1.1 In this Agreement, the following terms, indicated with a capital, whether single or plural, will have the following meaning:
Agreement: the quote between Sightcorp and Customer regarding the access to and use of the Solution. These terms of conditions form an integral part of the Agreement;
Confidential Information: any confidential, proprietary, or business secret information, technology or process owned by or in the possession of Sightcorp, or to the organization, implementation of operation of its business, products and services, in any form, including written and electronic documents or otherwise reasonably to be understood as confidential (regardless of its form) including, without limitation, all statements, contracts or agreements, designs, specifications, drawings, reports, Documentation, technology, Solution, knowledge, know-how disclosed by Sightcorp to the Customer with the exception of information: (i) previously known to Customer free of any obligation to keep it confidential; (ii) which has been or is subsequently made public without any breach of the Agreement; or disclosed by any third party that is not subject to any confidentiality obligation to a Party to the Agreement in respect of that information, or (iii) disclosed by any third party that is not subject to any confidentiality obligation to a Party to the Agreement in respect of that information;
Content: all information, data or material in the form of images, videos, text and audio-visual material or any other content submitted by a Customer through or collected by (the use of) the Solution and any report and/or results generated through the Solution;
Customer: the legal entity entering into an Agreement with Sightcorp for the use of the Solution;
Documentation: any documentation or materials including, without limitation, reference, user, installation, systems administrator and technical guides published by Sightcorp and made generally available by Sightcorp for the use of the Solution, as may be amended from time to time;
Intellectual Property Rights: all intellectual property rights and associated rights, including copyrights, trade mark rights, patent rights, design rights, trade name rights, database rights, and neighbouring rights, as well as rights to knowhow;
Sightcorp: Sightcorp B.V., a private company with limited liability, established and existing under the laws of the Netherlands, having its registered office in (1098XH) Amsterdam, the Netherlands, at Science Park 400, registered with the Chamber of Commerce under 58300880;
Solution: Sightcorp’s face analysis and/or face recognition software including the Documentation.
2.1 These terms and conditions form part of all Agreements (including a trial and any subsequent agreement) and govern any use made of the Solution by Customer.
2.2 Sightcorp may at any time amend or supplement these terms and conditions. In that case the amended terms and conditions will be sent to Customer. If Customer continues the use of the Solution after receiving the amended or supplemented terms and conditions, Customer thereby irrevocably accepts those conditions.
3.1 Subject to the conditions in the Agreement. Sightcorp grants Customer a limited, personal, irrevocable, nonexclusive, nonsublicensable, non-transferable right to use the Solution.
3.2 To the best of its ability, Sightcorp will make efforts to provide the Solution with due care. Customer accepts that the Solution, only contains the functionalities and other characteristics as it contains at the moment of use (“as is” and “as available”). Each and every use of the Solution is for Customer’s own risk and responsibility.
3.4 Sightcorp has no knowledge of and/or interference with the Content that is processed through use of the Solution. Customer solely responsible and liable for the processing of Content. Sightcorp accepts no responsibility whatsoever for any decisions made by Customer based on the Content.
3.5 Insofar Customer and Sightcorp agreed on the provision of (technical) support by Sightcorp with regard to the Solution in the Agreement, Sightcorp will provide maintenance and support in accordance with its service level agreement.
3.6 Sightcorp is at all times, without in any way becoming liable, entitled to make procedural and technical alterations and/or improvements to the Solution.
4.1 Parties undertake to observe strict confidentiality with regard to all Confidential Information they receive from the other Party, and will not disclose such Confidential Information to a third party. Parties further undertake to use the Confidential Information only for the purpose for which this Confidential Information has been disclosed. Parties shall also impose these obligations on their employees in connection with the execution of the Agreement.
4.2 Upon termination of the Agreement in accordance with article 8 of this Agreement and/or upon first written request of the other Party, Parties will cease any and all use of the Confidential Information of the other Party, and shall immediately return the Confidential Information and any and all copies thereof to the other Party, or, upon request of the other Party, destroy the Confidential Information and copies thereof.
4.3 During the term of the Agreement Customer may only employ employees of Sightcorp who are or were involved with the reselling of the Solution or have employees work for them, directly or indirectly, in any other way, after Sightcorp has consented to this in writing.
5.Price and payment
5.1 Customer shall pay the prices as stated in the Agreement. Unless otherwise expressly provided, all the prices stated are exclusive of VAT, other charges imposed by the authorities and administrative charges.
5.2 Sightcorp is entitled to adjust the applicable prices and rates in writing subject to advance notice of at least one month.
5.3 Amounts due shall be paid by Customer in accordance with the payment terms that have been agreed or that are stated on the invoice. Customer shall not be entitled to suspend any payments or to offset any amounts due.
6.Intellectual Property Rights
6.1 All Intellectual Property Rights relating to Solution and the Documentation are owned by Sightcorp and/or its licensors. Nothing in the Agreement constitutes the transfer of any Intellectual Property Rights from Sightcorp to Customer. Customer is solely granted a license as described in this Agreement.
6.2 Customer shall not reverse assemble, decompile or otherwise attempt to derive source code from the Solution unless this is explicitly allowed by national mandatory law in order to obtain interoperability and this information cannot be obtained from Sightcorp within a reasonable period.
6.3 Customer is not permitted to remove, render illegible, conceal or change any notifications or statements regarding Intellectual Property Rights.
6.4 Subject to the conditions recorded in these terms and conditions, Customer will remain the owner of (the Intellectual Property Rights in respect of) the Content. Customer acknowledges and agrees that, by making the Content available through the Solution, it automatically grants a free of charge, unencumbered, worldwide, nonexclusive license to use, multiply and distribute the Content, insofar as necessary in order to provide the Solution.
7.1 Customer will ensure that (the use of) the Solution is compliant with the applicable data privacy and data security laws and regulations. Customer guarantees that it will comply with all legal obligations regarding the processing of personal data of its visitors and indemnifies and holds Sightcorp harmless against any claims of third parties relating to or following from the processing of personal data by Customer.
8.Term and termination
8.1 The Agreement regarding the use of the Solution is concluded for an indefinite period of time, unless the parties have otherwise agreed in writing in the Agreement. Each party may terminate the Agreement in writing while observing a notice period of at least one month.
8.2 Subject to any other rights of Sightcorp, Sightcorp is entitled to terminate this Agreement with immediate effect without being liable for damages if:
8.2.1 Customer fails to perform its obligations and continues to do so after receiving a written demand, unless a demand is not required, in which case this Agreement may be dissolved immediately;
8.2.2 Customer repeatedly fails to perform its obligations, demonstrating the likelihood that it is unwilling or unable to perform this Agreement properly;
8.2.3 Customer is granted a provisional or definitive suspension of payments;
8.2.4 a petition has been filed for the insolvency of Customer;
8.2.5 all or part of the property of Customer has been attached;
8.2.6 a similar measure applies to Customer under foreign law; or
8.2.7 Customer has ceased its activities for any other reason.
8.3 In the event of termination (“ontbinding”), any performance already delivered and the payment obligations related to it will not be the subject of reversal. Amounts invoiced by Sightcorp before the termination in connection with anything that it has already performed or delivered in executing the Agreement will continue to be owed and will become immediately due and payable at the time of the termination.
9.1 Unless otherwise stipulated in this Agreement, Sightcorp’s total, aggregate liability for attributably failing (in Dutch “toerekenbare tekortkoming”) to perform the Agreement, any unlawful act (in Dutch “onrechtmatige daad”) or otherwise is limited to direct damages only and to the total amounts paid to Sightcorp for the Solution in the twelve (12) preceding months of that particular calendar year.
9.2 Direct damage shall solely mean:
a. reasonable expenses incurred by Customer to determine the cause and scope of the damage, insofar as the determination relates to direct damages; and
b. reasonable expenses incurred to prevent or mitigate damages, insofar as they relate to direct damages.
9.3 Sightcorp’s liability for damages other than direct damages, arising out of, or in connection with the Agreement, such as, but not limited to indirect loss, consequential loss, loss and/or damage of data, loss of profit and loss of revenue, loss of business, loss of anticipated savings, or any other similar financial loss or loss of goodwill or reputation, damage as a result of claims from third parties or other incidental, indirect, punitive or exemplary damages of any kind, is excluded. Sightcorp is not liable for any use of the Solution that is not compliant with the Documentation.
9.4 No right to damages shall exist unless Customer notifies Sightcorp in writing of the damage promptly after it has arisen. Any claim for damages against Sightcorp shall become extinguished by the mere lapse of three (3) months after the claim has come into being.
10.1 In the event of force majeure, there will be no attributable failure in the performance of the Agreement by Sightcorp.
10.2 Force majeure includes, among other things, employees on sick leave and/or absence of employees who are crucial to the supply of the Solution, interruptions in the supply of electricity, strikes, riots, government measures, fire, natural disasters, floods, failure on the part of Sightcorp’s suppliers, failure on the part of third parties engaged by Sightcorp, interruptions in the connection to the internet (whether or not due to a DDoS attack), hardware malfunctions, malfunctions in networks, including telecommunication networks, and other unforeseen circumstances.
10.3 If the force majeure continues for at least thirty (30) days, Sightcorp is entitled to terminate the Agreement without being obliged to pay any compensation for this termination.
11.Guarantees and indemnities
11.1 Sightcorp will render reasonable efforts in establishing good performance and availability of the Solution.
11.2 Sightcorp does not warrant that the Solution will be accessible at all times and without interruptions or failures. Failures of the Solution may be caused in part, but not exclusively, by failures in the internet or telephone connection or by viruses or errors/defects. Sightcorp will not be liable to Customer in any way for damage ensuing from or caused by the unavailability of the Solution for reasons outside the control of Sightcorp.
11.3 Customer is responsible for the use of the Solution by Customer. Sightcorp cannot be held liable for the choices Customer makes based on the information obtained through the Solution.
11.4 Sightcorp does not guarantee that:
a. the Solution shall be available at all times and without interruptions, faults or disturbances;
b. the Solution and/or Content shall be effective or the use of the Solution and/or Content shall lead to certain results;
c. that the Content shall be accurate, up to date and complete
11.5 Sightcorp is not responsible for:
a. the purchase and/or the proper operation of Customer’s infrastructure;
b. loss, damage, inaccuracy and/or incompleteness of any information provided through the Solution;
c. transmission errors, malfunctions or non-availability of computer, data or telecom facilities, including the internet;
d. any unauthorized use or attempted use of the Solution; or
e. making backup copies of any information, Content or data.
11.6 Customer guarantees it will not use the Solution in a way that:
a. infringes the rights of Sightcorp or third parties, including but not limited to Intellectual Property Rights or rights in relation to the data protection and privacy;
b. is contrary to any current legislation or regulations; or
c. is contrary to any provision in this Agreement.
11.7 Sightcorp shall never be liable for any of the abovementioned acts or circumstances. Customer indemnifies Sightcorp against all damage and costs, including – but not limited to – claims by third parties, collection costs, the statutory commercial interest, loss of profits, penalties incurred and legal fees, which Sightcorp incurs or which result from (i) attributable breach of the Agreement by Customer, (ii) any use of the Solution by Customer or (iii) an unlawful act by Customer.
12.Governing Law and Jurisdiction
12.1 This Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands.
12.2 All controversies, disputes or claims arising out of or relating to the Agreement or the breach thereof which shall not have been amicably settled by the Parties shall be exclusively and finally settled by the competent civil court in Amsterdam, the Netherlands.