END USER LICENSE AGREEMENT FOR
DIGITALPERSONA® SOFTWARE DEVELOPMENT KIT (SDK) PRODUCTS
 
IMPORTANT - READ CAREFULLY:  This DIGITALPERSONA END USER LICENSE AGREEMENT (the “EULA”) is a legal agreement between you either as an individual or as an authorized representative of a business entity (hereafter referred to as “You” and/or “Your”) and DigitalPersona, Inc. (“DigitalPersona”).  DigitalPersona is willing to license to You the DigitalPersona software product accompanying this EULA, which includes, without limitation, any software, updates and upgrades, associated firmware, media, manuals, user guides and/or other documentation provided  by DigitalPersona or made available for download, whether tangible or intangible (the "Software Product").  By installing, downloading, copying, or otherwise using the Software Product, You agree to be bound by the terms of this EULA, as may be modified from time to time by DigitalPersona in its absolute discretion.  If You do not agree to the terms of this EULA, do not install, copy or use the Software Product; please return the original Software Product and all copies thereof (if any) to Your place of purchase to obtain a refund, or if the Software Product was downloaded, please remove and delete the original and all copies of the Software Product from the computer(s) on which it was installed.  

1.	License Grant.  DigitalPersona grants to You a limited, non-transferable, and non-exclusive right to install and use the Software Product at Your premises under the terms and conditions of this EULA.  You may copy the Software Product to the hard disk of one (1) computer system, or use the Software Product on Your network, Your intranet or other storage device secured in such a manner to prohibit access of the Software Product by unauthorized users.  You may copy the Software Product only to the extent necessary to make one archival copy for back-up purposes.  

Subject to the terms and conditions of this EULA, and subject to DigitalPersona’s underlying Intellectual Property Rights (as defined below) in and to the Software Product, You may use the Software Product to design, develop, and test a software application product (the “Licensee Application"), for use with the corresponding DigitalPersona Workstation Software (defined below) and the DigitalPersona U.are.U® Fingerprint Reader, or such other hardware/software package approved by DigitalPersona.  For purposes of this EULA a Licensee Application specifically excludes any type of software development tool designed, developed, licensed and/or distributed by You.  You represent that each and every biometric fingerprint reader, fingerprint recognition algorithm and other software required by the Licensee Application for fingerprint recognition will be purchased from DigitalPersona or its authorized distributors.  For purposes of this EULA, the DigitalPersona Workstation Software means the DigitalPersona software that is installed and used on a computer, terminal or other digital electronic device (each a “Workstation”) and that provides fingerprint authentication functionality.

Subject to the terms and conditions of this EULA, and subject to DigitalPersona’s underlying Intellectual Property Rights (as defined below) in and to the Software Product, You may modify the sample source code located in the Software Product’s "Samples" folder (the "Sample Code") and create derivatives thereof (the “Sample Derivatives”).  You may reproduce and distribute the Sample Derivatives in object code form only, and only as incorporated into the Licensee Application.  

2.	License Restrictions.  You acknowledge and represent that the Licensee Application shall not be used, under any circumstances, with fingerprint recognition hardware and software other than a DigitalPersona product, and that the number of developer in Your organization having access to or using the Software Product will not exceed one (1) and/or the number of valid licenses acquired by You which are still in force.  Except as otherwise permitted herein, You: (i) may not, or cause or permit a third party to, reproduce, distribute, redistribute, sublicense, loan, rent or lease, all or any portion of the Software Product, including but not limited to, the bundling of the Software Product or portions thereof with any fingerprint recognition product not authorized by DigitalPersona; (ii) except as otherwise provided herein, shall not reverse engineer, decompile, disassemble, or attempt to access or discover the underlying source code of the Software Product or portions thereof; and (iii) may not utilize the Software Product to create or develop (or cause or permit third parties to create or develop), any products which compete with DigitalPersona products.

3.	Ownership of the Software Product.  The Software Product (including any updates, upgrades, modifications and revisions) is protected by intellectual property and copyright laws and treaties worldwide, and may contain trade secrets of DigitalPersona or its suppliers, who have and maintain exclusive right, title and interest in and to the Software Product and the Sample Derivatives, and reserve and retain all rights not expressly granted to You under this EULA.  Subject to DigitalPersona’s underlying rights in and to the Software Product and portions thereof, You shall own all Intellectual Property Rights (as defined below) in and to the Licensee Application.  

4.	Covenant to Facilitate Development.   You acknowledge and agree not to enforce or assert any intellectual property rights (including, without limitation, all rights now held or hereafter created or acquired, whether arising under the laws of the United States or any other country, for any patents, copyrights or trade secrets (collectively, the “Intellectual Property Rights”)), in any Licensee Application or derivatives thereof in a manner which in any way limits the development, use and distribution  by DigitalPersona or its licensees of  the Software Product.  

5.	Support. DigitalPersona may provide You with support services related to the Software Product (“Support Services”). Use of Support Services is governed by the standard DigitalPersona support policies available upon request to DigitalPersona.  Any supplemental Software Product code provided to You as a part of Support Services shall be deemed part of the Software Product and subject to the terms of this EULA.  With respect to any technical information You provide while using Support Services, DigitalPersona may use such information for its business purposes, including without limitation, general product support and development. DigitalPersona will not use such technical information in a form or manner that personally identifies You.

6.	Limited Warranty; Disclaimer of Warranties.  DigitalPersona represents that the Software Product, in the form originally purchased or downloaded by You, will materially conform with the applicable accompanying documentation, and its media will be free from defects in material and workmanship, for a period of ninety (90) days from the date of original purchase or download as shown on Your receipt or similar proof of payment (the “Warranty Period”).   EXCEPT FOR THE LIMITED WARRANTIES ABOVE, DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIM ALL WARRANTIES OF EVERY TYPE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, SUPPORT SERVICES, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH REGARDS TO THE SOFTWARE PRODUCT.  IF SUCH DISCLAIMER OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF SAID IMPLIED WARRANTIES IS LIMITED TO NINETY (90) DAYS FROM THE DATE OF PURCHASE.   

If an upgrade or update to the Software Product is delivered with a new warranty period, then the terms of such new warranty period will apply only to the upgraded Software Product, and not the original Software Product.  Any replacement Software Product will be warranted for the remainder of the original Software Warranty Period or thirty (30) days, whichever is longer.  

DigitalPersona's sole obligation and Your exclusive remedy under the limited warranties above shall be, at DigitalPersona's option, either a refund of the price paid (if any), or replacement of the Software Product that does not meet the DigitalPersona limited warranties and that is returned to DigitalPersona with a copy of Your receipt or other such acceptable proof of purchase.

7.	Indemnification.  Your shall defend, indemnify and hold harmless DigitalPersona against any claim and/or action brought against DigitalPersona as a result of: (i) a claim based upon an actual or alleged infringement of an intellectual property right of a third party arising from or related to the Licensee Application; (ii) any modification and/or enhancement to the Sample Code made by or for You; and (iii) any distribution of all or a portion of the Software Product in breach of the limited license granted to You hereunder, provided that DigitalPersona reasonably cooperates with You (at Your expense) in the defense or settlement of such action or claim.   You shall have control of the defense and all settlement negotiations, provided that You may not enter into a settlement providing for any restriction on DigitalPersona or the DigitalPersona technology without DigitalPersona’s prior written consent, and provided further that DigitalPersona shall have the right to be represented by its own attorney at DigitalPersona’s expense.

8.	LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER IN TORT, PRODUCT LIABILITY AND/OR NEGLIGENCE  (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, PRIVACY OR CONFIDENTIALITY, BREACH OF SECURITY SYSTEMS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING IN ANY WAY TO, THE USE OF, OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS  HAVE BEEN ADVISED OF THE POSSIBLILITY OF SUCH DAMAGES OR LOSSES.  EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE SOFTWARE PRODUCT IS SUPPLIED "AS IS", AND THE ENTIRE RISK OF ACCURACY AND SATISFACTORY PERFORMANCE IS WITH YOU.  DIGITALPERSONA AND ITS DISTRIBUTORS OR RESELLERS DO NOT GUARANTEE THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR ALL REQUIREMENTS OF THE SOFTWARE OR HARDWARE WITH WHICH THEY INTERACT.  IN ANY CASE, DIGITALPERSONA'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THIS SOFTWARE PRODUCT OR US$100.00, WHICHEVER IS GREATER.  

9.	Termination of License.  You may terminate this EULA at any time, upon written notice thereof to DigitalPersona.  This EULA will terminate automatically if You breach any material provision of this EULA. Upon termination, all rights to use the Software Product will cease and You shall promptly destroy the original and all copies of the Software Product in Your possession or under its control, and certify in writing to DigitalPersona of such destruction.

10.	GENERAL TERMS
10.1	No Third Party Beneficiaries.  No provision of this EULA is intended, nor will it be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in third parties.  All provisions hereof will be personal solely between You and DigitalPersona.

10.2	Governing Law and Exclusive Forum.  This EULA shall be governed by and construed and enforced in accordance with the laws of the State of California, United States of America, excluding its choice of law provisions.  With the exception of DigitalPersona’s right to enforce its intellectual property rights under this EULA, all disputes arising out of this EULA shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California San Mateo County and the Federal District Court of the Northern District of California, United States of America, and the parties consent to the personal and exclusive jurisdiction and venue of such courts.  The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.

10.3	Export Restrictions.  You acknowledge and agree that the Software Product and the Licensee Application are subject to United States export restrictions, and that You will strictly comply with all applicable United States and international laws relating to the importing and/or exporting of licensed software, and You will not, directly or indirectly, export the Software Product, the Licensee Application and related technical data in violation of the Export Administration Regulations of the U.S. Department of Commerce and other applicable laws. 

10.4	Government Rights.  You acknowledge and agree that the Software Product and all related materials thereto licensed under this EULA are “Commercial Computer Software” and “Commercial Computer Software Documentation” as defined in FAR 12.212 for civilian agencies and DFARS 227.7202 for military agencies and their successors, and in the event You are permitted under this EULA to provide the Software Product, or a portion thereof, to the U.S. Government, such Software Product shall be provided under the terms of this EULA, or terms at least as restrictive as the terms of this EULA.  If You are permitted under this EULA to provide the Software Product, or a portion thereof, to a non-U.S. government entity, You shall take all necessary steps to ensure that DigitalPersona’s intellectual property and proprietary rights in and to the Software Product receive the maximum protection available from such non-U.S. government for commercial computer software and documentation.

10.5	Severability.  If any provision of this EULA is declared unenforceable, illegal or invalid by a competent tribunal under applicable law, then such provision shall be deemed automatically adjusted to conform to the requirements for validity and enforceability, and so adjusted, shall be deemed a provision of this EULA as though originally included herein.  In the event that the abovementioned provision is of such a nature that it cannot be so adjusted, such provision shall be deleted from the EULA, and the remaining provisions of the EULA shall remain in full force and effect.  WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS EULA WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION.  FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.

10.6	No Agency.  Nothing contained herein shall be construed as creating any agency, partnership, franchise or other form of joint enterprise between the parties.

10.7	No Waiver.  The failure of either party to require performance by the other party of any provision hereof shall not 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 hereof be taken or held to be a waiver of the provision itself.

10.8	Notices.  All notices or demands hereunder shall be sent to the attention of the other party’s Legal Department and will be deemed delivered upon acknowledgment of receipt by the other party.

10.9	Language. This EULA is prepared and entered into in the English language only, which language shall be controlling in all respects.  Any translations of this EULA into any other language are for reference only and shall have no legal or other effect. For your convenience, the original English version of this EULA is located in the “Docs” folder the Software Product CD. You may also request a copy of the original English version of this EULA by writing to the following address:

DigitalPersona, Inc.
720 Bay Road, Suite 100
Redwood City, CA 94063, USA
Attn: Legal Department

10.10	Entire Agreement. This EULA contains and constitutes the sole, complete and entire agreement and understanding between You and DigitalPersona concerning the matters contained herein and may not be altered, modified or changed in any manner except with DigitalPersona’s prior written consent.  No statements, promises or representations have been made by one party to the other, and the parties are not relying on any representations other than those expressly set forth herein.

SDK EULA_Elec_061024


