SAFR Enterprise Terms
This SAFR Enterprise Terms (“License”) is a binding agreement between RealNetworks, Inc. (“Licensor“) and the entity or organization you represent as the licensee of the Software (“Licensee“) (together the “Parties“).
Licensor provides the Software solely on the terms and conditions set forth in this License and on the condition that Licensee accepts and complies with them. By using the Software you (a) accept this License and agree that Licensee is legally bound by its terms; and (b) represent and warrant that: (i) you are of legal age to enter into a binding agreement; and (ii) if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this License on behalf of Licensee and bind Licensee to its terms. If Licensee does not agree to the terms of this License, Licensor will not and does not license the Software to Licensee and you must not install/use the Software or Documentation.
Notwithstanding anything to the contrary in this License or Licensee’s acceptance of the terms and conditions of this License, no license or rights are granted (whether expressly, by implication, or otherwise) to copies of Software that Licensee did not acquire lawfully or that is not a legitimate, authorized copy of Licensor’s Software.
The following terms have the following meanings:
“Action” means any claim, action, demand, lawsuit, investigation, or proceeding of any nature, whether at law, in equity, administrative, regulatory, or otherwise.
“Authorized User” means individual persons authorized by Licensee to use the Software pursuant to the license granted under this License.
“Documentation” means the SAFR Ethics Policy, user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensor” has the meaning set forth in the preamble.
“Order Form” means the ordering document that contains, among other things, the fees and the Term.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Recognition Data” means facial recognition data or image recognition data created and collected through the Software.
“SAFR Cloud Service” means the cloud service solution offered by Licensor to enable the Software to store Recognition Data remotely and perform recognition tasks.
“Sample Code” means sample source code provided hereunder that demonstrates how certain functions are performed using the Software.
“Software” means the facial and object recognition software programs distributed under the SAFR™ brand for which Licensee is procuring a license hereof.
“Services” means the supplementary services provided by the Licensor which includes SAFR Cloud Service and technical support services.
“Term” has the meaning set forth in Section 12.
“Third Party” means any Person outside the Licensee’s organization.
- License Grant and Scope.
Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this License, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Software and the Documentation. This license grants Licensee the right to:
(a) download and install the Software only on device(s) owned or leased, and controlled by, Licensee. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for backup purposes. Any copy of the Software made by the Licensee will be the exclusive property of the Licensor and will be subject to the terms and conditions of this License.
(b) use and run the Software as properly installed in accordance with this License and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
(c) use the Documentation solely with the Software.
- Licensee Account and Payment of Fees.
(a) In order to access the Software and Services, Licensee may be required to provide certain information (such as identification or contact details) as part of the registration process for the Software, or as part of the continued use of the Software. Any registration information Licensee provides to Licensor must always be accurate, and Licensee must inform Licensor promptly of any changes.
(b) Licensee and each Authorized User are responsible for maintaining the confidentiality of all username and password information with respect to their account, and for ensuring that any such username and password is not used by anyone to access the account other than the Authorized User to which such username and password was issued. Licensee is entirely responsible for any and all activities that occur under Licensee’s accounts and all charges incurred from use of the Software and Services accessed using one of Licensee’s accounts. Upon becoming aware of any unauthorized use of a Licensee’s account or any other breach of security relating to a Licensee account, Licensee agrees to immediately notify Licensor. Licensor shall have no liability for any loss or damage arising from Licensee’s failure to comply with these requirements.
(c) Licensee will make payments according to the terms of the Order Form. The Order Form may be issued by the Licensor or its authorized distributor. If there is no applicable Order Form, the license will be deemed a trial and will terminate according to Section 12 below.
- Use Restrictions.
Licensee will not, and will require its Authorized Users not to, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs other than as specifically permitted by the Documentation;
(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(f) except as expressly set forth in Section 2 copy the Software or Documentation, in whole or in part;
(g) use the Software or Documentation in violation of any law, regulation, or rule; or
(h) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
- License Key and Sample Code.
(a) License Key. Licensee is responsible for keeping the license key secure and may not share or otherwise distribute the license key on any private or public networks to be accessed by any person who is not an Authorized User. Licensee will be responsible for all activities arising out of use of the license key provided to Licensee.
(b) Sample Code. Licensee may only use the Sample Code in accordance with the Documentation and may not use the Sample Code with any Third Party product or service which competes with the Software.
- Privacy and Data Protection.
(a) Compliance with Laws. Licensee is responsible and liable for familiarizing itself and Authorized Users on the local laws and regulations relating to the use of the Software. Licensee hereby undertakes and agrees to use the Software in compliance with such laws and regulations.
(b) Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for obtaining all necessary approvals from the end users and regulatory institutions relating to collection of data, and for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this
- Compliance Measures.
The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee will not, and will not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
- Maintenance and Support.
(a) Licensor will have no responsibility to provide support to the Licensee, unless Licensee has executed a separate contract for support with Licensor.
(b) Notwithstanding Section 8(a), Licensor at its sole discretion may develop and provide updates, and Licensee agrees that Licensor has no obligation to develop any updates at all or for particular issues. Licensee further agrees that all updates will be deemed Software, and related documentation will be deemed Documentation, all subject to the same terms and conditions of this License.
- Collection and Use of Information.
(a) In the event Licensor chooses to use SAFR Cloud Service with the Software, the collection, use and removal of data including Recognition Data will be governed by the applicable Real Cloud Services Addendum.
(b) In the event Licensor chooses a local version of the Software, it is configured not to share Recognition Data with Licensor. In such event, Licensee undertakes to take all reasonable precautions not to inadvertently share such data with the Licensor.
(c) In each case specified above, Licensor may, directly or indirectly, collect and store non-personally identifiable information regarding use of the Software, Services and about equipment on which the Software is installed.
(d) Licensee agrees that the Licensor may use the information referenced in Section 9(c) for any purpose including but not limited to:
- improving the performance of the Software or developing Software updates;
- verifying Licensee’s compliance with the terms of this License; and
(e) enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
Licensee agrees to display any attribution(s) required by Licensor as described in the Documentation. Licensor hereby grants to Licensee a nontransferable, nonsublicenseable, nonexclusive license while the License is in effect to display Licensor’s brand features for the purpose of promoting or advertising that Licensee is using the Software. Licensee must only use the brand features in accordance with the Documentation and for the purpose of fulfilling the obligations under this section.
- Intellectual Property Rights and Confidentiality.
(a) Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this License or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this License. Licensor reserves the entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to the Licensee in this License. Licensee will use commercially reasonable efforts to safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee will promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software or Documentation and fully cooperate with Licensor, at Licensor’s sole expense, in any Action taken by Licensor to enforce its Intellectual Property Rights.
(b) Confidentiality. Except as otherwise set forth in these terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure. For the avoidance of doubt, all Software and SAFR Cloud Services provided hereunder will be deemed Confidential Information of the Licensor without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to Third Parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this License. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this section and that the Receiving Party remains responsible for compliance by them with the terms of this section. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a Third Party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation, law or order. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. Parties specifically agree that any feedback provided by Licensee relating to the Software or any service will not be deemed Confidential Information.
- Term and Termination.
(a) The License will terminate upon the expiration of the time period specified in the Order Form, or in case of a trial, upon the expiration of the time specified during the sign up, or if no time period was specified at the sign up, thirty (30) days from the date Licensee created an account with Licensor.
(b) This License will automatically terminate:
- If Licensee breaches this License and such breach: (1) is incapable of cure; or (2) being capable of cure, remains uncured within ten (10) days after Licensor provides written notice thereof; or
- If Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy, or pursuant to any other insolvency law makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(c) Upon expiration or earlier termination of this License, the license granted hereunder will also terminate, and Licensee will cease using and destroy all copies of the Software and Documentation.
- Warranty Disclaimer.
THE SOFTWARE AND DOCUMENTATION IS PROVIDED UNDER THIS LICENSE WITHOUT IMPLIED WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; OR WARRANTIES THAT THE SOFTWARE AND DOCUMENTATION ARE FREE OF DEFECTS OR SECURE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE.
Licensor is not an insurer and will not provide insurance coverage against any risks and losses. To the extent Licensee wishes to have any coverage for risks and losses it is the responsibility of the Licensee to procure and maintain a separate insurance policy from an insurance company at Licensee`s sole cost and expense, covering all risks and losses, including all property damage, personal injury (including death), and economic losses, arising out of or in connection with, due to, or caused in whole or in part by: (i) this license, including any breach of any representation, warranty, covenant or obligation arising hereunder; (ii) the use of the Software including the improper operation or non-operation of the Software; (iii) breach of contract, express or implied, which occurs before or after the signing of this license; (iv) breach of warranty, express or implied; (v) the loss or damage to or malfunction of facilities necessary to operate the software; (vi) a claim for subrogation, indemnification or contribution; (vii) a violation of any applicable consumer protection law or any other theory of liability; or (viii) any unauthorized access, use or disclosure of personal information, (collectively “Covered Claims”). Recovery for any risks and losses will be limited to the insurance purchased separately from an insurance company, if any.
- EXCLUSION OF DAMAGES AND RELEASE.
LICENSEE AGREES TO RELEASE LICENSOR AND ITS SERVICE PROVIDERS AND SUPPLIERS FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH OR CAUSED IN WHOLE OR IN PART BY ANY COVERED CLAIM. IN NO EVENT WILL LICENSOR, ITS SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER, ARISING FROM, OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) LOSS OR DAMAGES ARISING OUT OF OR OTHERWISE RELATED WITH THE CRIMINAL, FRAUDULENT, OR OTHER UNLAWFUL ACTS OF THIRD PARTIES; OR (g) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR THE INDEMNITY OBLIGATIONS CONTAINED IN SECTION 16 BELOW, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS LICENSE EXCEED TEN THOUSAND DOLLARS (US$10,000) OR THE FEES PAID BY THE LICENSEE TO THE LICENSOR WITHIN A PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION THAT GAVE RISE TO SUCH LIABILITY, WHICHEVER IS LESS.
Licensee agrees to indemnify, hold harmless, and defend Licensor and its subsidiaries, officers, directors, employees, customers, agents and successors from and against any and all damages, costs and expenses, including reasonable attorneys’ fees, incurred in connection with any Third Party Action arising out of or relating to Licensee’s use of the Software beyond the scope of the license in the License or any modification of the Software, on condition that Licensor promptly notifies Licensee of the Action and Licensee has sole control over its defense or settlement, and Licensor provides reasonable assistance in the defense of same at Licensee’s expense.
- US Government Rights.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the United States government or any contractor therefor, Licensee will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) Assignment. Licensee may not assign, transfer, or otherwise dispose of this License, or any rights or obligations hereunder, without Licensor’s prior written consent, in Licensor’s sole discretion. This License will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.
(b) Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in this License that, by its nature, should survive termination or expiration of this License, and will survive any expiration or termination of this License: Section 5, Section 6, Section 9, Section 11, Section 12, Section 13, Section 14, Section 15, Section 16, Section 17 and this Section
(c) Miscellaneous. This License, together with its attachments, constitutes the complete and exclusive agreement between Licensor and Licensee with respect to its subject matter, and supersedes all prior oral or written understandings, communications or agreements. This License may not be modified except in a writing duly signed by authorized officers of Licensor and Licensee. The waiver by either Party of any breach of this License by the other Party will not waive subsequent defaults by such Party of the same or a different kind. If any provision of this License is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof.
(d) Jurisdiction. This License will be governed by and construed in accordance with the laws of Washington State, USA, excluding that body of law known as conflicts of law. Any Action or proceeding relating to this License must be brought in the Washington. This License will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
Last Updated July 26, 2019
Click here to view the Cloud Services Addendum
Cloud Services Addendum
This Cloud Services Addendum (“Cloud Services Addendum”) is entered into by and between RealNetworks, Inc. (“REAL”) and Licensee as described below and is effective on the Effective Date for this Addendum.
“Agreement” means the agreement entered between REAL and Licensee relating to licensing REAL’s products and services.
“Cloud Services” means the cloud based services described in the Order Form or Documentation.
“Effective Date” means the start data for the Cloud Services as specified in the Order Form.
“Licensee” means the entity that has entered into an Agreement with REAL and chooses to use Cloud Services to supplement the products and services offerings in the Agreement.
“Order Form” means the ordering document that describes inter-alia price, duration and any other special conditions applicable to this Cloud Services. In the event of a conflict between this Cloud Services Addendum and the Order Form, the latter will prevail to the extent of such conflict.
“Recognition Data” means facial recognition data or image recognition data created and collected through the SAFR Software and uploaded to the Cloud Services.
“Resultant Data” means aggregated and/or anonymized data relating to Licensee’s use of the Cloud Services including statistical and performance information. For the purpose of clarification, Resultant Data will only include performance data relating to the Cloud Services and will not include any personally identifiable information.
“Services” means Cloud Services together with the products and services procured under the Agreement.
- Scope. This Cloud Services Addendum sets forth the additional terms applicable to the Cloud Services offered by REAL as an add-on to the products and services provided by REAL under the Agreement. Any term not defined herein will have the same meaning as defined in the Agreement.
- Suspension of Cloud Services. Notwithstanding anything in the Agreement to the contrary, in addition to REAL’s rights to suspend products under the Agreement, REAL may immediately suspend Licensee’s and/or any Authorized User’s access to all or any portion of the Cloud Services if REAL reasonably believes that:
(a) Licensee, or any Authorized User, is using REAL’s products or services for fraudulent or illegal activities;
(b) REAL’s provision of the Cloud Services to Licensee or any Authorized User is prohibited by applicable law;
(c) Licensee or any Authorized User is in breach of use restrictions specified in the Agreement;
(d) There is a threat to or attack on any of the REAL’s Intellectual Property; or
(e) Licensee or any Authorized User’s use of REAL’s Intellectual Property disrupts or poses a security risk to REAL’s Intellectual Property or to any other Licensee or vendor of REAL.
REAL will exercise commercially reasonable efforts to notify Licensee prior to suspending any Cloud Services pursuant to this Section 3. In the event REAL does not notify Licensee prior to suspending any Cloud Services, REAL will notify Licensee of the Service Suspension as promptly as reasonably practical thereafter. In the event of any suspension pursuant to this Section 3, Licensee shall continue to be obligated to pay the fees for the Cloud Services during such period of suspension. If REAL suspends a Cloud Service, unless REAL has subsequently terminated such Cloud Service in accordance with the terms of the Agreement, REAL will resume the suspended Cloud Service as soon as reasonably practical after REAL is reasonably satisfied that the reason giving REAL the right to suspend has been cured or resolved, as applicable. REAL will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a suspension.
- Licensee Indemnification. In addition to the indemnification obligations contained in the Agreement, Licensee agrees to defend, indemnify and hold harmless REAL, and each of their respective agents, officers, directors, representatives and employees from and against all Actions, to the extent arising from: (i) any use of the Cloud Service other than in accordance with the Documentation and the Agreement; (ii) a modification to the Cloud Service made or caused by Licensee or any other party acting on behalf of Licensee; (iii) any Recognition Data; (iv) use of the Cloud Service in violation of applicable law or for any other unauthorized purposes; (v) use of the Cloud Service after termination or the end of the Term as defined in Section 6 below; (vi) use of the Cloud Service in combination with any hardware, software, application, equipment, technology or material that was not recommended by REAL; (vii) Licensee’s (or any Authorized User’s) failure to use any new or corrected version of the Cloud Service made available by REAL to Licensee;, or (viii) Licensee’s or any Authorized User’s negligence or willful misconduct.
- Ownership, Licensing, and Use of Licensee Data.
(a) REAL acknowledges that, as between REAL and Licensee, Licensee owns all right, title and interest, including all intellectual property rights, in and to the Recognition Data.
(b) Licensee hereby grants to Real the following licenses relating to the Recognition Data:
(i) A non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display the Recognition Data to provide the Cloud Services to Licensee; and
(ii) A perpetual, royalty-free right and license to adapt modify and reproduce the Recognition Data and Resultant Data for the limited purpose of improving its recognition algorithm associated with the Software.
- Term, Termination and Data Portability.
(a) The term for the Cloud Services (“Term”) is the period specified in the Order Form, or the Agreement, whichever is shorter. Upon the expiration of the Term, the Licensee must stop using the Cloud Services.
(b) Upon expiration or termination of the Cloud Service:
(i) Licensee will have no further access to any of the Recognition Data used in connection with the Cloud Services or any configurations used in connection with the Cloud Services.
(ii) Upon receipt of Licensee’s request, which must be submitted within thirty (30) days of the end of the Term, Real will provide a copy of the Recognition Data to Licensee in REAL’s standard database export format.
(iii) Upon receipt of Licensee’s request, which must be submitted within thirty (30) days of the end of the Term, Real will delete all the Recognition Data that has not been utilized for improvements pursuant to section 5(b) (ii) above.
- Access and Security. Real will employ all current standard physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to prevent any unauthorized access to the Cloud Services and Recognition Data.