SmartVis Face Software End User Licence Agreement
The SmartVis Identifier, Server, Mobile, and/or Alarm Service (referred to herein as “Software”), is licensed to you subject to these terms between you and Digital Barriers Services Limited, a company registered in England with company number 06883884 whose registered office is at Milton Gate, 60 Chiswell Street, London EC1Y 4AG, United Kingdom(the “Licensor”). This software is licensed and not sold and is to be used only in accordance with this license.
PLEASE READ THIS LICENCE AGREEMENT CAREFULLY BEFORE DOWNLOADING THE SOFTWARE ACCOMPANYING THIS LICENCE AGREEMENT. BY ACCEPTING THIS AGREEMENT ELECTRONICALLY IN ANY OTHER WAY, OR BY RUNNING, INSTALLING, DOWNLOADING OR OTHERWISE USING THE SOFTWARE, YOU (AN INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT (“LICENCE AGREEMENT”) AND YOU WARRANT THAT YOU ARE THE AUTHORISED USER OF THE SOFTWARE AND WILL COMPLY WITH THE TERMS OF THIS LICENCE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE AGREEMENT, PLEASE DO NOT RUN, INSTALL, DOWNLOAD, COPY OR OTHERWISE USE THIS SOFTWARE.
1.2 In consideration of the payment of the licence fee, the Licensor hereby grants to you a limited, non- exclusive, non-transferable, revocable, royalty-free licence to use the Licensed Software in accordance with these terms.
1.3 You may not use the Licensed Software for any purpose not expressly permitted by this Licence Agreement. You shall not, and shall have no rights to, reverse engineer, decompile or otherwise endeavour (in whole or in part) to obtain the source code to the Licensed Software save to the extent that you cannot be prohibited from so doing under applicable law. You may reverse engineer the Licensed Software for the purpose of debugging modifications to software you receive with the Licensed Software.
1.4. The licence granted herein entitles you to make such copies of the Licensed Software as is absolutely necessary for your operational security and authorised use (including, without limitation, for archive and backup purposes). Such copies and the media on which they are stored shall be property of the Licensor. You shall record the number and location of all copies of the Licensed Software and take steps to prevent unauthorized copies. The licence granted under clause 1.1 shall apply to all such authorised copies as it applies to the Licensed Software.
1.5 You shall not permit any third party to use the Licensed Software, nor use the Licensed Software on behalf of or for the benefit of any third party, in any way whatsoever, except where:
1.5.1 you have outsourced development services in connection with the Licensed Software, in which case such third party outsourcing shall have the right to use the Licensed Software, solely for that purpose, and subject to the terms and conditions of this Licence Agreement; or
1.5.2 you are a developer using the Licensed Software to develop an application on behalf of a third party, in which case that third party shall also have the right to use the Licensed Software, subject to the terms and conditions of this Licence Agreement.
1.6. You shall not export, directly or indirectly, any technical data acquired from the Licensor under this Licence Agreement (or any products, including the software, incorporating any such data) in breach or any applicable laws or regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
1.7. You agree to use the Licensed Software in compliance with applicable laws, including local laws of the country or region in which you reside or in which you download or use the Licensed Software.
2. Installation & Maintenance
2.1 Installation, integration, set-up and maintenance of the Licensed Software, and any corrective releases provided by the Licensor in accordance with this Licence Agreement, shall be your responsibility and you shall be responsible for ensuring appropriate installation site conditions. The Licensor is under no obligation to provide any technical support but it may be purchased separately.
2.2 The Licensor may at its sole option provide you with all Maintenance Releases generally made available to its customers. The Licensor reserves the right to charge for any Maintenance Releases. You shall install all Maintenance Releases as soon as reasonably practicable after release.
2.3 For the purposes of clause 2.2, the following definitions shall apply:
2.3.1 “Maintenance Release” means any release of the Licensed Software that corrects faults, adds functionality or otherwise amends or upgrades the Licensed Software, but which does not constitute a New Version.
2.3.2 “New Version” means any new version of the Licensed Software which from time to time is publicly marketed and offered for purchase by the Licensor in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
3. Price and Payment
3.1 In order to be entitled to the rights and benefits contained in this Licence Agreement, you must have paid the Licensor the applicable fees specified by the Licensor in respect of the licence granted under this Licence Agreement (the “Licence Fee”).
3.2 The Licence Fee does not include value added tax and any other applicable duties, taxes or imports (including, but not limited to, any export or import duties), all of which shall be for your account.
3.3 If you are required by law to make any deduction or withholding in respect of tax from any amounts payable to the Licensor under this Agreement, you shall pay to the Licensor an additional amount as will, after the deduction or withholding has been made, leave the Licensor with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding
3.4 Where payment of the fees or any part thereof is not made on a due date (and there is no default on the part of the Licensor) then the Licensor, without prejudice to its other rights or remedies, shall be entitled at its sole discretion to withhold further provision of any of the Licensed Software or associated software
maintenance services, or to remotely disable existing installations of the Licensed Software, until such time as the outstanding payment is made.
3.5 License Fees are calculated by multiplying the base rate by the number of channels. A “Channel” for this purpose means each distinct video stream, or other data stream that is applied to the Licensed Software to or otherwise processing or analyzing for similar purposes. For the avoidance of doubt, in the case of one video or data stream that is further split into multiple video or data streams to which the licensed software may separately be applied to, each such video or data stream is deemed a separate Channel; and also in the case of two or more video or data streams that are multiplexed or otherwise combined with one another, each such video or data stream is deemed a separate Channel.
4. Pre-release Code
The Licensed Software may contain pre-release code and functionality marked or otherwise stated as “Technology Preview”, “Alpha”, “Beta” or similar. Such pre-release code may be present in order to provide experimental support for new platforms or preliminary version of new functionality. The pre- release code is not at the level of performance and compatibility of a final, generally available, product offering. The pre-release parts of the Licensed Software may not operate correctly and may be substantially modified prior to the first commercial product release, if any. The Licensor is under no obligation to make pre-release code commercially available, or provide any support or updates relating thereto. The pre-release code must not be used for commercial purposes or in a live operating environment where it may be relied upon to perform in the same manner as a commercially released product or with data that has not been sufficiently backed up.
5.1 You expressly understand and agree that your use of the Licensed Software is at your sole risk and that the Licensed Software is provided “as-is” and “as available” without warranty of any kind from the Licensor.
5.2 Your use of the Licensed Software and any material downloaded or otherwise obtained through the use of the Licensed Software is at your own discretion and risk and you are solely responsible for any damage to your computer system or other device or loss of data that results from such use.
5.3 The Licensor expressly disclaims all warranties and conditions of any kind whether express or implied including but not limited to warranties and conditions of merchantability and fitness for purpose.
6.1 Nothing in this Licence Agreement shall exclude or limit the Licensor’s liability in respect of death or personal injury caused by negligence, fraud (including fraudulent misrepresentation) or any other liability which cannot by law be limited of excluded.
6.2 Subject to clause 6.1, the Licensor shall not be liable to you for loss (whether direct or indirect) of profits, business, anticipated savings, corruption of data, goodwill or for any indirect or consequential loss or damage whatsoever and whether arising in tort (including negligence), breach of contract or howsoever.
6.3 Subject to clause 6.1, in no event shall the aggregate liability of the Licensor in contract, tort (including negligence) or otherwise to you in connection with the Licence Agreement exceed the fee paid by you for the Licensed Software.
6.4 Subject to clause 6.1, you agree that, in entering into this Licence Agreement, you did not rely on any representation (whether written or oral) of any kind or of any person other than those expressly set out in this Licence Agreement and you shall have no remedy in respect of such representation and the Licensor shall have no liability in any circumstances otherwise than in accordance with the express terms of this Licence Agreement.
6.5 You agree to fully indemnify and hold harmless the Licensor from and against any and all clams in relation to (i) your use of the Licensed Software; (ii) any application you develop therefrom; (iii) any Intellectual Property Rights infringement claim that arises from your use of the Licensed Software and any application developed therefrom; (iv) any data protection infringement claims that arises from your use of the Licensed Software and any application developed therefrom; (v) any claim arising from your breach of data protection laws and/or (vi) your breach of this Licence Agreement.
7. Intellectual Property Rights
7.1 In this Licence Agreement, “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
7.2 All Intellectual Property Rights in the Licensed Software vest with the Licensor. You acknowledge that any Intellectual Property Rights used or embodied in or in connection with the Licensed Software shall remain the exclusive property of Licensor, and that, except for the limited rights expressly granted under this Licence Agreement, no Intellectual Property Rights in the Licensed Software shall pass or otherwise vest in you.
7.3 In making authorised copies of the Licensed Software and/or Third Party Software pursuant to clause 1.4, you will ensure that all copyright and proprietary notices contained on the original version of the Licensed Software and/or Third Party Software also appear on all copies made. You will keep a written record of the whereabouts of copies made and will allow the Licensor from time to time to verify the same.
7.4 You shall promptly report to the Licensor any known or suspected unauthorised use of the Licensed Software.
7.5 To the extent you submit bug fixes or error corrections, including information related thereto, you hereby grants the Licensor a sub-licensable, irrevocable, perpetual, worldwide, non-exclusive, royalty-free and fully paid-up copyright and trade secret license to reproduce, adapt, translate, modify, and prepare derivative works of, publicly display, publicly perform, sublicense, make available and distribute error corrections and bug fixes, including derivative works thereof.
8.1 The Licensor may process the personal information provided by the Licensee as Data Processor for the purpose of demonstrating the Software to the Licensee.
8.2 You agree to only operate all software provided herewith in strict accordance with all applicable laws and regulations, including without limitation, all privacy laws and regulations. Both parties agree to comply with the terms of the attached Schedules.
During the term of this Licence Agreement and thereafter, you shall keep confidential all, and shall not use for your own purposes (other than implementation of this licence) nor without the prior written consent of the Licensor disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the Licensor or any of its affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. You shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
You agree that the Licensor may use your company name and logo in a publically available list of customers and in its public communications. If you do not wish for the Licensor to have this marketing right please notify the Licensor in writing.
11. Force Majeure
Licensor shall not be liable for any non-performance, defective performance, or late performance under this Licence Agreement due to causes beyond its control and without its fault or negligence such as, but not limited to, acts of God, war (including civil war), civil unrest, acts of government, fire, floods, explosions, the elements, epidemics, quarantine, restrictions, strikes, lock-outs, plant shutdown, material shortages, or delays in transportation or delays of its suppliers or subcontractors for like cause.
12.1 Term-based licenses terminate upon the expiration of the prepaid term, unless you have paid all applicable fees to extend the term.
12.2 Without prejudice to any other rights or remedies, the Licensor may, by written notice to you, terminate this Licence Agreement with immediate effect if you fail to comply with any of the terms or conditions of this Licence Agreement.
12.3 You agree that if the Licensor has the right to terminate this Licence Agreement in accordance with its term, the Licensor may, in addition to any other remedies it may have at law or in equity, remotely disable the Licensed Software.
12.4 Termination or expiry of this Licence Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Licence Agreement which existed at or before the date of termination or expiry.
12.5 Upon termination of this Licence Agreement all right granted to you under this Licence Agreement shall cease and you shall immediately cease all activities authorised by this Licence Agreement. You shall immediately pay to the Licensor any sum due under this Licence Agreement. You shall immediately delete or remove the Licensed Software from all computer equipment, storage media and all other files in your possession and certify to the Licensor that all copies of the Licensed Software have been destroyed.
12.6 Any provision of this Licence Agreement which expressly or by implication is intended to come into or continue in force on or after termination of this Licence Agreement shall remain in full force and effect.
13.1 No failure or delay by a party to exercise any right or remedy provided under this Licence Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.2 Except as expressly provided in this Licence Agreement, the rights and remedies provided under this Licence Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
13.3 This Licence Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
13.4 Each party acknowledges that, in entering into this Licence Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) other than as expressly set out in this Licence Agreement.
13.5 No variation of this Licence Agreement shall be effective unless it is in writing and signed by the parties.
13.6 If any provision or part-provision of this Licence Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Licence Agreement.
13.7 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Licence Agreement.
13.8 Nothing in this Licence Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.9 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
13.10 All notices, requests, consents and other communications hereunder must be in writing and will be deemed to have been properly given when actually received by the Licensor at its address set forth in the Recitals hereto and by you at its address provided to the Licensor at the time of entry into this Licence Agreement or as otherwise notified by you to the Licensor.
13.11 You shall not assign, novate or otherwise transfer any of its rights or obligations under this Agreement in whole or in part.
13.12 This Licence Agreement and any dispute or claim (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
13.13 Each party irrevocably agrees that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Licence Agreement, its subject matter or formation.
SCHEDULE 1 – DATA PROCESSING SCHEDULE
The following terms are defined as set out below for the purposes of Schedules 1 and 2.
1.1 Applicable Laws means all applicable laws, statutes and regulations from time to time in force relevant to the provision of the Services.
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer means Licensee to the Licence Agreement.
Data Breach means: (i) any unauthorised loss, corruption, damage, destruction, alteration, disclosure or access to any Personal Information; (ii) any unauthorised or unlawful Processing of Personal Information; or (iii) any breach of Data Privacy Laws.
Data Controller has the meaning given to “Controller” under the Data Protection Act 2018.
Data Privacy Laws means all laws that relate to data protection, privacy, the use of information relating to individuals, and/or the information rights of individuals and all laws implementing them, in each case as may be replaced, extended or amended, including, without limitation, the General Data Protection Regulation (EU) 2016/679, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Data Processor has the meaning given to “Processor” under the Data Protection Act 2018.
Data Subject has the meaning given under the Data Protection Act 2018.
EEA means the member states of the European Union, Norway, Iceland and Liechtenstein.
ICO means the UK Information Commissioner’s Office, or the equivalent national data protection authority in any relevant jurisdiction.
Personal Information means any information which: i) falls within the definition of “Personal Data” under the Data Protection Act 2018; and ii) in relation to which the Licensor is providing the Services or which the Licensor is required to Process (subject to the Data Privacy Laws) in connection with this Agreement.Processing has the meaning given under the Data Protection Act 2018 (and Process, Processed
and Processes shall be construed accordingly).
Services means the demonstration services which the Licensor provides to the Licensee in respect of the Software.
2. Data protection and data Processing
2.1 The provision of the Services may require the Licensor to Process Personal Information for and on behalf of the Customer. In respect of such Processing, the parties acknowledge and agree that:
(a) the Customer shall be the Data Controller and the Licensor shall be the Data Processor;
(b) the Licensor shall Process Personal Information as set out in Schedule 2 (Data Processing Register) of this Agreement; and
(c) Clauses 2.2 to 2.7 below shall apply.
2.2 The Customer shall:
(a) comply with all Data Privacy Laws;
(b) obtain and maintain all relevant registrations (and similar) required by Data Privacy Laws; and
(c) ensure that all instructions that it issues to the Licensor comply with Data Privacy Laws.
2.3 When Processing Personal Information as part of the delivery of the Services, the Licensor shall:
(a) Process the Personal Information only on the documented instructions of the Customer, except to the extent that any Processing of Personal Information is required by Applicable Laws;
(b) where Processing of Personal Information by the Licensor is required by Applicable Laws, the Licensor shall inform the Customer of the relevant legal requirement before processing, unless such law prohibits the Licensor from doing so;
(c) notify the Customer where the Licensor reasonably believes any documented instructions from the Customer in respect of the Processing of Personal Information infringe any Data Privacy Laws or any other Applicable Laws;
(d) ensure that its personnel who are authorised to Process the Personal Information have committed themselves to confidentiality;
(e) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk of Processing;
(f) only appoint a third party to Process Personal Information on its behalf in accordance with clauses 2.4 and 2.5 below;
(g) taking into account the nature of the Processing, assist the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer’s obligation to respond to requests for exercising the Data Subject’s rights under Data Privacy Laws;
(h) notify the Customer without undue delay after becoming aware of a Data Breach;
(i) at the Customer’s expense assist the Customer in its compliance with its obligations under Data Privacy Laws in respect of security of Processing, carrying out data protection impact assessments (as defined in Data Privacy Laws), remedial action to be taken in response to a Data Breach (including notifying Data Breaches to the ICO and affected Data Subjects) and consulting with the ICO regarding high risk Processing, in each case insofar as it is able taking into account the nature of the Processing and the information available to the Licensor;
(j) at the Customer’s discretion, delete or return to the Customer all of the Personal Information Processed under this Agreement on completion of the Services, and delete any copies of such Personal Information unless any Applicable Laws require that copies are kept; and
(k) make available to the Customer all information necessary to demonstrate compliance with its obligations in this clause 2.3.
2.4 The Licensor shall inform the Customer of the sub-processors it uses to process the Customer’s Personal Information. Where the Licensor engages a new sub-processor, it shall inform the Customer of that engagement by sending an email notification to the Customer. The Customer must notify the Licensor promptly if it objects to any nominated sub-processor, otherwise the sub-processor shall be deemed accepted by the Customer. The Licensor shall take such steps as reasonably necessary to address any Customer concerns regarding such sub-processor, in the event that the Customer objects to the nominated sub-processor within the timescale set out in this clause 2.4.
2.5 Where the Licensor sub-contracts its Processing of Personal Information to a third party in accordance with clause 2.4 above, the Licensor shall:
(a) ensure that any such sub-processor is subject to the same data protection obligations as those set out in clause 2.3 above;
(b) obtain sufficient guarantees from any such sub-processor that they will implement appropriate technical and organisational measures in such a manner that the Processing of Personal Information by such sub-processor will meet the requirements of Data Privacy Laws; and
(c) remain liable to the Customer for any Processing of Personal Information by any such sub- processor.
2.6 The Licensor shall not transfer Personal Information to any country outside the UK or EEA without the prior written consent of the Customer, such consent may be subject to and given on such terms as the Customer may in its discretion prescribe (acting reasonably and in compliance with Data Privacy Laws)2.
2.7 In the event that the Customer consents to the transfer of Personal Data from the Suppler to a country outside of the UK or EEA under clause 2.6, the Licensor shall confirm in writing details of how the Licensor will ensure an adequate level of protection and adequate safeguards in respect of the Personal Information that will be processed in and/or transferred outside of the UK or EEA so as to ensure compliance with the Data Privacy Laws.
SCHEDULE 2 – DATA PROCESSING SCHEDULE
1. Subject-Matter of Processing
(a) The Personal Data to be processed by the Licensor pursuant to this Agreement concerns the following subject matter(s):
Facial images (of customers and employees)
2. Duration of the Processing
(a) The Personal Data to be Processed under this Agreement shall be Processed for the following duration:
One day with a maximum duration of 7 days
3. Nature and Purposes of the Processing
(a) The Personal Data to be Processed under this Agreement shall be Processed for the following nature and purpose:
Customer facial recognition technology product demonstration purposes only
4. Type of Personal Data
(a) The Personal Data to be Processed by the Licensor pursuant to this Agreement concerns the following type of Personal Data:
Anonymised biometric data in the form of faces
5. Categories of Data Subjects
(a) The Personal Data to be Processed under this Agreement concern the following categories of Data Subjects:
Customers and employees within the demonstration space