This Voice Biometrics Cloud Development Agreement (this “Agreement”) is entered into on the date you accept this Agreement by clicking “Register” or similar button made available by VoicePIN.com (the “Effective Date”) by and between VoicePIN.com sp. z o.o. with its registered address at Krakusa Street no 11, Kraków (30-535 Kraków), Poland hereinafter referred as to “VoicePIN.com” and the contracting entity indicated on VoicePIN.com’s website register form (“Developer”). By entering into this Agreement on behalf of any entity, you hereby acknowledge that you are fully authorized to act as a representative of that entity. VoicePIN.com IS WILLING TO GRANT ACCESS TO THE SERVICE (AS DEFINED BELOW) TO YOU (OR YOUR COMPANY) ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.
In this Agreement the capitalized terms have the following meanings:
1.1. “Affiliates” means with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party.
1.2. “Documentation” means all VoicePIN.com materials in printed or electronic or other form for use in connection with the Service including, without limitation, any information published on websites controlled by VoicePIN.com ,guidelines, user guides, and all revisions thereto, which describe the features, limitations, functions and use of the Service, in particular but not limited to VoicePIN.com Voice Biometrics Cloud Developer Guide.
1.3. “Cloud Server” means the server provided by or on behalf of VoicePIN.com through which Developer accesses the Service.
1.4. “Product” means Developer’s product, application or program with which the Service may be used.
1.5. “Service” means the service provided by VoicePIN.com to Developer under this Agreement by which VoicePIN.com gives you access to the voice prints recorded by the Developer’s Users or Users of the Developer’s Products which, as combined with the Products enables to verify Users as the result of operations performed by the Software on the Cloud Server, for the purpose of development of the Product.“Software” means VoicePIN software made available by VoicePIN.com to Developer through the Service.
1.6. „Voice Biometric Technology” or “VBT”– means technology which is embedded into Software developed by the VoicePIN.com, which detects and compares biometric parameters of the human voices.
1.7. “Term” means each single maximum 30 (thirty) days’ period used by VoicePIN.com for the purpose of assessment the number of consumed Units. The first Term starts upon Effective Date and renew hereinafter till the termination of this Agreement. The Term terminates upon the earliest: (1) completion of 30 days of the first Term or its renewal or (2) the last day of the month following the beginning of the current Term.
1.8. “Unit” means the single action which is verification of the individual by the operation of Service.
1.9. “User” means an individual who shall indentify itself in order to grant access to any service, application or system by using Product while integrated with the Service.
2. SCOPE OF AUTHORIZED SERVICE USE
2.1. Subject to Developer’s compliance with the terms and conditions of this Agreement, VoicePIN.com grants Developer access to Service during the Development Period (as defined below) solely for Developer’s internal Product development and not for any commercial or other purpose. VoicePIN.com may limit number of Units (indicated in the tariff plan available at VoicePIN.com’s website) you may use every Term in the course of Service. You may see your limit in your individual account created after the registration. If you exceed your Service limit, you can not to be able to use the Service till the end of your current Term unless VoicePIN.com issues a new voucher upon your justified request. Any unused Units are not valid after the end of the current Term.
2.2. Developer shall not use the Service or any development results generated in connection with this Agreement for any purpose, except as expressly permitted in this Section. Developer may perform benchmarking and competitive analysis of the Service provided however that benchmarking and competitive analysis and any related data shall be treated as Confidential Information as set forth in Section 5 of this Agreement.
2.3. INTELLECTUAL PROPERTY RIGHTS VoicePIN.com and its licensors retain all right, title and interest in and to the Software, Service and any derivative works thereof, including all intellectual property rights therein. Nothing in this Agreement will be construed as granting, by implication, estoppel or otherwise, to Developer or any third parties, any ownership interest in the Software or Service, and Developer will not claim for itself or any third parties any right, title, interest or license to any intellectual property rights except for those that have been expressly granted under this Agreement.
2.4. No license, right or interest in VoicePIN.com’s or its Affiliates’ logos, trademarks, service marks or trade names is granted under this Agreement.
2.5. Developer acknowledges and agrees that VoicePIN.com or its Affiliates are or may be in the future discussing, reviewing, developing for itself, or having developed for third parties, technologies and/or products which have or may have functionality, concepts or designs similar to Developer’s products, applications and/or services. Without limiting each of Developer’s and VoicePIN.com’s confidentiality obligations below in Section 5, nothing in this Agreement restricts or limits VoicePIN.com’s or its Affiliates’ rights to commence or continue with the development or distribution of such technologies and/or products.
3. RIGHTS AND RESTRICTIONS
3.1. Nothing herein grants Developer a right to distribute or make the Service publicly available in any manner without first entering into a separate agreement with VoicePIN.com. Any right to sell, license or authorize a third party to publish or distribute the Service or Speech will be solely as set forth in such separate agreement.
3.2. Developer acknowledges that Service is subject to limitation on number of Units (single verifications) which may be received by using the Service and other limitations which may be set forth in the Documentation which may be changed from time to time.
3.3. Developer shall not modify, translate, adapt, reverse engineer, disassemble or decompile the Service or create any derivative works from the Service or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein. Developer agrees not to defeat, nor attempt to defeat, any security measures built into the Service.
3.4. Developer will not (a) transfer, sublicense, lease, lend, distribute, upload to or host on any website, or sell the Service or any part of it or enable others to do so; or (b) disclose or otherwise provide any part of the Service to any third party.
3.5. Developer will not use the Service for any unlawful purposes.
3.6. The Service may be subject to export laws and regulations. Developer will comply with all domestic and international export laws and regulations that apply to the Software or Service.
3.7. Developer will not use the Service with any software or other materials that are subject to licenses or restrictions (e.g., open source software licenses) that, when used with the Service or Speech, may require VoicePIN.com to disclose, license, distribute or otherwise make all or any part of the Service, Speech or Software available to anyone.
4. CONFIDENTIAL INFORMATION AND FEEDBACK
4.1. Developer agrees to hold Confidential Information in confidence, not to use Confidential Information except as permitted hereunder, and not to disclose Confidential Information to any third party. For purposes of this Agreement, “Confidential Information” means any and all technical and non-technical information disclosed by VoicePIN.com to Developer under this Agreement and related to the past, present or future business or technology of VoicePIN.com, including without limitation information constituting or concerning processes and methodologies; Service and Service business model; product architecture, designs and specifications; software whether human-readable or machine-readable; product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; customers and prospects; licensing, service and distribution arrangements; the identity, skills and compensation of employees, contractors and consultants; and third party information that VoicePIN.com is obligated to maintain in confidence.
4.2. Developer will use the Confidential Information of VoicePIN.com only to exercise its rights or perform its obligations under this Agreement and for no other purpose. Developer will maintain the Confidential Information of VoicePIN.com in confidence using the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care. Developer may disclose Confidential Information of VoicePIN.com to its employees and individual independent contractors, provided such individuals need to know the information in order to accomplish the purpose of this Agreement, are informed of the confidential nature of the information, and are bound in writing by obligations of confidentiality with respect to such information that are no less protective than those set forth herein.
4.3. Notwithstanding the foregoing, Developer has no obligation under Section 5.2 with respect to any information that it can prove is: (a) now or hereafter, through no unauthorized act or failure to act on Developer’s part, publicly known or generally available; (b) known to Developer without an obligation of confidentiality effective at the time Developer received the same from VoicePIN.com, as evidenced by written records; (c) hereafter furnished to Developer by a third party as a matter of right and without restriction on disclosure; or (d) independently developed by Developer without reference to the Confidential Information of VoicePIN.com. Nothing in this Agreement prevents Developer from disclosing information to the extent Developer is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, Developer: (i) asserts the confidential nature of the information to the agency; (ii) immediately notifies VoicePIN.com in writing of the agency’s order or request to disclose; and (iii) cooperates fully with VoicePIN.com in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
4.4. Developer may, from time to time, provide feedback, comments or suggestions relating to the Software or Service or Developer’s use thereof in connection with this Agreement (“Feedback”). Both parties agree that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Developer shall not, absent a signed, written agreement with VoicePIN.com, create any obligation of confidentiality for VoicePIN.com. Developer agrees that it shall not give Feedback that is subject to license or other terms that seek to require any VoicePIN.com product, technology, service or documentation incorporating or derived from such Feedback or any VoicePIN.com intellectual property, to be licensed or otherwise shared with any third party. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the parties, VoicePIN.com shall be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
4.5. DISCLAIMER OF WARRANTIES VOICEPIN.com DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE, SOFTWARE, OR CLOUD SERVER WILL MEET DEVELOPER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA AVAILABLE THROUGH THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, (F) ANY FURTHER AGREEMENTS RELATED TO USE OF THE SERVICES BY DEVELOPER WILL BE AGREED OR RENEWED OR (G) THE SERVICE OR THE CLOUD SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE ARE PROVIDED ON AN ‘AS IS’ BASIS. VoicePIN.com, ITS AFFILIATES AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICE PROVIDED HEREUNDER, AND EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.6. DELAYS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VoicePIN.com IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5. LIMITATION OF LIABILITY
5.1. CONSEQUENTIAL DAMAGES. EXCEPT FOR VIOLATION OF ANY RIGHTS GRANTED UNDER THIS AGREEMENT, OR LIABILITY UNDER CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF REVENUE OR LOSS OF PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL NOT APPLY SOLELY TO THE EXTENT SUCH LIMITATIONS CONFLICT WITH OR WOULD OTHERWISE BE DEEMED INAPPLICABLE UNDER RELEVANT LAW.
5.2. NO FAILURE OF REMEDIES. THE DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 7 WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
6.1. Developer shall indemnify and defend VoicePIN.com, its Affiliates and suppliers (the “VoicePIN.com Indemnified Parties”) against all claims, suits, losses, expenses and liabilities (including VoicePIN.com’s reasonable attorneys’ fees) related to Developer’s use of the Service. Developer will pay any settlements entered into by the VoicePIN.com Indemnified Parties or damages awarded against the VoicePIN.com Indemnified Parties to the extent of such a claim, provided that Developer is promptly notified and rendered reasonable assistance by VoicePIN.com as required.
7. DEVELOPMENT PERIOD AND TERMINATION
7.1. The term of this Agreement commences on the Effective Date and unless terminated earlier in accordance with Section 9.2 below, shall continue for a period of three (3) months after the Effective Date. Thereafter, this Agreement will renew automatically for successive three (3) months terms (collectively the “Development Period”) unless otherwise terminated pursuant to Section 9.2. Termination notice may be delivered by electronic communication.
7.2. Either party may terminate this Agreement at any time upon written (including electronic) notice to the other party.
7.3. Termination of this Agreement for any reason shall not relieve either party from any liability, which at the time of termination already has accrued to the other party hereto or which thereafter may accrue in respect of any act or omission prior to termination. In addition, the following Sections will survive termination or expiration of this Agreement for any reason: 1, 3, and 5 through 10.
7.4. Upon expiration or termination of this Agreement, Developer shall immediately cease use of the Service and any Speech in Developer’s possession, and certify the same to VoicePIN.com in writing unless otherwise agreed by the parties.
8.1. This Agreement will be governed by and interpreted in accordance with the laws of Poland, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any dispute, controversy or claim arising out of or relating to this Agreement will be settled by the state and federal courts of Cracow, Poland, and each party expressly consents to the exclusive personal jurisdiction and venue of such courts. VoicePIN.com may seek and obtain an injunction and any other appropriate equitable relief, in addition to whatever remedies it may have at law to secure protection of its Service and Confidential Information.
8.2. Developer may not assign any of its rights or obligations under this Agreement without the prior written consent of the other party, including in connection with any merger, consolidation, reorganization, sale of all or substantially all of its related assets or similar transaction (each a “Change of Control”). VoicePIN.com may terminate this Agreement upon written notice to Developer following any Change of Control of Developer. VoicePIN.com may assign this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of any permitted assignee. Any attempted assignment in violation of this Section shall be void.
8.3. Developer will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any VoicePIN.com Voice Biometric Technology or Confidential Information (collectively, “Items”) to any country, individual, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, or entity under sanctions or embargoes administered by the US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority. Developer will not use Items or knowingly export, re-export, or transmit any Items to any party who may use Items in relation to nuclear, biological or chemical weapons or missile systems capable of delivering same or the development of any weapons of mass destruction. Developer is responsible for obtaining any license required to export, re-export, import, or transmit Items under applicable export/import controls laws and regulations. Developer will not export, re-export import, or transmit any items except in accordance with all applicable laws and regulations.
8.4. Neither party will be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control and without its fault or negligence, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, acts of terrorism, riots, insurrections, fires, explosions, earthquakes, floods, strikes, theft, industry-wide component shortages, industry-wide shortages of parts or materials, or industry-wide transportation delays.
8.5. The failure or delay of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
8.6. Whenever the singular number is used in this Agreement and when required by the context, the same will include the plural and vice versa, and the masculine gender will include the feminine and neuter genders and vice versa. Each party to this Agreement acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter. The Section headings of this Agreement are for convenience only and have no interpretive value.
8.7. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
8.8. This Agreement shall not be construed to create a relationship of partners, joint venturers, brokers, employees, agents, or master or servant between the parties.
8.9. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either party unless mutually agreed to in writing by the parties.
8.10 This Agreement represents the entire agreement between the parties with respect to the subject matters hereof and supersedes any previous or contemporaneous oral or written agreements regarding such subject matter.