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| This license is a legal "Agreement" concerning the use of Software between you, the end user, and Affective Interfaces, Inc. (collectively "Company"). USE OF SOFTWARE INDICATES YOUR COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. If you do not agree to these terms and conditions, promptly return, or, if received electronically, certify destruction of Software and all accompanying items within five days after receipt of Software and receive a full refund of any license fee paid. |
END USER LICENSE AGREEMENT
1. GRANT OF LICENSE. The software programs you are installing, downloading, or have acquired with this Agreement, including any updates, modifications, revisions, copies, documentation and design data ("Software") are copyrighted, trade secret and confidential information of Company or its licensors who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. Company grants to you a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object-code form; and (b) for your non-commercial personal use.
2. RESTRICTIONS ON USE. You shall not make Software available in any form to any person or make any copies of the Software. You shall not reverse-assemble, reverse- compile, reverse-engineer or in any way derive from Software any source code. You may not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise ("attempted transfer"), without Company' prior written consent. The terms of this Agreement, including without limitation, the licensing and assignment provisions shall be binding upon your heirs, successors in interest and assigns. The provisions of this Section 2 shall survive the termination or expiration of this Agreement.
3. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER COMPANY NOR ITS LICENSORS MAKE ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. COMPANY AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
4. LIMITATION OF LIABILITY. EXCEPT WHERE THIS EXCLUSION OR RESTRICTION OF LIABILITY WOULD BE VOID OR INEFFECTIVE UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF COMPANY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY' OR ITS LICENSORS' LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, COMPANY AND ITS LICENSORS SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER.
5. CONSENT TO USE DATA AND PUBLICITY. You acknowledge that one of the primary purposes of the Software program is to collect, store and analyze user data relating to human behavior research, your use of products, media, online content, electronic and computer devices and, accordingly, you hereby consent and agree that the Company may collect, through the Software, information regarding human behavior research, your use of products, media, online content, electronic and computer devices, including without limitation websites visited and your interactions therewith. Furthermore, you hereby grant to Company and its designees, agents, successors and assigns the irrevocable, perpetual, worldwide, transferable right and license (with the right to sublicense) to use, copy, publicly display, publicly perform, distribute and create derivative works of any or all of such data collected by Company through the Software program for any purpose whatsoever.
In addition, you acknowledge that the Software program collects video/audio recordings of you while using electronic and computer devices and interacting with websites, products and/or media and, accordingly, you hereby consent and agree that the Company may make of video/audio recordings of you, though the Software, relating to human behavior research, your use of products, media, online content, electronic and computer devices and, accordingly, you hereby consent and agree that the Company may collect, through the Software, information regarding human behavior research, your use of products, media, online content, electronic and computer devices, including without limitation websites visited and your interactions therewith. Furthermore, you hereby grant to Company and its designees, agents, successors and assigns the irrevocable, perpetual, worldwide, transferable right and license (with the right to sublicense) to use your name, likeness, image, voice, appearance, and performance as embodied in such video/audio recordings whether recorded on or transferred to videotape, film, slides, photographs, audio tapes, digital media or other media, now known or later developed. This grant includes without limitation the right to edit, mix or duplicate and to use or re-use such recordings in whole or part as Company may elect. Company or its designee shall have complete ownership of the video/audio recordings in which you appear, including all copyright interests, and you acknowledge that you have no interest or ownership in such recordings or their copyright.
You also hereby grant to Company and its designees, agents, successors and assigns the irrevocable, perpetual, worldwide, transferable right and license (with the right to sublicense) to broadcast, exhibit, market, sell and otherwise distribute the data and/or video/audio recordings collected by Company through the Software, either in whole or in part, and either alone or with other content, materials, services or products, for commercial or non-commercial use, in television or theater, closed-circuit exhibition, home video distribution, internet or any other medium, including printed materials, for any purpose that Company or its designees, agents, successors and assigns in their sole discretion may determine, without monetary compensation whatsoever. You hereby waive any right that you may have to inspect or approve the finished product or any other materials that may be used in connection therewith or the use to which it may be applied.
6. TERM. This Agreement remains effective until expiration or termination. This Agreement will immediately terminate upon notice if you exceed the scope of license granted or otherwise fail to comply with the provisions of Sections 1 or 2. For any other material breach under this Agreement, Company may terminate this Agreement upon 30 days written notice if you are in material breach and fail to cure such breach within the 30- day notice period. Upon any termination or expiration, you agree to cease all use of Software and return it to Company or certify deletion and destruction of Software, including all copies, to Company's reasonable satisfaction.
7. EXPORT. Software is subject to regulation by local laws and United States government agencies, which prohibit export or diversion of certain products, information about the products, and direct products of the products to certain countries and certain persons. You agree that you will not export any Software or direct product of Software in any manner without first obtaining all necessary approval from appropriate local and United States government agencies.
8. RESTRICTED RIGHTS NOTICE. Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in the license agreement under which Software was obtained pursuant to DFARS 227.7202-3(a) or as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as applicable.
9. THIRD PARTY BENEFICIARY. For any Software under this Agreement licensed by Company from other licensors, the applicable licensor is a third party beneficiary of this Agreement with the right to enforce the obligations set forth herein.
10. CONTROLLING LAW AND JURISDICTION. This Agreement shall be governed by and construed under the laws of the State of California, USA. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of San Francisco, California. This section shall not restrict Company's right to bring an action against you in the jurisdiction where your place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11. SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be void, invalid, unenforceable or illegal, such provision shall be severed from this Agreement and the remaining provisions will remain in full force and effect.
12. MISCELLANEOUS. This Agreement contains the parties' entire understanding relating to its subject matter and supersedes all prior or contemporaneous agreements, including but not limited to any purchase order terms and conditions, except valid license agreements related to the subject matter of this Agreement (which are physically signed by you and an authorized agent of Company) either referenced in the purchase order or otherwise governing this subject matter. This Agreement may only be modified in writing by authorized representatives of the parties. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse. The prevailing party in any legal action regarding the subject matter of this Agreement shall be entitled to recover, in addition to other relief, reasonable attorneys' fees and expenses.
OHS West:260691410.1
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