Luxand™ Terms of Service

These Terms of Service (the “Agreement”) constitute a valid and binding agreement by and between Luxand, Inc., a Virginia corporation, USA corporation (together with its affiliates, successors and assigns, “Licensor”) and you ( “Licensee” and collectively with Licensor, the “Parties” and each, a “Party”). “You,” and “your,” refers to the individual, company or legal entity that you represent.

Luxand may, at any time, and in its sole discretion, modify this Agreement, with or without notifying you. Any such modification will be effective immediately upon public posting. Your continued use of the Luxand software and services following any such modification constitutes your acceptance of this modified Agreement. It is your responsibility to check www.luxand.com/terms for any modifications or updates.

BY INSTALLING AND/OR USING THE LUXAND SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THOSE SET FORTH IN THE PRIVACY POLICY INCORPORATED BY REFERENCE HEREIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE LUXAND SOFTWARE.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS HEREINAFTER CONTAINED, AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, INTENDING LEGALLY TO BE BOUND HEREBY, AGREE AS FOLLOWS:

1. Defined Terms: All terms shall have the meaning set forth in Exhibit D. The following Exhibits shall be incorporated herein by reference.

EXHIBIT LIST

EXHIBIT A

LICENSOR PRODUCTS; LICENSOR MARKS

EXHIBIT B

LICENSE FEE

EXHIBIT C

TERRITORY

EXHIBIT D

DEFINITIONS OF TERMS

2. License.

2.1. License Granted to Licensee.. Subject to the terms and conditions set forth herein, Licensor hereby grants the Licensee the following rights (the “License”) and Licensee hereby accepts such License:

a). a non-exclusive and non-transferable right to store, load, install, execute, and display (to “Operate”) the Product in Object Code only detailed in the Exhibit A with the right to distribute whether or not for a fee components developed using the Product (the “Results”) and/or providing services for Licensee’s End User associated with rights granted herein in Section 2.1 only directly through Licensee Site, provided that, Licensee shall prominently display on Licensee Site the following: “Face Recognition powered by Luxand.com”.

b). the right to use, reproduce, publish, perform and display the Licensor Marks: (i) on the Licensee Sites in connection with the posting of hyperlinks to the Product and/or Licensor Site; and (ii) in connection with the development, use, reproduction in promotional and marketing materials and electronic and printed advertising, publicity, press releases, newsletters and mailings about the Products (“Promotional Materials”), provided that any Promotional Materials shall be pre-approved by Licensor;

c). Notwithstanding anything to the contrary herein, nothing in this Section 2.1 or this Agreement shall be construed as restricting Licensor or its distributors and licensees from marketing, licensing or distributing any of the Products directly to End Users, or though distributors, resellers, or licensees in any form; and

d). Notwithstanding anything to the contrary herein, nothing contained herein shall limit Licensor’s ability to comply with all of the terms of existing agreements between Licensor and third parties.

2.2. Licensee License. Subject to the terms and conditions of this Agreement, the Licensee hereby grants to the Licensor a non-exclusive license to use, reproduce and display the Licensee Marks (such as your name, logo, mark) on the Licensor Site, for any lawful purpose, including (but not limited to) in connection with the promotional materials used by Licensor.

2.3. Mutual Support. The Parties shall use their reasonable efforts to support each other in marketing of Products.

2.4. No Reverse Engineering. Licensee shall not decompile, disassemble or otherwise Reverse Engineer any Product or any part thereof.

2.5. Territory. Licensee may not Operate any Products and distribute the Results to its End-Users outside the Territory without the prior written consent of Licensor.

2.6. Delivery of Products. As soon as practicable after the Effective Date but not later than ten (10) business days after the Effective Date and from time to time during the Term, Licensor shall ensure that Licensee is able to download or otherwise obtain necessary images, downloads and other materials required for Licensee’s performance of its obligations hereunder.

3. Parties’ Obligations.

3.1. Licensee’s Obligations. Licensee shall:

a). keep other Licensor’s Confidential Information in strict confidence and shall not make use of the Licensor’s Confidential Information for any purpose other than in connection with the Agreement;

b). notify Licensor if disclosure of Confidential Information by Licensee is necessary to comply with the requirements of any law, government order, regulation or legal process prior to such disclosure and Licensor’s request use best efforts to seek an appropriate protective order in connection with such legal process and, if unsuccessful, to use best efforts to assure that confidential treatment will be accorded to the disclosed Confidential Information;

c). take all necessary steps to ensure compliance by its employees or its other representatives with its obligations under this Agreement;

d). in exercising its rights or performing its obligations hereunder, it shall comply with all applicable international, national, governmental, quasi governmental and/or local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Products, including without limitation, relevant embargo and export laws and regulations, and assure that, in connection with performance of its obligations pursuant to this Agreement or arising or relating therefrom, no Product, Documentation, Confidential Information or any portion thereof, and any information relating thereto or to this Agreement, is exported, transshipped or re-exported, directly or indirectly, in violation of United States law and such foreign governments and ensure that neither the Products nor the Documentation, underlying information or technology may be downloaded or otherwise exported or re-exported (i) to any individual located in Cuba, Iran, Libya, North Korea, Sudan, Syria, Burma (Myanmar), the Taliban in Afghanistan or any other country to which the United States has embargoed goods (the “Restricted Nations”); (ii) to any business or organization owned, controlled by or acting on behalf of an individual, business or organization in a Restricted Nation; (iii) to the governments of a Restricted Nation or any business or organization owned, controlled by or acting on behalf of a government of a Restricted Nation; or (iv) to any individual, group or organization on the United States Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the United States Department of Commerce's Bureau of Export Administration's List of Denied Persons as each may be amended from time to time (collectively the “Excluded Territory and Persons”);

e). refrain from making any warranty, representation, or guarantees with respect to the specifications, features, or capabilities of Product, including without limitations warranties of functionality or performance, that are inconsistent with the Product’s warranties and disclaimers;

f). not to communicate, transmit, or promulgate in any matter, means or medium, any threatening, harassing, or obscene material, matter, or communications of any sort or to otherwise use the Internet service for any illegal or unlawful purpose and not to communicate, transmit, or promulgate in any matter, means or medium, any unsolicited information or material to any individual or group of individuals (i.e.: “spamming”), or any other manner violate the CAN-SPAM Act of 2003.

3.2. Licensee’s Additional Obligations.

a). Promotional Efforts. Licensee shall use its best efforts to (i) promote vigorously and aggressively the marketing of the Products in the Territory and agrees to prominently display therewith the Licensor Marks, and (ii) independently, or in co-operation with Licensor, seek out clients, identify, qualify, and secure licensing opportunities in the Territory. Licensee may advertise the Products in advertising media of Licensee’s choice, provided that the primary audience or circulation is located in the Territory. Licensee shall make full use of all promotional material supplied by Licensor or its own Promotional Materials.

b). Protection of Goodwill. Licensee shall undertake best efforts to protect and preserve the goodwill and image of the Products and to (i) conduct business in a manner that reflects favorably on the Products and the reputation of Licensor; (ii) avoid intentional deceptive, misleading, or unethical practices that are detrimental to Licensor.

c). Service and Support. Licensee, upon the terms and conditions as agreed between the Parties shall provide prompt pre- and post-sales service and support for all Products in accordance with the guidelines and Licensee’s obligations as provided herein or in the Exhibits attached hereto.

d). Market Conditions. Licensee shall advise Licensor concerning any market information that comes to Licensee’s attention respecting Licensor, the Products, Licensor’s market position, or the continued competitiveness of the Products in the marketplace.

e). Ownership. Licensee agrees that all right, title, and interest in and to Products and Licensor Marks, including modifications, derivative works, developments, improvements, enhancements, and all Intellectual Property Rights are, and always shall remain, the sole and exclusive property of Licensor and/or its Affiliates, as applicable. No right to disclose, use, print, copy, or display Products in whole or in part is granted hereby, except as expressly provided herein. Licensor and/or its Affiliates, as the case may be, retain the right to market and distribute Products worldwide through retail, distribution, and any other marketing channels as Licensor and/or its Affiliates may deem appropriate. Nothing in this Agreement shall preclude Licensor, Suppliers and/or its Affiliates from marketing, distributing, licensing, selling, leasing, maintaining or servicing any Products worldwide through retail, distribution, and any other marketing channels as Licensor and/or its Affiliates, may deem appropriate with respect to any distributor, dealer or customer, including without limitation, any End Users, original equipment manufacturers, licensees or sublicensee. Licensee hereby acknowledges that Licensor and/or its Affiliates, as the case may be, may modify, discontinue or add any Products in their sole discretion. Licensor agrees that all right, title, and interest in and to Licensee Materials, including modifications, derivative works, developments, improvements, enhancements, and all intellectual property rights relating thereto are, and always shall remain, the sole and exclusive property of Licensee, and/or their Affiliates, as applicable.

f). Limitation of Rights. Except as otherwise expressly set forth in this Agreement, Licensee, without Licensor’s advance written consent, which may be withheld at Licensor’s sole discretion, shall not (i) modify, decompile, disassemble, decrypt, extract, or otherwise Reverse Engineer any Product or any part thereof; (ii) reproduce any Product except as otherwise expressly provided herein, (iii) adapt in any way, modify, insert, delete, replace, change, prepare or create derivative works of or otherwise alter any files in the Product (except as such files may be modified as an incidental effect of the normal installation process); or (iv) make any Product available for any certification, analysis, trial or testing, including without limitation, any software performance comparison testing, without prior written approval from Licensor which can be withheld at Licensor’s sole discretion. Except as otherwise specifically provided in this Agreement, Licensee does not acquire any right to use, disclose, copy, reproduce, publish, or distribute Products or Licensor Marks and the order of, delivery to, or payments under this Agreement do not convey any title, other license, expressly or by implication, estoppel or otherwise, under any Intellectual Property Rights owned by Licensor, Suppliers and/or their Affiliates, including without limitation, the right to produce, modify or enhance any Products.

3.3. Licensor’s Obligations

a). Licensor Site and Products. Licensor will be solely responsible for the design, layout, posting, maintenance and hosting of the Licensor Site and Product. For the avoidance of doubt, Licensor hereby reserves the right to change, update and modify the Product, services and its fees and terms and conditions related thereto, at any time and without notice.

b). Customer Support. Licensor shall have sole responsibility for customer support for the Licensor’s Site and the Product, including but not limited to billing issues related to the Product.

4. Proprietary Notices; Trademarks.

4.1. Licensor Marks. Any and all Licensor Marks are and shall remain the exclusive property of Licensor, and/or of its Affiliates, as the case may be, and Licensor grants Licensee a limited license to reproduce the Licensor Marks only to the extent expressly provided herein. Licensee will use the Licensor Marks consistently with guidelines for use as may be communicated by Licensor from time to time. Licensee acknowledges that its utilization of the Licensor Marks pursuant hereto shall not create in it, nor shall it represent it has, any right, title or interest in or to the Licensor Marks other than the license expressly granted herein, or contest or impair Licensor’s Intellectual Property Rights. Licensee shall:

a). not, either during or after the Term of this Agreement, do anything or aid or assist any other Person to do anything which would infringe upon, harm or contest the validity of any Licensor Mark or Licensor’s or any of its Affiliates’ rights therein or which would hinder or prevent Licensor or any of its Affiliates from utilizing and/or licensing or sublicensing the Licensor Marks in any manner;

b). not in any manner authorize or purport to authorize any Person to use any of the Licensor Marks; and

c). report to Licensor any unauthorized use of any of the Licensor Marks by any Person that comes to Licensee’s attention in any manner whatsoever.

4.2. Mark Policies and Standards; Quality Control. Licensee acknowledges that any right to use the Licensor Marks is conditioned upon Licensee’s observance of the provisions of this Agreement regarding the marketing and advertising of the Product. Licensee shall display the Licensor Marks in accordance with Licensor’s guidelines for using trademarks as in effect from time to time and as provided to Licensee. Notwithstanding the foregoing, any change by Licensor or any of its Affiliates to the Licensor Marks guidelines which affects Licensee’s usage shall not apply retroactively to Licensee’s past usage which conformed with the then current guidelines and Licensor shall permit Licensee a reasonable period of time in which to conform with the new guidelines. Licensor retains the right to specify and approve the quality and standards of all materials on which the Licensor Marks are displayed and to inspect from time to time samples of such materials. If requested by Licensor, additional agreements and conditions regarding manufacture and quality control will be set forth in a separate Addendum to this Agreement. Failure of Licensee to adhere to such standards of quality as provided herein shall be grounds for Licensor to terminate Licensee’s rights to use such Licensor Marks and to terminate this Agreement. All advertising and other promotional, packaging and similar materials used by Licensee concerning Derivatives shall bear such trademark notices and legends as Licensor may reasonably require pursuant to this Section 4.2. Licensee shall not use, alter or exploit in any manner any of the Licensor Marks, except in such manner and media as Licensor may consent to in writing.

4.3. Licensee Marks. Any and all Licensee Marks are and shall remain the exclusive property of the Licensee, and/or of its Affiliates, as the case may be, and the Licensee grants Licensor a limited license to reproduce the Licensee Marks only to the extent expressly provided herein. Licensor will use the Licensee Marks consistently with guidelines for use as may be communicated by Licensee from time to time. Licensor acknowledges that its utilization of the Licensee Marks pursuant hereto shall not create in it, nor shall it represent it has, any right, title or interest in or to the Licensee Marks other than the license expressly granted herein, or contest or impair Licensee’s Intellectual Property Rights.

5. License Fees and Payments.

5.1. License Fees and Payment. When you sign up to use the Luxand Software, we will charge your credit card a monthly prorated amount for the respective plan you’ve selected, or immediately upon the expiration of the trial period unless you manually change your plan to "Cancelled Plan". Thereafter, we will charge your card monthly for the full month. We do not offer full or partial refunds under any circumstance. It is your responsibility to cancel your plan or contract at the expiration of the trial period in time. We reserve the right to increase prices, change or discontinue plans at any point and in our sole discretion. We will provide you with 30 days written notice prior to instituting the change. If you wish to cancel, upgrade or downgrade plans after being notified of the change, you must do so within the 30 day period or we will assign you a new plan and bill you accordingly based on your usage. Licensee shall, during the Term hereof, within fifteen (15) days, after following the close of each calendar month remit to Licensor an amount in US dollars equal to the entire accrued but unpaid aggregate License Fees for the previous month.

5.2. Payments. All payments to Licensor shall be made in US dollars in accordance with Licensor’s current policies and procedures.

5.3. Taxes and Other Payments. Each Party is responsible for complying with the collection, payment, and reporting of all taxes imposed by any governmental authority applicable to its activities in connection with this Agreement. None of the Parties is responsible for taxes that may be imposed on the other Party. Situations may arise where governmental authorities may require the Licensor to withhold from amounts payable to Licensee, including without limitation withholding for income tax, value-added, sales and similar taxes. Notwithstanding any provision to the contrary herein, in such cases, Licensor may withhold the amount of taxes or other withholdings due from payments to be made to Licensee under this Agreement and remit such taxes or other withholdings withheld to the appropriate governmental authority. If the Licensee is exempt from tax or is eligible for a reduced rate of withholding tax pursuant to an income tax treaty, Licensee is responsible for completing and providing documentation (i.e. W-9 for US entities and persons and W-8BEN for non-US companies) to Licensor. Licensor will withhold income taxes at the maximum jurisdictional tax rate from all payments to Licensee until all necessary tax documentation is provided. Except as otherwise specifically provided or referenced in this Section 5, Licensor shall not be responsible for any other payments to Licensee and/or third parties in connection with this Agreement, including, without limitation, any taxes, fees or payments for Licensee’s use of its existing assets or overhead in performance of the transactions contemplated herein. FOR AVOIDANCE OF DOUBT, LICENSEE SHALL COVER ALL FEES AND PROCESSING EXPENSES FOR CHARGE BACKS, FRAUDS, AND REFUNDS ARISING OUT OF ITS MARKETING ACTIVITIES. LICENSOR SHALL COVER ALL FEES AND PROCESSING EXPENSES FOR CHARGE BACKS, FRAUDS, AND REFUNDS ARISING OUT OF ITS MARKETING ACTIVITIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EACH PARTY SHALL BE SOLELY RESPONSIBLE FOR ANY VALUE ADDED TAXES COLLECTIONS, PAYMENTS AND RELATED REGISTRATIONS ARISING IN ANY WAY OUT OF OR RELATING TO ITS RESPECTIVE MARKETING ACTIVITIES TO THEIR RESPECTIVE END USERS AND RESELLERS PURSUANT TO THIS AGREEMENT. If a certificate of exemption or similar document or proceeding is to be made in order to exempt the sale from sales or use tax liability, a Party will obtain and provide the other Party with such certificate, document or proceeding.

5.4. Right to Audit; Understated Payments. Licensor or its designated agent may, at Licensor’s sole expense (except as provided herein), upon ten (10) days advance written notice to Licensee during Licensee’s business hours examine and/or audit the books and records of Licensee which relate to payments due and Products distributed under this Agreement. Licensor shall not have access to any of Licensee’s records beyond those necessary to complete any audit contemplated under this Section 5.5. If any examination or audit should reveal that the License Fees to Licensor under this Agreement for any period was understated in any Sales Report, then Licensee shall pay to Licensor immediately upon demand the amount understated and any penalty fee due with respect thereto. If any examination or audit discloses an understatement in any Sales Report of five percent (5%) or more, Licensee shall also reimburse Licensor for any and all costs and expenses connected with the examination or audit (including without limitation, reasonable accountants’ and attorney’s fees). In the event that any examination or audit discloses or audit discloses an understatement in any Sales Report of ten percent (10%) or more, Licensee shall also pay to Licensor as an underpayment penalty an amount equal to the amount of the underpayment. In the event any of the understatement of ten percent (10%) or more is determined to be intentional, Licensor may at its option terminate this Agreement immediately upon written notice to Licensee. The foregoing remedies shall be in addition to any other remedies Licensor may have hereunder. No provision of this Section 5.5 shall be construed as limiting or restricting any Licensor’s rights or remedies provided elsewhere in this Agreement or by law.

5.5. Limited Storage. You understand that Luxand will store at most 100,000 face templates per license. Luxand reserves the right to charge additional fees for storage in excess of 100,000 and has no obligation to inform you if you exceed this amount. Luxand will bill you in the following billing cycle for additional storage used in the current month. For details on pricing for additional storage, please email sales@luxand.com.

6. Representations and Warranties.

6.1. Licensee Representations and Warranties. Licensee represents and warrants that:

a). if an entity, it is an entity duly created, formed and organized, validly existing and in good standing under the laws of the jurisdiction of its creation, formation, or organization;

b). if an individual, there is no pending or threatened action (or basis therefor) for the insolvency of Licensee

c). there is no pending or threatened action (or basis therefor) for its dissolution, liquidation, or insolvency;

d). it is duly qualified or licensed as a foreign corporation in each jurisdiction in which its assets are owned or leased, or the nature of its business makes such qualification or licensing necessary;

e). it has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;

f). the Agreement has been duly authorized, executed and delivered, and constitutes a valid, legal and binding obligation of the Party enforceable against such Party in accordance with its terms, subject to any law affecting creditors’ rights; and

g). the execution, delivery and performance of the Agreement do not and will not (i) violate any law (including, without limitation, privacy, export control and obscenity laws), (ii) violate any charter document of Licensee, (iii) violate any agreement or order to which Licensee is a party or by which Licensee or its assets are bound, or (iv) require any consent from any Person.

h). the performance of any obligations by it under this Agreement, in whole or in part, will not violate or in any way infringe upon the rights of third parties, including, without limitation, property, contractual, employment, trade secrets, proprietary information and non-disclosure rights, or any trademark, copyright or patent rights; and

i). when and if necessary for purposes of this Agreement, Licensee will coordinate with Licensor any use of any protected Intellectual Property Rights of third parties and any acquisitions of any rights relating thereto.

6.2. Licensor Representations and Warranties. Licensor represents and warrants that:

a). there is no pending or threatened action (or basis therefor) for the dissolution, liquidation, or insolvency of Licensor;

b). it has all requisite corporate power and authority necessary to execute and deliver the Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;

c). the Agreement has been duly authorized, executed and delivered, and constitutes a valid, legal and binding obligation of Licensor enforceable against Licensor in accordance with its terms, subject to any law affecting creditors’ rights; and

d). it has all the necessary rights, titles, and/or interests, in Products to grant Company the rights and licenses contained in this Agreement.

7. DISCLAIMERS; LIMITED WARRANTY; LIMITATION OF LIABILITIES.

7.1. SCOPE OF WARRANTY; DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES OF LICENSOR STATED HEREIN OR EXPRESSLY PROVIDED IN THE END USER LICENSE AGREEMENT PURSUANT TO THE TERMS THEREOF, THE PRODUCTS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER WARRANTIES, OF ANY KIND, EITHER EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. LICENSOR DOES NOT WARRANT THAT THE PRODUCTS WILL MEET LICENSEE’S, LICENSEES’ OR END USERS’ REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED BY LICENSEE, LICENSEE OR END USER OR THAT THE OPERATION OF THE PRODUCTS WILL BE SECURE, ERROR-FREE, OR UNINTERRUPTED, AND LICENSOR HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

7.2. EXCLUSIONS OF DAMAGES AND LIABILITY. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY FORM OR THEORY OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, EQUITY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OVERHEAD, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO ALL CIRCUMSTANCES.

7.3. Limitation on Liability. If the Agreement is expired or terminated pursuant to any provision of hereof, Licensor shall not be liable to Licensee because of such termination, for consequential or incidental damages, including without limitation, loss of profits or goodwill. Termination shall not, however, relieve either Party of its liability or obligation for any breach or default occurring before the termination. Notwithstanding any provision to the contrary herein, the liability of Licensor to Licensee for any claim whatsoever related to the Products or this Agreement, including any cause of action sounding in contract, tort, or strict liability, shall not exceed the greater of One Thousand ($1,000.00) Dollars or the total amount of payments theretofore paid by Licensee during the previous one-year period to Licensor in connection with the products relating to such liability.

7.4. Applicability. The limitations and exclusions contained in Sections 7.1 through 7.3 shall apply notwithstanding any failure of essential purpose of any limited remedy.

8. Indemnification.

8.1. Indemnification by Licensee.

a). Licensee shall indemnify, defend and hold Licensor harmless from any and all losses, liabilities, damages and claims, and all related expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) and costs related to, arising from, or in connection with any third-party claim related to, arising from, or in connection with the actual or alleged:

i). statements made by Licensee or its employees or agents with respect to the Product, except for statements that are a direct and correct reference to information in the Documentation and marketing materials provided by Licensor for use in connection with the Product;

ii). claim of patent, trademark, trade secret or copyright infringement based on the combination, operation or use of the Product with any hardware, products, program or data not supplied or approved in writing by Licensor, if such infringement would have been avoided but for such combination, operation or use;

iii). Services, Licensee Marks or Licensee’s Intellectual Property Rights, whether actual or claimed; and

iv). breach by the Licensee of any of its representations, warranties, obligations, and/or covenants set forth herein.

b). Licensor shall promptly notify Licensee in writing after it becomes aware of any such claims, but failure to give such notice shall not relieve Licensee of its indemnity obligations hereunder unless the Licensee has been materially prejudiced by such failure. Licensee shall have exclusive control over the settlement or defense of such claims or actions, except that Licensor may appear in the action, at its own expense, through counsel reasonably acceptable to Licensee, only in the event it is determined by Licensor, in its reasonable discretion, that an actual conflict of interest would exist by Licensee’s representation of Licensor and Licensee in such action. Licensor shall give Licensee, at Licensee’s expense, all information and assistance reasonably requested by Licensee to settle or defend such claims or actions. Licensee shall be entitled to retain all monetary proceeds, attorneys’ fees, costs and other rewards it receives as a result of defending or settling such claims. In the event Licensee fails to promptly indemnify and defend such claims and/or pay Licensor's expenses, as provided above, Licensor shall have the right to defend itself, and in that case, Licensee shall reimburse Licensor for all of its attorneys’ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of Licensor’s written requests.

9. Term and Termination.

9.1. Term. This Agreement is as of the earlier of the date you accept this Agreement, thereby expressly agreeing to the terms and conditions set forth herein, and will remain in full force until terminated by either party as set forth below. If you have not accepted this Agreement, you may not use the technology. If you have had access to this Agreement and proceed to use the Luxand Software, Luxand will deem your continued use as an acceptance.

9.2. Termination. The Parties may terminate this Agreement as provided below:

a). Licensor may terminate this Agreement or discontinue offering the Luxand Software at any time and for any purpose without notice;

b). Licensee may terminate this Agreement at any time provided you cease all use of the Luxand Software AND destroy or remove from all hard drives, networks, and other storage media all copies of the Luxand Software in your possession. You will be required to pay for all usage through the date of the cancellation request;

c). Licensor may terminate this Agreement as provided in Section 4.2 and hereof;

d). either Party may terminate this Agreement if the other Party attempts to make an assignment in violation of Section 10.1 below; and

e). either Party may terminate this Agreement (i) if the other Party declares insolvency or bankruptcy, (ii) if a petition is filed in any court and not dismissed in ninety (90) days to declare the other Party bankrupt or for the other Party’s reorganization under bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the rights of creditors; or (iii) if the other Party consents to the appointment of a trustee in bankruptcy or a receiver or similar entity.

9.3. Licensee Actions upon Termination. In the event of termination or expiration of this Agreement:

a). Licensee shall immediately cease all use of Products and Licensor Marks and to uninstall, delete and destroy all relevant files, including, without limitation all Licensor Marks from the Licensee Site;

b). Licensee shall calculate and pay to Licensor any payment due through the date of termination and any other amounts due to Licensor hereunder;

c). All licenses and rights to use the Luxand Software shall terminate and you must remove the Luxand Software from your computer equipment and dispose of all originals and copies of the Luxand Software in your possession; and

d). Upon termination, Luxand will delete all templates and data it stored from your usage. To be clear, if your account is terminated for any reason, and you would like to resume use of the Luxand software, your images will have to be re-enrolled.

9.4. No Prejudice to Other Rights. Any termination pursuant to Section 9.2 shall be without prejudice to any other rights or remedies which one Party (referred to in this Section 9.4 as the “nonbreaching Party”) may have in respect of any default by the other Party (referred to in this Section 9.4 as the “breaching Party”). Any failure by the nonbreaching Party to exercise its rights hereunder to terminate or otherwise to enforce or recover damages for any default, breach or non observance by the breaching Party of any covenant, condition, obligation or term of this Agreement will not affect or impair the nonbreaching Party’s right in respect of any subsequent default, breach or non observance of the same or a different kind, nor will any delay or omission of the nonbreaching Party to exercise any right arising from any default, breach or non observance affect or impair the nonbreaching Party’s right as to the same or any future default, breach or non observance provided however, that nothing in this Section 9.4 shall be construed or interpreted as to override any provision in this Agreement limiting the remedies of a nonbreaching Party against a breaching Party.

9.5. Survival of Certain Provisions. Notwithstanding any provisions to the contrary herein, the provisions of Sections 2.4, 3.1(a) - (d), 4.1 and 4.2, 6, 7 - 9, and 10 shall survive the termination or expiration of the Agreement and such termination or expiration shall not release Licensee or Licensor of their respective obligations regarding the Confidential Information, Licensee’s obligations with respect to Intellectual Property Rights or any duties, liabilities or obligations which by the terms hereof or in context are to survive termination; all licenses properly granted to End Users pursuant to the then-existing end-user license agreements shall continue in force and effect in accordance with the terms thereof and the Products already distributed shall remain in use under the terms of such end-user license agreements.

10. Miscellaneous Provisions.

10.1. Assignment. This Agreement may not be assigned, in whole or in part, by Licensee without the prior written consent of Licensor. Licensor shall have the right to assign this Agreement to its Affiliates, subsidiaries or sister companies without Licensee’s prior consent by giving notification to Licensee. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

10.2. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without reference to conflicts of law rules and principles. To the extent permitted by law, the provisions of this Agreement shall supersede any provisions of the Uniform Commercial Code as adopted or made applicable to any products described herein in any competent jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

10.3. Arbitration.

a). In the event of a dispute between the Parties arising out of or in connection with this Agreement, the parties hereto shall use their best efforts to resolve the dispute on an amicable basis. If an amicable settlement cannot be reached, either Party hereto may request, by written notice, that the dispute be resolved by arbitration by a panel of three (3) arbitrators before the American Arbitration Association pursuant to the then current rules of the United Nations Commission on International Trade Law (UNCITRAL Rules).

b). In the event of any conflict between the UNCITRAL Rules and the provisions of this Agreement, the provisions of this Agreement shall prevail.

c). The place of the arbitration shall be District of Columbia, USA.

d). The claimant Party shall appoint an arbitrator and the respondent Party shall appoint one arbitrator, and the two arbitrators so appointed shall appoint the third arbitrator, in accordance with the provisions of the UNCITRAL Rules.

e). The English language shall be used as the written and spoken language for all matters connected with all references to arbitration.

f). The decision of the arbitrators shall be made by majority vote and shall be made in writing.

g). The decision of the arbitrators shall be final and binding on the Parties, save in the event of fraud, manifest mistake or failure by any of the arbitrators to disclose any conflict of interest.

h). The decision of the arbitrators may be enforced by any court of competent jurisdiction and may be executed against the person and assets of the losing Party in any jurisdiction. For the avoidance of doubt, such court includes any court that is authorised to make such an order by virtue of any treaty or legislation relating to the reciprocal enforcement of foreign arbitral awards or judgments.

i). Nothing in this Section 10.3 shall prevent a Party from seeking or obtaining equitable relief from a court of competent jurisdiction, whether before, during or after arbitration proceedings.

10.4. Legal Expenses. The prevailing Party in any legal action, including arbitration, brought by one Party against the other and arising out of this Agreement shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorney’s fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded.

10.5. Notices. All claims, instructions, consents, designations, notices, waivers, and other communications in connection with the Agreement (“Notifications”) will be in writing. Such Notifications will be deemed properly given (a) when received if delivered personally, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail, or (d) within three (3) days after deposit with an internationally recognized express delivery service, in each case when transmitted to a Party at the following address or location:

If to Licensor:

To the address indicated on execution page.

with a copy to (which shall not constitute notice):

International Legal Counsels PC
901 N. Pitt Street, Suite 325
Alexandria, VA 22314
attention: Dmitri I. Dubograev, Esq.
e-mail: info@legal-counsels.com
facsimile: 202.318.0723

If to Licensee:

To the address indicated on Licensor website.

Either Party may send any Notification hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication will be deemed to have been duly given unless and until it actually is received by the intended recipient. Either Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other notice in the manner herein set forth.

10.6. Independent Contractors. The relationship of Licensor and Licensee established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, franchisor-franchisee, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Licensee to create or assume any obligation on behalf of Licensor for any purpose whatsoever. Except for the rights of Licensee set forth in this Agreement, Licensee shall be solely responsible for developing and implementing its business and marketing plans and its operations.

10.7. Severability. If this Agreement or any provision thereof is, or the transactions contemplated hereby are, found by a court of competent jurisdiction to be invalid, void, unenforceable for any reason or inconsistent or contrary to any valid applicable laws or official orders, rules and regulations, in whole or in part, the inconsistent or contrary provision of this Agreement shall be null and void and such laws, orders, rules and regulations shall control and, as so modified, this Agreement shall continue in full force and effect and the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law; provided, however, that nothing herein contained shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction.

10.8. Publicity. The Parties shall work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters. In addition, Licensor shall have a right, but not an obligation, at its own discretion, to issue such publicity and general marketing communications concerning the relationship of the Parties. Neither Party shall disclose the terms of this Agreement to any third party other than its outside counsel, auditors, and financial and technical advisors, except as required by law provided that Licensor may disclose such information in connection with a bona fide financing of the Licensor subject to the confidentiality obligations not less restrictive than the terms of this Agreement.

10.9. No Waiver. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the Party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.

10.10. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers.

10.11. Further Assurances. The Parties will each perform such acts, execute and deliver such documents and instruments, and do such other things as may be reasonably requested to accomplish the transactions contemplated by this Agreement and to carry out the purpose and intent hereof.

10.12. No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and, except as otherwise provided herein, no other Person will have any right, interest, or claim under this Agreement.

10.13. Entire Agreement. With the exception of prior Non-Disclosure Agreements, if any, the Agreement, together with the exhibits, attachments and appendices hereto, constitutes the entire agreement and understanding between the Parties or any of their Affiliates with respect to its subject matters and supersedes all prior agreements, understandings and representations, written or oral, to the extent they relate in any way to the subject matter of the Agreement.

10.14. Electronic Signatures and Agreements. You acknowledge and agree that by clicking on the button labeled “SIGN UP”, "SUBMIT", "DOWNLOAD", "I ACCEPT" or such similar links or methods as may be designated by Luxand to download or use Luxand Software, and/or to accept the terms and conditions of this Agreement, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE LUXAND SOFTWARE. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.

10.15. General Provisions. YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CONTINUING TO INSTALL THE LUXAND SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO LUXAND THE RIGHTS SET FORTH HEREIN.

EXHIBIT A

LICENSOR PRODUCTS AND MARKS

LICENSOR PRODUCT

Product name

Product description

Suggested Retail Price

Ageing API
Avatar API
BabyMaker API
Face Enhancement API
Face Recognition API
Mirror Reality API
Video Morphing API
Zombie API

LICENSOR MARKS

Luxand™

EXHIBIT B

LICENSE FEES

Product name

Product Type/ Product Version

License Fees*

Ageing API
Avatar API
BabyMaker API
Face Enhancement API
Face Recognition API
Mirror Reality API
Video Morphing API
Zombie API

As communicated by Licensor on any of Licensor websites or in writing

*The Parties agree that (i) the License Fee as determined pursuant hereto (i.e. percentage, fixed amounts) and/or total aggregate License Fee may be adjusted, as mutually agreed by the Parties, to include additional bonus royalties and/or License Fees based on performance and additional contribution of the Licensor and/or Licensee and (ii) the License Fee payable to Licensor shall be assessed against the advance payment made by Licensee to Licensor, if any, according to this Agreement and (iii) Licensor may require the advance payment in case of large amount of requests, or substantial amount of simultaneous requests, anticipated or already made by Licensee, on Licensor’s sole discretion. The parties agree that (i) Application and Licensee Site which are using the Product, and any method of monetization of the Product, should be approved by Licensor before they go live or otherwise employed by Licensee and (ii) Licensor shall approve the placement of Luxand credentials on Licensee Site and Application before they go live and (iii) Licensor has the right to terminate the agreement as provided in the Section 9.2 if Licensee does not comply with (i)-(ii).

EXHIBIT C

TERRITORY

“Territory” shall mean Licensee Site.

EXHIBIT D

TERMS DEFINITIONS

1.1. “Affiliate” shall mean, with respect to a given Person, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given Person; “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).

1.2. “Agreement” shall have the meaning set forth in the preamble hereof.

1.3. “Confidential Information” shall mean any information, product, document or other material of any nature relating to or concerning Licensor and/ or its Affiliates, that is provided or made available to Licensee either before or after the Effective Date, directly or indirectly in any form whatsoever, including in writing, orally, and machine readable, and including, but not be limited to, any correspondence, memoranda, notes, e-mails, formulas, samples, equipment, compilations, blueprints, business information, technical information, know-how, information regarding patents, patent applications, software, computer Object Code or Source Code, algorithms, high-level structures, graphic user interfaces, ongoing research and development, business plans, business or marketing strategies or plans, products or product development strategies or plans, information concerning current and future products and services, customers, suppliers and markets, price lists and pricing information, financial statements and forecasts, computerized or other magnetically filed data, methods and techniques, manufacturing processes, developments, inventions, designs, drawings, engineering specifications, hardware configuration information, trade secrets, financial information of Licensor and/or its Affiliates and any other business records and information, including without limitation the information about this Agreement, the use or disclosure of which might reasonably be construed to be contrary to the interests of such Licensor and/or its Affiliates, including information of third parties subject to confidentiality obligations and which one Licensor and/or its Affiliates may share with Licensee, provided, however, that Confidential Information shall not include information which: (i) that is already in the possession of Licensee before receipt from Licensor, and/or its Affiliates; (ii) is or becomes rightfully in the public domain without no fault of Licensee; (iii) is received by Licensee from a third party who or which is not under any obligation of confidentiality or restriction on use or disclosure concerning such information, or (iv) is disclosed under operation of law to the public or to a third party without a duty of confidentiality. If Licensee asserts one of the four exceptions to Confidential Information above, then Licensee shall prove such assertion by proper forms of documentary evidence.

1.4. “Documentation” shall mean user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials, maintenance know how, text and graphic elements of all user interfaces and any modifications or upgrades of the foregoing, developed for use in connection with Products and provided or made available by Licensor or any of its Affiliates from time to time.

1.5. “Effective Date” shall have the meaning set forth in the preamble hereof.

1.6. “End User” shall mean any Person that licenses Products for his, her, or its use and not for redistribution.

1.7. “Excluded Territory and Persons” shall have the meaning set forth in Section 3.1(d) hereof.

1.8. “Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to Products, Confidential Information, Documentation and Marks and may include without limitation:

(i) All right, title and interest in and to all patents and all filed, pending, or potential applications for patents, including any reissue, reexamination, division, continuation or continuation-in-part applications throughout the world now or hereafter filed;

(ii) All right, title and interest in and to all trade secrets and all trade secret rights and equivalent rights arising under the common law, state law, federal law of the United States of America, and laws of foreign countries;

(iii) All right, title and interest in and to all mask works, copyrights, other literary property or author’s rights, including Source Code, whether or not protected by copyright or as a mask work, under common law, state law, federal law of the United States of America, and laws of foreign countries; and

(iv) All right, title and interest in and to all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and/or brand names under common law, state law, federal law of the United States of America, and laws of foreign countries.

1.9. “License” shall have the meaning set forth in Section 2.1 hereof.

1.10. “License Fee” shall have the meaning set forth in Exhibit B.

1.11. “Licensee” shall have the meaning set forth in the preamble hereof.

1.12. “Licensee Site” shall mean Licensee’s website, provided that, Licensee may designate a different address for the Licensee Site upon Licensor consent.

1.13. “Licensor” shall have the meaning set forth in the preamble hereof.

1.14. “Licensor Marks” shall mean all proprietary indicia and designations of origin, trademarks, trade names, trade dress, service marks, service names, symbols, logos and other distinct brand elements that appear from time to time in properties, products, ventures and services of Licensor or any of its Affiliates, together with any modifications to the foregoing made by such parties during the Term of this Agreement, including without limitation the Licensor Marks identified on Exhibit A attached hereto.

1.15. “Licensor Site” shall mean Licensor’s website currently located at www.luxand.com and related sites owned or operated by Licensor and any replacements, additions, or successors thereof as may be changed by Licensor from time to time in its sole discretion upon Notification to the Licensee.

1.16. “Notifications” shall have the meaning set forth in Section 10.6 hereof.

1.17. “Object Code” shall mean computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or Reverse-Engineering.

1.18. “Operate” shall have the meaning set forth in Section 2.1(b) hereof.

1.19. “Original Term” shall have the meaning set forth in Section 9.1 hereof.

1.20. “Parties” or “Party” shall have the meaning set forth in the preamble hereof.

1.21. “Person” means any individual, partnership, limited liability Licensee, corporation, association, joint stock Licensee, trust, joint venture, labor organization, unincorporated organization, or governmental authority.

1.22. “Products” or “Luxand Software” shall mean software listed on Exhibit A and all related Documentation and services included therewith in any form and on any media, including all forms of code, such as Source Code and Object Code, any upgrades, modified versions, updates, and additions thereto, if any.

1.23. “Promotional Materials” shall have the meaning set forth in Section 2.1(c) hereof.

1.24. “Privacy Policy” shall be incorporated by reference herein: https://www.luxand.com/privacy.php.

1.25. “Reverse Engineering” shall mean the examination, disassembly, decompilation, decryption, simulation, code tracing of object code or executable code, debugging, or analysis of the Product or Confidential Information to determine its Source Code, structure, organization, internal design, constituent technologies, algorithms or encryption devices.

1.26. “Result” shall have the meaning set forth in Section 2.1(a) hereof.

1.27. “Restricted Nations” shall have the meaning set forth in Section 3.1(d) hereof.

1.28. “Sales Report” shall mean a report, in such form as the Parties may agree from time to time, delivered together with any payments dues hereunder, which shall set forth the calculation of the payments for the applicable fiscal period, License Fees and results for the calendar period, and such other payment, license and maintenance agreement information reasonably requested by the other Party and in such form and format as is reasonably acceptable to such other Party.

1.29. “Source Code” shall mean the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.

1.30. “Suppliers” shall mean any Person from which the Products or rights to the Products may be or may have been obtained by Licensor.

1.31. “Term” shall have the meaning set forth in Section 9.1 hereof.

1.32. “Territory” shall mean worldwide field of use specified in Exhibit C attached hereto and incorporated herein.

If you have questions about our Terms of Use, please contact us or write to:

Luxand, Inc.
815 N. Pitt Street, Suite 202
Alexandria, VA 22314
email: sales@luxand.com

Copyright © 2005-2019 Luxand Inc. and its licensors. All rights reserved.

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