Vuforia Cloud Recognition Service Agreement Limited Usage This Vuforia Cloud Recognition Service Agreement Limited Usage (the Agreement ) forms a legally binding contract between the legal entity you represent ( Customer ) and Qualcomm Technologies, Inc. ( QTI ). This Agreement governs Customer s access to the Vuforia cloud recognition and image management service, as further described herein. IN ORDER TO USE THE SERVICE (AS DEFINED BELOW), CUSTOMER MUST AGREE TO THE TERMS OF THIS AGREEMENT BY CLICKING ACCEPT WHERE INDICATED BELOW. PLEASE READ THIS AGREEMENT CAREFULLY. IF CUSTOMER ACCESSES THE SERVICE IN ANY WAY, CUSTOMER AGREES THAT THE TERMS OF THIS AGREEMENT SHALL APPLY TO ALL SUCH USE. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT CLICK ACCEPT AND DO NOT USE THE SERVICE. QTI MAY SUSPEND OR TERMINATE CUSTOMER S USE OF THE SERVICE IF CUSTOMER FAILS TO COMPLY WITH ANY PART OF THIS AGREEMENT. 1. Definitions As used in this Agreement, the following terms shall have the following meanings: Affiliates means, as to a party, any present or future Parent of the party and any present or future Subsidiary of the party and/or its Parent, but only for so long as the Parent remains the Parent of the party and the Subsidiary remains a Subsidiary of the party and/or its Parent. The term Parent means any corporation or other legal entity that owns or controls, directly or indirectly (i) the majority (more than 50%) of the shares or other securities of the party entitled to vote for election of directors (or other managing authority) of the party or (ii) if such party does not have outstanding shares or securities, the majority (more than 50%) of the equity interest in such party, but only for so long as such ownership or control exists in (i) or (ii) above. The term Subsidiary of a party means any corporation or other legal entity (a) the majority (more than 50%) of whose shares or other securities entitled to vote for election of directors (or other managing authority) is now or hereafter owned or controlled by such party either directly or indirectly, or (b) which does not have outstanding shares or securities but the majority (more than 50%) of the equity interest in which is now or hereafter owned or controlled by such party either directly or indirectly, but only for so long as such ownership or control exists in (a) or (b) above. Camera View means an image from a device s camera viewfinder screen that is automatically captured by the Customer Application and provided to the Service for Content image recognition purposes. Content means data, including but not limited to text, graphics, images, photographs, video, sounds and other digital assets, that Customer provides to QTI via the VWS APIs and/or through the Target Manager Web Application for use with Customer Applications. Credentials means secure access keys provided to Customer for use in accessing the Service. Customer Application means end-user software applications developed by or on behalf of Customer with the Vuforia SDK. Intellectual Property Rights means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, knowhow and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. Parties means QTI and Customer. Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 1
Party means either QTI or Customer. Query means a request to use the cloud-based image recognition functionality of the Service which is sent by a Customer Application and contains a Camera View. Recognition Event means the response from the Service corresponding to a Query. Service means collectively, the cloud-based image recognition and image management services made available by QTI for use in connection with visual recognition end-user software applications developed with the Vuforia SDK. Statistics means certain technical and related information sent by that portion of the Vuforia SDK that is integrated with the Customer Application, including but not limited to: (i) information about the end users devices such as device unique identifier, make, model, operating system name and version and kernel version, (ii) information about the Vuforia SDK used to create the Customer Application such as the SDK version and device profile, (iii) information about the Customer Application and its use such as settings (e.g., camera resolution settings, configuration settings), start and stop dates and times, camera on/off events, target image obtained/lost events, and other general usage information, and (iv) the IP address used by the end user s device, for the purpose of allowing the Vuforia servers to infer the country of use (but not the exact location). Target Manager Web Application means the Vuforia web-based user interface for uploading and managing Content. Vuforia SDK means the Vuforia Software Development Kit made available by Qualcomm Austria Research Center GmbH under a separate agreement for the development and testing of visual recognition end-user software applications. VWS API means the Vuforia Web Services cloud-based image recognition application programming interfaces for the image management feature of the Service. Website means the Developer Portal at https://developer.vuforia.com. 2. Use of the Service. Subject to and conditioned upon Customer s compliance with the terms and conditions of this Agreement, QTI hereby permits Customer to access the Service during the term of this Agreement solely for the purpose of storage and retrieval of Content to enable cloud-based image recognition functionality as integrated in Customer Application(s). Customer Application(s) shall access the Service solely via the Vuforia SDK. Customer shall not access or use the Service except for the permitted use for the Customer Application(s) as described in this Agreement. Customer acknowledges that it is not provided or licensed to use the Vuforia SDK under the terms of this Agreement. The Vuforia SDK is licensed under a separate license agreement. As a condition of any use of the Service under this Agreement, Customer shall accept and comply with the terms of the Vuforia SDK license agreement at all times during the Term of this Agreement. 3. Service Usage Limits; Fees. Customer acknowledges and agrees that the Service provided to Customer under the terms of this Agreement is subject to the usage limitations posted on the Website. Such usage limitations specify, among other things, the maximum amount of Content, Recognition Events and API calls that can be utilized by Customer within a periodic time interval ( Permitted Usage ) and can be found at https://developer.vuforia.com/cloud-recognition-service. The Permitted Usage will be provided to Customer at no charge. Customer acknowledges and agrees that if Customer s actual Service usage exceeds the Permitted Usage during a calendar month, Customer will be required to switch to an enhanced Service usage program ( Business Usage ) in the following calendar month. The Business Usage program requires the payment of fees to QTI and the acceptance by Customer of Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 2
additional terms and conditions as further described on the Website or otherwise provided by QTI. Notwithstanding any remedies that may be available under any applicable law and without limiting QTI s right to terminate the Service or this Agreement for any reason, QTI may temporarily or permanently deny, limit, suspend, or terminate Customer s access to the Service under this Agreement for any failure by Customer to pay QTI for any Business Usage and/or to accept the terms and conditions applicable to Business Usage within thirty (30) days of triggering the Business Usage program requirement. 4. Customer Responsibilities. 4.1. Limitations on Use of Service. Customer is responsible for configuring and complying with all Service requirements and instructions to ensure normal operation and use of the Service by or through the Customer Application(s). Customer will comply with terms and conditions for the Service as provided in writing from time to time, if any. Except as explicitly permitted for end users of the Customer Application(s), Customer shall not license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available the Service in any way to any third party. Customer shall not reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, or functions of the Service, or (c) copy any ideas, features, or functions of the Service. Customer shall not attempt to gain unauthorized access to the Service or its related systems or networks. Customer shall not excessively use the overall network capacity or bandwidth of the Service or otherwise burden the Service with unreasonable data loads. Customer agrees not to harm or interfere with QTI s networks or servers or any third party networks or servers connected to the Service or otherwise disrupt other users use of the Service. Customer shall abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Customer Application(s) and Customer s use of the Service, including without limitation those related to privacy and data collection, international communications, and the transmission of technical or personal data. 4.2. End Users. Customer is responsible for all use of the Service by end users of the Customer Application(s). Customer agrees to include, in a mandatory end-user license agreement for each Customer Application, whether in an agreement between Customer and an end user (where Customer licenses the Customer Application directly to end users) or in an agreement between Customer and the licensor/distributor of the Customer Application (where Customer is under contract to develop the Customer Application for a third party), legally enforceable provisions whereby: (i) Each end user consents to the collection, storage, and use by QTI and its Affiliates and service providers of Camera Views and Statistics as part of providing the Service, and the transfer of Camera Views and Statistics to QTI s Affiliates and service providers (which may be in the United States or in other countries), in each case for the purposes of providing the Service as well as to (a) facilitate the provision of new products, updates, enhancements and other services, (b) improve the Vuforia SDK, the Service, and other products, services and technologies, and (c) provide new products, services or technologies to customers of QTI and its Affiliates; (ii) Each end user is advised of the hazards of using a camera based application while driving, walking, or otherwise being distracted or disoriented from real world situations; and (iii) Each end user agrees not to use the Customer Application to capture Camera Views that comprise, constitute or depict profanity, nudity, pornographic images or explicit sexual themes, or defamatory or libelous statements, material that infringes the intellectual property of any person or Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 3
entity, material that infringes upon the privacy or data protection rights of any person, or material considered illegal or objectionable. In addition, the end user must agree not to provide or submit facial images, except if and to the extent that they have obtained the legally-binding consent of the subject in advance, provided that such consent must be documented by the Customer Application and must be sufficient to permit QTI and its Affiliates and service providers to collect, store, use and transfer such images as described in this Agreement. 5. Customer Acknowledgements. Customer acknowledges that each Customer Application must contain application logic that, upon receipt of certain response codes from the Vuforia SDK or the Service indicating that the Vuforia SDK and/or Service has been upgraded, prompts the end user of the Customer Application to install an updated release of the Customer Application that integrates the latest version of the Vuforia engine binary files provided by the Vuforia SDK. Customer acknowledges that QTI or its Affiliates may, with or without prior notice to Customer, change, discontinue or deprecate any VWS APIs for the Service from time to time and any such modification may require Customer to change or update Customer Application(s). QTI makes no representation or warranty that the Service is or will be available or appropriate for use in any particular location, and Customer acknowledges that Customer is responsible for compliance with any applicable laws governing access to and provision of the Service in its Customer Application(s). QTI may monitor and collect information about usage of the Service (including but not limited to remotely checking the application ID and other information provided by Customer Application(s) seeking use of the Service) to assist QTI and its service providers in improving the Service and other Vuforia-related products and services and to verify Customer s compliance with this Agreement. Customer agrees that it will not access the Service for purposes of monitoring service availability, performance or functionality, or for any other benchmarking or competitive purposes. 6. Content. Customer grants QTI and its Affiliates and service providers a worldwide, non-exclusive, royalty free, and transferable license to use, reproduce, distribute, prepare derivative works of, display and perform the Content in connection with the Service. Customer, not QTI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use of all Content. Customer represents and warrants that it has all rights necessary to send the Content to the Service and use and authorize others to use the Content in connection with the Service, and that all Content will comply with all applicable laws and regulations. Customer represents and warrants that the Content will not: (a) be infringing, obscene, threatening, libelous, violative of third party privacy rights, or otherwise unlawful or tortious, (b) contain software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs, (c) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or (d) contain any code licensed under an open source license (including without limitation any open source listed on http://www.opensource.org/licenses/alphabetical). QTI shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content. If Customer becomes aware of any violations of this Agreement associated with Customer and/or any Customer Application, including without limitation any violation of subsections (a) (d) above, then Customer will: (i) provide prompt written notice to QTI of such violation and (ii) immediately terminate the access giving rise to the violation. QTI reserves the right, upon reasonable cause, to withhold, remove, and/or discard any Content without notice. For purposes of the foregoing, reasonable cause includes, without limitation, (1) QTI s determination that Content subjects QTI to any actual or potential harm or other liability or (2) Customer s failure to comply with the terms of the Agreement or pay any amounts owed QTI, if any. QTI assumes no obligation to monitor the Content to determine if there is reasonable cause to remove any Content. 7. Service Account Credentials; Support. Customer is permitted to create a single user account for Customer s use in accessing the Service and generating Credentials via the Target Management Web Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 4
Application. Customer acknowledges and agrees that all Customer Applications must include Credentials generated from Customer s account and that Customer is prohibited from creating, accessing or using more than one user account. Customer shall not sell, transfer or sublicense its Credentials to any person or entity. Customer is responsible for maintaining appropriate security, protection, and backup for its user account, Content and Credentials and for all activities that occur under or are otherwise associated with Customer s account and Credentials. Customer shall notify QTI immediately of any unauthorized use of any Credentials or any other known or suspected breach of security of Customer s user account or Credentials. During the term of this Agreement, Customer may contact QTI with Service support inquiries via the Vuforia Forums which can be found at https://developer.vuforia.com/forum or such other webpage as may be made available from time to time. Customer is responsible for providing customer service to its end users customers. QTI will not provide any support to end users of the Customer Application(s). 8. Right to Modify, Suspend or Terminate Service. Notwithstanding any remedies that may be available under any applicable law and without limiting QTI s right to terminate the Service or this Agreement for any reason, QTI may temporarily or permanently deny, limit, suspend, or terminate Customer s use of all or any portion of the Service without penalty, with or without notice, if QTI believes, in its sole discretion, that: (a) Customer has abused its rights to use the Service; or (b) Customer breached this Agreement; or, (c) Customer s user account has been compromised or inactive for an extended period of time; or (d) Customer has performed any act or omission that violates any applicable law, rules, or regulations; or, (e) Customer has performed any act or omission which is harmful or likely to be harmful to QTI, the Service or any other third party, including other users or suppliers of QTI; or, (f) Customer made use of the Service to perform an illegal act, or for the purpose of enabling, facilitating, assisting or inducing the performance of such an act; or (g) QTI has insufficient rights to provide the Service or the terms under which the Service may be made available impose upon QTI terms or risks that are not reasonably acceptable to QTI or its Affiliates. QTI shall not be liable for any damages, losses or costs of any kind incurred by Customer or any third party arising out of or related to any modification, suspension or termination of the Service. QTI reserves the right to modify its documentation and policies relating to the Service, including without limitation any Service usage limitations for the Permitted Usage, at any time, effective upon posting of an updated version of such policies on the Website. Customer is responsible for regularly reviewing the Service documentation and policies. Continued use of the Service after any such changes will constitute Customer s consent to such changes. 9. Intellectual Property Ownership Rights. Customer acknowledges and agrees, on behalf of itself and its subsidiaries, that nothing in this Agreement shall convey, assign or otherwise transfer to Customer or any of its subsidiaries any title or ownership rights in or to the Service or any Intellectual Property Rights of QTI. Except for the express rights to use the Service granted to Customer in Section 2, no other rights under any intellectual property are granted by QTI under or as a result of this Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). Customer acknowledges and agrees, on behalf of itself and its subsidiaries, that neither the delivery of the Service nor any provision of this Agreement will be deemed or construed to grant (whether expressly, by implication or by way of estoppel or otherwise) any right, license, authority to infringe, or immunity from infringement liability under or to: (a) any patents of QUALCOMM Incorporated or any of its Affiliates, (b) any other Intellectual Property Rights of (i) any affiliate of QUALCOMM Incorporated (other than QTI) or (ii) QUALCOMM Incorporated, or (c) any Intellectual Property Rights of QTI covering or relating to any technology (including, without limitation, any product or invention) not embodied solely in the Service. Customer acknowledges and agrees, on behalf of itself and its subsidiaries, that (1) this Agreement does not modify or abrogate any obligations that Customer or any of its subsidiaries has under any license or other agreement with QUALCOMM Incorporated, including, without limitation, any obligation to pay any royalties, and (2) Customer will not, and will ensure that each of its subsidiaries do not, contend that it has obtained any right, Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 5
license, authority to infringe, or immunity from infringement liability with respect to any patents of QUAL- COMM Incorporated or any of its Affiliates under or as a result of this Agreement (whether expressly, impliedly, by virtue of estoppel or exhaustion, or otherwise). 10. Confidentiality. Customer agrees that the Service and any information relating to the Service (including without limitation any information regarding terms and pricing for Business Usage and Service availability, performance, benchmarking or the like) and any communications from QTI which are designated as confidential or proprietary are the confidential and proprietary information of QTI. Customer further agrees that it will not disclose, and will use reasonable efforts to prevent the disclosure of, any such confidential and proprietary information to any third party (other than such party s employees, consultants, accountant and legal advisors who are legally bound by an obligation of confidentiality). Without limiting the generality of the foregoing, any data and analytics provided by QTI to Customer are confidential information, and Customer is bound by the terms of confidentiality set forth herein to not disclose, and to use reasonable efforts to prevent the disclosure of, any such information to any third party. All data and analytics are provided to Customer for its internal forecasting and accounting purposes regarding Service usage only and may not be used for any other purpose. Customer s obligation of confidentiality shall continue for the longer of (a) five (5) years from the date the confidential information was disclosed or (b) two (2) years after this Agreement terminates. 11. Term and Termination. The term of this Agreement shall commence on the date Customer accepts this Agreement by clicking the Accept button below and shall remain in effect until terminated as provided herein. Either party may terminate this Agreement, with or without cause, upon thirty (30) days prior written notice to the other party. Either party may terminate this Agreement, effective immediately upon notice, in the event that the other party violates the confidentiality obligations set forth in this Agreement. QTI shall have the right to terminate this Agreement and all rights and licenses granted by QTI hereunder if Customer or its Affiliates assert any claims or rights by commencing or causing to be commenced any action or proceeding that alleges infringement by QTI or its Affiliates of Customer s (or its Affiliates) intellectual property rights based on the Vuforia products and services. QTI reserves the right to present new or modified terms of this Agreement (in total) to Customer at any time. In order to continue using the Service, Customer must accept and agree to the new terms. If Customer does not agree to such new or modified terms, then Customer shall terminate this Agreement by providing timely written notice to QTI in accordance with this section. QTI may terminate this Agreement, effective immediately upon notice, or may suspend Customer s rights to use the Service if Customer fails to accept any new Agreement terms. Upon termination of the Agreement, the Service will no longer be available to Customer or any end users of the Customer Application(s). Unless Customer has materially breached this Agreement or any Content exposes QTI to actual or potential legal risk or harm, QTI will maintain the Content in Customer s account for a period of thirty (30) days after termination. During this period, if applicable, Customer may backup Content but will not be allowed to add any new Content. Customer acknowledges and agrees that QTI has no obligation to retain the Content beyond such time, and may delete Content thirty (30) days after termination, or immediately upon termination if Customer has materially breached this Agreement or if Content exposes QTI to any harm. Sections 9 (Intellectual Property Ownership Rights), 10 (Confidentiality), 11 (Term and Termination), 12 (Disclaimer of Warranties), 13 (Limitation of Liability), 14 (Indemnification), 15 (Export Compliance Assurance), and 17 (General) shall survive any termination of this Agreement, and each party shall, within a reasonable time after such termination, pay any amounts that became due the other party prior to such termination. 12. DISCLAIMER OF WARRANTIES. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICE IS AT CUSTOMER S SOLE RISK. THE SERVICE AND TECHNICAL SUPPORT, IF ANY, ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PER- Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 6
MITTED UNDER APPLICABLE LAW, QTI AND ITS AFFILIATES, LICENSOR(S) AND SERVICE PRO- VIDER(S) (FOR THE EASE OF REFERENCE IN SECTIONS 12, 13 AND 14, QTI AND ITS AFFILIATES, LICENSOR(S) AND SERVICE PROVIDER(S) SHALL BE COLLECTIVELY REFERRED TO AS QTI) EX- PRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTH- ERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. QTI DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET CUSTOMER S REQUIREMENTS; OR THAT THE OPERATION OF THE SERVICE WILL BE SECURE, TIMELY, UNIN- TERRUPTED OR ERROR-FREE; OR THAT THE SERVICE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR THAT THE SERVICE WILL ALWAYS BE AVAILABLE; OR THAT THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILA- BLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. FURTHERMORE, QTI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRIT- TEN INFORMATION OR ADVICE GIVEN BY QTI OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED. 13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL QTI OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF THE SERVICE, EVEN IF QTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED. QTI HAS NO OBLIGATION TO DEFEND, INDEMNIFY OR HOLD CUSTOMER HARMLESS UNDER THIS AGREEMENT. IN NO EVENT SHALL QTI S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100) OR THE EQUIVALENT THEREOF IN ANY OTHER CURRENCY. 14. Indemnification. Customer hereby agrees to defend, indemnify and hold QTI and anyone acting on its behalf, harmless from and against any claim, action, or demand asserted by any third party and arising from, or otherwise related to, Customer s use of the Service, Customer s breach of this Agreement, and/or any claim that the Customer Application (s) or Content in any manner violates the intellectual property rights or other rights of any third party. In such cases, Customer will reimburse QTI for any expenses, including court fees, attorney fees and the damages (actual and consequential), which QTI might incur. 15. Export Compliance Assurances. Customer acknowledges that all hardware, software, source code and technology (collectively, Products ) obtained from QTI are subject to the US government export control and economic sanctions laws, including the Export Administration Regulations ( EAR, 15 CFR 730 et seq., http://www.bis.doc.gov/) administered by the Department of Commerce, Bureau of Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq., http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury, Office of Foreign Assets Control ( OFAC ). Customer assures that Customer and Customer s subsidiaries and Affiliates will not directly or indirectly export, re-export, transfer or release (collectively, Export ) any Products or direct product thereof to any destination, person, entity or end use prohibited or restricted Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 7
under US law without prior US government authorization to the extent required by regulation. The US government maintains embargoes and sanctions against the countries listed in Country Groups E:1/2 of the EAR (Supplement 1 to part 740), currently Cuba, Iran, Libya, North Korea, Sudan and Syria but any amendments to these lists shall apply. Customer agrees not to directly or indirectly employ any Product received from QTI in missile technology, sensitive nuclear or chemical biological weapons activities, or in any manner knowingly Export any Product to any party for any such end use. Customer shall not Export Products listed in Supplement 2 to part 744 of the EAR for military end-uses, as defined in part 744.21, to the People s Republic of China. Customer shall not Export any Product to any party listed on any of the denied parties lists or specially designated nationals lists maintained under said regulations without appropriate US government authorization to the extent required by regulation. Customer acknowledges that other countries may have trade laws pertaining to the Export, import, use, or distribution of Products, and that compliance with same is Customer s responsibility. Notwithstanding any other provision, the terms of this Section (Export Compliance Assurance) shall survive any expiration or termination of this Agreement. 16. Compliance with Anti-Corruption Laws. Customer represents and warrants to QTI that, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving QTI, Customer, and everyone acting on its behalf, will comply with and will not violate any anti-corruption law or international anti-corruption standards, including but not limited to the U.S. Foreign Corrupt Practices Act. Customer represents and warrants to QTI that Customer has not, and covenants and agrees that it will not, in connection with the transactions contemplated by this Agreement or in connection with any other business transactions involving QTI, make, promise, or offer to make any payment or transfer anything of value, directly or indirectly, to any individual to secure an improper advantage. It is the intent of the Parties that no payments or transfer of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining or retaining business. 17. General. 17.1. Relationship of Parties. The relationship between Customer and QTI created under this Agreement is non-exclusive and that of independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other s behalf without the other s prior written consent. 17.2. Notices. All notices, consents, waivers, and other communications intended to have legal effect under this Agreement must be in writing and must be in English. Customer agrees that QTI may provide written notice under this Agreement having binding legal effect by sending an email to the email address Customer provided during the registration process or subsequently updated by Customer in accordance with this section or by posting of such notice on the Website. Without limiting the foregoing, Customer agrees that any notice QTI sends to the email address associated with Customer s user account will satisfy any legal notice requirement. Notices sent to QTI by Customer shall be sent by registered or certified mail, return receipt requested, to Qualcomm Technologies, Inc., Division Counsel, Qualcomm Internet Services, 5775 Morehouse Drive, San Diego, California, 92121, and shall be effective upon receipt by QTI. Each party may change its address for receipt of notices by giving notice of the new address to the other party. 17.3. Governing Law and Venue. This Agreement shall be solely and exclusively governed, construed and enforced in accordance with the laws of the State of California, USA, without reference to conflict of laws principles. The United Nations Convention on Contracts for the Sale of International Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 8
Goods does not apply to this Agreement. Customer shall comply with all applicable laws, rules, and regulations in connection with its activities under this Agreement. Any suit, action or proceeding arising from or relating to this Agreement must be brought, solely and exclusively, in a federal court in the Southern District of California, USA or in state court in San Diego County, California, USA, and each party irrevocably consents to the jurisdiction and venue of any such court in any such suit, action or proceeding. 17.4. English Language. This Agreement is prepared and executed in the English language only, and any translations of this Agreement into any other language shall have no effect. All proceedings related to this Agreement shall be conducted in the English language. 17.5. Waiver. Neither a course of dealing nor the failure of either party to require performance by the other party of any provision of this Agreement shall 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 of this Agreement be taken or held to be a waiver of the provision itself. 17.6. Severability. If any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions; provided, however that if the parties are unable to so change the provision, then the affected party may terminate this Agreement upon thirty (30) days notice. 17.7. Assignment. Customer shall not assign or attempt to assign this Agreement, in whole or in part, without QTI s prior written consent. Any purported assignment of this Agreement without QTI s consent shall be void. QTI may assign this Agreement or delegate any or all of its rights and obligations hereunder to any third party. 17.8. Publicity. Except as otherwise permitted under the terms of the Vuforia SDK license agreement, neither party may publish or otherwise disseminate any news release or other marketing material that references the other party, or in the case of Customer any news release or other marketing material that references the Service, without such other party s prior written consent. Notwithstanding the foregoing, QTI may include Customer s name, logo, and other information about Customer (e.g., profile information) in QTI s list of Service-enabled applications and other marketing and promotional materials. 17.9. Force Majeure. Neither party shall be liable for any failure to fulfill its obligations hereunder due to acts of God, wars, riots, landslides, earthquakes, fire, floods, inclement weather which necessitates extraordinary measures or expense to maintain operations, interruptions by government, compliance with any court order, law, statute, ordinance or regulation, or other causes beyond its reasonable control. For purposes of this Section, a court order, including without limitation an injunction, issued against a party for any reason that prevents a party from fulfilling obligations hereunder, shall be deemed a cause beyond such party s reasonable control. 17.10. Entire Agreement and Amendment. This Agreement is the entire and exclusive agreement between QTI and Customer with respect to the Service and supersedes all prior agreements (whether written or oral) and other communications between QTI and Customer with respect to the Service. This Agreement supersedes, and its terms govern, all prior or contemporaneous understandings, representations, letters of intent, memoranda of understanding, agreements, or other communications between the parties, oral or written, regarding such subject matter. For purposes of clarity, the foregoing sentence shall not impact or limit in any manner the terms of Customer s license agreement applicable to Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 9
the Vuforia SDK. This Agreement may be amended only in a written document signed by both parties, or in accordance with another manner expressly stated in this Agreement. 17.11. Third Party Rights. Excepting the terms and rights applicable to QTI s Affiliates as expressly stated herein (which terms and rights such QTI Affiliates shall be entitled to enforce as third party beneficiaries), the Parties agree, and confirm their mutual intention, that nothing in this Agreement shall be enforceable by any party other than QTI and Customer and no third party beneficiary rights are conferred on any such third party. Notwithstanding that any term of this Agreement may be or may become enforceable by a person who is not a party to this Agreement, the terms and conditions of this Agreement may be modified or amended, or this Agreement may be suspended, cancelled, rescinded or terminated by the parties as provided in Section 17.10 (Entire Agreement and Amendment) without the consent of any such third party. BY CLICKING ON THE ACCEPT BUTTON WHERE INDICATED YOU REPRESENT, WARRANT AND CERTIFY THAT: YOU ARE AN AUTHORIZED REPRESENTATIVE OF CUSTOMER; YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT; YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND YOU AGREE ON BEHALF OF CUSTOMER TO BE BOUND BY ITS TERMS AND CONDITIONS. Vuforia Cloud Recognition Service Agreement Limited Usage [Rev. 19-Feb-2013] Page 10