License Agreement

MoodMe SOFTWARE DEVELOPMENT KIT

LICENSE AGREEMENT

This Software Development Kit License Agreement (the “Agreement”) is entered into as of today, by and between Mach-3D SàRL, a company incorporated in Luxembourg at Technoport, 9 Avenue des Hauts Fourneaux, Belval, L-4263 Esch-sur-Alzette, Luxembourg and registered with VAT number LU25263957 and Company Registry B 166226, owner of the MoodMe brand, trade mark, technologies, IP, and of MoodMe Belgium SRL, company registration number BE 0550.385.819, incorporated in Belgium at 15, Rue des Vertes Haies, 1400 Nivelles, validly represented by Chandra Olivier De Keyser in his capacity of Associé Gérant (CEO) of Mach-3D (“MoodMe”) and you or your Company, Address and Company Registration number to be provided upon request, represented by the person who provides his/her name or accepted this agreement online and provided his/her Email (“Company”).

Recitals

Whereas, MoodMe has the right to license certain software and the Company desires to obtain rights to use such software on designated systems and at designated facilities;

Whereas, MoodMe distributes such software either directly or through a distributor and is willing to license such software to Company on the terms and conditions of this Agreement.

Agreement

Now, therefore, in consideration of the foregoing and the mutual promises contained in this Agreement (including the exchange for the payment of fees for use of the Software), the adequacy of which consideration is hereby acknowledged, the parties agree as follows:

Definitions

Unless explicitly contradicted by the Specific Annex, the following conditions apply:

The “SDK” shall mean the MoodMe application software as well as underlying software development kit(s), including any subsequent updates or upgrades made available to Company, and any associated software source code, documentation or other materials made available by MoodMe to assist Company in developing solution(s) (each a “Company Product”) that interoperates with MoodMe product(s).

This Agreement applies to any SDK provided by MoodMe or that includes, displays, or links to this Agreement, and to any updates, supplements or support services for this SDK.

  1. Payment; Use Rights.

Subject to Company’s compliance with the terms of this Agreement, Company may:

  • (i) download, install, and use the SDK on its devices solely to design, develop, and test Company Product(s) or to use it as an application without modifying it,
  • (ii) make a reasonable number of copies of the SDK as necessary to develop Company Product(s), provided that Company reproduces complete copies of the SDK, including without limitation all “read me” files, copyright notices, and other legal notices and terms,
  • (iii) use, reproduce, modify, and distribute the sample code included in the SDK only as embedded in a Company Product that complies with the technical limitations and the certification requirements set forth in the documentation (the “Certification Requirements”), and
  • (iv) distribute the sample code included in the SDK in a maximum number of instances (downloads or installations) as authorized by the Commercial Usage Tier (as set forth on Annex A). Company shall provide the raw data (ie unedited) as well as access (read-only) to tools providing analytics, statistics, and app downloads from third parties (such as App Annie) to enable MoodMe to control compliance of this contract with the licensed Commercial Usage. Company shall provide such data periodically, on monthly basis, as well as upon reasonable request from MoodMe.

Subject to the terms and conditions contained herein, MoodMe grants to Company a limited, non-transferable, non-sublicensable, non-exclusive, worldwide, license to use the MoodMe SDK solely to develop, test, and operate mobile applications.

Company will have no right to license, distribute or otherwise transfer the MoodMe SDK or any rights therein.

Company rights in the MoodMe SDK will be limited to those expressly granted in this Agreement.

Company shall pay received invoices issued in electronic format from MoodMe in the context of this Agreement within 7 days. The interest of LIBOR + 8% is due for delays in payment exceeding 7 days unless otherwise specified in MoodMe invoice.

Subject to MoodMe’s obligations pursuant to this Agreement, MoodMe reserves the right to discontinue offering the SDK (or any updates thereto) or to modify the SDK at any time in its sole discretion. Free/open-source software components which may be distributed today and/or in subsequent updates or upgrades in this SDK are licensed to Company under the terms of the applicable free/open-source license agreements.

Except as set forth above, Company may not:

  • (1) modify, distribute, sell, lease, rent, lend, or sublicense the SDK (or any copy or portion thereof),
  • (2) pre-install or embed applications created using this SDK on third-party devices,
  • (3) use the SDK to create, design, or develop anything other than Company Product(s),
  • (4) create any alternate connections to the SDK other than those supplied with the MoodMe SDK,
  • (5) make any more copies of the SDK than are reasonably necessary for the authorized use,
  • (6) modify, create derivative works of, reverse engineer, reverse compile, disassemble the SDK, or otherwise seek to ascertain any part of the source code of MoodMe SDK or any other software provided to you by MoodMe, except and only to the extent that applicable law expressly permits, despite this limitation (in which case Company shall provide MoodMe with prior notification and the opportunity to respond),
  • (7) create or attempt to create a product that will understand and interpret the communications and commands between MoodMe’s products, or
  • (8) use, modify, parts or whole of any Source Code provided by MoodMe in any manner to:
    • (a) be used with any other SDK not provided and legally licensed from MoodMe,
    • (b) be used to create Applications for other end Customers than the ones explicitly mentioned in the license agreement with MoodMe.
  • (9) use the SDK in any manner to:
    • (a) circumvent any technical or licensing restrictions of MoodMe products,
    • (b) upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware,
    • (c) use SDK or any of its features to invade the privacy of any person or otherwise violate any law, including, but not limited to, by the usage of GPS functionality, location/tracking services, storing of users’ faces, etc.

Company agrees that it is responsible for maintaining the confidentiality of any developer credentials that may be issued to Company by MoodMe or which Company may choose and that Company will be solely responsible for all applications that are developed under Company developer credentials.

  1. MoodMe Marketing Guidelines

“MoodMe Marks” means the MoodMe(TM) trademark.

Company agrees and acknowledges that:

  • (i) the MoodMe Marks, whether or not registered, are the sole property of MoodMe or its suppliers;
  • (ii) Company’s reproduction of the MoodMe Marks inures to the benefit of MoodMe;
  • (iii) MoodMe has the right to communicate about Company, its sublicensees customers and any end-user of MoodMe products, about how they use MoodMe products including but not limited to press releases, web & blog post, case studies, benchmarks, and to use visual assets including but not limited to screen shots & videos;
  • (iv) Company agrees to share information such as visuals, screenshots, video, description of use cases
  • (v) Company acquires no legal rights in the MoodMe Marks.

Company agrees that it shall not adopt or use any MoodMe Marks or any word, company name, mark, or design that is similar to or confusing with the MoodMe Marks.

Company shall not use the MoodMe Marks in connection with any activity that:

  • (a) disparages MoodMe or its products or services;
  • (b) violates or infringes any intellectual property of MoodMe; or
  • (c) violates any local, state, federal, country, or international regulation or law.

MoodMe may collect data concerning the functionality and performance of the SDK or MoodMe products including, without limitation, identifying potential errors and improvements (“Feedback”).

Feedback which is provided by Company to MoodMe in connection with this Agreement may be used by MoodMe and its affiliates to improve or enhance its products and, accordingly, MoodMe and its affiliates shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit distribution and otherwise exploit such Feedback without restriction.

MoodMe provides support for the SDK as part of this Licensing Agreement through its Forum.

Company may receive certain services including Support services from MoodMe related to MoodMe software, which services will be subject to a separate agreement between MoodMe and Company.

  1. License Terms.

MoodMe hereby grants to Company a license valid for the duration period (the “Term”) of one year, renewable if not otherwise terminated or extended by written agreement between the parties unless otherwise stated in Annex A.

This Agreement shall continue as long as Company is in compliance with the terms specified herein or until otherwise terminated.

Either party may terminate this Agreement upon thirty days written notice of the other party is in material breach of any provision of this Agreement and failed to cure such breach within thirty days of receipt of such notice. Without prejudice to the above, Company shall have the right to terminate this Agreement for any reason by sending to MoodMe a 15 business days prior written notice via registered letter, with acknowledgment of receipt.

In case of time-limited licenses, for evaluation, development, or commercial, the termination is automatic.

In addition, MoodMe may terminate this Agreement upon thirty days’ written notice at its own discretion for any license for which no payments have been received.

Company agrees, upon termination, to immediately destroy all copies of all material provided by MoodMe, including but not limited to the SDK, Source Code, Documentation, etc. within the Company’s possession or control. Company has the obligation to remove the SDK from all its computers, own or from sub-contractors or any other partners.

Furthermore, in the case of Apps distributed through App Stores or other software distribution system, Company has the obligation to update its application with a build which does not contain MoodMe SDK.

By default, all applicable Sections survive any termination of this Agreement.

The SDK is licensed, not sold. MoodMe reserves all other rights not granted herein.

The parties acknowledge that, as between the parties,

  • (a) MoodMe or its licensors retain complete ownership of all Intellectual Property Rights in and to the SDK and
  • (b) Company or its licensors retain complete ownership of all Intellectual Property Rights in the Company Product(s) (subject to MoodMe’s underlying ownership of the Intellectual Property Rights in and to the SDK).

Nothing in this Agreement will be construed to transfer or assign any Intellectual Property Rights of either party to the other. “Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights.

  1. DISCLAIMER OF WARRANTIES & LIABILITY.

THE SDK IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOODME DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MOODME BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO THE SDK OR THIS SOFTWARE DEVELOPMENT KIT LICENSE AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE.  EXCEPT WITH REGARD TO MOODME’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 11,

MOODME’S TOTAL LIABILITY RELATING TO THE SDK OR THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE AMOUNT ACTUALLY RECEIVED BY MOODME PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER MOODME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Company shall defend, indemnify, and hold harmless MoodMe and its affiliates and their respective directors, officers, employees, contractors, agents, and end-users (“MoodMe Indemnified Parties”) against any third party claim, suit, or proceeding (“Claim”) and any liability, damage, loss, cost, and expenses (including attorney’s fees) arising from the Claim (“Damages”) threatened or brought against any Indemnified Party alleging that any aspect of a Company Product (excluding the SDK) infringes (including contributory infringement) or misappropriates any third party intellectual property right. The MoodMe Indemnified Party shall provide Company written notice of any Claim within a reasonable time after the MoodMe Indemnified Party receives written notice of the Claim. The MoodMe Indemnified Party’s failure to provide timely written notice will not excuse Company’s obligation under this Agreement unless lack of actual notice of the Claim has a substantial adverse effect on Company’s ability to defend the Claim. The MoodMe Indemnified Party must allow Company sole control of the defense. Company shall not settle any Claim, and no settlement of a Claim will be binding on the MoodMe Indemnified Party, without its prior written consent, which will not be unreasonably withheld or delayed.

“Confidential Information” means information or material provided by the discloser to the recipient that is in tangible form and labeled “confidential” or the like, or, information, which a reasonable person knew or should have known to be confidential.

The following information shall be considered Confidential Information whether or not marked or identified as such:

  • (a) license keys;
  • (b) information regarding either party’s pricing, product roadmaps, and strategic marketing plans;
  • (c) non-public materials relating to the SDK, MoodMe products or Company products, and
  • (d) the terms and conditions of this Agreement.

Each party shall keep all Confidential Information it receives confidential using the same protections that it applies to its own information of like importance, but in no event less than reasonable care, and may use such information solely for the purposes contemplated by this Agreement or as otherwise agreed in writing.

Confidential Information may be disclosed solely to employees, contractors, and consultants who have a legitimate need to know the Confidential Information and are bound to confidentiality restrictions substantially equivalent to this Section 12 and who are not working on products or services that are competitive with MoodMe’s or Company’s (and their respective affiliates’) products and services.

This Section will not apply to information that:

  • (a) was rightfully in possession of the recipient prior to receipt of such Confidential Information from the discloser;
  • (b) is or becomes a matter of public knowledge through no fault of the party receiving such Confidential Information hereunder;
  • (c) is rightfully received from a third party without a duty of confidentiality;
  • (d) is independently developed by recipient without breach of any confidentiality obligations; or
  • (e) is disclosed by recipient with discloser’s written approval;
  • (f) the recipient is required to disclose by applicable law or court order, or
  • (g) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.

In addition, recipient will be allowed to disclose

  • (i) discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that recipient notifies discloser of such required disclosure promptly and in writing and cooperates with discloser, at discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure,
  • (ii) the terms and conditions of this Agreement in confidence in connection with an actual or proposed merger, acquisition, or similar transaction.

The parties acknowledge that breach of this Section may cause damage to the discloser for which monetary damages will be an inadequate remedy. Accordingly, the discloser will be entitled to seek and obtain injunctive and any relief (legal or equitable) to restrain any breach or anticipated breach of this Section.

    1. Governing Law/Venue.

This Agreement will be governed and interpreted in accordance with the laws of Luxembourg, without regard to conflict of law principles. Venue for any legal action is proper in Luxembourg courts and each party expressly consents to venue and jurisdiction of those courts.

This Agreement may not be assigned in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party.

Notwithstanding the forgoing, either party may assign this Agreement in connection with merger, a corporate reorganization, or the transfer of substantially all of the assets of the business to which this Agreement relates.

This Agreement will bind and inure to the benefit of the parties and their permitted assigns.

Entire Agreement.

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes entirely all written or oral agreements previously existing between the parties with respect to that subject matter.

Each of the parties acknowledges that it is not entering into this Agreement on the basis of any representations other than those representations contained expressly in this Agreement.

Any modifications of this Agreement must be in writing and signed by both parties hereto.

If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the parties agree to comply with the provision to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement remain in full force and effect.

Export Control.

Company acknowledges that the SDK is of European Union origin, is provided subject to applicable EU Export Regulations, may be subject to the export control laws of the applicable territory and that diversion contrary to applicable export control laws is prohibited.

Company represents, warrants, and covenants that

  • Company is not, and is not acting on behalf of,
    • (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the European Union or the United States have prohibited export transactions; or
    • (b) any person or entity listed on applicable EU or US lists of Specially Designated Nationals and Blocked Persons,

Personal data, GDPR.

Mood Me does not process any kind of personal data, nor information concerning identified or identifiable natural person. The means and technology used only allow the collection of various and anonymous emotional general characteristics extracted “on the fly” ie in real-time, without any storage of identified or identifiable faces. Mood Me only processes the results of the extraction of face characteristics as landmarks indicating the position of the mouth, the eyebrows, the nose, the eyes, the gender, the age, and the emotions, without any possibility to identify an individual person. Consequently, the GDPR and its principles of data protection are not applicable to the anonymous information processed by Mood Me, considering that even if personal data is accidentally collected, it is automatically rendered anonymous in such a manner that the data subject is not or no longer identifiable.

Data Privacy.

Company agrees that MoodMe may periodically collect, process, and store technical and related information about the Company’s device, system, application, peripherals, and Company’s use of the SDK, including without limitation: internet protocol address, hardware identification, operating system, application software, peripheral hardware, number of active plugins and software development kits, the successful installation and launch of SDK, and SDK usage statistics (collectively, “Technical Data”).

MoodMe will use Technical Data for internal statistical and analytical purposes to facilitate support, invoicing or online services, the provisioning of updates, and the development of MoodMe products and services.

Company acknowledges that correspondence and log files generated in conjunction with a request for support services may contain sensitive, confidential or personal information.

Company is solely responsible for taking the steps necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to MoodMe.

Company undertakes to make available to MoodMe all information in its possession allowing it to determine, on a monthly basis, the precise statistics of the number of download /installations by providing raw data (ie unedited data from the source of its own tool for the analysis & verification by a third-party provider of mobile information provider such as App Annie) from the date of entry into force of this Agreement until its termination.

Notwithstanding the other provisions of this Agreement relating to the respective rights and obligations of the parties, in the event of a breach of this obligation by the Company, MoodMe shall have the right at any time during the duration of this Agreement to terminate it immediately by sending a written notice of termination to the Company. The Company undertakes to pay a compensation corresponding to the lumps sum of 0.1 € (ten cents of one Euro) per user (download or installation), calculated on the basis of the data collected by MoodMe during the previous month, without prejudice to any other compensation or indemnity provided for in article 11 of this Agreement.

Relationship of Parties.

The relationship of the parties during the term of this Agreement is that of independent third parties.

Neither party has, nor no party has the right to represent that it has any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name.

Nothing stated in this Agreement may be construed as creating the relationships of employer/employee, franchiser/franchisee, or principal/agent between the parties.

Notices to either party must be in writing and must be delivered by email addressed as stated below:

MoodMe:

Chandra De Keyser, CEO: [email protected]

COMPANY

NAME, TITLE & EMAIL as in Introduction

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 SIGNATURES

IN WITNESS WHEREOF, the authorized representatives of parties have executed this Agreement as of the day and year first above written.

MoodMe:

SIGNED

Chandra De Keyser, Chief Executive Officer

COMPANY

______________________________________________

Authorized representative

 

Annex A

Commercial Terms & additional Terms & Conditions.

Clauses in the present Specific Annex may supersede the conditions expressed in the body of this Licensing Agreement. In case of contradiction, the clauses in the present Specific Annex take precedence.

SELECT PRODUCT(S) FROM BELOW (as per your choice in the online form)

The following MoodMe PRODUCTS available for time-limited free trials:

  • Face AR Star (v2020)
  • Face AR Lite (v2019)
  • Emotion Analytics

for either iOS or Android.

License commercial terms: FREE

Price & payment terms: NA

Duration: 10 calendar days from the day of acceptance of this agreement

Sublicensing:

·        End Customer: NOT ALLOWED

·        Type of Application: INTERNAL EVALUATION TESTS