EyeDetect End User License Agreement | Converus

EyeDetect End User License Agreement | Converus

Converus End User License Agreements

CONVERUS® GENERAL END USER LICENSE AGREEMENT

PLEASE READ THIS CONVERUS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE ACCESSING OR USING CONVERUS APPS AS PROVIDED BY CONVERUS, INC. (“CONVERUS”). BY ACCESSING OR USING THE APPLICATION, YOU (a) AGREE AND CONSENT TO BE BOUND BY THIS EULA; AND (b) REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO EXECUTE THIS EULA AND, IF YOU ARE ACTING ON BEHALF OF A BUSINESS ENTITY, THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY. YOU SHALL NOT ACCESS OR USE ANY CONVERUS PRODUCTS OR SOFTWARE WITHOUT PRIORWRITTEN CONSENT OF CONVERUS IF YOU ARE OR BECOME A DIRECT COMPETITOR TO CONVERUS.

1. Products and Software.
1.1 Right to Access and Use. Subject to the terms and conditions of this EULA, Converus grants You a revocable, non-exclusive, non-transferable, limited license to access, download, install, and use Converus products and applications (“Software”) for Your personal and internal business purposes strictly in accordance with this EULA.

1.2 Acceptable Use and Restrictions. You covenant to only use the Products, Software, Converus Data (as defined in Section 3.3), and Customer Data (as defined in Section 3.2) in full compliance with this EULA and all applicable existing and future international, national, state, local, or other industry or governmental authority statutes, laws, rules, regulations, orders, codes, permits, authorizations, ordinances, and standards (“Applicable Law”). If You use the Software to conduct evaluations on any prospective, current or former employees or contractors, You agree to notify such individuals that such an evaluation is being conducted. You shall not: (i) reverse engineer, decompile, disassemble, modify, create derivative works of, or publicly display the Software for any purpose; (ii) attempt to derive the source code from the object code for the Software; (iii) attempt to defeat any license key used to activate the Software; (iv) remove or alter any proprietary notice on the Software; or (v) use any files included with the Software in any other application, unless You have first obtained the necessary developer licenses from Converus. Your use of the Software is subject to audit by Converus to ensure compliance with this EULA.

1.3 Updates. Converus may communicate at its discretion with the Software to determine whether there are any patches, bug fixes, updates, upgrades or other modifications to improve the Software. You agree to allow such communication and that the Software may automatically install any such updates without providing any further notice or receiving any additional consent. Typically, such updates will add additional functionality or improve stability. You understand and agree that Converus may modify or discontinue, temporarily or permanently, the Software (or any part thereof) with or without notice. Converus shall not be liable to You or to any third-party for any modification, price change, suspension or discontinuance caused by any updates, except that in the event that Converus’ discontinuation or modification of the Product materially diminishes the functionality that You have contracted for; in that case, You shall be entitled to a pro rata refund for any fees paid not used. You are responsible for ensuring Your device (including any mobile device, where applicable,) meets the technical specifications of the Software. Converus is not responsible for incompatibility of the Software or any Software update with any particular device.

2. Data.
2.1 Customer Data. In this EULA, Customer Data means any information You collect or is provided or otherwise made available any and all content, data, measurements, results, and other information that arise out of, result from, or are otherwise generated by Your use of the Software that: (a) can be used to identify, contact, or locate a natural person, including name, telephone number, or email address; (b) contains profiles, identifiers, demographic, biometric, or behavioral data that may be linked to a specific person; or (c) is substantially equivalent to any of the foregoing.

2.2 Converus Data. In this EULA, the term Converus Data means any and all content, data, measurements, results, or other information that is provided by Converus or arises out of, results from or is otherwise generated by Your use of the Software, excluding Customer Data. Converus owns all right, title, and interest in and to the Converus Data, including all IP Rights therein. If You are deemed to have any ownership interest in any Converus Data, then You shall assign, and hereby do assign, irrevocably and on a royalty-free basis, all of such ownership interest or other rights exclusively to Converus.

2.3 Ownership and License of Customer Data. You own all right, title, and interest in and to the Customer Data, including all IP Rights therein. As used in this EULA, the term “IP Rights” means intellectual property rights and protections throughout the world, whether currently or hereafter recognized, including all: (a) patents, patent applications, and statutory invention registrations (including any reissuances, reexaminations, divisions, continuations or continuations-in-part); (b) trade secret rights under Applicable Law, know-how, proprietary information, concepts, and techniques; (c) copyrights, software (including all source and object code, documentation, technical data, specifications, and designs and any changes, improvements, or modifications thereto or derivatives thereof), designs, and mask works; (d) rights in databases; (e) proprietary indicia, trademarks, service marks, trade names, trade dress, logos, and Internet domain names, together with all goodwill associated therewith; (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, including, in each case, all applications and registrations related thereto. You hereby grant to Converus a nonexclusive, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual, royalty-free, fully paid-up license, during the Term and at all times thereafter, to use the Customer Data for Converus’ business purposes and for quality control and improvement, including the development and exploitation of additional products and services.

2.4 Processing of Customer Data. If You provide or otherwise make Customer Data accessible to Converus, You authorize and request that Converus access, use, store, transfer, and otherwise process, such Customer Data. Converus shall not use Customer Data for purposes other than those set forth in this EULA or as instructed by You. Converus will comply with the Converus Global Privacy Policy, which is available at Privacy Policy. You acknowledge and agree that the control of Customer Data shall at all times remain with You. You are responsible for compliance with Your obligations as the controller of Customer Data under Applicable Law with respect to the processing of Customer Data and all other applicable data protection laws. You represent and warrant that, at all times during the Term, You will instruct Converus to access, use, store, and otherwise process Customer Data only on Your behalf and only in accordance with this EULA and Applicable Law. Processing of any data produced or collected by You is subject to the terms of the separate Data Processing Agreement (“DPA”) between You and Converus. The DPA between Converus and You shall be incorporated into this EULA in its entirety.

2.5 Sensitive Personal Data. You may not provide or otherwise make accessible to Converus any payment card information, data concerning an individual’s race or ethnic origin, nationality, political or religious beliefs, trade union membership, health or sexual life, or any other information or data that imposes specific security and/or other obligations on Converus under Applicable Law in connection with the processing of such data without Converus’ prior consent.

2.6 Authority and Consent. With respect to Customer Data that You provide or otherwise make accessible to Converus, You represent and warrant that: (a) You have obtained all necessary authority to do so; and (b) You have obtained from the individuals concerned all necessary consents under Applicable Law to both the provision and transfer of such Customer Data to Converus and the processing of such data by Converus for the purposes of performance of this EULA, Converus’ business purposes, and as otherwise set forth in this EULA.

2.7 Ownership and License of Converus Data. As between You and Converus, Converus owns all right, title, and interest in and to the Converus Data, including all IP Rights therein. If You are deemed to have any ownership interest in any Converus Data, then You shall assign, and hereby do assign, irrevocably and on a royalty-free basis, all of such ownership interest or other rights exclusively to Converus. You shall, at Converus’ reasonable request and expense, execute and deliver all documents necessary to effect or perfect such assignments. Converus hereby grants You a nonexclusive, worldwide, non-transferable, non-sublicensable, royalty-free, fully paid-up license, during the term of this Agreement, to use the Converus Data for Your internal, non-commercial business purposes.

3. Export Matters.
The Software and underlying information or technology are subject to U.S. export control laws, including the International Economic Emergency Powers Act, the Export Administration Act, regulations issued pursuant to these laws, and certain regulations promulgated by the United States Department of Treasury Office of Foreign of Assets Controls, all as amended (the “Export Control Laws”). You shall not download, export, re-export or otherwise transfer, directly or indirectly, the Software in violation of the Export Control Laws. By using the Software, You acknowledge that (a) You are responsible for obtaining any necessary U.S. government authorization to ensure compliance with U.S. Export Control Laws, and (b) You can contact the U.S. Departments of Commerce and Treasury for guidance as to applicable licensing requirements and other restrictions.

4. Security.
4.1 Security Measures. Converus has implemented and will maintain reasonable administrative, physical, and technical safeguards intended to protect Customer Data against accidental loss, destruction, or alteration or unauthorized disclosure or access. Such measures may include: (a) physical access controls and access controls on information systems, including secure user authentication protocols, secure access control methods, firewall protection, and malware protection; (b) encryption of electronic information to the extent required by Applicable Law; (c) measures to protect against destruction, loss, or damage to Customer Data due to potential environmental hazards, such as fire and water damage, or technological failures; and (d) any other measures deemed reasonable and appropriate by Converus to protect such data. Converus may update such security practices and safeguards from time to time, provided that any such update does not materially reduce the overall level of security or commitments as described therein.

4.2 Passwords. You agree to carefully safeguard all of Your passwords. You are solely responsible for all activities that occur under Your account. You agree to immediately notify Converus of any unauthorized use of Your account or any other breach of security.

4.3 Security Incidents. If Converus becomes aware of any unlawful access to any Customer Data stored on Converus equipment or in Converus’ facilities, or unauthorized access to such equipment or facilities resulting in loss or unauthorized disclosure or alteration of Customer Data (each, a “Security Incident”), Converus will promptly, subject to any reasonable restrictions placed on Converus by any law enforcement agency in the process of conducting an investigation relating thereto: (a) notify You of the Security Incident; (b) investigate the Security Incident and provide You with detailed information about the Security Incident; and (c) take commercially reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident. You agree that: (i) an Unsuccessful Security Incident will not be subject to this Section; and (ii) Converus’ obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by Converus of any fault or liability with respect to the Security Incident. The term “Unsuccessful Security Incident” means a Security Incident that does not result in unauthorized access to Customer Data or to any of Converus’ equipment or facilities storing Customer Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents.

5. Third Party Products.
If You separately procure services, applications, or online content from a third party (“Third Party Products”) for use with the Software, any such use is subject to the end-user license or use agreement that You accept from or establish with the third party. Third Party Products are not Software under this EULA and, as between the parties, Converus has no liability with respect to Your procurement or use of Third Party Products.

6. Changes to this EULA.
Converus reserves the right to modify this EULA at any time and for any reason. Converus will include the most current version of this EULA in future updates and will also post the most updated EULA at https://www.converus.com/ EULA/. Notwithstanding the foregoing, You are responsible for complying with the updated terms posted online at Converus’s website even if these updated terms appear online at Converus’s website before being posted in Our Software. Your continued use of the Software after Converus publishes notice of changes to this EULA indicates Your consent to the updated terms.

7. Limitations of Liability.
Liability under this EULA between Converus and You shall be as set forth below.
7.1 Disclaimer. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CONVERUS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTY THAT SOFTWARE OR SOFTWARE DERIVATIVES WILL PROVIDE UNINTERRUPTED OR ERROR-FREE OPERATION, MEET YOUR REQUIREMENTS OR EXPECTATIONS, BE FREE FROM COMPUTER VIRUSES, MALWARE, OR OTHER MALICIOUS OR OTHERWISE HARMFUL CODE OR OPERATE SATISFACTORILY IN CONJUNCTION WITH OTHER MANUFACTURERS’ HARDWARE OR SOFTWARE. CONVERUS IS NOT RESPONSIBLE FOR AND IS NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION OF OUR USERS, CUSTOMERS, TEST-TAKERS, OR OTHER THIRD-PARTIES. CONVERUS IS RELEASED FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, DISPUTE, OR DAMAGES (TOGETHER, “CLAIM”), KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY USERS, CUSTOMERS, TEST-TAKERS, OR OTHER THIRD-PARTIES THROUGH THE USE OF OR AS A RESULT OF THE USE OF SOFTWARE

7.2 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS EULA, REGARDLESS OF THE FORM OF ACTION AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. For the avoidance of doubt, You agree that any Losses awarded against Converus, or agreed to in settlement in connection with a Claim indemnified hereunder, are direct damages.

7.3 Limitation. CONVERUS WILL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSESQUENTIONAL, SPECIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES RELATING TO, ARISING OUT OF, OR IN ANY WAY IN CONNECTION WITH THE TERMS HEREIN, CONVRERUS, CONVERUS SOFTWARE (HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, INCLUDING NEGLIGENCE), EVEN IF CONVERUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR YOU INDEMNIFICATION OBLIGATIONS HEREUNDER, OR THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS EULA SHALL NOT EXCEED THE AGGREGATE AMOUNTS ACTUALLY PAID BY YOU FOR THE PRODUCTS AND SOFTWARE AT THE TIME SUCH CLAIM AROSE. THE FOREGOING DISCLAIMER OF CERTAIN DAMAGES AND LIMITATION OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN OUR TERMS, IN SUCH CASES, THE LIABILITY OF CONVERUS WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnification.
You shall defend, indemnify, and hold harmless Converus, and its respective directors, officers, employees, agents, consultants, successors, and assigns, against all liabilities, damages, awards, settlements, losses, claims, and expenses, including reasonable legal fees and costs of investigation (collectively, “Losses”) arising out of third-party claims, suits, actions, or proceedings (each, a “Claim”) resulting from or arising out of: (a) Your use of any Products, Software, Converus Data, or Customer Data or other acts or omissions in violation of this EULA or Applicable Law, including Your failure to comply with the requirements of Section 2.6; (b) an allegation that any Customer Data or Converus Data is inaccurate, misleading, or deceptive or was misused or relied on incorrectly by You; or (c) any allegations, demands, or claims from any of Your prospective, current, or former employees or contractors that use the or Software as required or requested by You or under Your direction. In the event of a Claim by a third party with respect to which Converus is entitled to indemnification under this EULA, Converus shall promptly notify You of such Claim; provided, however, that any failure to make such prompt notification shall not relieve You of Your obligations hereunder unless Your ability to defend such Claim is materially prejudiced thereby. You shall have sole control over the defense of the Claim and any negotiation for its settlement or compromise, except that You shall not settle any such Claim without first obtaining Converus’ prior consent where the settlement of such Claim results in any admission of guilt or liability on the part of Converus, imposes any obligation or liability on Converus, or has a judicially binding effect on Converus (other than monetary liability for which Converus is indemnified by You). Converus may participate in any Claim using its own counsel at its own expense.

9. Term and Termination.
The term of this EULA shall be subject to limitations as further defined below. If You have agreed to an SDK License this EULA is additionally subject to the relevant terms of the SDK License.

9.1 Suspension and Termination of Software Access and/or Your Converus Account. Converus reserves the right to suspend or terminate Your access to the Software at any time based on the status of Your account. You understand that if Your account is suspended or terminated, You may no longer have access to the account. Your rights under this EULA will terminate automatically if You fail to comply with any of its terms.

9.2 Term. This EULA shall commence on the date You accept it and shall continue in full force and effect until terminated pursuant to the provisions hereof (the “Term”).

9.3 Right to Terminate. This EULA may be terminated: (a) immediately upon notice to the other party if (i) the other party materially breaches this EULA and, where such breach is remediable, fails to remedy such breach within 30 days of receipt of notice from the terminating party specifying such material breach, or (ii) the other party has a receiver appointed, makes an assignment for the benefit of creditors, is unable to pay its debts as they become due, or undergoes any other insolvency event; and (b) by You upon 60 days’ notice to Converus for any reason or no reason.

9.4 Effect of Termination. Immediately upon termination of this EULA, You shall cease using the Software and shall delete or destroy all copies of the Software (including any Documentation or other information related to the Software provided by Converus) and, upon request, shall deliver to Converus a certification in writing that You have deleted or destroyed all copies of the Software and Documentation, and ceased all use of the Software, Converus Data, and Customer Data. Termination of this EULA will not prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination. The provisions of this EULA which by their nature are intended to survive the termination of this EULA (including the provisions of Section 1 (except for the license granted to You therein), Section 3 (except for the license granted to You in Section 3.5), Section 4, Section 6, Section 7, Section 8.3, and Section 9) shall survive the termination of this EULA.

10. General Terms
10.1 Legal Compliance. You may not use or otherwise export or re-export any Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. You represent and warrant that: (a) You are not located in a country that is subject to a United States Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the United States Code of Federal Regulations; (b) You are not located in a country that has been designated by the United States Government as a “terrorist supporting” country; and (c) You are not listed on any U.S. Government list of prohibited or restricted parties. You further agree not to transport to or use the Software in any such country. You also agree that You will not use the Software for any purposes prohibited by United States law.

10.2 Disclosure By Law. You acknowledge and agree that Converus may disclose Customer Data or other Data belonging to You in accordance with its Privacy Policy, including, if required to do so by law, at the request of certain third parties, or if Converus, in its sole discretion, believes that disclosure is reasonable to comply with the law, requests or orders from law enforcement, or any legal process (whether or not such disclosure is required by applicable law).

10.3 Governing Law. This EULA shall be governed in all respects by the laws of the State of New York (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

10.4 Contact Information. If You have any questions regarding this EULA, please contact Converus by email at [email protected], by phone at 1 (801) 331-8840, or by mail at Attn: Legal, 610 S 850 E, Ste #4 Lehi, UT 84043.

10.5 Construction. The headings and captions used in this EULA are used for convenience only and are not to be considered in construing or interpreting this EULA. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms. All references to this EULA and the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this EULA as a whole and not to any particular Section or other subdivision. Both parties hereby waive any canon of construction that would require any portion of this EULA to be construed against the drafter thereof. The governing language of this EULA shall be English. If this EULA is translated into a language other than English, then the English version shall prevail.

10.6 Miscellaneous. This EULA constitutes the entire agreement between You and Converus with respect to the subject matter herein and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written. No amendment, modification or waiver of any of the provisions of this EULA shall be binding unless made in writing and signed by an authorized representative of each party. No implied licenses are granted pursuant to the terms of this EULA. No license rights shall be created by implication or estoppel. Converus’ failure to exercise or enforce any right or provision of this EULA will not constitute a waiver of such right or provision. No remedy referred to in this EULA is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to herein or otherwise available at law or in equity. If any provision of this EULA is held to be invalid or unenforceable, the remainder of this EULA shall remain in full force and effect.