Navisens SDK Terms of Service

These Navisens Terms of Service (these “Terms” or the “Agreement") are entered into by Navisens, Inc. (the “Company”, “we”, “us”, “our”) and the entity executing this Agreement ("You") and governs Your use of the Company’s Software and related services (the "Service"). BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS, DOWNLOADING OR INSTALLING, ACCESSIGN OR OTHERWISE USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND ABIDE BY THESE TERMS AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THE APPLICABLE ACCOUNT. Moreover, you acknowledge and agree that we may, from time to time and in our sole discretion, issue updates or upgrades, or other amendments, to the Company Service and that these Terms will govern any such updates, upgrades and amendments. Moreover, if you are a corporation, you represent and warrant that you are duly incorporated and validly existing under the laws of your jurisdiction of incorporation and you have the corporate power and authority to agree to these Terms and to perform your obligations hereunder. In consideration of the foregoing, the parties agree as follows:

1.     Definitions.

"Account" refers to the billing account for the Service.

"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.

"Customer Data" means the data you collect, process or store using the Service concerning the characteristics and activities of You and Your users.

"Property" means any web page, app, or other property under Your control that uses the Service or Software (or any component thereof).

"Privacy Policy" means the privacy policy on a Property.

"Software" means: (a) Navisen’s motionDNA SDK software, including Software implementations of algorithms, models, and methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized databases and other computerized compilations and collections of data or information, including all data and information included in such databases, compilations or collections; (c) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (d) descriptions, flow charts, architectures, development tools, and other materials used to design, plan, organize and develop any of the foregoing; and (e) all documentation, including development, diagnostic, support, user and training documentation related to any of the foregoing

"Third Party" means a third party (i) to which You provide access to Your Account or (ii) for which You use the Service to collect information on the third party's behalf.

The words "include" and "including" mean "including but not limited to."

2.     Member Account, Password, and Security.

To access and use the Service, You must create an account at the Company’s website  When creating Your Account for the Service, You agree to provide true, accurate, current, and complete information. You further agree to maintain and update Your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. If You have reason to believe that Your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of Your ID, password, or any credit, debit or charge card number), You agree to immediately notify Company. You may be liable for the losses incurred by Company or others due to any unauthorized use of Your User Account.

3.     Fees and Service.

You are responsible for paying any applicable fees as set forth on our Pricing and Payment Terms (free to approved beta users) (“the “Price and Payment Terms”) and applicable taxes associated with the Service in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by the methods specified within the Service. You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, or expiration date) and to notify Company if your selected payment method is cancelled (e.g., for loss or theft). All fees and charges are earned upon receipt by us and are nonrefundable (and there are no credits) except (a) as expressly set forth herein, and/or (b) as required by applicable law.

You are responsible for all charges incurred under your account made by You or anyone who uses your account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or You are past due on amounts owed, we may collect fees owed using other collection mechanisms. Your account may be deactivated and/or Your access to the Service may be suspended without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use, or value-added taxes. To the extent Company is obligated to collect such taxes, the applicable tax will be added to your billing account.

Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Service; provided, however, that such notice will not affect charges submitted before Company could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service or on the Pricing and Payment Terms. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.

Company reserves the right to change the amount of, or basis for determining, any fees or charges for the Service we provide, and to institute new fees, charges, or terms effective upon prior notice to our Users. You will receive notice of any fee change at least five (5) days before the scheduled date of the transaction and failure to cancel your account as set forth herein will constitute acceptance of such fee change. Any changes to fees will apply only on a prospective basis. If you do not agree to any such changes to fees, charges, or terms, your sole remedy is to cancel your subscription. Fees paid for any subscription term are paid in advance and are not refundable in whole or in part. If you have a balance due on any Service account, you agree that Company can charge these unpaid fees to any payment method that you have previously provided.  Your Service will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you: (a) every month for monthly subscriptions; (b) upon every one (1) year anniversary for annual subscriptions; (c) such other periodic rate you have selected from among the options offered on the Service. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if there has been a change in the applicable fees.

For annual subscriptions, you will have thirty (30) days after the date that any renewal fee is posted to your account to give notice that you want to cancel your subscription, and the subscription will be cancelled upon receipt of such notification and a credit will be posted to your account equal to the latest renewal fee charged. For monthly accounts or other accounts with a periodic subscription cycle of less than one year, there are no refunds for cancellations for periodic charges. For monthly subscriptions, you must cancel your subscription within the Service at least five business days prior to the first day of the next calendar month to avoid being charged the renewal fee for such month. For all other subscriptions, you must cancel your subscription within the Service at least five (5) business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such subscription period.

4.     Nonexclusive License.

Subject to the terms and conditions of these Terms, Company grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Software solely as necessary for You to use the Service on Your Properties. During the Term, you have the right to access and use the Service and the Software – they are not sold to you. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will comply with all applicable laws and regulations in Your use of and access to the applicable documentation, Software, and Service.

You represent and warrant that: (a) Your Properties are not a mobile application or other online service directed to children, as defined under the Children’s Online Privacy Protection Act (“COPPA”), and (ii) that Customer will not transmit any “Personal Information” (as defined under COPPA) about or relating to an individual under the age of 13 to the Company via the Service; and (b) You will not use or otherwise transport, export or re-export (directly or indirectly) the Software or Service into any country forbidden to receive the Software or Service by any U.S. or other jurisdictions’ export or technology laws or regulations or otherwise violate such laws or regulations, that may be amended from time to time.

5.     Confidentiality.

Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.

6.     Information Rights and Publicity.

Company and its wholly owned subsidiaries may retain and use, subject to the terms of its privacy policy, information collected in Your use of the Service. Company will not share Your Customer Data or any Third Party's Customer Data with any third parties unless Company (i) has Your consent for any Customer Data or any Third Party's consent for the Third Party's Customer Data; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of Customer Data is reasonably necessary to protect the rights, property or safety of Company, its users or the public; or (iii) provides Customer Data in certain limited circumstances to third parties to carry out tasks on Company’s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by Company. Notwithstanding the foregoing, You acknowledge and agree that in connection with your use of the Software and Service, the Company collects certain anonymized Customer Data for purposes of (i) identifying and calculating fees owed pursuant to this Agreement and (ii) internal usage analytics (“Use Data”) and that Company may use or otherwise exploit such Use Data for any reasonable business purpose.

7.     Privacy.

You will not and will not assist or permit any third party to, pass information to Company that Company could use or recognize as personally identifiable information. You will have and abide by an appropriate Privacy Policy and will comply with all applicable laws, policies, and regulations relating to the collection of information from your users and customers. You must post a Privacy Policy and that Privacy Policy must provide notice of Your use of cookies that are used to collect data. You must disclose the use of Company’s software, and how it collects and processes data. You will use commercially reasonable efforts to ensure that your Users are provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on such users’ devices where such activity occurs in connection with the Service and where providing such information and obtaining such consent is required by law.

You must not circumvent any privacy features (e.g., an opt-out) that are part of the Service.

8.     Indemnification.

To the extent permitted by applicable law, You will indemnify, hold harmless and defend Company and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against Company or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by Company or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service or Software, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by You concerning any aspect of the Service and the Software; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service or the Software;(vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, or the Software. Company will provide You with written notice of any claim, suit or action from which You must indemnify Company. You will cooperate as fully as reasonably required in the defense of any claim. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.

9.     Third Parties.

If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by Company to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) Company may share with the Third Party any Customer Data that is specific to the Third Party's Properties, and (c) You will not disclose Third Party's Customer Data to any other party without the Third Party's consent.





12.   Proprietary Rights Notice.

The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of Company. All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by Company and its licensors without restriction, including, Company’s (and its wholly owned subsidiaries') right to sole ownership of the Software and applicable documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of Company; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with Company (or its wholly owned subsidiaries) other than in the name of Company (or its wholly owned subsidiaries, as the case may be); (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service; or (h) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Service based on patent infringement.

13.   U.S. Government Rights.

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

14.   Term and Termination.

Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, Company will stop providing, and You will stop accessing the Service; and You will delete all copies of the Software from all Properties and certify thereto in writing to Company within 3 business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any outstanding balance for Service rendered through the date of termination will be immediately due and payable in full.

15.   Modifications to Terms of Service and Other Policies.

Company may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. Company will post notice of modifications to these terms at or other policies referenced in these terms at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use of the Software. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of Company, (ii) You accept updated terms online, or (iii) You continue to use the Service after Company has posted updates to the Agreement or to any policy governing the Service.

16.   Miscellaneous, Applicable Law and Venue.

Company will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and Company concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without Company’s prior written consent, and any such attempt is void. The relationship between Company and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 16.

Last Updated 11/10/2016