end-user-license-agreement

This SaaS Services Agreement (“Agreement”) is a binding agreement between you (“End user”, “you”, “your”, “Customer”) and Preimage, Inc. a Delaware corporation, whose registered place of business is at 16192, Coastal Highway, Lewes Delaware 19958 (“Company”). Customer and Company are hereinafter sometimes referred collectively as the “Parties” and individually as a “Party”.

Whereas the Company owns and operates a software under the brand and style of “Preimage”, which is a cutting-edge SaaS based 3D reconstruction platform to generate accurate 3D models of sites that are surveyed using drones. The Customer is desirous of availing the said software services from Company and Company hereby agrees to provide the services subject to the terms and conditions of this Agreement.

 

1. Definitions

  • “Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party hereto, or by an entity which owns or controls a Party hereto, as applicable.
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  • “Confidential Information” means any information disclosed by one Party to the other, including but not limited to the terms of this Agreement, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the Receiving Party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Platform and the Software, and all pricing and commercial information shared by the Company shall be deemed Confidential Information of Company.
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  • Control” including, with its correlative meanings, the terms “Controlled by” and “under common Control”, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of any entity, whether through (i) the ownership of more than 50% (Fifty percent) of the voting securities of such entity; (ii) the right to appoint more than 50% (Fifty percent) of the members of the board of directors of such entity; or (iii) by contract, or otherwise.
  • Customer Data” means information shared by the Customer, including images, 3D point cloud, or associated drone dataset information uploaded by the Customer on the Platform for availing the Service.
  • Documentation” means any documentation provided by Company for use with the Platform under this Agreement.
  • Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., Indian, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
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  • Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party.
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  • Personnel” shall mean and include the number of identifiable unique persons consisting of Customer’s personnel who are authorized to access the Platform and use the Services as determined by the Customer. The Customer shall allot unique login credentials to such personnel of the Customer.
  • Platform” means the interface created by Company and the APIs where Customer can access the Software.
  • Software” means the 3D reconstruction technology under the name and style ‘Preimage’, developed by the Company for generating accurate 3D models of sites surveyed using drones as more specifically described in a SOW, which term shall include source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.
  • Subscription Term” shall mean the period for which the Customer has purchased a subscription for the Services as specified under the SOW.

 

2. SaaS Services and Support

2.1 The Company, through its Software, has agreed to provide the Customer, services as more specifically detailed under the Statement of Work (as defined hereinafter) executed between the Parties (“Services”).

2.2 The Statement of Work executed between the Parties shall reflect the details of the Services to be provided by the Company, consideration payable and special conditions, if any. The Statement of Work to be executed between the Parties shall be in the form as attached to this Agreement under Exhibit A (“Statement of Work” or “SOW”). As part of the registration process, Company will ask the Customer for email, password, and other information for the purpose of creating the account. Upon logging in, the Customer may modify the Company allocated password for security purposes. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate in order to avoid any unauthorized access to the Platform subject to prior notice to the Customer. Each SOW will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. An SOW may be amended only by written agreement of the Parties. Company will perform the Services and provide the deliverables described in each SOW in accordance with the terms and conditions set forth in each SOW and this Agreement. The terms in the Agreement will take precedence over conflicting terms in the SOW except to the extent the Parties modify any term of the Agreement by making specific reference to the Clause intended to be modified under the Agreement.

2.3 Customer acknowledges that this Agreement is a services agreement and the Company will not be delivering copies of the Software to Customer as part of the Services.

 

3. Restrictions and Responsibilities

3.1 Company will host and maintain the Platform and Customer Data on servers physically located in the USA, operated and maintained by or at the direction of Company. Company may, in its sole discretion, modify, enhance or update or otherwise change the Platform.

3.2 If necessary for accessing the Platform, Customer will cooperate with the integration of the Customer’s current information systems and data into the Platform, as well as cooperating with the gathering of Customer Data.

3.3 Customer shall provide all the required information and assistance to the Company to enable the Company to deliver the Services. Customer acknowledges that the Company’s ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance. Accordingly, the Company shall not be liable for any delay in provision of Services, provided that such delay is a consequence of ant act or omission of the Customer.

3.4 Customer shall comply with all applicable local, state, national and laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other Intellectual Property Right without first obtaining the permission of the owner of such rights.

3.5 The Company may collect certain limited personally identifiable information (“PII”) such as name of the User, Address, Company name, industry, email address, phone numbers, billing address, etc. for provision of Services. If Users are signing up directly from the portal to use our software application (free trial or paid), we will collect their information (Name, email, company, phone, industry etc.) and store it directly on our IAM provider Okta, our internal database, and will also be integrated with our CRM software. The Company does not share this PII with any third party. If the Customer voluntarily shares any PII other than what is specifically requested by the Company, the Customer shall be solely responsible for any claims that may arise in relation to such transfer of PII to the Company and the Company shall not undertake any liability towards the same whatsoever.

3.6 Customer shall notify the Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security and provide reasonable assistance to stop any unauthorized use of the Services.

3.7 Customer shall be solely responsible for the acts and omissions of its Personnel. The Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Personnel.

3.8 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Company may monitor Customer’s use of the Services and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

>3.9 Customer shall not, and shall not permit anyone to: (i) copy or republish the Services, Software or the Platform, (ii) make the Services or the Platform available to any person other than authorized Personnel, (iii) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the Services, Software, Documentation or Platform, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services or (vii) access the Services, Platform or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, the Company shall own all right, title and interest in and to the Software, Platform, Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and Intellectual Property Rights therein.

3.10 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

 

4. Grant of License

4.1 Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license for the Term, to use and permit Personnel to use the Platform solely for availing the Service. It is hereby clarified that the license granted under this Agreement is for the Platform and does not include licenses for any upgrades or new versions of the Platform or the Software (“Upgrades”) that may be developed by the Company. It is expressly agreed between the Parties that all Upgrades shall be subject to such additional fee as may be notified by the Company in writing. It is further agreed that Upgrades, if any, will be activated subject to the additional fee being approved by the Customer and execution of an amendment by the authorized signatories of both Parties.

4.2 Company reserves all rights to the Platform and the Software not otherwise expressly granted in this Section 4.

4.3 Customer hereby grants Company a royalty-free, non-exclusive, non-transferable, limited license during and after the Term to use Customer’s Marks for the purpose of including Customer’s Marks in any of Company’s Customer lists, marketing and promotional materials, website of the Company and testimonials, solely for the purpose of identifying Customer as a client of Company.

 

5. Limited Platform Warranty

5.1 Company warrants to Customer that during the Term, the Platform will perform substantially in accordance with the terms of Documentation. The foregoing warranty shall not apply to performance issues of the Platform (i) caused by factors outside of Company’s reasonable control; (ii) that result from any improper actions or inactions of Customer; or (iii) that result from Customer’s data structure, operating environment or equipment. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

5.2 EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 5, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SOFTWARE OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, results that may be obtained from USE of the Services, NONINFRINGEMENT, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY SO, THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.

 

6. Confidentiality

6.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. The Receiving Party agrees: (i) to use and reproduce the Confidential Information of the Disclosing Party only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes, (ii) to restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or professional advisors (“Representatives”) who have a bona fide need to know the said Confidential Information for such purposes provided that such Representatives are advised on the confidential nature of the Confidential Information and are bound by confidentiality obligations at least as stringent as the terms of this Clause 6, and (iii) to not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has, if legally permitted, given the Disclosing Party prior notice to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. In the event the Disclosing Party fails to obtain a protective order against such disclosure, the Receiving Party may disclose Confidential Information to the extent legally required.

6.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) as evidenced by written records, was rightfully known to the Receiving Party, without obligation of confidentiality (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as evidenced by written records; or (v) becomes rightfully known to the Receiving Party, on a non-confidential basis, from a source other than the Disclosing Party.

6.3 Remedies. The Receiving Party agrees that a breach of this Clause 6 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.

6.4 Return of Confidential Information: The Receiving Party shall, upon receiving a written request from the Disclosing Party, return (or destroy, if instructed by the Disclosing Party) all Confidential Information in its possession within a period of thirty (30) days from the date of receipt of such request. Notwithstanding the foregoing, the Receiving Party may retain a copy of the Confidential Information to the extent required by it to comply with applicable laws provided that the obligations of confidentiality of the Receiving Party shall continue for the period during which such Confidential Information is retained by the Receiving Party.

 

7. Proprietary Rights

 7.1          Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services, Platform and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, (c) all Intellectual Property Rights related to any of the foregoing, and (d) any depersonalized, aggregated data, information or analysis derived from Customer Data.

7.2          Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to or derived from the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings.

7.3        No rights or licenses are granted except as expressly set forth herein.

 

8. Payment of Fees

8.1     The Company is providing the Services free of charge (with a capped limit).

 

9. Term and Termination

9.1     Subject to earlier termination as provided below, this Agreement shall become effective from the creation of the account and shall continue for a period of 12 months. The Agreement shall be subject to automatic renewal for additional periods of the same duration as the initial term unless a Party issues a notice for non-renewal to the other Party thirty (30) days in advance of the date of expiry of the Agreement (collectively, the “Term”).

9.2     Termination.

  • Either Party may terminate this Agreement without cause or notice.
 

10. Indemnification

10.1      The Company is not responsible for any indemnification of the Customer for whatever reason as the Services are bring provided for free. The Company disclaims all liabilities except unless they are a result of (a) any gross negligence or willful misconduct; (b) breach of Intellectual Property Rights; (c) violation of any applicable statute, regulation, or law (a “Claim”). The Company will have no obligation to the Customer for, any infringement or misappropriation claim that arises from (i) modifications to the Platform/Software by anyone other than Company; (ii) modifications to the Services/Software based upon specifications furnished by the Customer; (iii) Customer’s use of the Services/Software other than as specified in this Agreement or in the applicable Documentation accompanying this Agreement, (iv) use of the Platform/Software in conjunction with third-party software, hardware or data other than that approved by Company, (v) where Customer continues an alleged infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement or (vi) any combination of the foregoing. Customer shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Company all reasonable information and assistance regarding such claim.

10.2     The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.

10.3      In the event any portion of the Services are held or believed by Company to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Platform is used or accessed, then in addition to any other rights in this Section 10, Company shall, at its sole expense and at its option: (i) obtain from such third party the right for the other Party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other Party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement, provided that in such case Company shall promptly refund to Customer all unused Subscription Fees paid by Customer to Company for the balance Subscription Term.

10.4      THIS SECTION 10 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.

 

11. Limitation of Liability

NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY IS WITH RESPECT TO CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.

12. Governing Law and Dispute Resolution

12.1          Governing Law: This Agreement shall be governed in accordance with laws of the state of Delaware.

12.2         Negotiation and Dispute Resolution. In the event a dispute arises between Company and Customer, the aggrieved Party shall promptly notify the other Party to this Agreement of the dispute. If the Parties fail to resolve the dispute within ten (10) business days after receipt of such notice, each Party shall, within five (5) business days thereafter, escalate such dispute to a member of its senior management team. In the event the Parties are unable to resolve their dispute within a period of fifteen (15) days from the date the dispute is escalated to the senior management, either Party may refer the dispute to arbitration in accordance with the AAA rules. Arbitration shall be presided over by a sole arbitrator mutually appointed by the Parties. The venue of arbitration may be online or at a place chose by both Parties and language of arbitration shall be English. Subject to the foregoing, courts at Delaware which shall have the exclusive jurisdiction to resolve disputes that arise under this Agreement.

12.3      Survival. The provisions of this Section shall survive the expiration or termination of this Agreement for any reason.

 

13. Miscellaneous

13.1       If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement including the Exhibits and SOWs executed by the Company pursuant to this Agreement shall form the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and reasonable attorneys’ fees. All notices will be in writing and will be deemed to have been duly given when received, if personally delivered; within one (1) business day if transmitted by facsimile or email provided that the sender does not receive a delivery failure message; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

13.2      Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, pandemic, lockdowns, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.

13.3       Both Parties represent that they shall: (a) comply with all applicable anti-corruption laws or regulations of any jurisdiction (“Anti-Corruption Laws”); (b) irrespective of whether they are legally subject to the United States Foreign Corrupt Practices Act (“FCPA”), comply with the FCPA as though they were legally subject to it. Neither Party shall cause the other Party, knowingly or unknowingly, to violate either the FCPA or any Anti-Corruption Laws in connection with the activities conducted under this Agreement.

 

EXHIBIT A

Statement of Work

This Statement of Work (the “SOW”) is issued under and in accordance with the terms and conditions of the SaaS Services Agreement (the “Agreement”), between you (“End user”, “you”, “your”, “Customer”) and Preimage, Inc. a Delaware corporation, whose registered place of business is at 16192, Coastal Highway, Lewes Delaware 19958 (“Company”). Words not defined herein shall have the meaning ascribed to them in the Agreement.

Name of the Software: Preimage

Description of the Services: (1) Segmentation of point cloud into useful and logical classes such as ground, vegetation, road, building, vehicles, structure, and others; (2) Segmentation of point cloud into ground and non-ground classes; (3) Generate Digital Elevation Model from point cloud; (4) Generate Digital Terrain Model from point cloud.

Subscription Fees: Free to use with a capped limit

Subscription Term: 12 months