ANY PERSON, COMPANY OR ORGANIZATION WHICH DOWNLOADS, USES OR ACCESSES THE AFFDEX SDK AGREES THAT, AS A CONDITION OF DOWNLOADING, USING OR ACCESSING THE AFFDEX SDK, THEY ARE A “LICENSEE” BOUND BY THE TERMS OF THIS AGREEMENT. THIS LICENSE IS ONLY FOR EVALUATION OF THE AFFDEX SDK FOR A PERIOD OF 60 DAYS. IN ORDER TO DISTRIBUTE ANY LICENSEE PRODUCTS CREATED USING THE AFFDEX SDK, LICENSEE MUST ENTER INTO A DISTRIBUTION LICENSE AGREEMENT WITH AFFECTIVA AND PAY APPLICABLE FEES. Affectiva, Inc. (“Affectiva”) is located at 294 Washington Street, Boston, MA 02108.
Affectiva grants to Licensee the following licenses, subject to the following restrictions, pursuant to this Agreement
(a) Subject to Section 1(c), Affectiva grants to Licensee a non-exclusive, non-transferable, license to the Affdex SDK, described in Exhibit A (the “Affdex SDK”) to reproduce and install the Affdex SDK on Licensee computers and/or mobile devices and use the Affdex SDK for the creation, enhancement, modification and testing of Licensee products and services (“Licensee Products”), including incorporating Affdex Code, described in Exhibit A, into Licensee Products.
(b) Licensee may not use the Affdex SDK or Affdex Code to develop products or services: (i) designed for security or surveillance and which may result in video recording of persons without their consent, (ii) which are Political Applications or which are designed for Market Research or Academic Research (all as defined below), or (iii) that constitute, promote or are used primarily for activities which are illegal, violate the rights of third parties, are fraudulent or misleading, could harm the name or reputation of Affectiva, or which could harm, modify or misappropriate software or data on an end user’s computer, including but not limited to spyware, adware, or other malicious programs or code, the distribution of counterfeit goods, items subject to embargo under U.S. or other applicable laws, unsolicited mass distribution of email (“spam”), multi-level marketing proposals, hate materials, or containing content which is libelous, defamatory, obscene, pornographic, abusive or otherwise offensive. License may not reproduce, copy, distribute, make available, display, disclose or use the Affdex SDK or Affdex Code in any manner not expressly authorized in this Agreement. License may not reverse engineer, reverse compile or otherwise attempt to reveal or access source code to the Affdex SDK or Affdex Code (except to the extent already visible in source code form in the Affdex SDK). Licensee may not release any Licensee Product subject to any “open source,” “copyleft” or “community source” license, including but not limited to any General Public License, Lesser General Public License or similar license arrangement in a manner that would require (or purport to require) the distribution, license, or disclosure of the source code of the software being licensed or derivative works thereof.
“Political Applications” means products or services which are designed and marketed for measuring subjects’ emotional engagement with respect to local, state, national, or international politics, including without limitation political content, political issues, political news, political websites, political parties, political candidates and other political figures, polling, elections, debates, town halls, political advertising, voter targeting, voter data, political news reports, or political pundits.
“Market Research” means products or services which are designed and/or marketed for measuring subjects’ responses with respect to a particular product, offering, advertisement, piece of content or any market related stimulus, including without limitations to on-line surveys, focus groups, large group events (e.g., conferences, seminars, movies) or other forms of data collection directly from respondents.
“Academic Research” means product or services which are designed and marketed to higher education institutions (university and colleges) for discovery, investigating, measuring, interpretation and research and development of methods and systems for measuring a subject’s emotional engagement to various stimuli, including without limitations to on-line surveys, focus groups, large group events or other forms of emotion data collection directly from respondents.
(c) Affectiva may provide Licensee updates or upgrades to the Affdex SDK from time to time and such updates and upgrades will be governed by this Agreement, unless Affectiva makes access to such updates or upgrades contingent on Licensee entering into a new agreement.
(d) Affectiva may, but is not obligated to, include the name and logo of Licensee and Licensee Products on Affectiva’s website, presentations, marketing materials and other documentation listing application developers and products that utilize the Affdex SDK, and may mention Licensee and Licensee products in media interviews.
2. Intellectual Property
(a) All right, title and interest in and to the intellectual property embodied in the Affdex SDK and Affdex Code, including any improvements, enhancements or other modifications thereto made by Affectiva, is owned by, and shall remain the property of Affectiva, including, without limitation, any associated patents, copyrights, trademarks and logos. Affdex is free to use, implement and incorporate in the Affdex SDK and Affdex Code any suggestions, ideas, recommendations or feedback of Licensee, without payment of additional consideration to Licensee. Licensee acknowledges that the Affdex SDK and Affdex Code shall remain the sole and exclusive property of Affectiva, notwithstanding such use, implementation or incorporation.
(b) Licensee Products. All right, title and interest in and to the intellectual property embodied in the Licensee Products, including any improvements, enhancements or other modifications thereto made by Licensee, is owned by, and shall remain the property of Licensee, including, without limitation, any associated patents, copyrights, trademarks and logos, subject to Affectiva’s ownership of the Affdex Code and Affdex SDK.
3. User Data
In connection with any Licensee Products incorporating Affdex Code, Licensee will comply with all applicable privacy laws, regulations and policies regarding any images or video of users and any personally identifiable information of users. Licensee will ensure that each user of a Licensee Product is notified of and consents to the use of images or video of such user prior to using any features or functions of the Licensee Product enabled by the Affdex Code. Licensee grants, and will cause end users to grant, Affectiva a worldwide, perpetual, royalty-free, paid-up, non-exclusive, non-transferable license to use anonymized data derived from end users’ use of Licensee Products, in connection with Affectiva’s research and development, including the modification and improvement of Affectiva’s products and services.
(a) Licensee will defend, indemnify and hold harmless Affectiva in connection with any third party claims asserted against Affectiva related to or arising out of any Licensee Product, including but not limited to any product liability claim or any claim that a Licensee Product infringes a third party’s intellectual property rights, including patents, copyrights, trade secrets or trademarks (“Claim”); provided, however, that Licensee shall not be required to provide indemnification under this Section in the event the claim is based solely on the Affdex Code. In the event of any Claim being made or action brought against Affectiva with respect to which Licensee is liable to indemnify Affectiva hereunder, Affectiva shall promptly notify Licensee thereof and Licensee shall be entitled to assume, control and conduct the defense of such Claim, including the settlement or compromise thereof; provided, however, that Licensee shall not settle or compromise such Claim without the prior written consent of Affectiva, which consent shall not be unreasonably withheld or delayed.
(b) THE FOREGOING STATES THE ONLY INDEMNIFICATION OBLIGATION OF THE PARTIES UNDER THIS AGREEMENT AND IN CONNECTION WITH THE AFFDEX SDK, AFFDEX CODE AND LICENSEE PRODUCTS.
5. Limited Warranty
AFFECTIVA HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES IN CONNECTION WITH THE AFFDEX SDK AND AFFDEX CODE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Liability
EXCEPT WITH RESPECT TO LICENSEE’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. The parties further agree that Affectiva’s maximum liability pursuant to this Agreement shall be limited to $100.
7. Compliance with Laws
Each party will comply with all applicable laws in connection with their performance under this Agreement. Licensee acknowledges that the Affdex SDK and Affdex Code are subject to U.S. export control laws and regulations and will comply with those laws and regulations. Licensee represents that it is not, and does not employ anyone who is, a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists.
8. Governing Law and Arbitration
This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict of laws rules. Any dispute, claim, or controversy arising out of or relating to this Agreement (including, the validity, interpretation, application, termination, alleged breach, or enforcement of the Agreement) shall be determined by arbitration in Boston, Massachusetts, before a single arbitrator. The arbitration shall be administered by JAMS, in English, pursuant to its Comprehensive Arbitration Rules and Procedures then in effect. The arbitrator shall, in the Award, award the prevailing party reasonable costs incurred in connection with the arbitration, including the fees of the arbitrator, and the prevailing party’s reasonable attorneys’ fees, experts’ fees, and expenses. Judgment on the Award shall be entered only in the state or federal courts in Massachusetts. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration, although such relief may be sought only from a state or federal court in Suffolk County Massachusetts. The parties hereby consent and submit to, and waive any and all objections to, the jurisdiction and venue of the state and federal courts in Suffolk County, Massachusetts.
This Agreement will terminate sixty (60) days from the date the Affdex SDK is first downloaded, used or accessed by Licensee. Each Party may immediately terminate this Agreement by giving the other written notice if the other Party: (i) defaults in the performance of any of its obligations under any of the terms or conditions of this Agreement which default is not remedied within ten (10) days after notice thereof; (ii) defaults in the performance of any of its obligations under the terms and conditions which default, by its nature, cannot be remedied; (iii) is unable to pay any and/or all of its debts as they become due or becomes insolvent or ceases to pay any and/or all of its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of its creditors; (iv) is liquidated or dissolved or if any proceedings are commenced by, for or against it under any bankruptcy, insolvency, reorganization of debts or debtors relief law, or law providing for the appointment of a receiver or trustee in bankruptcy; or (v) undergoes a change in control, where “change in control” means a change in the ownership or control of all or substantially all the assets of such Party or of the persons who control more than fifty percent (50%) of the equity or similar ownership interest in such Party, regardless of the form of transaction. All provisions except Section 1 of this Agreement, shall survive the termination or expiration of this Agreement.
10. General Conditions
The parties to this Agreement are independent contractors, and this Agreement shall not be construed to create a partnership, joint venture, employment or agency relationship between the parties. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. Neither party may assign this Agreement, or any of its rights or obligations hereunder, to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld. In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of this Agreement will remain in full force and effect.
AFFDEX SDK & AFFDEX CODE
The Affdex SDK is a software development kit that provides the ability for developers to add emotion-sensing and emotion analytics to their apps and digital experiences developed for the platform(s) specified below (“Licensee Products”). The SDK analyzes facial expressions (obtained from a camera or recorded video or images) and provides data regarding detected emotions to the user of the Licensee Product.
The Affdex Code consists of object libraries that are part of the Affdex SDK that can be incorporated into the Licensee Products that will allow developers to reproduce the functionality of Affdex within Licensee Products and allow developers to emotion-enable Licensee Products.