Terms of Service
MaskCheck End User License Agreement
This MaskCheck End User License Agreement (this “Agreement”) is a binding agreement between COVID-19 International Research Team (“Licensor”) and the entity or organization you represent as the licensee of the Software (“Licensee“) (together the “Parties”). Licensor provides the Software solely on the terms and conditions set forth in this Agreement and on the condition that Licensee accepts and complies with them.
By clicking the “Accept” button you (a) accept this Agreement and agree that Licensee is legally bound by its terms; and (b) represent and warrant that: (i) you are of legal age to enter into a binding Agreement; and (ii) if Licensee is a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this Agreement on behalf of Licensee and bind Licensee to its terms.
- The following terms have the following meanings:
“Applications” means one or more software implementations that combines the Software with a general user interface (GUI) to enable users’ interaction with the Software.
“Authorized User” means individual persons authorized by Licensee to use the Software pursuant to the license granted under this Agreement.
“Documentation” means the user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensor” has the meaning set forth in the preamble.
“Personal Information” means information relating to any identified or identifiable natural person.
“Service” means one or more services provided by Licensor through the Software.
“Software” means the software provided under this Agreement.
“Term” has the meaning set forth in Section 10.
“Third Party” means any Person outside the Licensee’s organization.
- License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use Software and Documentation. This license grants Licensee the right to:
(a) download install the Software on one computing device owned or leased, and controlled by Licensee. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for backup purposes. All copies of the Software made by the Licensee:
i. will be the exclusive property of the Licensor;
ii. will be subject to the terms and conditions of this Agreement; and
iii. must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
(b) use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes. Such use is permitted only on the computing device on which the Software is installed,
(c) transfer any copy of the Software from one computing device to another, provided that the number of computing device on which the Software is installed does not exceed the number permitted under Section 2(a).
(d) use the Documentation solely with the Software.
- Use Restrictions. Licensee will not, and will require its Authorized Users not to, directly or indirectly:
(a) use the Software or Documentation beyond the scope of the license granted under Section 2;
(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(c) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(f) except as expressly set forth in Section 2 copy the Software or Documentation, in whole or in part;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason;
(h) use the Software or Documentation in violation of any law, regulation, or rule; or
(i) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
- Privacy and Data Protection.
- Licensee is responsible and liable for familiarizing itself and Authorized Users on the local laws and regulations relating to the use of the Software for the purposes of collecting any Personal Information. Licensee hereby undertakes and agrees to use the Software in compliance with such laws and regulations. In addition, Licensee undertakes to provide appropriate notices to individuals about use of the Application (including its data collection and use) on Licensee’s premises. Responsibility for Use of Software.
Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for obtaining all necessary approvals from the end users and regulatory institutions relating to collection of data, and for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
- Compliance Measures.
The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 3. Licensee will not, and will not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
- Maintenance and Support.
(a) Licensor will have no responsibility to provide support to the Licensee, unless Licensee has executed a separate contract for support with Licensor.
(b) Notwithstanding Section 7(a), Licensor at its sole discretion may develop and provide updates, and Licensee agrees that Licensor has no obligation to develop any updates at all or for any particular issues. Licensee further agrees that all updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement.
- Collection and Use of Information.
(a) Please refer to the Data Collection and Use policy below to review Licensor’s collection and use of Personal Information.
(b) In accordance with the California Consumer Privacy Act of 2018 (“CCPA”), Parties acknowledge and agree that, for the purpose of processing such Personal Information, the Licensor is a Service Provider to the Licensee.
(c) In accordance with the California Consumer Privacy Act of 2018 (“CCPA”), Licensor hereby expressly certifies that (i) Licensor understands and will comply with the restrictions set forth in the CCPA, including its reasonable security requirements; (ii) Licensor will not sell Personal Information under any circumstances; (ii) Licensor will retain, use or disclose Personal Information only to the extent necessary for providing services to Licensee or any other compatible business purpose as described in this Agreement, and no other reason except as required by law; and (iii) Licensor will immediately notify Licensee if Licensor becomes aware of any breach of these terms or any related inquiries or complaints by individuals or governmental entities.
(d) Licensee acknowledges that Licensor may, directly or indirectly through the Services collect and store non Personal Information relating to the use of the Software and about equipment on which the Software is installed and may use such information for any purpose, including but not limited to:
i. improving the performance of the Software or developing software updates;
ii. verifying Licensee’s compliance with the terms of this Agreement;
iii. and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
- Intellectual Property Rights.
Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves the entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee will use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee will promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
- Term and Termination.
(a) This Agreement and the license granted hereunder will remain in effect until terminated as set forth herein (the “Term“) in this section 10.
(b) If the Licensee is using an evaluation version, trial version, or subscription version of the Software, this Agreement and license will termination at the expiration of the applicable evaluation trial, or subscription period.
© If the Licensee is using a free version of the software, either party can terminate the license at any time by providing notice to the other party. Licensee may also terminate this Agreement at any time by ceasing to use and destroying all copies of the Software and Documentation provided however the Licensee will not be entitled for any refund of any pre-paid license fees.
(d) Licensor may also terminate this Agreement anytime by notifying the Licensee of its intention to terminate this Agreement provided however licensor refunds any fees paid for the period after the termination.
(e) This Agreement will automatically terminate:
i. If Licensor breaches this Agreement and such breach: (1) is incapable of cure; or (2) being capable of cure, remains uncured within ten (10) days after Licensor provides written notice thereof; or
ii. If Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and Licensee will cease using and destroy all copies of the Software and Documentation.
- Warranty Disclaimer.
THE SOFTWARE AND DOCUMENTATION IS PROVIDED UNDER THIS AGREEMENT “AS IS,” WITHOUT SUPPORT OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT; OR WARRANTIES THAT THE SOFTWARE AND DOCUMENTATION, ARE FREE OF DEFECTS OR SECURE. LICENSEE BEARS THE ENTIRE RISK IN CONNECTION WITH ITS USE OF THE SOFTWARE UNDER THIS AGREEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- Limitation of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR: ANY INDIRECT; INCIDENTAL; SPECIAL; OR CONSEQUENTIAL DAMAGES; (INCLUDING LOSS OF PROFITS, REVENUE, DATA, OR USE) INCURRED BY EITHER PARTY WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S INDEMNITY OBLIGATIONS FOR THIRD PARTY ACTIONS UNDER SECTION 13 ARE EXCEPTED FROM THIS LIMITATION. NOTWITHSTANDING THE FOREGOING, LICENSOR’S MAXIMUM LIABILITY UNDER THIS LICENSE WILL NOT, IN ANY EVENT, EXCEED THE LESSER OF THE TOTAL LICENSING FEES PAID BY THE LICENSEE FOR A PERIOD OF ONE YEAR OR US$500.00
Licensee agrees to indemnify, hold harmless, and defend Licensor and its officers, directors, employees, customers, suppliers, agents and successors from and against any and all damages, costs and expenses, including reasonable attorneys’ fees, incurred in connection with any third party Action arising out of or relating to Licensee’s use of the Software beyond the scope of the license in the Agreement or any modification of the Software, on condition that Licensor promptly notifies Licensee of the Action, Licensee has sole control over its defense or settlement, and Licensor provides reasonable assistance in the defense of same at Licensee’s expense.
- US Government Rights.
The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee will receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) Independent Contractor. The relationship created by this Agreement is one of independent contractors, and not partners or joint ventures. Nothing in this Agreement will be interpreted to provide either party with any title or other ownership rights other than those granted herein, in the software and other materials provided by the other party.
(b) Assignment. Licensee may not assign, transfer, or otherwise dispose of this Agreement, or any rights or obligations hereunder, without Licensor’s prior written consent, in Licensor’s sole discretion. This Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.
(c) Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4, Section 6, Section 8, Section 9, Section 11, Section 12, Section 13, and this Section 15.
(d) Miscellaneous. This Agreement, together with its attachments, constitute the complete and exclusive agreement between Licensor and Licensee with respect to its subject matter, and supersede all prior oral or written understandings, communications or agreements. This Agreement may not be modified except in a writing duly signed by authorized officers of Licensor and Licensee. The waiver by either Party of any breach of this Agreement by the other Party will not waive subsequent defaults by such Party of the same or a different kind. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof.
(e) Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of Washington State, USA, excluding that body of law known as conflicts of law. Any legal action or proceeding relating to this Agreement must be brought in the Washington. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
(f) Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Additional Terms for Applications
MaskCheck Application – If the Licensee is using the MaskCheck Application, the following additional conditions will apply.
- Data Collection and Use Policy.
(a) Application collects or derives the following Personal Information, which are deleted or anonymized after rendering the Service as described in section 16(c), and (d) below.
- Images of faces.
- Estimated age and gender (optional)
- Device Location information including estimate location, IP address, device ID, serial number, and time of capture (optional)
(b) Licensor uses, retains, and discloses the Personal Information collected or derived through the Application only as necessary for the specific business purpose of providing the Services to the Licensee. Licensor will not sell such Personal Information. Licensor will not use, retain, or disclose such Personal Information outside of its business relationship with Licensee or for any purpose except as described in this Agreement or as required by law.
(c) In the event Licensee opts-in to sharing mask usage data, Licensor will delete the images of faces and then hash, anonymize and aggregate the other data to ensure that the resultant data will not contain Personal Information. Licensor will then share such aggregated data on mask wearing practices with health officials and other research organizations.
(d) In the event the Licensee does not opt-in to sharing mask usage data, Licensor will immediately delete all Personal Information which are used to provide the Service. Personal Information collected through the application and stored in Licensee’s account will automatically delete in 30 days. Licensor will not have access to the data stored in the Licensee’s account.
(e) Individuals may voluntarily provide feedback on the mask detection accuracy of a specific image by opting-in to sharing specific image of a face, relating to error in detection, with the Licensor. Licensor will use these images solely for the purposes of improving the machine learning Software algorithm and such images will be retained for as long as necessary to re-train and improve the algorithms. Licensor specifically undertakes and warrants that such data retained will not be used to specially identify any individuals.