ADVANCED ID DETECTION
End User License Agreement
IMPORTANT – PLEASE READ THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE INSTALLING OR OTHERWISE USING THE SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS. THIS AGREEMENT CONSTITUTES A LEGALLY BINDING AGREEMENT BETWEEN YOU OR THE COMPANY WHICH YOU REPRESENT AND ARE AUTHORIZED TO BIND (the “Licensee”, “You” or “Your”) AND CONFIRM INC. DBA ADVANCED ID DETECTION (“Licensor”).
License: Conditioned upon compliance with the terms and conditions of the Agreement, Licensor grants to Licensee a nonexclusive and nontransferable license to use for Licensee's internal business purposes the computer programs, including updates thereto, embedded in equipment provided by Licensor (the “Software”) and the Documentation for which Licensee has paid the required license fees.
"Documentation" means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available with the Software in any manner. In order to use the Software, Licensee may be required to input a registration number or product authorization key and register Licensee's copy of the Software to obtain the necessary license key or license file.
Unless otherwise expressly provided in the Documentation, Licensee shall use the Software solely as embedded in, for execution on, or (where the applicable Documentation permits installation on non-Licensor equipment) for communication with Licensor equipment owned or leased by Licensee and used for Licensee's internal business purposes. No other licenses are granted by implication, estoppel or otherwise.
Licensee hereby grants to Licensor a non-exclusive, perpetual, irrevocable license to use any data input into the Software by Licensee for the sole reason of improving the Software and installation thereof, providing support in connection with the Software, and any other business reason. If Licensee provides Licensor with personally identifying information (“PII”) of third parties, Licensee acknowledges that Licensor does not secure such data on premise and Licensor has no liability in connection with any loss or disclosure of such PII.
General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Licensor retains ownership of all copies of the Software and Documentation. Licensee acknowledges that the Software and Documentation contain trade secrets of Licensor or its suppliers or licensors. Except as otherwise expressly provided under the Agreement, Licensee shall only use the Software in connection with the use of Licensor equipment owned or leased by Licensee and used for Licensee's internal business purposes and Licensee shall have no right, and Licensee specifically agrees not to:
(i) transfer, assign or sublicense its license rights to any other person or entity, or use the Software on Licensor equipment not owned or leased by Licensee and used for Licensee's internal business purposes, and Licensee acknowledges that any attempted transfer, assignment, sublicense or use shall be void;
(ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law;
(iv) publish any results of benchmark tests run on the Software;
(v) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Licensor; or
(vi) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Licensor. Licensee shall implement reasonable security measures to protect such trade secrets.
To the extent required by applicable law, and at Licensee's written request, Licensor shall provide Licensee with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Licensor's applicable fee, if any. Licensee shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which Licensor makes such information available.
Software, Updates, Support and Additional Copies. So long as Licensee has paid all fees due hereunder for the Software, Licensor shall from time to time make generally available updates to the Software available to Licensee. Any updates provided to Licensee hereunder shall be considered “Software” as such term is used herein. Licensor shall provide reasonable support services via the online Help Center located at https://aidd.zendesk.com or by when deemed necessary to Licensee relating to the updates so long as Licensee has paid all fees due hereunder. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) LICENSEE HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS LICENSEE, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO LICENSOR FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPDATES IS LIMITED TO LICENSOR EQUIPMENT OWNED OR LEASED BY LICENSEE AND USED FOR LICENSEE'S INTERNAL BUSINESS PURPOSES AND FOR WHICH LICENSEE IS THE ORIGINAL END USER PURCHASER OR LESSEE OR OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
Proprietary Notices. Licensee agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in the Agreement, Licensee shall not make any copies or duplicates of any Software without the prior written permission of Licensor.
Indemnification. Licensee shall indemnify and hold Licensor harmless from and against any third party claims arising from Licensee’s use of the Software.
Term and Termination. The Agreement and the license granted herein shall remain effective until terminated. Licensee's rights under the Agreement will terminate immediately without notice from Licensor if Licensee fails to comply with any provision of the Agreement. Upon such termination, Licensee shall destroy all copies of Software and Documentation in its possession or control. Licensor may terminate this Agreement upon ten (10) days’ prior written notice to Licensee in connection with Licensor’s discontinuance of the Software and/or the related maintenance and support services. Upon such termination: (a) Licensee may continue to use the Software and Documentation as expressly permitted herein; provided, that, the Software and Documentation will be provided AS-IS, without warranty of any kind, and Licensor shall not be responsible for any maintenance, support or other obligations in connection therewith; (b) Licensor will refund to Licensee any fees prepaid by Licensee for (i) annual updates not yet received and (ii) an extended warranty, with such refund pro-rated for the remainder of the warranty term; and (c) notwithstanding anything to the contrary herein, Licensor’s sole liability, and Licensee’s sole and exclusive remedy, in connection with or arising from this Agreement and/or the Software or Documentation shall be the refund payable in accordance with the foregoing clause (b).
Upon any termination of this Agreement, all confidentiality obligations of Licensee, all restrictions and limitations imposed on the Licensee under the section titled "General Limitations" and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement. In addition, the provisions of the sections titled "U.S. Government End User Purchasers" shall survive termination of the Agreement.
Licensee Records. Licensee grants to Licensor and its independent accountants the right to examine Licensee's books, records and accounts during Licensee's normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Licensee shall promptly pay to Licensor the appropriate license fees, plus the reasonable cost of conducting the audit.
Export, Re-Export, Transfer and Use Controls. The Software, Documentation and technology or direct products thereof (hereafter referred to as Software and Technology), supplied by Licensor under the Agreement are subject to export controls under the laws and regulations of the United States ("U.S.") and any other applicable countries' laws and regulations. Licensee shall comply with such laws and regulations governing export, re-export, import, transfer and use of Licensor Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Licensor and Licensee each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
U.S. Government End User Purchasers. The Software and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Licensee may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions herein.
Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, identified by Licensor in the Documentation, readme.txt file or third-party click-accept (the "Identified Component(s)") as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, "Additional Terms") than those set forth herein. You agree to the applicable Additional Terms for any such Identified Component(s).
Subject to the limitations and conditions set forth herein, Licensor warrants that commencing from the date of shipment to Licensee, and continuing for a period of the longer of ninety (90) days (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of a Product by Licensor is set forth on the packaging material in which the Product is shipped. Except for the foregoing, the Software is provided "AS IS". This limited warranty extends only to the Software purchased from Licensor by a Licensee who is the first registered end user. Licensee's sole and exclusive remedy and the entire liability of Licensor and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Licensor's option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to Licensor, within the warranty period. Licensor may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Licensor warrant that the Software is error free or that Licensee will be able to operate the Software without problems or interruptions.
Restrictions. This warranty does not apply if the Software or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Licensor or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Licensor, or (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident.
DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY LICENSOR AND ITS SUPPLIERS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
Disclaimer of Liabilities-Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF LICENSOR, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS COLLECTIVELY, TO LICENSEE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID BY LICENSEE FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT).
Disclaimer of Liabilities-Waiver of Consequential Damages and Other Losses. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA OR PII, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF LICENSOR OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Licensee acknowledges and agrees that Licensor has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Controlling Law, Jurisdiction. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts, United States of America, notwithstanding any conflicts of law provisions; and the state and federal courts of the County of Suffolk, Commonwealth of Massachusetts shall have exclusive jurisdiction over any claim arising under the Agreement.
The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party's intellectual property or proprietary rights. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, the Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any Purchase Order or elsewhere, all of which terms are excluded. The Agreement has been written in the English language, and the parties agree that the English version will govern.
In Witness whereof, the parties have caused their respective authorized representatives to enter into this agreement.