Updated on August 3, 2022
This Agreement refers to the “Perse” product (a.k.a. “Nexpass”), provided through an API/SDK, and associated services, developed by Cyberlabs Produtos e Serviços Tecnológicos S.A., registered with CNPJ No. 28.487.683/0001-72 (“Licensor”), including trial versions (“beta” and/or “free uses”), and is an integral part of the commercial offer and quotation made between Licensor and Licensee. The Licensor and Licensee are also referred to collectively herein as the “Parties” and each individually as a “party.”
- Whereas Licensor develops, markets and licenses Perse (as defined below), which is designed to provide authentication of a user of a particular product or service through biometric identification, and
- Whereas Licensee wishes to obtain a license to install, access and use Perse, in accordance with the terms and conditions of this Agreement,
- Now therefore, the Parties agree to enter into this Agreement, under the following terms and conditions:
1.1. “Agreement” means this License Agreement signed between Licensor and Licensee, consisting of (i) licensee’s registration, (ii) any executed, attached Quotations, (iii) the general terms and conditions set out herein, and (vii) all other terms and policies incorporated herein by reference.
1.2. “Authentication Request(s)/Request(s)” means each request and/or biometric authentication attempt made by Licensee and/or its users through Perse.
1.3. “Confidential Information” means any non-public information, data, materials, intellectual property rights, business secrets, patents, copyrights, designs, techniques, plans or know-how, marked or not as confidential at any time, in any form or media, including, but not limited to, documentary form, oral form, visual form or written form, or machine-readable or other electronic form, presentation or form of demonstration, or computer generated, and regardless of the form in which provided and disclosed by or on behalf of a Party (“Discloser”) to the other Party (“Recipient”). Licensor’s Confidential Information will automatically include, but will not be limited to, as above, any non-public information about (i) the terms and conditions of the Agreement, information relating to Licensor’s past, present, and future research and products (including Perse), related documentation or any portion thereof, discovered problems and defects, workarounds, corrections, resolutions, performance capabilities, assets, liabilities, operations, methods, policies, strategies, services, customers, contracts, developments, inventions, processes, hardware configuration information, marketing, technical, non-technical, business, financial and other information and derivatives (ii) all notes, memoranda, analyses, compilations, studies, research, reports, test results, formulas, forecasts, interpretations, transactions and data relating to employees, consultants, directors, directors and shareholders and other documentation of The Recipient, based on, related, derived, and/or incorporating, in whole or in part Confidential Information; and (iii) the existence of this Agreement and its terms, the fact that the Parties are in discussions about the purpose and status and its terms. It is understood and agreed that the Disclosing Party shall not provide the Receiving Party with any source code, information subject to export controls or “financial, personal/personally identifiable information” within the meaning of applicable law, or other non-public personal information of any natural person, except as the Parties may expressly agree to a supplement written herein.
Confidential Information does not include information that the Recipient may prove through its contemporary files and records that: (i) is legally in possession or was known to the Recipient prior to the time of disclosure, without breach of any obligation of confidentiality; (ii) before or after the disclosure time is or becomes publicly known, except as a result of any inaction or improper action of the Recipient; (iii) is/has been legally made available to the Recipient by third parties without restriction of disclosure and without breach of an obligation of confidentiality; (iv) is/was developed independently by the Recipient without the use of any Confidential Information from the Discloser; (v) is/has been made available to third parties by the Discloser without restriction regarding the disclosure of such information; or (vi) is/has been expressly approved by the Disclaimer for disclosure.
1.4. “Contract Fee” means the Subscription Fee for the use of Perse, and any Professional Services Fees, during the applicable Subscription Period, detailed in the Quotation, as applicable.
1.6. “General Terms and Conditions of the Agreement” means the General Terms and Conditions set forth in this Agreement, and by reference to any Quotation.
1.7. “Licensee” means the legal entity user/contractor of Perse, including its subsidiaries and other companies of the same economic group, controlling the data of users of its software, applications, products and/or services, pursuant to the DPA.
1.8. “Licensor Package” means Perse, any Documentation and/or any Confidential Information of Licensor and/or providers of any third-Party software included in Perse.
1.9. “Perse” means the edition and/or version of Licensor’s product commercially available for biometric authentication, including new versions that may be provided or made available by Licensor to Licensee under this Agreement.
1.11. “Professional Services” means additional professional services (which may include, for example, advanced analysis and verification), specified in a separate Work Proposal (“Work Proposal”) signed by the Parties accompanying a Quotation, as applicable to the services to be provided and to the Agreement. The services that make up professional services are additional and are not to be confused with the services provided as part of Perse.
1.12. “Professional Service Fees” has the meaning set forth in Section 6.2.
1.13. “Prohibited Person” means any individual or entity who is (i) on the U.S. Department of Commerce’s List of Denied Persons, Entity List, Unverified List, or Affiliated Lists, (ii) on the list of specially designated nationals and blocked persons of the OFAC (“SDN List”), (iii) on the U.S. Department of State’s List of Prevented or Nonproliferation List, (iv) located, resident, or organized in jurisdictions subject to U.S. territorial sanctions and other applicable territorial sanctions (collectively “Prohibited Jurisdictions”); as of the date of the Agreement, and such jurisdictions include, without limitation, Cuba, Iran, Iraq, Lebanon, Libya, North Korea, Sudan, Syria and the Crimean region), or (v) otherwise the target of any Export Controls and Economic Sanctions.
1.14. “Quotation(s)” means the price and other terms of the Subscription plan, where applicable, offered by Licensor or a Reseller, as applicable, to Licensee, relating to Licensee’s use of Perse, as described in Section 5 of this Agreement. If provided separately to Licensee, the Quotation will form an integral part of this Agreement and will be deemed incorporated by reference.
1.15. “Renewal” means any or more Subscription Periods after the initial Subscription Period, in accordance with and subject to the conditions specified in the Quotation.
1.16. “Reseller” means a natural person, or an entity authorized by Licensor for the sale of Perse subscriptions.
1.18. “Subscription” means the paid license granted by Licensor to Licensee to use Perse during each Subscription Period, where applicable, in accordance with this Agreement as updated from time to time.
1.19. “Service Start Date” means the start date of the Professional Services specified in a Work Proposal in accordance with the terms and conditions of this Agreement.
1.20. “Specifications” means the functional specifications of Perse and the technical requirements specified in the Documentation.
1.21. “Start Date” means the date specified for the beginning of a Subscription, where applicable, or Licensee’s Free Use of Perse, whichever may occur first.
1.22. “Subscription Period” means the period contracted by Licensee through a Subscription for paid use of Perse and receipt of Support and Maintenance from the Start Date. Depending on Licensee’s choice on the Start Date, the Subscription Period will be monthly or yearly.
1.23. “Subscription Fee” means the fee payable for Requests in accordance with Sections 2 and 5 for Perse use during each Subscription Period, where applicable.
1.24. “Support and Maintenance” means the support and maintenance services to be provided by Licensor to Licensee with respect to the use of Perse during the Subscription Period, to be specified at the time of a Subscription.
1.25. “User” means users of the products and/or services, software and/or applications developed and/or offered by Licensee, who will use Perse under Licensee’s control in his/her position as data controller, pursuant to DPA.
1.26. “Work Proposal” has the meaning established in the definition of Professional Services.
2. Subscription, License And Services
2.1. Subject to the General Terms and Conditions of this Agreement, including, without limitation, payment of applicable Contract Fees:
(a) Licensor grants Licensee, upon payment of the applicable Subscription Fee and/or Contract Fee, a non-exclusive, non-transferable (except as authorized herein) and non-sublicensable license, valid during each Subscription Period, to:
(i) install and/or use Perse in accordance with the Agreement, the DPA, and Documentation.
2.2. Licensee shall be authorized to use Perse, including by its subsidiaries, subject to all limitations and warranty disclaimers hereunder to such installation and use.
2.3. During each Subscription Period, Licensor agrees to provide, in the General Terms and Conditions set out herein, support and maintenance in relation to Perse, as well as the Professional Services that Licensee acquires, as specified in one or more Quotations and/or Work Proposal.
2.4. Licensor may offer the use of Perse and related services free of charge (“Free Use”). In these cases, the granting of the license will follow the terms and conditions of Section 2.1 above, but (i) no Contract Fee (including Subscription Fee) will be due by Licensee for Free Use, (ii) Licensor shall have no obligation to provide Support and/or Maintenance to Licensee (or Users) during Free Use, (iii) Licensor may limit use to a certain amount of Requests and/or period of time, and (iv) Licensor may discontinue, suspend or block the use of Perse and/or revoke the license as 2.4.1 (b) below.
2.4.1. Unless specified differently by Licensor at the time Licensee makes its first registration/registration for use of Perse, Free Use has a limit of up to 10,000 (ten thousand) Requests during a calendar month, not transferrable to subsequent months.
(a) Licensor shall have the right to suspend Licensee’s access to Perse, as well as all of its obligations under this Agreement, including during the Free Use period, if (i) Licensee violates any provision of this Agreement during the Free Use period or (ii) Licensee does not purchase a Subscription after the deadline set for Free Use.
(b) If Licensee exceeds the limit set for the Free Use of Perse, and does not purchase a Subscription, Licensor shall have the right to block, suspend or discontinue use of Perse.
2.6. Licensee agrees not to block, disable, conceal, or limit in any way the ability of any device to access Perse or any of its parts or features. By using Perse, Licensee will not (or allow those who act on its behalf to):
(a) Sublicense Perse for use by third parties or create any software/application that functions in the same way as and competes with Perse, and/or offer Perse for use by third parties (in addition to its own Users);
(b) Act with the intention of introducing any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature into Perse;
(c) Defame, abuse, harass, persecute, or threaten others;
(d) Interfere with or disrupt the operation of Perse or the servers or networks that provide Perse;
2.7. Each Licensee software and/or application that uses Perse shall maintain 100% compatibility with it (including any relevant changes or updates provided to you by Licensor, which will be implemented in the software and/or application promptly). If any software and/or application uses or implements an outdated version of Perse, you acknowledge and agree that such software and/or application may not be able to communicate with Perse or may experience other operating issues for which Licensee, and not Licensor, shall have sole responsibility.
2.8. Licensee agrees not to modify, enhance, or otherwise alter Perse in any way, recognizing and agreeing that Licensor may, in its sole discretion, set and impose limits on Licensee’s use of Perse (for example, limiting the number of Requests made or the number of Perse Users). Licensee is expressly prohibited from any attempt to change such limitations without Licensor’s permission, the eventual request of which may be refused by Licensor, who may even cease providing support for old versions or releases of Perse.
2.9. Licensee will use commercially reasonable efforts to protect user information collected by its software and/or application, including from unauthorized access or use of such data, and will promptly report to its Users any unauthorized access or use of such information to the extent required by applicable law.
2.10. Licensor shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of Perse, its system, and related technologies, and shall be free to use such information and data to improve Perse for the purposes of the development, diagnosis, and correction of Perse and/or other products and services it develops.
3.1. Except as otherwise specifically authorized by the Agreement, Licensee may not: (i) copy, modify, sublicense, sell, distribute, transfer, tamper with, reverse engineer, disassemble or decompile Perse or any part thereto or otherwise attempt to derive or obtain the source code of Perse or any portion thereto; (ii) modify, improve or make derivative works incorporating Perse or any part thereto, or use Perse or any part thereto to provide services to third parties, or provide commercial rental arrangements or sharing of Perse to third parties; (iii) remove and/or alter any copyright notices, trademark, logo or other proprietary restrictive notice or caption affixed, contained in or included in or related to Perse; and/or (iv) disclose the results of any Perse test or benchmarking to any third Party.
3.2. When making use of Perse, Licensee and its Authorized Users must comply with all applicable laws, including data protection and privacy laws and export control laws. Licensee will cooperate with Licensor’s reasonably requested confirmation of such compliance by Licensee and its Users.
3.3. Certain Perse technology components may be subject to export controls, applicable U.S. economic sanctions laws, and other economic sanctions laws. Licensee will strictly comply with all Export Control Laws and Economic Sanctions as they relate to such technology and software, including access to and use of Perse, where applicable. In addition, Licensee undertakes and warrants that its Users are not Prohibited Persons, and they will not provide access to any part of Perse to any Prohibited Person, including any government, entity or individual located, resident or organized, in prohibited jurisdictions, or to any entity or individual with knowledge (or reason to know) that any part of Perse will be used for the purposes of proliferation of nuclear, chemical, or biological weapons, or missile development.
3.4. Licensee shall not use Perse in any application that involves risk of death, bodily injury or serious or environmental property damage, or any life support application, devices, or systems, except as explicitly approved by Licensor.
4. Intellectual Property
4.1. All title, copyright and interest in Perse, developments and derivatives thereof (regardless of whether developments and derivatives have been made in accordance with any licensee’s request and/or Feedback), as well as Licensor’s related Documentation, Specifications and Confidential Information, including all patents, trademarks, names, and commercial logos, copyrights, inventions, technology, design, schemes, know-how, trade and industrial secrets, and any other intellectual property rights relating to Perse, Licensor’s Confidential Information, Documentation, Specifications and information, or any portion thereof, are the exclusive property of Licensor, and nothing in this Agreement shall constitute a waiver of Licensor’s rights under any law, or in any way construed as such.
5. Quotations, Contract Fees, And Terms of Payment
6. Support, Maintenance And Professional Services
6.1. Licensor will use commercially reasonable efforts to provide support and maintenance to Licensee during the Subscription Period in accordance with the terms to be specified at the time of a Subscription, and which may be amended from time to time in Licensor’s sole discretion.
6.2. If Licensee wishes to receive Professional Services, he/she may request the same from Licensor in writing, and: (a) Professional Services will be charged in accordance with the Professional Services Fees agreed and specified in the applicable Quotation (which may be an additional Quote, or a change or supplement to an existing Quotation) (“Professional Services Fees”); (b) The Parties shall enter into a Work Proposal (attached and incorporated by reference to a Quotation) specifying the Professional Services to be performed and the Start Date of the Work Proposal; and (c) Licensee shall reasonably cooperate with Licensor in performing the Professional Services, as well as provide Licensor with all information, materials, facilities, assistance and equipment reasonably requested by Licensor in licensor’s performance.
6.2.1. For any Work Proposal to be valid, the Quotation to which such Work Proposal is attached must be approved in writing in writing by both Parties. And prior to the commencing of the Professional Services specified in the Work Proposal, all Contract Fees due by Licensee, in accordance with the payment terms specified in this Agreement and/or any Quotation, shall be paid.
6.2.2. Professional Services Fees shall be billed in accordance with an agreement between the Parties and shall constitute a portion of the Contract Fees due. In the event of any conflict between the Work Proposal and the General Terms and Conditions of this Agreement, the General Terms and Conditions shall prevail unless and to the extent that the Work Proposal expressly declares otherwise.
6.3. Licensor shall have the right, at its discretion, to cause any or more of its subsidiaries or affiliates to perform any Support and Maintenance Services and/or Professional Services, and performance will be in accordance with and subject to the terms and provisions of this Agreement or accepted by Licensee as if it were performed by Licensor.
7. Subscription Compliance Verification; Data Acquisition And Use
7.1. Licensor reserves the right to access and inspect electronically (which may be conducted by its representatives, including internal or external auditors) Licensee’s use of Perse, inspect other Licensee elements such as documents, facilities, computers, documents and records relating to Perse and the Agreement, to verify Licensee’s compliance with the provisions of the Agreement. Licensee agrees to allow such access to Licensor, who shall have the right to exercise his rights under this Section for the term of the Agreement after notice to Licensee of 10 (ten) business days (such period shall be reduced to 2 (two) days if Licensee defaults under the Agreement), and once annually for a period of five (5) years after the termination of the Agreement.
8. Confidential Information
8.1. The Recipient agrees not to use any Confidential Information, except for the purposes of exercising the rights of the Recipient to fulfill its obligations under the Agreement. Unless expressly authorized by the Discloser, The Recipient will not disclose any Confidential Information, except to its employees, directors, and consultants who are bound in writing to confidentiality obligations no less restrictive than those contained in the Agreement, provided that the Recipient is responsible for any breach of confidentiality obligations by any of its employees, directors and consultants. Neither Party shall disclose any Confidential Information to third parties without the prior consent of the other Party; however, Licensor may disclose (a) Confidential Information of the Discloser (i) in confidence, to its accountants, lawyers, financial advisors, and real and potential investors, or financing shares, linked to confidentiality obligations no less restrictive than those contained in the Agreement, (ii) in connection with the application and or rights provided for in the Agreement, or (iii) in secrecy, in connection with a merger, acquisition or similar actual or proposed transaction, solely for use in the investigation of due diligence in connection with such transaction and (b) any Confidential Information of Licensor at its discretion.
8.2. Disclosure may also be made if required by applicable law or legal authority, governmental or other competent authority, provided that, in such case, the Discloser shall be provided with reasonable prior notice before such requirement for it to seek a protective order (or equivalent) with respect to such disclosure. Disclosure may also be made to arbitrators in any dispute settlement process pursuant to Section 15.7.
8.3. The Recipient agrees that it will take all reasonable steps to protect confidentiality and prevent the unauthorized disclosure or use of Confidential Information under the Agreement, employing the highest degree of care it uses to protect its own confidential information of a similar nature. Recipient agrees to notify the Discloser in writing of any misuse of Confidential Information that may come to its knowledge.
8.4. The Recipient acknowledges and agrees that monetary damages may not be fully adequate to compensate the Discloser for any breach by the Recipient (or any of its directors, employees or consultants) of the provisions under this Section 8, and that, in addition to any other remedy that may be available in law, in equity or otherwise, the Discloser shall have the right to enforce the Agreement and any of its provisions, seeking a specific injunction and/or other alternative means.
8.5. Licensee may from time to time provide suggestions, comments, complaints or other comments (“Feedback”) with respect to Perse, the Professional Services, Confidential Information provided and/or other Licensor products or services. Licensee agrees that all Feedback is and will be given in a manner entirely voluntarily. Feedback, even if designated as confidential by Licensee, will not create, without a separate written agreement, any obligation of confidentiality to or about Licensor. Licensee grants Licensor a worldwide, irrevocable, non-exclusive, royalty-free license, fully paid, perpetual, licensable and transferable to use, disclose, reproduce, distribute, publicly display, exploit, and prepare works derived from Feedback or any portion thereof, waiving any rights to the extent permitted by law.
9. Collection And Processing Of Personal Data
9.1. THROUGH THIS AGREEMENT AND THE DPA, THE LICENSEE IN THE CAPACITY OF PERSONAL DATA CONTROLLER RECOGNIZES AND AGREES THAT THE LICENSOR MAY AS A PERSONAL DATA PROCESSOR COLLECT, USE, STORE, TREAT AND TRANSFER TO THIRD PARTIES SENSITIVE PERSONAL DATA AND OTHER PERSONAL DATA OF USERS, AS A CONSEQUENCE OF THE HIRING AND USE OF PERSE BY THE LICENSEE.
10. Warranties And Disclaimer
10.1. Licensor warrants that during the Subscription Period, where applicable, Perse will operate in all material respects in accordance with the Specifications. Licensor’s full liability shall be limited to one of the following options, in its sole discretion: (i) to replace any Perse component free of charge, (ii) to repair free of charge, in accordance with licensor’s Support and Maintenance obligations specified at the time of a Subscription, any Perse component, or (iii) refund Licensee pro-rata subscription fees (for the applicable Subscription Period).
10.2. Licensor warrants that all Professional Services (as applicable) will be performed professionally.
10.3. The warranties specified in Sections 10.1 and 10.2 above do not cover liability or reparation for damages, for any defects or service failures that are caused by (1) actions in relation to Perse by any person unrelated to and/or that has not been expressly approved by Licensor, (2) alteration, repair or modification of Perse, without Licensor’s prior written approval, (3) the combination or integration of Perse with other products, including but not limited to any Licensee systems except in accordance with the Specifications, (4) Licensee’s failure or its Users’ failure to install the latest version of Perse, (5) Licensee’s failure or its User’s failure to follow instructions provided by Licensor for the installation, operation, or maintenance of Perse, (6) use of Perse in violation of Licensor’s Specifications or instructions, or Perse’s misuse, negligent, accidental or abusive use of Perse, (7) negligence or intentional misconduct by Licensee or its Users, or (8) any factor beyond Licensor’s control.
10.4. THE WARRANTY SET OUT IN THIS SECTION CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO ’PERSE, SUPPORT AND MAINTENANCE OBLIGATIONS, AND PROFESSIONAL SERVICES. LICENSOR DOES NOT PROVIDE AND THE LICENSEE DOES NOT RECEIVE ANY OTHER REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED WITH RESPECT TO ’PERSE, SUPPORT AND MAINTENANCE OBLIGATIONS, OR PROFESSIONAL SERVICES. Licensor expressly disclaims any and all promises, representations and warranties, express or implied, including, without limitation, warranties of non-infringement, title, merchantability and/or fitness for a particular purpose, nor does Licensor warrant that Perse will be error-free or free from intrusion due to hacking or other similar means of unauthorized access, to the extent permitted by applicable law.
11. Limitation Of Liability
11.1. In no event shall Licensor be liable for any incidental, indirect or consequential damages, or for the costs of acquiring replacement products or services, lost profits, loss of business opportunities, losses and/or damages including reputation, work interruption, business interruption or revenue of any kind, lost data, damage to other software, computer malfunction or downtime. Licensor’s total and cumulative liability for any and all claims for any breach of the Agreement shall in no event exceed 100% (one hundred percent) of the total aggregate amount received by Licensor from Licensee during the 12 (twelve) month period immediately preceding the date of action. The limitations set forth in this Section 11 apply even if Licensor and its related parties have been advised of the possibility of such damages, notwithstanding any failure of essential purpose of any limited remedy.
12.1. Licensor agrees to defend Licensee against any claims or processes initiated by third parties alleging that Perse violates the patent rights of third parties (a “Claim”), and to pay Licensee all damages, costs and expenses (including reasonable attorneys’ fees) proven to be spent; provided that (1) Licensee will have given the Licensor, as soon as possible, written notice of such Claim; (2) Licensee will reasonably cooperate with Licensor in the defense and settlement thereof at Licensor’s expense; and (3) Licensor will have sole control of the defense of such Claim and the settlement or compromise thereof.
12.2. Licensor’s obligations specified in Section 12.1 above do not apply to the extent that the infringement involves: (i) the use of Perse for a purpose that is not intended, (ii) as a result of the use of Perse not in accordance with its Documentation, (iii) the combination or integration of Perse with other products, including but not limited to any systems of the Licensee, except in accordance with the Specifications, (iv) in connection with any modified version of Perse, (v) in connection with the use of a version of Perse that is more than one version prior to the then-current version (if use of the then-current version would not have caused the infringement), or (vi) the use of Perse or any portion thereof by a User not authorized by Licensee.
12.3. In the event that an injunction is obtained or is likely to be obtained against Licensor’s use or distribution of Perse arising from a Claim, or if Licensor anticipates that there is a likelihood of a Claim, Licensor may, in its sole discretion: (a) procure for Licensee the right to continue using Perse; (b) replace/modify Perse so that it no longer infringes, provided the utility or performance of Perse is not materially and adversely affected by such replacement or modification, or (c) where Licensor determines that neither option under foregoing clauses (a) or (b) is commercially feasible, terminate the Agreement and/or reimburse Licensee for a pro-rata portion of any pre-paid, unused Subscription Fees.
12.4. The remedies set forth in this Section 12 establish Licensor’s entire obligation and Licensee’s exclusive and entire remedy with respect to the infringement, claims of infringement of any intellectual property rights and other claims, including but not limited to claims related to Perse and/or the Professional Services acquired under the Agreement.
13. Term And Termination
13.1. The term of the Agreement shall begin on the Start Date and shall continue in full force and effect, if there is (i) an active Subscription Period (including any Renewal) pursuant to any Quotation or (ii) continued Free Use within the General Terms and Conditions set out in this Agreement subject to early termination as provided for in this Section 13. Any Subscription or Renewal Period specified in a Quotation will be subject to Section 5 of this Agreement. Any Renewal Subscription Period that is not specified in a Quotation as an automatic renewal may only occur with the mutual and written consent of both Parties through a Quotation.
13.2. Unless otherwise set forth in an applicable Quotation, either Party may terminate the Agreement as follows:
(a) In the case of a monthly Subscription Period, upon written notice at any time, in which case the Licensee agrees to pay all fees due (pursuant to Section 5) for the billing period in which the notice was given (i.e., Licensee may continue to use Perse until the end of the monthly Subscription Period in which notice was given).
(b) In the case of an annual Subscription Period, or any Renewal period, to avoid automatic renewal, upon written prior notice of up to thirty (30) days prior to the end of the applicable annual Subscription Period. For the avoidance of doubt, after providing such notice, Licensee will remain responsible for all Contract Fees until the end of the then-current annual Subscription Period (or annual Renewal period).
13.3. Notwithstanding any provision herein to the contrary, either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material obligation hereunder (other than payment obligation of Licensee), which breach remains uncured for a period of thirty (30) days after receipt by the breaching Party of written notification of the breach. Licensee’s breach of any payment obligation hereunder constitutes a default on the date the payment is due. In addition, Licensor may immediately terminate the Agreement if Licensee violates the provisions of Sections 3, 4 or 8. In any event, no Contract Fees paid or payable in connection with any automatic renewal periods shall be subject to refund or credit in whole or in part in connection with any such termination, nor will such termination relieve Licensee from its obligations to make all payments due hereunder (including the total amount of the Contract Fees for any automatic renewal Subscription Periods determined in accordance with Section 5 hereof without regard to such earlier termination) without deduction, offset, setoff, counterclaim or reduction, recoupment or other charge.
13.4. In addition to the foregoing, either Party may immediately terminate the Agreement by written notice to the other if (i) the other Party ceases to do business or becomes insolvent, (ii) upon institution by the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debt, (iii) on the institution of such proceedings against the other Party, which are not dismissed or otherwise resolved in favor of such Party within sixty (60) days thereafter, or (iv) upon the other Party making a general assignment for the benefit of creditors. In any event, no Contract Fees paid hereunder, or payable in connection with any automatic renewal periods, will be subject to a refund or credit in whole or in part in connection with any such termination, nor relieve Licensee of its obligations to make all payments due hereunder (including the total amount of the Contract Fees for any automatic renewal Subscription Periods determined in accordance with Section 5 hereof without regard to such earlier termination) without deduction, offset, setoff, counterclaim or reduction, recoupment, or other charge.
13.5. Upon termination or expiration of the Agreement for any reason (i) Licensee will cease to use Perse immediately, and will remove Perse from its systems, software, and/or products, (ii) all rights of Licensee hereunder immediately will terminate and the Licensor will have no liability to Licensee in connection herewith, (iii) Licensee will pay all amounts due to Licensor but unpaid hereunder (including with respect to automatic renewal Subscription Periods determined in accordance with Section 5 of this document without regard to such earlier termination), and (iv) Licensee will return to Licensor (or certify destroyed) all Confidential Information, at Licensee’s expense.
13.6. Sections 1 (Definitions), 3 (Restrictions), 4 (Title), 5 (Quotations, Contract Fees, Payment Terms, Taxes And Late Payments), 7 (Subscription Compliance Verification; Data Acquisition and Use), 8 (Confidential Information), 9 (Collection And Processing Of Personal Data) 10.3 (Warranties And Disclaimer), 11 (Limitations Of Liability), 12 (Indemnification), 13 (Term And Termination); 14 (Disclaimer) and 15 (Miscellaneous), and all payment obligations incurred prior to termination or expiration of the Agreement (including mandatory payment in respect of Automatic Renewal Subscription Periods determined in accordance with Section 5 of this without considering such prior termination), shall survive such termination or expiration of this Agreement.
14.1. Perse is made available “as is,” and no claims will be accepted relating to failures in the performance of presumed functions. In addition, Licensor, its affiliates, licensors and partners expressly disclaim all warranties, representations and conditions of any kind, whether express or implied, including but not limited to (i) he uninterrupted, timely, secure, error-free functioning of Perse in a manner that meets Licensee’s expectations, requirements or needs; (ii) the possibility of verification or correction, by Licensor, of any eventual defects related to Perse; (iii) the adequacy of Perse for a particular purpose of any kind; (iv) Licensor’s provisioning of updates, improvements or new versions of Perse; (v) Perse’s technical capacity to communicate operationally with other software or hardware; (vi) the absence of infringements of any third-party rights; and (vii) the integrity and/or loss of any data, such that all downloads, installations and use of Perse is at Licensee’s sole discretion and risk . However, Licensor shall commit to undertake, at its sole discretion, reasonable commercial efforts to correct any errors that may occur in the main functions of Perse.
14.2. LICENSOR, ITS AFFILIATES, AND PARTNERS DO NOT WARRANT THAT: (1) THE PROGRAMS OR SERVICES WILL MEET LICENSEE’S REQUIREMENTS; (2) THE USE OF PROGRAMS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PROGRAMS OR SERVICES WILL BE ACCURATE OR RELIABLE. Furthermore, considering that by using Perse, Licensee may have access to materials hosted/stored by its Users, Licensee declares that it is aware that it is impossible for Licensor to monitor such materials, and therefore agrees and warrants that the access to such materials will be at its own and exclusive risk, including accepting sole responsibility for any losses and/or damages caused by possible incompatibilities, alterations, errors, file deletions, malfunctions and/or problems that may occur on its devices, hardware, software, systems, applications, files, functionality, code strings and other programs, including, but not limited to, antivirus programs and storage programs or services, as a result of use of Perse or any modifications thereto by the Licensee.
14.3. Licensor hereby disclaims any and all liability for any damages, whether direct, consequential, indirect or similar, loss of goodwill, reputational damages, or loss of revenues, even if Licensor previously has been advised of the possibility of such damages as a result of Licensee’s actions or omissions.
14.4. Furthermore, in no event or circumstance shall Licensor be responsible for any error or malfunction caused by external elements to Perse, including hardware or software, or be liable for any damage greater than any amount paid, where applicable, by Licensee for the use of Perse, even if Licensor previously had been advised of the possibility of such damages. Licensor will also not undertake or be liable in cases where Perse has been used in a manner other than that specified by Licensor, or in any other abusive, negligent or inappropriate manner (including, without limitation, its use outside the recommended environment) or by third parties other than Licensee, who will be responsible for any use by third parties and all resulting consequences.
14.5. Licensor is not responsible for and will not be responsible for any person, entity or third party in general, for any loss or loss presumably caused by the use or inability to use Perse, directly or indirectly, including (without limitation) work interruptions, capital losses, indirect damages, and/or predicted revenue losses as a result of using Perse.
14.6. The Perse service may provide, or may allow third parties to provide, search results or other links to third-party World Wide Web sites or other resources. As Licensor has no control over such third-party sites and features, Licensee and its Users acknowledge and agree that Licensor (i) is not and will not be responsible for the availability of such external sites or resources, and (ii) does not endorse and is not responsible for any content, advertisement, products, services, or other materials present or available from such sites or resources. Licensee and its Users acknowledge and agree that Licensor is not and will not be, liable, directly, or indirectly, for any loss or damage eventually or allegedly caused by, or in connection with the use of, or reliance on, such content, goods or services available on, or through, such sites or resources, nor for the collection of Licensee and/or User data or information by such sites or resources.
14.7. Access and Identity Management. Licensee is solely responsible for the security of its and its Users’ information – whether email addresses registered for the receipt of a link for confirmation of ownership/authenticity, passwords, PINs, patterns and/or fingerprints, and/or other means of biometrics (“Access Verifiers”), used to access Licensee’s Perse account, and for keeping its Perse account secure. Licensee represents and warrants to keep all Passwords and/or encryption keys for its Perse account secure, under penalty of losing access to its account, and to require that all Users agree to keep their Passwods and/or encryption keys for their accounts secure. Licensee is solely and exclusively responsible for any activity that occurs on its Perse account, including for any use by third parties. In the event of any unauthorized use or access to Licensee’s account, Licensee shall immediately inform Licensor, and Licensor shall not be responsible and or liable for any loss caused by unauthorized access and/or use of Licensee’s account. However, Licensee may be liable for any loss that Licensor and/or others may suffer due to unauthorized access and/or use to Licensee’s Perse account. LICENSOR DOES NOT HAVE ACCESS TO LICENSEE’S OR USERS’ ACCESS VERIFIERS AND CANNOT RECOVER ANY ENCRYPTED DATA IF THE LICENSEE OR USER FORGETS OR LOSES THE ACCESS VERIFIER REQUIRED FOR ANY ACCESS AND/OR MANAGEMENT FUNCTION OF PERSE.
14.8. Beta Products. BETA PRODUCTS (AND THE SERVICES OFFERED THROUGH SUCH BETA PRODUCTS) REPRESENT A PRE-RELEASE “BETA” VERSION OF SUCH PROGRAM THAT IS BEING MADE AVAILABLE BY LICENSOR SOLELY FOR TESTING AND EVALUATION. BETA PRODUCTS ARE MADE AVAILABLE “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND LICENSOR EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH BETA PRODUCTS ARE ACCESSED AT YOUR OWN RISK AND MAY BE MODIFIED OR DISCONTINUED AT LICENSOR’S SOLE DISCRETION. Licensee acknowledges and agrees that: a Beta Product is in development, not complete, and has not been commercially released for use; (b) a Beta Product may not be fully functional, and it is expected that a Beta Product may contain errors, design flaws or other problems, including problems that may adversely impact the operation of your existing Products and/or device(s); (c) a Beta Product may not be reliable during the time you are participating as a tester; (d) a Beta Product and its use may result in unexpected results, loss of data, or other unpredictable damage or loss to you; (e) Licensor is under no obligation to release a commercial version of a Beta Product; (f) Licensor has the right to unilaterally abandon development of a Beta Product at any time and without any obligation or liability to you or any third party. With respect to Beta Products, at the end of the applicable Beta test period, your use of the applicable Beta Product will expire, and any further use of that specific Beta Product is prohibited unless you upgrade to a commercial release by Licensor of a generally-available version of the specific Beta Product (if and to the extent made available by Licensor) and pay any applicable fees.
15.1. Notices. All notices and other communications that are delivered, required or permitted to be given pursuant to the Agreement (“Notices”) shall be in writing (which may be in an email form), shall reference the Agreement and shall be addressed to the Party’s address (whether physical or in an email form) as set forth as set forth in this Agreement or corresponding Licensee account data, or to any other address that a Party provides as required by this Section 15.1. A Notice will be deemed to be given when (i) delivered in person; (ii) sent by facsimile or confirmed email, or (iii) 5 (five) days after it has been sent by registered or certified mail.
15.2. Force Majeure. Neither Party shall be responsible for any failure to perform its obligations (other than payment obligations) under the Agreement attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God, governmental actions, war, epidemics, pandemics, civil disturbance, insurrection, riots, terrorism, sabotage, labor shortages or disputes, failure or delay in delivery by suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, fault or negligence of the other Party, or any other force majeure event (“Force Majeure”).
15.3. Authorization; Assignment. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed. Each Party further represents that entering into this Agreement shall not constitute a violation of any binding document of incorporation, agreement, contract, understanding and/or obligation of such Party. In addition, both Parties represent that they are acting on their own behalf, and not as an agent for or on behalf of any third party, in entering into this Agreement, and further agree that they may not assign their rights or obligations under this Agreement otherwise than as provided for under this Agreement, without the prior written consent of the other Party, except that Licensor shall be entitled and authorized to assign, transfer or otherwise dispose of from time to time: (a) all its rights and obligations in the event of (i) a merger or (ii) the sale of all or substantially all of its shares or assets, (b) any or all of its rights and obligations to a wholly-owned subsidiary of Licensor, or (c) any or all of Licensee’s payment obligations (and, on a non-exclusive basis, any audit or indemnification rights) to this effect. Licensee shall follow Licensor’s reasonable instructions with respect to the payment and performance of the rights assigned to any assignees or transferees, and will deliver such documentation and confirmations, and cooperate with Licensor, as is reasonable. Any assignment or transfer of this Agreement made in contravention of these terms will be null and void. This Agreement shall be binding on and inure to the benefit of the Parties’ respective successors and permitted assigns.
15.4. No Third-Party Beneficiaries. The Agreement is intended solely for the benefit of the Parties. In no event shall any third party have any rights in relation to the Agreement.
15.5. Publicity. Notwithstanding Section 8 above, Licensor may state on its website, as well as in its sales and investment and financing-oriented presentations, the fact that Licensee is Licensor’s customer for Perse, and also may use Licensee’s trademark on its website and other marketing materials.
15.6. Headings; No Additional Commitments; Amendment; Waiver.
(a) Any headings are for convenience only and will not be used in the interpretation and construction of the Agreement.
(b) This Agreement (including the General Terms and Conditions, each Quotation and any Work Proposal) constitutes the entire agreement between the Parties and supersedes any prior understandings or agreements regarding the license of Perse to Licensee. Except as expressly set forth in the Agreement, Licensor has no obligation or commitment to provide Licensee or any of its Users with any software, service, update, revision, or new version of software included in the Perse services, or any documentation materials that are not contained in the Documentation included in Perse services.
(c) The Agreement may not be amended, altered, or supplemented except by written agreement executed by both Parties; except that (i) no change is necessary with respect to the commencement of any Subscription or Automatic Renewal Period specified in any Quotation, and (ii) these General Terms and Conditions may be modified in any respect by Licensor subject to delivery of such modification in writing thirty (30) days in advance (for example, by email, or by posting a notice on the page of the online platform where Licensee accesses its account, or by posting a dated update to this webpage) , and in the event that Licensee does not object in writing to such modification within that period, such modification shall be deemed to have been adopted by the Parties with effect from and after the date of such delivery.
(d) If any of the provisions of the Agreement is held to be invalid under any applicable law, the invalid part or provision shall be replaced by a provision that accomplishes, as far as possible, the original purpose of such part or provision in a valid manner, and the balance of the Agreement shall remain in full force and effect. Neither Party, by the mere lapse of time, without giving written notice thereof, shall be deemed to have waived any breach by the other Party of any terms or provisions of this Agreement; and the waiver by any Party of any breach shall not be construed as a waiver of subsequent breaches or as a continuous waiver of such breach.
15.7. Governing Law And Venue; Dispute Resolution. This Agreement is governed by the laws of the Federative Republic of Brazil, under the jurisdiction of the Central Court of the City of Rio de Janeiro, renouncing any other jurisdiction and without giving effect to any principles of conflicts of laws thereof, except that for all matters relating to its interpretation and enforcement, the Parties agree that an action, dispute, claim or controversy of any kind or in any way related to the Agreement (“Dispute“) must be resolved quickly, amicably, within ten (10) business days (which can be extended by mutual agreement) after the delivery of a written notice from one Party to the other, and, if it is not possible to reach a resolution, such dispute shall be settled through an online mediation platform as chosen and indicated by Licensor.
The Parties do not intend these procedures to supplant the routine handling of inquiries and requests, as applicable, for Support and Maintenance through informal contact with customer service representatives or other designated employees of the Parties. Throughout the dispute settlement process, each party will continue to fulfill its obligations under the Agreement unless it is terminated in accordance with its terms.
15.8. Independence of the Parties. The Parties at all times will be independent contractors with respect to each other and neither Party will purport to bind the other. No partnership, joint venture, agency, employer-employee relationship, or any other relationship between the Parties hereto is contemplated or created hereby.
15.9. Restricted Rights of the U.S. Government. Licensor provides Perse, including related technology, for end use by the federal government as a “Commercial Item”, as this term is defined in 48 C.F.R. §2,101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as these terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, to Perse, including related technology, are provided to the end user only with the rights provided in the General Terms and Conditions of this Agreement. If a government agency needs rights not transmitted under these terms, such agency shall negotiate with Licensor to determine whether there are acceptable terms for the transfer of such rights, through a mutual written and specific consent to the transmission of such rights to be included in any applicable agreement.
15.10. Licensee acknowledges and accepts that Licensor may avail itself of legal proceedings if it fails to comply with the General Terms and Conditions of this Agreement. Licensor reserves the right to automatically terminate this Agreement without prior notice if Licensee fails to comply with any term or condition herein.
15.11. Licensor expressly retains all other rights it may have, and which are not granted herein to Licensee.
15.12. The Perse technology uses Open Source Software (OSS). Insofar as the applicable license terms specify an obligation to publish, the copyright notices and license texts referring to the OSS components used are shown below:
|List of Open Source Software|
|Insightface||https://github.com/deepinsight/insightface||Copyright (c) 2018 Jiankang Deng and Jia Guo|
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
APPENDIX 1 – END USER CONSENT FLOW
Licensee hereby agrees that it will take the following steps before providing User image or voice data to Perse, and that Perse will understand that any image or voice data provided by Licensee to Perse for Processing pursuant to Licensee’s instructions has met these requirements. Specifically, Licensee shall:
1. Obtain legally valid consent in accordance with applicable data protection Laws to provide Users’ unique images or voice to Perse, and that such consent shall, at a minimum: (1) include an unchecked box next to a consent statement that is the same as, or equivalent to, the sample consent language in Exhibit A below (“Consent Statement”); and (2) ensure that the Consent Statement includes a clearly marked hyperlink (underlined, and in a different color than the other text in the Consent Statement) to a notice that discloses the sharing of User images and voice data to Perse, which shall be named explicitly, to perform identity verification based on the creation and analysis of biometric information, and that includes the same, or equivalent disclosures as those contained in Exhibit B (“Consent Notice”).
2. Retain records of each consent obtained from a User, including records of the Consent Statement and Consent Notice provided to each User, and provide such records to Perse upon request;
3. Provide clear instructions to Users regarding how they can withdraw their consent at any time.
4. Refrain from sending any image or voice data to Perse where a User did not check the box indicating consent to the Consent Statement.
Furthermore, Licensee agrees that whenever Licensee sends an image or voice file to Perse from a new User, Licensee shall include in the Perse API calls the parameter “client_declaration_enduser_consent” filled with “true” or “false” to acknowledge the items in (1) above were completed (or not) with respect to such User. Pursuant to item (4) above, with respect to any API calls where this parameter (client_declaration_enduser_consent) has been filled as “false,” Licensee shall not send any image or voice data to Perse.
EXHIBIT A – CONSENT STATEMENT
Licensee shall present the following statement with an unchecked box that a User must check in order to submit their image or voice for Perse’s identity verification services.
[ ] By checking this box, I hereby acknowledge that I have been provided a copy of the Identity Verification Data Collection and Retention Policy (“the Policy”), have had an opportunity to review its terms, and voluntarily consent to the collection, sharing, use and storage of my identification and photographic image and/or voice data in accordance with that Policy.
EXHIBIT B – CONSENT NOTICE
Licensee shall provide the following Consent Notice (or equivalent) to its end users before end user images or voice files can be submitted to Perse:
Identity Verification Data Collection and Retention Policy
This Identity Verification Data Collection and Retention Policy (“the Policy”) describes how we collect, use, store and safeguard the identification and photographic image data you provide (“your ID data”) in order to verify your identity in connection with determining your eligibility to use or continue to use our products and services (the “Services”).
After obtaining your voluntary written consent through your electronic acceptance of this Policy, we will ask you to provide a photo of yourself to our third-party identity verification provider, Perse, at the time you begin using the Services. You will also be asked to take and provide a selfie (not an existing photograph), or to provide a voice sample, each time the identity verification process occurs, and Perse may record or video record your verification session, which should last approximately 2-5 minutes. Using that information, Perse will conduct an identity verification process and return to us the results of that process using a facial and/or voice recognition algorithm.
Our Use and Disclosure of ID Data
It is our policy to protect, use and store your ID data in accordance with all applicable laws. We and Perse will only use your ID data to verify your identity in connection with determining your eligibility to use the services. Perse will also store and use this information to improve its identity verification services and algorithms. We and Perse will not sell or market your ID data and will only share or disclose your ID data to third parties where: (i) required by applicable federal, state, or municipal law, including response to legal process (such as a subpoena, warrant or civil discovery request); (ii) you or your legally authorized representative consents to such disclosure; or (iii) the disclosure completes a financial transaction that you or your authorized representative has requested.
Storage and Retention of ID Data
Perse will store, transmit and protect your ID data using a reasonable standard of care in accordance with the terms of its agreement with us, and for no longer than three (3) years, unless legally permitted to be maintained longer, for example, if preservation of your ID data is required by a warrant or subpoena. Perse will store, transmit and protect your ID data using appropriate technical and organizational measures.