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SECUGEN SDK LICENSE AGREEMENT

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY

This Software Development Kit License Agreement (“Agreement”) is a legal agreement between SecuGen Corporation (“SecuGen”) and you, either as an individual or a duly authorized representative of a business entity, organization, or agency, (hereafter referred to as “Licensee”), the subject matter of which is SecuGen’s Software Development Kit, which includes certain computer software (together with any updates or upgrades provided to Licensee by SecuGen) and associated media, documentation and printed materials (collectively referred to herein as “SDK”). By downloading, installing, copying or otherwise using the SDK, Licensee agrees to be bound by the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement, do not install, copy or use the SDK; if the SDK was downloaded, please remove and delete the original and all copies of the SDK from all computer(s) and media on which it may have been stored or installed.

1. GRANT OF LICENSE
SecuGen grants to Licensee a personal, internal, limited, non-transferable, non-exclusive right (which shall be revocable pursuant to the terms of this Agreement) to install and use one copy of the SDK on a single computer (and one back-up copy for archival purposes) solely for the following purposes: (a) Licensee may use the SDK for the development of a software application (“Licensee Application”) that incorporates SecuGen’s proprietary software contained in the SDK and that is to be used with SecuGen fingerprint readers or fingerprint images obtained from SecuGen fingerprint readers. (b) Licensee may modify the sample code located in the SDK’s “samples” directories in source code format (“Sample Code”), solely to compile such Sample Code and incorporate the compiled Sample Code into a Licensee Application. (c) Licensee may sell, license, distribute and sublicense any and all Licensee Applications that incorporate compiled elements of the SDK.

2. RESTRICTIONS AND LIMITATIONS

2.1 Licensee acknowledges that Licensee Application will contain the proprietary materials and information of SecuGen. Accordingly Licensee shall ensure that no Licensee Application makes available to any third party with any access to a Licensee Application (whether an end user, distributor, OEM or otherwise) any application programming interface (API) that provides access to the same or similar functionality as that provided by the SDK or any part thereof.

2.2 Licensee acknowledges and represents that each and every fingerprint image processed by Licensee Application that uses SecuGen’s template extraction algorithm and/or template matching algorithm, as provided in the SDK, will be obtained from a SecuGen fingerprint reader, unless an exception is provided in writing to Licensee by an authorized representative of SecuGen or such use is covered by a separate written agreement between the parties.

2.3 Except as expressly stated herein, Licensee may not modify, adapt, reverse engineer, decompile, disassemble, rent, lease, transfer, sublicense, sell, assign or distribute the SDK or any part thereof.

2.4 Licensee acknowledges that nothing under this Agreement, either express or implied, grants to Licensee any rights in any other SecuGen software or hardware, and any license rights in such products must be obtained under separate agreement.

2.5 SecuGen reserves all rights, title and interests of any kind that are not expressly granted to Licensee in this Agreement.

3. INTELLECTUAL PROPERTY RIGHTS
SecuGen retains title to and all ownership interests in all proprietary rights, including without limitation copyrights, trademark rights and service rights, patent rights, trade secret rights, and all other intellectual and industrial property rights throughout the world (“IPR”), with respect to the SDK and all copies or portions thereof, whether or not incorporated into or used in connection with any other products, including without limitation software or documentation materials. Licensee acknowledges that the SDK is licensed and not sold under this Agreement, that nothing in this Agreement shall constitute or be construed to constitute a sale of the SDK or any portion or copy thereof and that no title to or ownership interest in any rights, including without limitation IPR, with respect to the SDK or any components thereof is transferred to Licensee. Licensee acknowledges that the Sample Code (both in source code format and compiled) constitutes confidential information and a trade secret of SecuGen.

4. TERMINATION

4.1 Licensee may terminate this Agreement at any time by providing written notice to SecuGen. SecuGen has the right to terminate this Agreement if the Licensee materially breaches any obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within fourteen (14) days after receipt of written notice from SecuGen. SecuGen has the right to terminate this Agreement, immediately upon notice, if Licensee ceases to conduct business in the normal course, is declared insolvent, makes a general assignment for the benefit of creditors, or a petition for bankruptcy, reorganization, dissolution or liquidation is filed by or against it.

4.2 Upon termination of this Agreement, all rights to use the SDK shall cease, and Licensee shall immediately (i) cease all use of the SDK and all parts thereof; (ii) cease distribution of Licensee Application that includes any portion of the SDK; and (iii) return or destroy the SDK and related materials provided to Licensee in Licensee’s possession or control.

4.3 The following sections shall survive termination of this Agreement: 3 (Intellectual Property Rights); 4 (Termination); 5 (Disclaimer of Warranty); 6 (Limitations of Liability); 7 (Indemnification); and 8 (General).

5. DISCLAIMER OF WARRANTY
THE SDK IS PROVIDED “AS IS.” SECUGEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT OR RELATING TO THE SDK OR THIS AGREEMENT AND HEREBY EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. IF DISCLAIMER OF ANY IMPLIED WARRANTY IS NOT PERMITTED BY LAW, THE DURATION OF SUCH IMPLIED WARRANTY IS LIMITED TO THIRTY (30) DAYS FROM THE DATE THE SDK WAS OBTAINED BY LICENSEE.

6. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL SECUGEN, ITS AFFILIATES OR SUPPLIERS BE LIABLE TO LICENSEE, ITS AFFILIATES OR CUSTOMERS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHAT-SOEVER, INCLUDING WITHOUT LIMITATION DAMAGES CLAIMED FOR LOSS OF INCOME, PROFITS OR REVENUE, BUSINESS OPPOR-TUNITIES OR GOODWILL, LOSS OF DATA, INFORMATION, PRIVACY, SECURITY OR CONFIDENTIALITY, INABILITY TO ACCESS OR UNAUTHORIZED ACCESS TO DATA, INFORMATION, PREMISES OR PROCESSES, OR OTHER PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF, ITS TERMINATION, THE AUTHORIZED OR UNAUTHORIZED USE OF OR INABILITY TO USE THE SDK OR LICENSEE APPLICATIONS INCORPORATING PORTIONS THEREOF, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY) OR OTHERWISE AND IRRESPEC-TIVE OF WHETHER SECUGEN HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SECUGEN’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR ARISING OUT OF OR RELATED TO THE SUBJECT MATTER HEREOF EXCEED ONE HUNDRED U.S. DOLLARS ($100.00).

7. INDEMNIFICATION
Licensee shall defend, indemnify and hold harmless SecuGen, its officers, directors and employees, from and against any claims, suits, proceedings or threats thereof and any losses, damages, fines, expenses (including but not limited to attorneys’ fees and costs), judgments, awards, or other liabilities or damages (a) arising out of or relating to any claims that Licensee’s use or distribution of the SDK or Sample Code in conjunction with any Licensee Application infringes, violates or misappropriates any IPR of any third party, or (b) resulting from any breach of this Agreement by Licensee.

8. GENERAL

8.1 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California as such laws are applied to contracts between California residents entered into and to be performed entirely within California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Licensee hereby submits to the sole and exclusive jurisdiction of, and waives any venue objections against, the United States District Court for Northern California and the Superior Court of the State of California for the County of Santa Clara and the Santa Clara Municipal Court in regard to all disputes and litigation arising under or relating to this Agreement.

8.2 U.S. Government Restricted Rights. If Licensee is an agency or instrumentality of the United States Government (“Government”), the SDK is “commercial computer software” and “commercial computer software documentation”, as specified in FAR 12.212 or DFARS 227.7202, and, as applicable, the use, reproduction and disclosure of the SDK shall be governed by the terms of this Agreement. If Licensee delivers Licensee Applications including portions of the SDK to the Government, Licensee shall identify the SDK as “commercial computer software” and “commercial computer software documentation,” as specified in FAR 12.212 or DFARS 227.7202, and, as applicable, shall restrict the Government’s rights to use, reproduce or disclose the SDK in accordance with the terms of this Agreement.

8.3 Export Law Assurances. Licensee will not use or otherwise export or re-export the SDK except as authorized by United States laws and regulations, including without limitation those of the U.S. Department of Commerce, and, as applicable, the laws and regulations of other jurisdictions.

8.4 Modification. This Agreement may not be modified except in a writing duly signed by an authorized representative of SecuGen and Licensee.

8.5 No Assignment. Licensee’s rights and obligations under this Agreement shall not be assignable, delegable, sub-licensable or otherwise transferable, whether voluntarily, by operation of law or otherwise, without SecuGen’s prior written approval. SecuGen may freely assign this Agreement and/or its rights and obligations hereunder.

8.6 Severability. If any provision of this Agreement is held to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and shall remain in full force and effect.

8.7 Notices. Any notices shall be in writing and in the English language and will be deemed to have been given if delivered personally or mailed by registered air mail postage prepaid to the respective addresses of each party.

8.8 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter of this Agreement and merges and supersedes all prior and contemporaneous agreements and understandings between the parties, whether oral or written, with respect to the subject matter of this Agreement.

1210CT

SecuGen Corporation, 2065 Martin Avenue Suite 108, Santa Clara, CA 95050 USA

 

 
     
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