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END USER LICENSE AGREEMENT FOR DIGITALPERSONA® SOFTWARE DEVELOPMENT KIT (SDK) PRODUCTS
IMPORTANT - READ CAREFULLY: This DIGITALPERSONA END USER LICENSE AGREEMENT (the 'EULA') is a legal agreement between you either as an individual or as an authorized representative of a business entity (hereafter referred to as 'You' and/or 'Your') and DigitalPersona, Inc. ('DigitalPersona'). DigitalPersona is willing to license to You the DigitalPersona software product accompanying this EULA, which may include, without limitation, fingerprint recognition software, fingerprint reader driver software, and any runtime binaries that are compiled for distribution (the 'Runtime Environment'), library files, header files, supplemental software, updates and upgrades, associated firmware, media, manuals, user guides and/or other documentation provided by DigitalPersona or made available for download, whether tangible or intangible (collectively, the 'Software Product'). By installing, downloading, copying, or otherwise using the Software Product, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not install, copy or use the Software Product; please return the original Software Product and all copies thereof (if any) to Your place of purchase to obtain a refund, or if the Software Product was downloaded, please remove and delete the original and all copies of the Software Product from the computer(s) on which it was installed.
License Grant
1.1 One Touch ID. Subject to the terms and conditions of this EULA, and subject to DigitalPersona's underlying Intellectual Property Rights (as defined below) in and to the Software Product: If You license One Touch ID, DigitalPersona grants to You a limited, non-transferable, and non-exclusive right to install and use the Software Product at Your premises; provided that Your intranet or other storage device is secured in such a manner as to prohibit access of the Software Product by unauthorized users, with the One Touch ID SDK, You may copy the Software Product to the hard disk of one (1) computer system only, or use the Software Product on Your network, provided that the number of developers in Your organization having access to or using the Software Product will not exceed one (1) or the number of valid licenses acquired by You which are still in force; and You may use, copy and redistribute to Your end users, in object code form, the files contained in the 'Redist' folder and incorporate these files into or redistribute these files with the Licensee Application;
1.2 U.are.U SDK for Windows, U.are.U SDK for Linux, or U.are.U SDK for Windows CE. If you license the U.are.U SDK for Windows, U.are.U SDK for Linux, or U.are.U SDK for Windows CE, DigitalPersona grants to You a limited, non-transferable, and non-exclusive right to install and use the Software Product at Your premises under the terms and conditions of this EULA. Provided that Your intranet or other storage device is secured in such a manner as to prohibit access of the Software Product by unauthorized users, You may copy the Software Product to the hard disk of a computer system, or use the Software Product on Your network.
1.3 One Touch ID, U.are.U SDK for Windows, U.are.U SDK for Linux, or U.are.U SDK for Windows CE. Subject to the terms and conditions of this EULA, and subject to DigitalPersona's underlying Intellectual Property Rights (as defined below) in and to the Software Product:
(a) You may use the Software Product to design, develop, and test a software application product (the 'Licensee Application'), for use with the corresponding DigitalPersona Workstation Software (defined below) and the DigitalPersona fingerprint reader or module, or such other hardware/software package approved by DigitalPersona for use with the DigitalPersona SDK products. For purposes of this EULA a Licensee Application specifically excludes any type of software development tool designed, developed, licensed and/or distributed by You. You represent that each and every biometric fingerprint reader, fingerprint recognition algorithm and other software required by the Licensee Application for fingerprint recognition will be acquired from DigitalPersona or its authorized distributors. For purposes of this EULA, the DigitalPersona Workstation Software means the DigitalPersona software that is installed and used on a computer, terminal or other digital electronic device (each a 'Workstation') and that provides fingerprint authentication functionality.
(b) You may (i) modify the sample source code located in the Software Product's 'Samples' folder (the 'Sample Code') and create derivatives thereof (the 'Sample Derivatives'), and (ii) reproduce and distribute the Sample Derivatives in object code form only, and only as incorporated into the Licensee Application.
(c) You may reproduce and distribute the Runtime Environment in object code form only as incorporated into the Licensee Application; provided, however, that You reproduce and include the copyright notice that appears in the Sample Code and Runtime Environment as provided by Digital Persona and that You distribute the Licensee Application incorporating the Sample Derivatives and/or Runtime Environment pursuant to terms no less restrictive than those set forth in this Agreement.
1.4 Special Requirements for the SDK for Linux. If You license the SDK for Linux, You acknowledge that the use of the SDK for Linux requires the use of certain third party software listed in the accompanying documentation. Unless otherwise specifically agreed by DigitalPersona in writing signed by an officer of DigitalPersona, You shall be solely responsible with respect to obtaining the necessary licenses and consents and bearing the costs to license all such third party software.
License Restrictions. You acknowledge and represent that the Licensee Application shall not be used, under any circumstances, with fingerprint recognition hardware and software other than a DigitalPersona product. Except as otherwise permitted herein, You: (i) may not, or cause or permit a third party to reproduce, distribute, redistribute, sublicense, loan, rent or lease, all or any portion of the Software Product, including but not limited to, the bundling of the Software Product or portions thereof with any fingerprint recognition product not authorized by DigitalPersona; (ii) except as otherwise provided herein, shall not reverse engineer, decompile, disassemble, or attempt to access or discover the underlying source code of the Software Product or portions thereof; (iii) may not utilize the Software Product to create or develop (or cause or permit third parties to create or develop), any products which compete with DigitalPersona products; (iv) may not link the Software Product to any third party code that is licensed under any version of the GNU General Public License, the Affero General Public License or the GNU Lesser General Public License in such a manner as to require the Software Product to be distributed under any version of the GNU General Public License, Affero General Public License or the GNU Lesser General Public License, or develop any Licensee Application that is required to be distributed under the terms of any version of the GNU General Public License or Affero General Public License; (v) are prohibited by U.S. export regulations from using any DigitalPersona products to develop cryptographic or encryption capabilities or using any DigitalPersona products to develop items controlled for encryption capability or controlled for national security reasons. You shall promptly notify DigitalPersona if any of the foregoing restrictions have been breached and You shall defend, indemnify and hold harmless DigitalPersona from and against any and all costs, expenses, damages and claims arising out of such violation.
Ownership of the Software Product. The Software Product (including any updates, upgrades, modifications and revisions) is protected by intellectual property and copyright laws and treaties worldwide, and may contain trade secrets of DigitalPersona or its suppliers, who have and maintain exclusive right, title and interest in and to the Software Product and the Sample Derivatives, and reserve and retain all rights not expressly granted to You under this EULA. You agree not to remove or obscure any copyright, trademark or patent notices that appear on any of the Software Product as delivered to you. Subject to DigitalPersona's underlying rights in and to the Software Product and portions thereof, You shall own all Intellectual Property Rights (as defined below) in and to the Licensee Application.
Covenant to Facilitate Development. You acknowledge and agree not to enforce or assert any intellectual property rights (including, without limitation, all rights now held or hereafter created or acquired, whether arising under the laws of the United States or any other country, for any patents, copyrights or trade secrets (collectively, the 'Intellectual Property Rights')), in any Licensee Application or derivatives thereof in a manner which in any way limits the development, use and distribution by DigitalPersona or its licensees of the Software Product.
Support. DigitalPersona may offer support services related to the Software Product ('Support Services'). Receipt of Support Services is contingent upon Your agreement to then-current DigitalPersona support terms and conditions available at www.digitalpersona.com/support. Any supplemental Software Product code provided to You as a part of Support Services shall be deemed part of the Software Product and subject to the terms of this EULA. With respect to any technical information You provide while using Support Services, DigitalPersona may use such information for its business purposes, including without limitation, general product support and development. DigitalPersona will not use such technical information in a form or manner that personally identifies You.
Limited Warranty; Disclaimer of Warranties. If DigitalPersona provided the Software Product to You on tangible media, DigitalPersona represents that such media in the form originally received by You and under normal use, will be free from defects in material and workmanship, for a period of ninety (90) days from the ship date of original Software Product You acquired as shown on Your receipt or similar proof of payment (the 'Warranty Period'). EXCEPT FOR THE LIMITED WARRANTIES ABOVE, DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIM ALL WARRANTIES OF EVERY TYPE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, SUPPORT SERVICES, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH REGARDS TO THE SOFTWARE PRODUCT. IF SUCH DISCLAIMER OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF SAID IMPLIED WARRANTIES IS LIMITED TO NINETY (90) DAYS FROM THE DATE OF PURCHASE.
If an upgrade or update to the Software Product is delivered with a new warranty period, then the terms of such new warranty period will apply only to the upgraded Software Product, and not the original Software Product. Any replacement Software Product will be warranted for the remainder of the original Software Warranty Period or thirty (30) days, whichever is longer.
DigitalPersona's sole obligation and Your exclusive remedy under the limited warranties above shall be, at DigitalPersona's option, either a refund of the price paid (if any), or replacement of the Software Product that does not meet the DigitalPersona limited warranties, and that is returned to DigitalPersona with a copy of Your receipt or other such acceptable proof of purchase.
Hazardous Use. The Software Product, DigitalPersona fingerprint reader or module, or DigitalPersona Workstation Software are not designed, made, or intended for use in an application, or in development of Licensee Application, where failure, malfunction or inaccuracy of any of such products may cause death or serious bodily injury, including, without limitation, use in medical equipment, nuclear facilities, aircraft operation, air traffic control, or life support. Any such use is prohibited. Customer agrees that neither DigitalPersona nor its suppliers, distributors or resellers will be liable, in whole or in part, for any claims, losses, costs or damages arising out of or in connection with the use and performance of the Software Product in such applications.
Indemnification. You shall defend, indemnify and hold harmless DigitalPersona against any claims, actions, losses, damages, costs and expenses (including attorney fees) arising out of and/or action brought against DigitalPersona as a result of: (i) a claim based upon an actual or alleged infringement of an intellectual property right of a third party arising from or related to the Licensee Application; (ii) any modification and/or enhancement to the Sample Code made by or for You; (iii) any distribution of all or a portion of the Software Product in breach of the limited license granted to You hereunder; and (iv) Your breach of the restrictions set forth in Section 2 and Section 7; provided that DigitalPersona reasonably cooperates with You (at Your expense) in the defense or settlement of such action or claim. You shall have control of the defense and all settlement negotiations, provided that You may not enter into a settlement providing for any restriction on DigitalPersona or the DigitalPersona technology without DigitalPersona's prior written consent, and provided further that DigitalPersona shall have the right to be represented by its own attorney at DigitalPersona's expense.
LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGITALPERSONA AND ITS EMPLOYEES, CONTRACTORS, SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER IN TORT, PRODUCT LIABILITY AND/OR NEGLIGENCE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, PRIVACY OR CONFIDENTIALITY, BREACH OF SECURITY SYSTEMS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING IN ANY WAY TO, THE USE OF, OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF DIGITALPERSONA AND ITS EMPLOYEES, CONTRACTORS, SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBLILITY OF SUCH DAMAGES OR LOSSES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE SOFTWARE PRODUCT IS SUPPLIED 'AS IS', AND THE ENTIRE RISK OF ACCURACY AND SATISFACTORY PERFORMANCE IS WITH YOU. DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS DO NOT GUARANTEE THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR ALL REQUIREMENTS OF THE SOFTWARE OR HARDWARE WITH WHICH THEY INTERACT. IN ANY CASE, DIGITALPERSONA'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THIS SOFTWARE PRODUCT OR US$100.00, WHICHEVER IS GREATER.
Termination of License. You may terminate this EULA at any time, upon written notice thereof to DigitalPersona. THIS EULA WILL TERMINATE AUTOMATICALLY IF YOU BREACH ANY LICENSE RESTRICTIONS, EXPORT RESTRICTIONS, OR MATERIAL PROVISION OF THIS EULA. Upon termination, all rights to use the Software Product will cease and You shall (i) promptly destroy the original and all copies of the Software Product in Your possession or under its control, and certify in writing to DigitalPersona of such destruction, and (ii) cease distribution of the Sample Derivatives and/or Runtime Environment as incorporated in the Licensee Application.
GENERAL TERMS
11.1 No Third Party Beneficiaries. No provision of this EULA is intended, nor will it be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in third parties. All provisions hereof will be personal solely between You and DigitalPersona.
11.2 Governing Law and Exclusive Forum. This EULA shall be governed by and construed and enforced in accordance with the laws of the State of California, United States of America, excluding its choice of law provisions. With the exception of DigitalPersona's right to enforce its intellectual property rights under this EULA, all disputes arising out of this EULA shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California San Mateo County and the Federal District Court of the Northern District of California, United States of America, and the parties consent to the personal and exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.
11.3 Export Restrictions; Anti-Bribery. You acknowledge and agree that the Software Product and the Licensee Application are subject to United States export restrictions, and that You will strictly comply with all applicable United States and international laws relating to the importing and/or exporting of licensed software, and You will not, directly or indirectly, export or re-export the Software Product, the Licensee Application and related technical data in violation of the Export Administration Regulations of the U.S. Department of Commerce and other applicable laws, including, but not limited to, the prohibition to export: (a) to embargoed destinations or to any person or entity listed as a denied party or other restriction by the U.S. Department of Commerce; or (b) to any persons or entity supporting or engaged in prohibited proliferation activities (e.g. weapons of mass destruction, nuclear, chemical or biological weapons, missiles, sanctioned for transfer of lethal military equipment, etc.). Current regulations, embargoed destinations, and other prohibition lists are available on the United States Department of Commerce Bureau of Industry and Security website at http://www.bis.doc.gov. For more information on export restrictions for DigitalPersona products, please contact DigitalPersona Legal Department at legaldepartment@crossmatch.com.
You hereby represent and warrant that You shall not:
(a) act in any fashion or take any action or permit or authorize any action which will render DigitalPersona liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or DigitalPersona in obtaining or retaining business;
(b) act in any fashion or take any action or permit or authorize any action which will render DigitalPersona liable for a violation of the 'U.K. Bribery Act of 2010,' which prohibits: (i) the offering, giving or promising to offer or give, directly or indirectly, money or anything of value or other advantage to another person with the intent to induce a person to perform improperly a relevant function or activity; or reward a person for the improper performance of a relevant function or activity; (ii) requesting, agreeing to accept or accepting money or anything of value or other advantage in return for the improper performance of a relevant function or activity; or (iii) the influencing of a foreign public official by the offering, giving or promising to offer or give, directly or indirectly, money or anything of value or other advantage to a foreign public official or to another person at a foreign public official's request, assent or acquiescence in order to obtain or retain business or an advantage in the conduct of business. The 'U.K. Bribery Act of 2010' applies both to bribery in the private and public sector, directly or indirectly (i.e. through a third party), improper facilitation payments, and to relevant functions or activities performed outside the U.K.; or
(c) violate or cause DigitalPersona to violate such Acts in connection with the sale or distribution of products and/or services; and if You are a non-governmental entity, You will notify DigitalPersona in writing if any of its owners, partners, principals, and officers are or become during the term of this Agreement officials, officers or representatives of any government or political party or candidate for political office outside the United States and are responsible for a decision regarding obtaining or retaining business for products by such government.
11.4 Government Rights. You acknowledge and agree that the Software Product and all related materials thereto licensed under this EULA are 'Commercial Computer Software' and 'Commercial Computer Software Documentation' as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies and their successors, and in the event You are permitted under this EULA to provide the Software Product, or a portion thereof, to the U.S. Government, such Software Product shall be provided under the terms of this EULA, or terms at least as restrictive as the terms of this EULA. If You are permitted under this EULA to provide the Software Product, or a portion thereof, to a non-U.S. government entity, You shall take all necessary steps to ensure that DigitalPersona's intellectual property and proprietary rights in and to the Software Product receive the maximum protection available from such non-U.S. government for commercial computer software and documentation.
11.5 Severability. If any provision of this EULA is declared unenforceable, illegal or invalid by a competent tribunal under applicable law, then such provision shall be deemed automatically adjusted to conform to the requirements for validity and enforceability, and so adjusted, shall be deemed a provision of this EULA as though originally included herein. In the event that the abovementioned provision is of such a nature that it cannot be so adjusted, such provision shall be deleted from the EULA, and the remaining provisions of the EULA shall remain in full force and effect. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS EULA WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.
11.6 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, franchise or other form of joint enterprise between the parties.
11.7 No Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
11.8 Notices. All notices or demands hereunder shall be sent to the attention of the other party's Legal Department and will be deemed delivered upon acknowledgment of receipt by the other party.
11.9 Language. This EULA is prepared and entered into in the English language only, which language shall be controlling in all respects. Any translations of this EULA into any other language are for reference only and shall have no legal or other effect.
11.10 Entire Agreement. This EULA contains and constitutes the sole, complete and entire agreement and understanding between You and DigitalPersona concerning the matters contained herein and may not be altered, modified or changed in any manner except with DigitalPersona's prior written consent. No statements, promises or representations have been made by one party to the other, and the parties are not relying on any representations other than those expressly set forth herein.
SDK EULA_Elec_120828
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END USER LICENSE AGREEMENT FOR DIGITALPERSONA® SOFTWARE DEVELOPER KIT (SDK) PRODUCTS
SECURE EIKON® SDK
SECURE TOUCHCHIP® MODULE SDK
IMPORTANT – READ CAREFULLY
YOU MAY NOT INSTALL OR USE THIS DIGITALPERSONA SOFTWARE PRODUCT UNLESS YOU HAVE CAREFULLY READ THE TERMS AND CONDITIONS SET FORTH BELOW AND INDICATE YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS BY CHECKING THE “I HAVE READ AND AGREE” BUTTON.
BY INSTALLING, DOWNLOADING, COPYING, OR OTHERWISE USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
THIS SOFTWARE PRODUCT IS SUBJECT TO FIELD OF USE RESTRICTIONS. SEE APPENDIX A FOR DETAILS OF THE FIELD OF USE RESTRICTIONS. If Your application, or product You intend to develop with the Software Product, or product You intend to distribute with any part of the Software Product, does not comply with the Field of Use Restrictions set forth in Appendix A, DO NOT PURCHASE, INSTALL, COPY OR USE THE SOFTWARE PRODUCT.
This DIGITALPERSONA END USER LICENSE AGREEMENT (the “EULA”) is a legal agreement between You either as an individual or as an authorized representative of a business entity (hereafter referred to as “You” and/or “Your”) and DigitalPersona, Inc. (“Licensor”). Licensor is willing to license to You the DigitalPersona software product accompanying this EULA, which may include, without limitation, fingerprint recognition software, fingerprint reader driver software, runtime binaries (including but not limited to plug-ins) that are compiled for distribution, library files, header files, supplemental software, associated media, printed materials and electronic documentation (“Software Product”), except as otherwise set forth in a written agreement signed by a duly authorized officer of Licensor. Software Product may also include any updates and upgrades, associated firmware, add-on components, media, manuals, user guides, stencils, templates, shapes, symbols, web services and/or supplements that Licensor may provide to You or make available to You, or that
You obtain from the use of features or functionality of the Software Product, after the date You obtain Your initial copy of the Software Product (whether by delivery of a CD, permitted downloading from the Internet or a dedicated web site, or otherwise), to the extent that such items are not accompanied by a separate license agreement or terms of use.
LICENSE GRANT – SECURE EIKON SDK and SECURE TOUCHCHIP MODULE SDK
1.1 Subject to the terms and conditions of this EULA and Your payment of all applicable fees for the Software Product, Licensor and its suppliers hereby grant to You, and You hereby accept a nonexclusive license to install and use Software Product at Your premises.
Provided that Your intranet or other storage device is secured in such manner as to prohibit access of the Software Product by unauthorized users, You may copy the Software Product to the hard disk of a computer system, or use the Software Product on Your network.
1.2 You may use the Software Product to design, evaluate, develop, and test a software application product (the “Developer Application'), for use with the corresponding Licensor fingerprint reader or module on a Workstation (defined below), or such other hardware/software package approved by Licensor for use with the Software Product. A Developer Application specifically excludes any type of software development tool designed, developed, licensed and/or distributed by You without prior written consent by Licensor. For purposes of this EULA, a Workstation means a computer, terminal or other digital electronic device that provides fingerprint authentication functionality.
1.3 You represent that each and every biometric fingerprint reader required by the Developer Application for fingerprint recognition enabled by the Software Product will be a Licensor product acquired from Licensor or its authorized distributors.
ADDITIONAL LICENSE RIGHTS - REDISTRIBUTABLE CODE. In addition to the rights granted in Section 1, certain portions of the Software Product are redistributable by You as part of Your copyrighted Developer Application. These additional license rights are conditioned upon Your compliance with the distribution requirements and license restrictions described in Section 3.
2.1 Sample Code. You may (i) use and modify the source code located in the Software Product’s 'Samples' folder and “SimpleCommLib” folder (together, the 'Sample Code') and create derivatives thereof (the “Sample Derivatives”) for the sole purposes of designing, developing, testing and distributing Developer Application, and (ii) reproduce and distribute the Sample Derivatives in object code form only, and only as incorporated into the Developer Application. For applicable redistribution requirements for Sample Derivatives, see Section 3.1 below.
2.2 Redistributable Code. Licensor grants You a nonexclusive right to reproduce and distribute the object code of any portion of the Software Product listed in the following folders (“Redistributable Code”) within the applicable Software Product:
For Secure EIKON SDK: BSAPIbin BSAPIclients BSAPIdriver BSAPIbclibBin
For Secure TouchChip Module SDK: bin driver BCLibbin
For applicable redistribution requirements for Redistributable Code, see Section 3.1, below.
LICENSE RESTRICTIONS
3.1 DISTRIBUTION REQUIREMENTS AND RESTRICTIONS. If You choose to exercise Your rights under Section 2, any redistribution by You requires compliance with the following terms.
a. If You are authorized and choose to redistribute Sample Derivatives and/or Redistributable Code (together “Redistributable Object Codes”), as described in Section 2, You agree: (i) to distribute the Redistributable Object Codes only in object code form and in conjunction with and as a part of the Developer Application that adds significant and primary functionality to the Redistributable Object Codes; and (ii) to reproduce and include the copyright notice that appears in the Sample Code and Redistributable Code as provided by Licensor, and that You distribute the Developer Application incorporating the Redistributable Object Codes pursuant to terms no less restrictive than those set forth in this Agreement.
b. You also agree not to permit further distribution of the Redistributable Object Codes by Your end users except You may permit further redistribution of the Redistributable Object Codes by Your distributors to Your end-user customers if Your distributors only distribute the Redistributable Object Codes in conjunction with, and as part of, the Developer Application and You and Your distributors comply with all other terms of this EULA.
3.2. RESERVATION OF RIGHTS; GENERAL RESTRICTIONS. All rights not expressly granted by Licensor in this EULA are reserved.
Except as otherwise expressly provided under this EULA, You shall not, and shall not allow any third party to:
a. transfer, assign, sublicense, resell, re-license or provide, lease, lend or allow access to the Software Product to any other person or entity, except as otherwise provided herein;
b. make error corrections or create derivative works based upon the Software Product;
c. copy (except to make a single back-up copy to replace an unusable copy of the Software Product), modify, prepare derivative works based upon, decompile, decrypt, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software Product by any means whatsoever (except to the extent applicable laws specifically prohibit such restriction), disassemble or otherwise reduce the Software Product to human-readable form to gain access to trade secrets or confidential information in the Software Product;
d. use the Software Product for timesharing, hosting or service bureau purposes;
e. remove, obscure, or alter Licensor's (or its third party licensors') copyright notices, trademarks, or other proprietary rights notices affixed to or contained within the Software Product (and any copies thereof, including the back-up copy) or use such notices, trademarks or service marks for any other purpose;
f. use the Software Product to develop and distribute any Licensor product in violation of the Use Restrictions set forth in Appendix A, Field of Use;
g. provide or resell any portion of the Software Product or Licensor products to Licensor’s competitors without prior written consent of Licensor;
h. use the Software Product to enable or interface with any fingerprint recognition hardware other than a Licensor product;
i. reproduce, distribute, redistribute, sublicense, loan, rent or lease, all or any portion of the Software Product, including but not limited to, the bundling of the Software Product or portions thereof with any fingerprint recognition product not authorized by Licensor;
j. utilize the Software Product to create or develop (or cause or permit third parties to create or develop), any products which compete with Licensor products; or
k. link the Software Product to any third party code that is licensed under any version of the GNU General Public License, the Affero General Public License or the GNU Lesser General Public License in such a manner as to require the Software Product to be distributed under any version of the GNU General Public License, Affero General Public License or the GNU Lesser General Public License, or develop any Developer Application that is required to be distributed under the terms of any version of the GNU General Public License or Affero General Public License.
You are prohibited by U.S. export regulations from using any Licensor products to develop cryptographic or encryption capabilities or using any Licensor products to develop items controlled for encryption capability or controlled for national security reasons. You shall promptly notify Licensor if any of the foregoing restrictions have been breached and You shall defend, indemnify and hold harmless Licensor from and against any and all costs, expenses, damages and claims arising out of such violation.
3.3 THIRD PARTY SOFTWARE. You acknowledge that the use of Software Product may require the use of certain third party software listed in the accompanying documentation. Unless otherwise specifically agreed by Licensor in writing signed by an officer of Licensor, You shall be solely responsible with respect to obtaining the necessary licenses and consents and bearing the costs to license all such third party software.
OWNERSHIP OF THE SOFTWARE PRODUCT. The Software Product is licensed to You and not sold. The Software Product is protected by intellectual property and copyright laws and treaties worldwide, and may contain trade secrets of Licensor or its suppliers, who have and maintain exclusive right, title and interest in and to the Software Product and the Sample Derivatives, and reserve and retain all rights not expressly granted to You under this EULA. Subject to Licensor’s underlying rights in and to the Software Product and portions thereof, You shall own all Intellectual Property Rights (as defined below) in and to the Developer Application.
COVENANT TO FACILITATE DEVELOPMENT. You acknowledge and agree not to enforce or assert any intellectual property rights (including, without limitation, all rights now held or hereafter created or acquired, whether arising under the laws of the United States or any other country, for any patents, copyrights or trade secrets (collectively, the “Intellectual Property Rights”)), in any Developer Application or derivatives thereof in a manner which in any way limits the development, use and distribution by Licensor or its licensees of the Software Product.
PROPRIETARY NOTICES; TRADEMARKS. You agree to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software Product in the same form and manner that such copyright and other proprietary notices are included on the Software Product, including on any back-up copy of the Software Product. This EULA does not grant You any rights in connection with any trademarks or service marks of Licensor.
SUPPORT SERVICES. Licensor may offer You with support services related to the Software Product ('Support Services') subject to Your payment of applicable fees, if any. Use and provision of Support Services, if any, is governed by a separate written agreement, Licensor policies and terms described in other Licensor-provided materials. Any supplemental software code provided to You as part of the Support Services is considered part of the Software Product and subject to the terms and conditions of this EULA.
CONFIDENTIALITY
8.1 Confidential Information Definition. The term “Confidential Information” shall mean all nonpublic information, whether in intangible or tangible form that Licensor designates as being confidential or which, under the circumstances surrounding disclosure, You know or have reason to know should be treated as confidential, including without limitation, the terms and conditions of this Agreement. For purposes of this Agreement, Confidential Information includes, but is not limited to, the source code of the Software Product and any related documentation, guides, schematics, specifications or any other technical information relating to the Licensor products.
8.2 Obligation of Confidentiality. All Licensor products offered for sale, evaluation or provided as samples to You contain important and valuable intellectual property/confidential information of Licensor. You agree not to disclose to any third party any Confidential Information received from Licensor with respect to the Software Product. You shall protect the Confidential Information as the You would protect Your own Confidential Information, but in no event with less than reasonable care.
LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. If Licensor provided the Software Product to You on tangible media, Licensor represents that such media in the form originally received by You and under normal use, will be free from defects in material and workmanship, for a period of ninety (90) days from the ship date of original Software Product You acquired as shown on Your receipt or similar proof of payment (the “Warranty Period”). EXCEPT FOR THE LIMITED WARRANTIES ABOVE, Licensor AND ITS DISTRIBUTORS OR RESELLERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIM ALL WARRANTIES OF EVERY TYPE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, SUPPORT SERVICES, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH REGARDS TO THE SOFTWARE PRODUCT. IF SUCH DISCLAIMER OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF SAID IMPLIED WARRANTIES IS LIMITED TO NINETY (90) DAYS FROM THE DATE OF PURCHASE. Licensor DOES NOT WARRANT THAT THE SOFTWARE PRODUCT IS ERROR FREE OR THAT YOU WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS.
If an upgrade or update to the Software Product is delivered with a new warranty period, then the terms of such new warranty period will apply only to the upgraded Software Product, and not the original Software Product. Any replacement Software Product will be warranted for the remainder of the original Software Warranty Period or thirty (30) days, whichever is longer.
Licensor's sole obligation and Your exclusive remedy under the limited warranties above shall be, at Licensor's option, either a refund of the price paid (if any), or replacement of the Software Product that does not meet the Licensor limited warranties, and that is returned to Licensor with a copy of Your receipt or other such acceptable proof of purchase.
HAZARDOUS USE. The Software Product, Licensor fingerprint reader or module, or any Licensor product are not designed, made, or intended for use in an application, or in development of Developer Application, where failure, malfunction or inaccuracy of any of such products may cause death or serious bodily injury, including, without limitation, use in medical equipment, integrated weapon systems, nuclear facilities, aircraft operation, air traffic control, or life support. Any such use is prohibited. Customer agrees that neither
Licensor nor its suppliers, distributors or resellers will be liable, in whole or in part, for any claims, losses, costs or damages arising out of or in connection with the use and performance of the Software Product in such applications.
INDEMNIFICATION. You shall defend, indemnify and hold harmless Licensor against any claims, actions, losses, damages, costs and expenses (including attorney fees) arising out of and/or action brought against Licensor as a result of: (i) a claim based upon an actual or alleged infringement of an intellectual property right of a third party arising from or related to the Developer Application; (ii) any modification and/or enhancement to the Sample Code made by or for You; (iii) any distribution of all or a portion of the Software Product in breach of the limited license granted to You hereunder; (iv) the use or distribution of the Developer Application; and (v) Your breach of the restrictions set forth in Section 3, Section 4 and Section 10; provided that Licensor reasonably cooperates with You (at Your expense) in the defense or settlement of such action or claim. You shall have control of the defense and all settlement negotiations, provided that You may not enter into a settlement providing for any restriction on Licensor or the Licensor technology without Licensor’s prior written consent, and provided further that Licensor shall have the right to be represented by its own attorney at Licensor’s expense.
LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR AND ITS EMPLOYEES, CONTRACTORS, SUPPLIERS, ITS LICENSORS, DISTRIBUTORS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER IN TORT, PRODUCT LIABILITY AND/OR NEGLIGENCE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, PRIVACY OR CONFIDENTIALITY, BREACH OF SECURITY SYSTEMS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING IN ANY WAY TO, THE USE OF, OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF LICENSOR AND ITS EMPLOYEES, CONTRACTORS, SUPPLIERS, LICENSORS, DISTRIBUTORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBLILITY OF SUCH DAMAGES OR LOSSES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE SOFTWARE PRODUCT IS SUPPLIED 'AS IS', AND THE ENTIRE RISK OF ACCURACY AND SATISFACTORY PERFORMANCE IS WITH YOU. LICENSOR AND ITS DISTRIBUTORS OR RESELLERS DO NOT GUARANTEE THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR ALL REQUIREMENTS OF THE SOFTWARE OR HARDWARE WITH WHICH THEY INTERACT. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THIS SOFTWARE PRODUCT OR US$100.00, WHICHEVER IS GREATER.
TERM AND TERMINATION OF LICENSE. The term of this EULA shall commence upon the date You accept the terms and conditions of this EULA, and shall continue in full force and effect thereafter until terminated as set forth herein. Either party may terminate this EULA at any time, upon written notice thereof to the other party. THIS EULA WILL TERMINATE AUTOMATICALLY IF YOU BREACH ANY LICENSE RESTRICTIONS, EXPORT RESTRICTIONS, OR MATERIAL PROVISION OF THIS EULA. Upon termination, all rights to use the Software Product will cease and You shall (i) promptly destroy the original and all copies of the Software Product in Your possession or under its control, and certify in writing to Licensor of such destruction, and (ii) cease distribution of the Redistributable Object Code. Sections 3.2, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14 and Appendix A shall survive the termination of this EULA.
GENERAL TERMS
14.1 NO THIRD PARTY BENEFICIARIES. No provision of this EULA is intended, nor will it be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in third parties. All provisions hereof will be personal solely between You and Licensor.
14.2 GOVERNING LAW. This EULA shall be governed by and construed and enforced in accordance with the laws of the State of California, United States of America, excluding its choice of law provisions. With the exception of Licensor’s right to enforce its intellectual property rights under this EULA, all disputes arising out of this EULA shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California San Mateo County and the Federal District Court of the Northern District of California, United States of America, and the parties consent to the personal and exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.
14.3 COMPLIANCE WITH LAWS; EXPORT RESTRICTIONS; ANTI-BRIBERY. You will comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies in Your use of the Software Product and in the development and distribution of the Developer Application that use or access any Software Products. Without limiting the foregoing, You acknowledge and agree that the Software Product and the Developer Application are subject to United States export restrictions, and that You will strictly comply with all applicable United States and international laws relating to the importing and/or exporting of licensed software, and You will not, directly or indirectly, export or re-export the Software Product, the Developer Application and related technical data in violation of the Export Administration Regulations of the U.S. Department of Commerce and other applicable laws, including, but not limited to, the prohibition to export: (a) to embargoed destinations or to any person or entity listed as a denied party or other restriction by the U.S. Department of Commerce; or (b) to any persons or entity supporting or engaged in prohibited proliferation activities (e.g. weapons of mass destruction, nuclear, chemical or biological weapons, missiles, sanctioned for transfer of lethal military equipment, etc.). Current regulations, embargoed destinations, and other prohibition lists are available on the United States Department of Commerce Bureau of Industry and Security website at http://www.bis.doc.gov. For more information on export restrictions for Licensor products, please contact Licensor Legal Department at DPLegal@Licensor.com.
You hereby represent and warrant that You shall not: (a) act in any fashion or take any action or permit or authorize any action which will render Licensor liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or Licensor in obtaining or retaining business; (b) act in any fashion or take any action or permit or authorize any action which will render Licensor liable for a violation of the “U.K. Bribery Act of 2010,” which prohibits: (i) the offering, giving or promising to offer or give, directly or indirectly, money or anything of value or other advantage to another person with the intent to induce a person to perform improperly a relevant function or activity; or reward a person for the improper performance of a relevant function or activity; (ii) requesting, agreeing to accept or accepting money or anything of value or other advantage in return for the improper performance of a relevant function or activity; or (iii) the influencing of a foreign public official by the offering, giving or promising to offer or give, directly or indirectly, money or anything of value or other advantage to a foreign public official or to another person at a foreign public official’s request, assent or acquiescence in order to obtain or retain business or an advantage in the conduct of business. The “U.K. Bribery Act of 2010” applies both to bribery in the private and public sector, directly or indirectly (i.e. through a third party), improper facilitation payments, and to relevant functions or activities performed outside the U.K.; or (c) violate or cause Licensor to violate such Acts in connection with the sale or distribution of products and/or services; and if You are a non-governmental entity, You will notify Licensor in writing if any of its owners, partners, principals, and officers are or become during the term of this Agreement officials, officers or representatives of any government or political party or candidate for political office outside the United States and are responsible for a decision regarding obtaining or retaining business for products by such government.
14.4 GOVERNMENT RIGHTS. You acknowledge and agree that the Software Product and all related materials thereto licensed under this EULA are “Commercial Computer Software” and “Commercial Computer Software Documentation” as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies and their successors, and in the event You are permitted under this EULA to provide the Software Product, or a portion thereof, to the U.S. Government, such Software Product shall be provided under the terms of this EULA, or terms at least as restrictive as the terms of this EULA. If You are permitted under this EULA to provide the Software Product, or a portion thereof, to a non-U.S. government entity, You shall take all necessary steps to ensure that Licensor’s intellectual property and proprietary rights in and to the Software Product receive the maximum protection available from such non-U.S. government for commercial computer software and documentation.
14.5 SEVERABILITY. If any provision of this EULA is declared unenforceable, illegal or invalid by a competent tribunal under applicable law, then such provision shall be deemed automatically adjusted to conform to the requirements for validity and enforceability, and so adjusted, shall be deemed a provision of this EULA as though originally included herein. In the event that the abovementioned provision is of such a nature that it cannot be so adjusted, such provision shall be deleted from the EULA, and the remaining provisions of the EULA shall remain in full force and effect. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS EULA WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.
14.6 NO AGENCY. Nothing contained herein shall be construed as creating any agency, partnership, franchise or other form of joint enterprise between the parties.
14.7 NO WAIVER. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
14.8 NOTICES. All notices or reports permitted or required under this Agreement to Licensor shall be in writing and shall be by personal delivery, facsimile transmission, by certified or registered mail, return receipt requested, or by internationally recognized courier (e.g. FedEx), and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail (or ten (10) calendar days for non-USA locations), or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to Licensor, Inc. 720 Bay Rd, Redwood City, CA 94063 USA Attn: Legal Dept.
14.9 LANGUAGE. This EULA is prepared and entered into in the English language only, which language shall be controlling in all respects.
Any translations of this EULA into any other language are for reference only and shall have no legal or other effect.
14.10 INJUNCTIVE RELIEF. You agree that a breach of this EULA adversely affecting Licensor's proprietary rights in the Software Product may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
14.11 ENTIRE AGREEMENT. This EULA contains and constitutes the sole, complete and entire agreement and understanding between You and Licensor concerning the matters contained herein and may not be altered, modified or changed in any manner except with Licensor’s prior written consent. No statements, promises or representations have been made by one party to the other, and the parties are not relying on any representations other than those expressly set forth herein.
APPENDIX A - FIELD OF USE RESTRICTIONS
“Use Restrictions” are those permitted uses and restrictions set forth in this Appendix A for any Licensor silicon family of products (“Products”), including but not limited to Secure EIKON SDK and Secure Module SDK.
Use Restrictions (A)You must adhere to the Use Restrictions set forth in this Appendix A. (B) You must require any of Your distributors, resellers, developers or sales representatives to comply with the Use Restrictions set forth in Appendix A. (C) Any material or repetitive breach of the Use Restrictions contained in Appendix A by You or Your direct or indirect distributors, resellers or sales representatives shall constitute a material breach.
Use Restrictions will NOT apply for the following: (A) the sale of Products to any customers (consumer, government or commercial) that will be used in or with any devices or components that do not fall within the definition of Consumer Electronics Fields (defined below);
or (B) the sale of Products that fall within the definition of Consumer Electronics Fields but meets at least one of the Exceptions (defined below).
RESTRICTIONS: YOU MAY NOT: Develop or sell, or enable any of Your direct or indirect distributors, resellers or sales representatives to sell, any Products for use in or with any devices or components within the Consumer Electronics Field, where Consumer Electronics Field is defined as: (a) personal computers (portable or desktop); (b) tablet or slate style computing devices; (c) handheld electronic and/or handheld communication devices (i.e., smartphones, digital music players, multi-function devices, etc.); (d) any device whose function includes the creation or consumption of digital media; (e) any component or sub-component used in any of the foregoing; and (f) any accessory or peripheral device that is suitable for use in any of the products set forth above.
HOWEVER if Your development and use of the Products fall within the Consumer Electronics Field above, You may be permitted to use the Product if such use meets at least one of the following exceptions:
EXCEPTION 1:The Consumer Electronics products are mass storage memory products that connect to computing devices via an industry standard Universal Serial Bus (USB) Type A or Type B connection and protocol.
EXCEPTION 2:The Consumer Electronics products are ultimately sold to commercial or government end users; AND whose sole or predominant function of the products is to provide:
(1) secure access to a facility; (2) secure access to commercial or government network services; or (3) government-certified biometric authentication functionality based on the Federal Information Processing Standard Publication 201.
Exception 3: On a case by case basis subject to prior written approval, You may be permitted to use Products otherwise restricted in (f) pursuant to a separate written agreement with Licensor.
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Secure Eikon and Secure TouchChip Module SDK EULA 13.0806