Code issuers, to refer to Licensee in public materials and business conversations as a UR® Code issuer.
2.7. Licensee agrees that it will: (a) comply with applicable law in the use of the licenses granted under this Agreement; (b) possess and retain sole responsibility for compliance with all transparency, notice, consent, data subjects rights requests, and similar requirements relating to the collection, maintenance, use, transfer, and retention of Personal Data (including Biometric Information) under applicable law, including but not limited to ensuring it has all necessary and appropriate consents and notices in place before collecting any end user's Personal Data (including Biometric Information) to comply with applicable law; and (c) be solely responsible for any unauthorized creation, collection, receipt, access, use retention, storage, disposal, transmission, or disclosure of Personal Data (including Biometric Information) under its control or in its possession under the Agreement.
2.8. Licensee acknowledges and agrees that: (a) Licensor generally does not process Personal Data in its provision of the ES to Licensees; (b) Licensor offers ES that is downloaded, integrated, and run exclusively inside the Licensee's private systems; (c) Licensor does not collect, obtain, receive, or otherwise process Personal Data from or about Licensees or their Authorized Licensees or any end users in connection with the operation of the ES, which runs exclusively inside Licensees' private systems; (d) Licensee shall take appropriate measures and precautions to prevent access to, or the processing of, Personal Data by Licensor; and (e) this Agreement does not require the processing of Personal Data by Licensor.
2.9 If the situation arises, Licensee agrees that it will: (a) comply with applicable law when transferring or otherwise making available Personal Data to Licensor; (b) provide Licensor with written notice if any information Licensee provides to Licensor under this Agreement contains Personal Data; and (c) ensure Licensee has all necessary and appropriate notices and user consents in place to comply with applicable law to permit the lawful transfer of any Personal Data to Licensor and all actions taken by Licensor with respect to Personal Data for the duration of the Agreement. Licensor will not be responsible for determining on its own that any information Licensee provides under this Agreement qualifies as Personal Data under applicable law.
2.10 By entering into this Agreement, Licensee consents to, and shall procure all required consents necessary from its Authorized Licensees and any end users, with respect to all actions taken by Licensor as it relates to Personal Data, provided such processing is consistent with the then-current version of Licensor's Privacy Policy, available on Licensor's website (currently at dev.facetec.com/privacy-site, as may be updated from time to time), and applicable law. In the event of any inconsistency or conflict between the terms of Licensor's Privacy Policy and this Agreement, the Privacy Policy shall control.
2.11 With respect to Commercial Entities that are using the ES solely for the Licensed Purpose, Licensee represents, warrants, and covenants that during the period of Licensee's use of the UR® Encoder, its use is and shall remain limited to the Licensed Purpose on behalf of Authorized Licensees. In the event of any inaccuracy in or breach of Licensee's representations, warranties, or covenants with respect to its use of the ES for the Licensed Purpose or the status of any Authorized Licensee as a Legal Identity Issuing Authority or Non-Profit Entity, Licensor may, without prejudice to any other rights or remedies of Licensor, terminate this Agreement and terminate support for the UR® Encoder in accordance with Section 8 below. Commercial Licensees performing services for Permitted Licensees shall provide Licensor with periodic (i.e., quarterly) certifications and/or upon request by Licensor grant audit rights, at Licensee's expense, to verify that Licensee's use remains strictly limited to the Licensed Purpose. Licensee shall reimburse Licensor for the full cost of the audit if the audit reveals any material non-compliance or under-reporting of usage by more than five percent (5%). In addition, Licensee shall be liable to Licensor for liquidated damages of five percent (5%) of Licensee's annual business total revenue during the period during which Licensee used the ES and such inaccuracy or breach existed. The Parties agree that it would be difficult or impossible to determine the amount of actual damages in the event of such inaccuracy or breach and further agree that the foregoing amount is not a penalty, but a fair and reasonable estimate of actual damages.
2.12 Licensor reserves all rights not expressly granted to Licensee in this Agreement.
2.13 Licensee shall, and hereby does, assign to Licensor Licensee's entire right, title and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any (i) modifications or improvements to the ES which Licensee may propose or make at any time ("Improvements"), and (ii) feedback Licensee provides to Licensor regarding the ES ("Feedback"). Licensor may use and otherwise exploit the Feedback and Improvements as it wishes with no compensation to Licensee. In the event that any of Licensee's rights with respect to any Improvement or Feedback are not fully assignable, Licensee shall, and hereby does, grant to Licensor an exclusive, irrevocable, perpetual, royalty-free, fully paid-up worldwide license for such Improvements and Feedback.
3. License Fees; Support. Unless Licensee is a Permitted Licensee, during the Term (as defined herein), Licensee shall pay Fees to Licensor in accordance with the terms set forth in the Commercial Agreement. The support and maintenance obligations, if any, with respect to the ES licensed to Licensee under this Agreement shall be set forth in the Commercial Agreement. If Licensee is a Permitted Licensee, Licensee shall not be obligated to pay Fees under this Agreement, and Licensor shall have no support and maintenance obligations with respect to the ES licensed to Licensee under this Agreement.
4. Confidential Information. Licensee shall not use any information about Licensor's business operations, products, confidential intellectual property, trade secrets, third-party confidential information, or other sensitive or proprietary information, regardless of form or media type, and whether or not marked, designated, or otherwise identified as confidential ("Confidential Information") for any purpose (other than the Licensed Purpose if Licensee is a Permitted Licensee). Licensee shall not disclose Confidential Information to any person or entity, except to its employees and contractors who require access to Confidential Information, provided any such employee or contractor executes a written confidentiality and nondisclosure agreement with Licensee containing terms that are as restrictive as the relevant provisions of this Agreement. Without limiting the generality of the foregoing, Licensee shall protect Confidential Information with the same degree of care Licensee uses to protect its own confidential information of a similar nature and importance, but with no less than reasonable care. Licensee shall promptly notify Licensor of any misuse or misappropriation of Confidential Information of which it becomes aware. Notwithstanding the foregoing, Licensee may disclose Confidential Information as required or compelled by applicable law or by proper legal or government authority. Licensee shall give Licensor prompt notice of any such legal or governmental demand, and shall reasonably cooperate with Licensor in any effort to seek a protective order or otherwise to contest such demand. Licensee agrees that a breach of its non-disclosure obligations would cause Licensor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Licensor shall be entitled to injunctive relief against any such actual or threatened breach, without any requirement to provide evidence of actual damage, or to post a bond or other security. Licensee's obligations of non-disclosure with respect to Confidential Information are effective as of the Effective Date and will expire ten (10) years from the date first disclosed to Licensee; provided, however, with respect to Confidential Information that constitutes a trade secret under applicable law, Licensee's obligations of non-disclosure will survive expiration or termination of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE UR® ENCODER, UR® CODES, AND DOCUMENTATION ARE PROVIDED 'AS-IS' AND 'AS AVAILABLE' WITHOUT WARRANTY OF ANY KIND AND LICENSOR DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE UR® ENCODER OR UR® CODES WILL MEET LICENSEE'S REQUIREMENTS OR THOSE OF ITS AUTHORIZED USERS, THAT THE OPERATION OF THE UR® ENCODER WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS IN THE UR® ENCODER WILL BE CORRECTED. LICENSEE WARRANTS THAT IT HAS NOT RELIED ON ANY INFORMATION OR REPRESENTATION PROVIDED BY OR ON BEHALF OF LICENSOR WHICH IS NOT EXPRESSLY INCLUDED IN THIS AGREEMENT. USE OF ANY INFORMATION OBTAINED FROM THE UR® ENCODER AND UR® CODES IS ENTIRELY AT THE SOLE RISK OF LICENSEE AND ITS AUTHORIZED USERS.
THE ES IS DESIGNED TO PROVIDE PROBABILISTIC FACE MATCH INFERENCES AND THEREFORE MAY NOT BE SUITABLE FOR USE IN HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS.
WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE SECURITY, STRENGTH, OR RESISTANCE TO ATTACK OF ANY ENCRYPTION METHODS, CRYPTOGRAPHIC ALGORITHMS, HASH FUNCTIONS (INCLUDING BUT NOT LIMITED TO SHA-256 OR ANY OTHER HASHES), OR OTHER SECURITY MEASURES. THE UR® ENCODER AND UR® CODES MAY BE USED TO GENERATE, ANALYZE, OR PROCESS DATA IN WAYS THAT COULD POTENTIALLY ASSIST IN BREAKING, WEAKENING, OR COMPROMISING ENCRYPTION OR OTHER CRYPTOGRAPHIC SYSTEMS. LICENSOR EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY SUCH OUTCOMES AND SHALL HAVE NO INDEMNITY, DEFENSE, OR HOLD-HARMLESS OBLIGATIONS WHATSOEVER ARISING FROM OR RELATED TO ANY CLAIM THAT ANY ENCRYPTION METHOD WAS BROKEN, CRACKED, OR OTHERWISE COMPROMISED USING THE UR® ENCODER, UR® CODES, OR ANY INFORMATION DERIVED THEREFROM. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH ANY USE OF THE ES IN CONNECTION WITH ENCRYPTION, DECRYPTION, CRYPTOGRAPHIC ANALYSIS, OR SECURITY-RELATED APPLICATIONS.
6. Indemnification. Licensee agrees to indemnify, defend and hold Licensor, its Affiliates and permitted assignees, and its and their respective officers, directors, agents and employees, harmless from any claim or demand, including any and all losses, liabilities, claims, demands, damages, costs or expenses, causes of action, suits, proceedings, judgments, awards, executions, and liens, including attorneys' fees and costs, whether brought by third parties or otherwise, due to or arising out of: (i) Licensee's breach of this Agreement; or (ii) use of the ES. Licensee must indemnify Licensor against any fines or penalties assessed by a governmental or regulatory body due to the Licensee's non-compliance with privacy laws or the privacy provisions of this Agreement. Licensor reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which Licensee is required to indemnify it and Licensee agrees to cooperate with its defense of these claims.
7. Limitation of Liability. IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES OR PERMITTED ASSIGNEES BE LIABLE FOR ANY LOSS OF USE, LOST DATA, INTERRUPTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR LICENSEE'S USE OF THE UR® ENCODER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, (i) WITH RESPECT TO A COMMERCIAL LICENSEE, LICENSOR'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE COMMERCIAL AGREEMENT SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THE COMMERCIAL AGREEMENT, I.E. UNDER NO CIRCUMSTANCES SHALL THE TOTAL LIABILITY OF LICENSOR UNDER THIS AGREEMENT AND THE COMMERCIAL AGREEMENT COLLECTIVELY EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THE COMMERCIAL AGREEMENT, AND (ii) WITH RESPECT TO A PERMITTED LICENSEE, LICENSOR'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY LICENSOR'S SOLE GROSS NEGLIGENCE IN AN AMOUNT NOT TO EXCEED ONE THOUSAND DOLLARS ($1,000). THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 7 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Term of License; Termination Upon Breach; Termination for Convenience for Permitted Licensees. If Licensee is a Commercial Licensee, the term ("Term") of this Agreement will be (i) effective from the Effective Date and will continue until such time as the Commercial Agreement between Licensee and Licensor terminates or expires, or is otherwise terminated earlier in accordance with the terms of this Agreement; (ii) subject to termination by Licensor if Licensee breaches any representation, warranty, covenant or other term of this Agreement or of the Commercial Agreement; and (iii) shall terminate automatically upon expiration or termination of the Commercial Agreement. If Licensee is a Permitted Licensee, the Term of this Agreement shall be perpetual, provided the Agreement shall be subject to termination by Licensor if Licensee breaches any representation, warranty, covenant or other term of this Agreement. Upon termination of this Agreement, (i) the license (and any sublicenses granted to Authorized Licensees) and other rights granted to Licensee in this Agreement will automatically and immediately terminate; and (ii) Licensee (and all Authorized Licensees) will cease all use of the UR® Encoder, UR® Codes and Documentation and will permanently delete or destroy, or otherwise purge, all copies (electronic or otherwise) of the applicable ES. All provisions that must survive in order to give effect to their intent and meaning shall survive termination of this Agreement, including Sections 1, 2.2, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 2.11, 4, 5, 6, 7, 8, 12, 13, 14, 15, 18, and 19.
9. Communications.
9.1 By using the ES, Licensee opts-in, agrees, and expressly consents to receiving marketing communications from Licensor through direct mail, electronic mail (at the email address provided to Licensor by Licensee), telephone (at the telephone number provided to Licensor by Licensee).
9.2 Licensee may opt-out of receiving future commercial (i.e., promotional) emails from Licensor by clicking the "Unsubscribe" button at the bottom of Licensor's emails, or by contacting Licensor at privacy @ facetec . com. Please provide Licensee's name and contact information in Licensee's request, and Licensor will respond in accordance with applicable law.
9.3 To the maximum extent permitted by law: (1) all information contained in Licensor marketing communications is "AS IS," without warranty of any kind, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement; and (2) Licensor expressly excludes any liability for any direct, indirect, or consequential loss or damage incurred by Licensee in connection with the receipt, use, failure of, or inability to use, marketing communications.
10. Export Compliance. Licensee will not, and will ensure that Licensee and any Authorized Licensee will not directly or indirectly export, re-export, transfer or release any ES to any destination, person, entity or end use prohibited or restricted under applicable law, without prior government or regulatory authorization to the extent required by applicable law and regulations.
11. U.S. Government. The UR® Encoder was developed at private expense and is a "commercial product" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the App with only those limited rights set forth therein. The publisher is Licensor, with its primary office at 10001 Park Run Drive, Summerlin, NV 89145.
12. Governing Law; Arbitration. THE LAWS OF THE STATE OF DELAWARE, USA GOVERN THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT AND ALL ACTIONS AND PROCEEDINGS ARISING OUT OF IT ("DISPUTE"). THE PARTIES AGREE THAT LICENSOR MAY ELECT IN ITS ABSOLUTE AND SOLE DISCRETION THAT ANY DISPUTE BE GOVERNED BY MANDATORY ARBITRATION. IN THE EVENT LICENSOR ELECTS MANDATORY ARBITRATION FOR RESOLUTION OF ANY DISPUTE, THE PARTIES AGREE TO SUBMIT ANY DISPUTE UNDER THIS AGREEMENT TO BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN THE FOLLOWING LOCATION: CLARK COUNTY, NEVADA. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT WITH JURISDICTION TO DO SO. THIS SECTION 12 SHALL NOT PREVENT A PARTY FROM OBTAINING INJUNCTIVE RELIEF IN A COURT OF COMPETENT JURISDICTION, AND FOR SUCH PURPOSES THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA (OR, IF FEDERAL JURISDICTION CANNOT BE SATISFIED, TO THE JURISDICTION OF THE STATE COURT OF CLARK COUNTY, NEVADA). THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. SUBJECT TO LICENSOR'S RIGHT TO ELECT MANDATORY ARBITRATION PURSUANT TO SECTION 12, UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). IF A COURT DECIDES THAT ANY TERM OR PROVISION OF THIS SECTION 12 IS INVALID OR UNENFORCEABLE, THE PARTIES AGREE TO REPLACE SUCH TERM OR PROVISION WITH A TERM OR PROVISION THAT IS VALID AND ENFORCEABLE AND THAT COMES CLOSEST TO EXPRESSING THE INTENTION OF THE INVALID OR UNENFORCEABLE TERM OR PROVISION, AND THIS SECTION 12 SHALL BE ENFORCEABLE AS SO MODIFIED.
13. Assignment; Inurement. Licensee may not assign or transfer this Agreement, nor any part of it, nor the rights and obligations of Licensee may be assigned by Licensee, whether by operation of law, change of control, merger, or otherwise, without the prior written approval of Licensor. Any assignment granted, or purported to be granted, contrary to this provision will be null and void. Notwithstanding any of the foregoing to the contrary, Licensor may assign this Agreement or its rights and obligations under the Agreement without the prior written consent of Licensee. This Agreement shall be binding upon and inure to the benefit of a Party's permitted successors and assigns.
14. Collection and Use of Information. Licensee acknowledges that Licensor may collect and store certain usage information that is not personally identifiable information when UR® Codes are generated by the UR® Encoder and are subsequently scanned. Licensee acknowledges and agrees that Licensor may use such usage information to improve the UR® Encoder and monitor usage.
15. Notices. All notices which are required or permitted hereunder shall be in writing and sufficient if delivered as follows: (a) if to Licensee, via email, facsimile, or mail to the contact information associated with Licensee's account with Licensor or otherwise provided by Licensee to Licensor, or displayed via the user interface of the UR® Encoder; or (b) if to Licensor, via overnight delivery or certified mail to 10001 Park Run Drive, Summerlin NV 89145.
16. Changes to Agreement with Permitted Licensees. For Permitted Licensees, Licensor may make changes to this Agreement at any time. Changes will be effective (a) thirty (30) days after Licensor provides notice of the changes to Permitted Licensee, or (b) when a Permitted Licensee opts-in or otherwise expressly agrees to the changes or a version of this Agreement incorporating the changes, whichever comes first. Licensee's continued use of the ES following the posting of the revised Agreement shall constitute Licensee's acceptance of such revised version of the Agreement.
17. Entire Agreement. This Agreement (and for a Licensee that is a Commercial Licensee, the Commercial Agreement and this Agreement together), together with any other documents or materials incorporated herein by reference (including Licensor's Software Terms and Conditions and Privacy Policy each as defined and set forth on facetec.com), constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and is the entire understanding between the Parties with respect to the ES, superseding all other prior and contemporaneous agreements, understandings, and representations and warranties relating to this subject matter. In the event of any inconsistency or conflict between the terms of Licensor's Software Terms and Conditions and this Agreement, the Software Terms and Conditions shall control.
18. Severability. If one or more of the provisions of this Agreement is deemed invalid, illegal or unenforceable in any jurisdiction, the remaining provisions contained in this Agreement will not be affected thereby or render unenforceable any other provision in any other jurisdiction. In the event of such determination that any provision is invalid, illegal or unenforceable, a commercially reasonable construction shall be given to the remainder of the Agreement so as to most closely reflect the original intent of the parties as embodied in this Agreement.
19. No Third-Party Beneficiaries. No third parties have any rights under this Agreement.
20. Export Control Laws. Licensee agrees and acknowledges that Licensor is not reselling or exporting software or products in connection with the ES provided by Licensor to Licensee or its customers or end-users pursuant to this Agreement. Licensor is not a seller of any products to Licensee's customers or other end-users pursuant to this Agreement. Licensee represents and covenants that it shall, and it shall cause any of Licensee's customers and end-users to comply with all relevant export control laws and regulations of all countries in which Licensor and Licensee conduct business("Export Control Laws" that may apply to Licensee's and Licensee's customer's and end-user's business, or products. Licensee agrees and acknowledges that Licensor shall have the right to immediately terminate this Agreement without penalty if it determines that Licensor is unable to engage in business with Licensee under applicable Export Control Laws or Licensor's territorial restrictions for permitted commerce, including without limitation restricted parties lists ("Restricted Parties Lists"). Licensee further represents and covenants that it, and it shall cause any Licensee's customers and end-users to not utilize the ES provided by Licensor or any Licensor software or systems, directly or indirectly, either (a) for the distribution of ES which are intended for a prohibited end-use; (b) to engage in any transaction with an individual or entity located in an embargoed or sanctioned country in violation of applicable Export Control Laws; (c) to engage in any transaction with an individual or entity who has been designated on one or more Restricted Parties Lists; or (d) in any other manner which would constitute a violation of applicable Export Control Laws. Licensee's obligations under this paragraph shall be considered material obligations.
By checking the "I Agree to the Terms of the Licensing Agreement." box, the Licensee of the ES agrees, acknowledges, fully understands and accepts all terms set forth in this Agreement, has had an opportunity to consult with its own independent legal counsel, and agrees to be legally bound by the terms of this Agreement in its entirety.