SDK / Demo Request

ERGO AND HELIX SOFTWARE DEVELOPMENT KIT LICENSE FOR DESCARTES BIOMETRICS TECHNOLOGY NAMED ERGO ENTERPRISE EDITION (E3) SDK AND HELIX SDK

Notice to user: THIS IS A LICENSE AGREEMENT BETWEEN YOU AND DESCARTES BIOMETRICS. BY INDICATING YOUR ACCEPTANCE AS SET FORTH BELOW, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. This License Agreement accompanies the ERGO and HELIX Software Development Kit(s) for the software and related explanatory materials (the “SDK”) and includes any upgrades, modified versions, updates, additions, and copies of the SDK licensed to You by Descartes Biometrics. This copy of the SDK is licensed to You as the end user or to Your employer or another third party authorized to permit Your use of the SDK. You agree that this License Agreement is enforceable like any written negotiated agreement signed by you and that your use of the SDK constitutes acceptance of the Agreement terms. If you do not agree to the terms of this Agreement, do not use this SDK software.

In addition to the terms of this Agreement, User shall be bound by the terms and conditions of use for any other Descartes Biometrics product and/or service, including, but not limited to, any other Descartes Biometrics product and/or service used, included, relied on, and/or incorporated into the SDK. If there is any conflict between the terms of another agreement and this Agreement, then this Agreement shall control with respect to User’s use of the SDK, and the other agreement shall take precedence with respect to the subject matter of such other agreement.

1. DEFINITIONS.

1. In this License Agreement, SDK means Sample Code, Tools, API Information, documentation, including Documentation in on-line format, and related items.

2. This License Agreement does not govern use of any other Descartes Biometrics Products other than ERGO E3 Trial Version and HELIX. See the end user license agreements accompanying the Descartes Biometrics Products for governing terms.

3. Descartes Biometrics Products means Descartes Biometrics application programs, technologies and software such as Descartes Biometrics developed plug-ins which are or may be made available for licensing to the general public, including any modified versions or upgrades thereof. Only those items placed on your computer by executing the SDK installer and/or otherwise manually downloaded by You are part of this SDK.

4. Sample Code means software code that Descartes Biometrics has included for You to incorporate into Your application programs.

5. Tools refer to programs and Utilities that may be included for You to test or compile Your application programs.

6. Documentation means any related explanatory materials accompanying the SDK.

7. Trademark means any logo associated with Descartes Biometrics products.

8. Developer, You and Your refer to any person or entity acquiring or using the SDK under the terms of this License Agreement.

9. Mobile devices means a computing device designed for portable usage which contains an operating system and can run various types of application software, where the device’s primary function is not biometrics (i.e., a process by which a person’s unique physical and other traits are detected and recorded by an electronic device or system as a means of confirming identity). Mobile devices include devices known as smartphones and tablets; provided, however, that mobile device does not include laptop computers, desktop computers, or any devices with a hardware-based keyboard.

10. Field of use means the technical, marketing, sales and other commercial activity in the field of mobile devices anywhere in the world; provided, however, that the field of use does not include activity on behalf of the United States federal government, or any branch, agency, or other political subdivision of the United States federal government.

11. Trial Version means a version of the software that is provided to User for the sole and exclusive purpose of reviewing and/or evaluating the SDK.

2. TRIAL VERSION LICENSE. Subject to the terms and conditions of this Agreement, DESCARTES BIOMETRICS, INC. grants the User of this Trial Version a limited, worldwide, non-exclusive, revocable, non-transferable license in the field of use to access and use the Trial Version of the SDK solely to review and evaluate the Trial Version of the SDK for a limited time period to determine whether to purchase a license to a Commercial Version or Education Version of the software. The Trial Version shall not be used for a commercial purpose, and it is neither a Commercial Version nor an Education Version. A Trial Version of the SDK is not the same as the Commercial Version and, therefore, it may, among other things: (1) have limited features and functionality; (2) lack the ability for the User to create, modify, and/or save Work Product; and (3) cease operating after a predetermined amount of time.

(a) Under this License Agreement, You may use, modify or merge all or portions of the Sample Code with Your application programs and distribute it only as part of Your products in object code form. Any modified or merged portion of the Sample Code is subject to this License Agreement. You are required to include Descartes Biometrics’ copyright notices on Your application programs except for those programs in which You include a copyright notice reflecting the copyright ownership of Developer in such programs. You may not use Descartes Biometrics’ name, logo or trademarks to market Your products, except as provided in Section 3, below. You may not assign Your rights or obligations granted under this License Agreement without the prior written consent of Descartes Biometrics. Any attempted assignment or transfer without such prior written consent from Descartes Biometrics shall be void and of no effect.

(b) Subject to the permissions above, You may use the SDK solely for the purpose of internal development. You may not include any portion of the SDK in Your Developer products. You may not sell, sublicense, rent, loan or lease any portion of the SDK to any third party. You may not reverse engineer, decompile or disassemble any portion of the SDK. To the extent that local law grants You the right to decompile software in order to obtain information necessary to render the software interoperable with other software, You shall first request to Descartes Biometrics in writing to provide You with the necessary information. Descartes Biometrics has the right to impose reasonable conditions such as a reasonable fee for doing so. Requests for information should be directed to the Descartes Biometrics at the address provided in the SDK or such other address made available on descartesbiometrics.com from time to time.

You may make a limited number of copies of the SDK to be used by Your employees or consultants as provided herein, and not for general business purposes, and such employees or consultants shall be subject to the obligations and restrictions in this License Agreement.

3. TRADEMARK LICENSE.

(a) Trademark Grant. Descartes Biometrics grants to You a worldwide, non-exclusive, non-transferable, personal right to use the Descartes Biometrics logo, pursuant to the terms of this License Agreement.

(b) Trademark Usage. You may use the Trademark solely in conjunction with the performance of Your commitments under this License Agreement, described in Section 2. Use of the Trademark does not give You any right, title or interest in the Trademark, other than the license rights granted herein. You may not assign, transfer or sublicense any trademark right granted herein without the prior written consent of Descartes Biometrics. You agree not to use the Trademark in any way that will disparage Descartes Biometrics or its products, injure Descartes Biometrics’ reputation for high quality or otherwise diminish or damage Descartes Biometrics’ goodwill in the Trademark or infringe Descartes Biometrics’ intellectual property. You acknowledge the validity of the Trademark and Descartes Biometrics’ sole ownership of the Trademark, and that Descartes Biometrics retains all right, title and interest in and to the Trademark. You recognize the value of the goodwill associated with the Trademark, and acknowledges that such goodwill inures exclusively to the benefit of and belongs to Descartes Biometrics. You shall employ best efforts to use the Trademark in a manner that does not derogate from Descartes Biometrics’ rights in the Trademark and will take no action that will interfere with or diminish Descartes Biometrics’ rights in the Trademark. You agree not to adopt or use a trademark, service mark, or any other designation confusingly similar to the Trademark. Further, You agree to use the Trademark only in connection with products that: (a) meet or exceed all applicable U.S. and foreign labeling and packaging laws and regulations, (b) are advertised in compliance with all applicable U.S. and foreign fair advertising laws and regulations, (c) comply with all other applicable U.S. and foreign laws and regulations, (d) support Descartes Biometrics products if so indicated on packaging and/or advertising materials for Your products, (e) are of a quality and reputation consistent with the high quality of Descartes Biometrics products and services, and (f) are advertised in a manner consistent with industry standards. Upon reasonable request from Descartes Biometrics, You will notify Descartes Biometrics of the locations of your use of the Trademark and furnish Descartes Biometrics with suitable specimens of such use. If Descartes Biometrics so requests, You agree to submit to Descartes Biometrics any uses of the Trademark for Descartes Biometrics’ approval prior to the dissemination of these materials, such approval not to be unreasonably withheld. You agree to undertake such steps as Descartes Biometrics may reasonably request to assist in monitoring and maintaining the quality and form of use of the Trademark. If at any time Descartes Biometrics determines that You are not maintaining adequate quality standards, You shall be considered in breach of this License Agreement and subject to the termination provisions of Section 4. You must immediately remedy any material deficiencies in its use of the Trademark upon reasonable notice from Descartes Biometrics. If Descartes Biometrics provides You with a substitute Trademark, You shall bear all liability for continued use of the previous Trademark.

4. PROPRIETARY RIGHTS. The items contained in the SDK are the intellectual property of Descartes Biometrics and its suppliers and may be protected by United States copyright and patent law, international treaty provisions and applicable laws of the country in which it is being used. You agree to protect all copyright and other ownership interests of Descartes Biometrics and/or its suppliers in all items in the SDK supplied under this License Agreement. You agree that all copies of the items in the SDK, reproduced for any reason by You, contain the same copyright notices, and other proprietary notices as appropriate, as appear on or in the master items delivered by Descartes Biometrics in the SDK. Descartes Biometrics and/or its suppliers retain title and ownership of the items in the SDK, the media on which it is recorded, and all subsequent copies, regardless of the form or media in or on which the original and other copies may exist. Except as stated above, this License Agreement does not grant You any rights to patents, copyrights, trade secrets, trademarks or any other rights in respect to the items in the SDK.

5. TERM. This License Agreement is effective until terminated. Descartes Biometrics has the right to terminate this License Agreement immediately, without judicial intervention, if You fail to comply with any term herein. Upon any such termination You must remove all full and partial copies of the items in the SDK from your computer and discontinue the use of the items in the SDK.

6. CONSENT FOR COLLECTION AND USE OF TECHNICAL DATA. User agrees that Descartes Biometrics may periodically collect, process and/or store technical and related information about User, User’s Work Product, device, system, application, peripherals, and/or use of the SDK, including, but not limited to: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plug-ins and software development kits, the successful installation and launch of software, and software usage statistics (collectively, “Technical Data”). Descartes Biometrics will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing and/or online services, the provisioning of updates, and the development of Descartes Biometrics products and services. Descartes Biometrics may transfer Technical Data to other companies from time to time.

7. DISCLAIMER OF WARRANTY. Descartes Biometrics licenses the SDK to Developer only on an “AS-IS” basis. Descartes Biometrics makes no representation with respect to the adequacy of any items in the SDK, whether or not used by You in the development of any products, for any particular purpose or with respect to their adequacy to produce any particular result. Descartes Biometrics and its suppliers shall not be liable for loss or damage arising out of this License Agreement or from the distribution or use of Developers products containing portions of the SDK. DESCARTES BIOMETRICS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF ANY THIRD PARTY RIGHT IN RESPECT OF THE ITEMS IN THE SDK OR ANY SERVICES RELATED TO THE SDK.

Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, or the exclusion of implied warranties or limitations on how long an implied warranty may last, so the above limitations may not apply to You. You may have rights which vary from state to state or jurisdiction to jurisdiction. The foregoing does not affect or prejudice Your statutory rights.

Descartes Biometrics is under no obligation to provide any support under this License Agreement, including upgrades or future versions of the SDK or any portions thereof, to Developer, end user or to any other party.

8. LIMITATION OF LIABILITY. Notwithstanding any other provisions of this License Agreement, Descartes Biometrics’ liability to You under this License Agreement shall be limited to the amount paid by You for the SDK.

IN NO EVENT WILL DESCARTES BIOMETRICS OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, COSTS, FEES OR EXPENSES OF ANY KIND OR NATURE ARISING OUT OF ANY PROVISION OF THIS LICENSE AGREEMENT OR THE USE OR INABILITY TO USE THE ITEMS IN THE SDK, EVEN IF A DESCARTES BIOMETRICS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY PARTY. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so the above limitation or exclusion may not apply to You. Nothing contained in this Agreement shall prejudice the statutory rights of any party dealing as a consumer.

9. INDEMNIFICATION. Developer agrees to indemnify, hold harmless, and defend Descartes Biometrics from and against any claims or lawsuits, including attorneys’ fees, that arise or result from the use and distribution of Developer’s products that contains or is based upon any portion of the SDK, provided that Descartes Biometrics gives Developer prompt written notice of any such claim, tenders to Developer the defense or settlement of such a claim at Developer’s expense and cooperates with Developer, at Developer expense, in defending or settling such claim.

10. CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of Washington. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

11. U.S. GOVERNMENT REGULATIONS. You agree that any Developer product that includes Sample Code or Programming Language (i) will include in its license agreement a reference to applicable U.S. Government regulations that control licensing of software, and (ii) will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act. In addition, if any part of the Package is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.

12. NON-BLOCKING OF DESCARTES BIOMETRICS DEVELOPMENT. You acknowledge that Descartes Biometrics is currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to products that You may develop based on your license herein. Nothing in this Agreement shall impair, limit or curtail Descartes Biometrics’ right to continue with its development, maintenance and/or distribution of Descartes Biometrics’ technology or products. You agree that you shall not assert in any way any patent owned by You arising out of or in connection with this SDK or modifications made thereto against Descartes Biometrics, its subsidiaries or affiliates, or their customers, direct or indirect, agents and contractors (collectively, the “Descartes Biometrics Product Users”) for the manufacture, use, import, licensing, offer for sale or sale of any Descartes Biometrics products.

13. OPEN SOURCE SOFTWARE. Notwithstanding anything to the contrary, You are not licensed to (and You agree that You will not) integrate or use this SDK with any Viral Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the SDK in source code form, for the purpose of making derivative works. Any violation of the foregoing provision shall immediately terminate all of Your licenses and other rights to the SDK granted under this Agreement.

14. WAIVER. None of the provisions of this License Agreement shall be deemed to have been waived by any act or acquiescence on the part of Descartes Biometrics, its agents or employees, but only by an instrument in writing signed by an officer of Descartes Biometrics.

15.  INTEGRATION. When conflicting language exists between this License Agreement and any other agreement included in the SDK, this License Agreement shall supersede. If either Descartes Biometrics or Developer employs attorneys to enforce any rights arising out of or relating to this License Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees. You acknowledge that You have read this License Agreement, understand it and that it is the complete and exclusive statement of Your agreement with Descartes Biometrics which supersedes any prior agreement, oral or written, between Descartes Biometrics and You with respect to the licensing to You of the SDK. No variation of the terms of this License Agreement will be enforceable against Descartes Biometrics unless Descartes Biometrics gives its express consent, in writing signed by an officer of Descartes Biometrics. The English language version of this Agreement shall be the version used in the event any dispute arises hereunder. All translations of this Agreement are for convenience only and shall not be used by the parties or any court when interpreting or construing this Agreement.