HOLOBOARD SDK DEVELOPER AGREEMENT

THIS HOLOBOARD SDK DEVELOPER AGREEMENT (THIS “AGREEMENT” OR THIS “Agreement”) IS A LEGALLY BINDING AGREEMENT BETWEEN TESSERACT IMAGING PRIVATE LIMITED. ("TESSERACT" or “Tesseract”) AND THE LEGAL ENTITY YOU REPRESENT (“YOU” OR “You”). IF YOU USE OR ARE SEEKING TO USE THE SOFTWARE OR SERVICES DISCUSSED HEREIN IN CONNECTION WITH ANY WORK OR UNDERTAKING YOU ARE DOING FOR A BUSINESS, COMPANY OR CORPORATE ENTITY (“COMPANY”), WHETHER AS AN EMPLOYEE OR CONTRACTOR, THE TERMS “YOU” AND “YOU” INCLUDE, AND THE TERMS AND CONDITIONS HEREOF ARE BINDING ON, BOTH YOU AS AN INDIVIDUAL AS WELL AS SUCH COMPANY. IN ADDITION, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY, AND THAT SUCH COMPANY HAS AUTHORIZED YOU TO ACCEPT THE TERMS OF THIS AGREEMENT ON ITS BEHALF.

TESSERACT IS WILLING TO PROVIDE YOU THE SERVICES (AS DEFINED BELOW) AND LICENSE TO YOU THE SOFTWARE AND DOCUMENTATION (AS DEFINED BELOW) ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, TESSERACT IS UNWILLING TO AND DOES NOT AND WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION OR PROVIDE THE SERVICES TO YOU. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS YOU MAY NOT COMMENCE ANY INSTALLATION PROCESS AND YOU SHALL NOT USE THE SOFTWARE OR RETAIN ANY COPIES OF THE SOFTWARE OR DOCUMENTATION, EVEN IF YOU HAVE IN ANY MANNER COME INTO POSSESSION THEREOF. ANY USE OR POSSESSION OF THE SOFTWARE, SERVICES, AND/OR DOCUMENTATION BY YOU IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FEES DUE FOR SUCH USE OR POSSESSION. TESSERACT MAY SUSPEND OR TERMINATE YOUR USE OF THE SOFTWARE, DOCUMENTATION, SERVICES AND/OR STATISTICS IF YOU FAIL TO COMPLY WITH ANY PART OF THIS AGREEMENT.

1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:

1.1. “Developer Application”  means a software application that is developed by You or on Your behalf hereunder using the Software and Services.  All current versions and all future versions of such software application across all operating systems (e.g. Android, iOS, Universal Windows Platform etc.) that have the same name (or a minor variation of the name) and have substantially similar functionality shall be considered to be a single Developer Application under this Agreement.

1.2. “Developer Portal” means the Holoboard online control panel located at https://cp.myholo.io (or such other URL as TESSERACT may designate from time to time), and other related information.

1.3. “Documentation” means the documentation that TESSERACT or its affiliates provides or otherwise makes available to You in connection with the Software and Services.

1.4. “API Key” means a unique key specific to a particular Developer Application that enables the use of the Software in the Developer Application

1.5. “Product Key” means the unique key specific to a particular Holoboard device. This unique Key is printed on the back-side of your packaging of your Holoboard device.

1.6. “Sample Code” means sample code provided hereunder in source code (human readable) form for the purposes of demonstrating certain features enabled by the Software.

1.7. “Software” means the software described in the list in Section 3.1 (License to Software other than Sample Code), and additional software, if any, that Tesseract provides pursuant to Section 3.4 (Additional Software).

1.8. “Services” means the Holoboard system and services made available to You by TESSERACT for use in connection with Developer Applications, which may include, without limitation, the services available through the Developer Portal,, and other Related features and functionality of the Holoboard platform.

1.9. “Unity” means the cross-platform gaming and video development platform developed by Unity Technologies and found at https://unity3d.com and related websites.

1.10. “Permitted Use” has the meaning set forth in Section 2.3 (Permitted Use) below.

2. LICENSE USES. Except as otherwise permitted herein, You are required to procure an API Key for each Developer Application you create with the Software and Services:

2.1. API Keys.

You acknowledge and agree that each Developer Application must use a unique API Key. Tesseract may, in its sole discretion decline to provide You API Keys or access to the Software, for any reason or no reason.  Tesseract has the right to monitor Your Developer Application(s) and use of the API Key(s) to ensure they are not employed except for the Permitted Use. If employed for other than the Permitted Use, Tesseract has the right to immediately revoke the License Key(s) and Your License to the Software. You shall not sell, transfer or sublicense Your API Keys to any person or entity.

2.2. Product Key(s).

You acknowledge and use a Product Key to create only one account on the Developer Portal and that You shall not sell, transfer or sublicense Your Product Key(s) to any person or entity.

2.3. Permitted Use.  

As more particularly described in the Documentation, the Software and Services are intended for use as development tools to enable the testing, development and distribution of Holoboard end-user software applications in accordance with the Developer Application (the “Permitted Use”).  Subject to and conditioned upon compliance with the terms and conditions of this Agreement, including the limitations, conditions, restrictions and obligations set forth below, Tesseract hereby permits You to use and access the Software and/or Services during the term of this Agreement solely for the Permitted Use. You are responsible for compliance with any applicable laws governing access to and provision of the Services in Your Developer Application(s). Notwithstanding the foregoing, Tesseract reserves the right to modify the Services with or without notice.

2.4. Account Credentials.  

You are solely responsible for maintaining the confidentiality of Your password protected access to the Services.  Except as set forth below, You shall not distribute Your password or otherwise allow third parties to access the password protected features of the Services using Your password.  You may share your account credentials, including Your password, with a contractor for the sole purpose of assisting You in developing and testing a Developer Application on Your behalf provided that such contractor (a) has an active and valid Holoboard developer account with Tesseract and an active agreement with Tesseract similar to these terms governing the contractor’s access to and use of the Software and Services, (b) has a need to access Your account to assist in developing and testing the Developer Application, and (c) has a written and binding agreement with You to protect the unauthorized use and disclosure of Confidential Information (as defined in Section 5 (Confidentiality)).  You are responsible for maintaining appropriate security, protection, and backup for Your user account, API Keys and for all activities that occur under or are otherwise associated with Your account. You shall notify Tesseract immediately of any unauthorized use of any API Keys or any other known or suspected breach of security of Your user account or API Keys.

2.5. Bug Reports.  

You are encouraged to report to Tesseract all bugs You experience or encounter with the Software or any component of the Services provided hereunder, and You agree that Tesseract shall have the right to use and exploit commercially, without attribution or compensation to You, all feedback (of any nature) which Tesseract receives from You, in any form, to improve, enhance or modify the Software, services or otherwise.

2.6. No Support.  

During the term of this Agreement, You may contact Tesseract with technical support inquiries. You acknowledge and agree, however, that Tesseract is under no obligation to provide any form of technical support for the Services, Software and/or Documentation, and that if Tesseract, in its sole discretion, chooses to provide any form of support or information relating to the Services, Software and/or Documentation, such support and information shall be provided “AS IS” and shall be deemed confidential and proprietary to Tesseract and protected in accordance with Section 5 (Confidentiality) unless otherwise specified in writing. You are responsible for providing customer service to end user of the Developer Application(s). Tesseract will not provide any support to end users of the Developer Application(s).

2.7. Limitations on Use of Service.

You are responsible for configuring and complying with all Services requirements and instructions to ensure normal operation and use of the Services by or through the Developer Application(s) and/or Your systems that interface with the Developer Application(s). You will comply with terms and conditions for the Services as provided in writing from time to time, if any. Except as otherwise expressly permitted herein, You agree not to sublicense, transfer, assign, share, sell, resell, rent, lease, lend, or otherwise provide access to Your developer account or any Services or the Software provided therewith, in whole or in part, to anyone.  For the avoidance of doubt, You agree not to create or attempt to create a tool for creating computer vision applications or a substitute or similar service through use of or access to the Services or Software. You shall not reverse engineer or access any part of the Services in order to (a) build or offer a competitive product or service, (b) build or offer a product using similar ideas, features, or functions of all or any part of the Services, or (c) copy any ideas, features, or functions of the Services or Software. You shall not attempt to gain unauthorized access to the Services or its related systems or networks. You shall not excessively use the overall network capacity or bandwidth of the Services or otherwise burden the Services with unreasonable data loads. You shall abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Developer Application(s) and Your use of the Services, including without limitation those related to privacy and data collection, international communications, and the transmission, and storage of technical or personal data. You understand there may be storage capacity, transmission, and/or transactional limits for the Services both for You as a developer and for Your end-users. If You reach or Your end-user reaches such limits, then You or Your end-user may be unable to use the Services or may be unable to access or retrieve data from such Services.  Such limits may be based on Your License or may be based on device type, design of the Developer Application or other factors.

2.8. Right to Modify, Suspend or Terminate Service.

Notwithstanding any remedies that may be available under any applicable law and without limiting Tesseract’s right to terminate the Services or this Agreement under Section 9 (Term and Termination), Tesseract may temporarily or permanently deny, limit, suspend, or terminate Your access to and use of all or any portion of the Services or Software without penalty, with or without notice, if Tesseract believes, in its sole discretion, that: (a) You breached this Agreement, including without limitation any failure to pay amounts when due; or(b) Your user account has been compromised or has been inactive for more than 12 months; or (c) Your user account information is or becomes inaccurate or incomplete; or (d) You have performed any act or omission that violates any applicable law, rules, or regulations; or (e) You have performed any act or omission which is harmful or likely to be harmful to Tesseract, the Services, the Software, or any other third party, including other users or suppliers of Tesseract; or (f) You made use of the Services or Software to perform an illegal act, or for the purpose of enabling, facilitating, assisting or inducing the performance of such an act; or(g) Tesseract has insufficient rights to provide the Services or the Software, or the terms under which the Services or Software may be   made available impose upon Tesseract terms or risks that are not reasonably acceptable to Tesseract or its affiliates. Tesseract reserves the right to modify its Documentation and policies relating to the Services and Software at any time, effective upon posting of an updated version of such policies on the Developer Portal. You are responsible for regularly reviewing the Documentation and policies. Continued use of the Services after any such changes will constitute Your consent to such changes.

3. LICENSE GRANT

3.1. License to Software other than Sample Code.

Subject to and conditioned upon compliance with the terms and conditions of this Agreement, including the limitations, conditions, restrictions and obligations set forth below, Tesseract hereby grants to You a personal, non-exclusive, non-sublicensable , non-transferable, revocable, limited copyright license, during the term of this Agreement solely for the Permitted Use, to download, install and use the Software (other than Sample Code) in machine-readable (i.e. object code) form solely as such binary files are integrated into and used by each Developer Application in accordance with the Documentation and the terms of this Agreement. No right or license is being conveyed to Licensee to use the Software at any other location. Licensee is prohibited from making any copies, archival or otherwise, of the Software. Licensee is further prohibited from using the Software in any manner other than as described above.

3.2. Documentation.

Subject to the terms and conditions of this Agreement, including the limitations, conditions, restrictions and obligations set forth below, You may reproduce and use a reasonable number of copies of the Documentation on an internal basis only, and solely in support of Your Permitted Use of the Software. Distribution of the Documentation is prohibited without the express written permission of Tesseract.

3.3. License to Sample Code.  

Tesseract may, in its sole discretion, provide You certain Sample Code.  In some cases, the Sample Code may be delivered to You separately from the other Software, but whether provided separately or together with the other Software, if (and only if) Tesseract provides such Sample Code to You, then subject to and conditioned upon compliance with the terms and conditions of this Agreement, including the limitations, conditions, restrictions and obligations set forth below, Tesseract hereby grants to You a personal, non-sublicensable, non-transferable, non-exclusive, revocable, limited copyright license, during the term of this Agreement, solely for the Permitted Use, to modify the Sample Code, compile into object code the Sample Code and Your modifications thereto, and reproduce and distribute such compiled object code as part of the Developer Application, in each case strictly in accordance with the Documentation and the Permitted Use. You acknowledge and agree that Your license to the Sample Code is conditioned upon You modifying the Sample Code such that Your software application contains material additional features and functionality.  Re-distribution of Sample Code without material improvement is not permitted. You will inform any third parties that are to receive such software applications that contain any Sample Code or Your modifications thereto that the delivery of such software applications will not convey or otherwise provide any rights under patents of Tesseract or any of its affiliates or Licensors.

3.4. Additional Software.  

Tesseract hereby reserves the right to provide or otherwise make available, at its discretion, additional software to You from time to time. Any additional software or documentation that Tesseract provides to You by express reference to this Agreement will be considered to be part of the Software or Documentation, as the case may be, and subject to all terms and conditions of this Agreement.  By accepting, possessing or using such additional software or documentation, which shall include without limitation any related plug-ins as we may directly or indirectly distribute as well as related web applications used to generate image resources, You agree that the terms of this Agreement will apply thereto.

3.5. Third Party Licenses.

The Software may contain third party programs, including but not limited to software licensed under open source terms.  The license terms associated with those programs apply to Your use of them, and in some instances such programs cannot be used or further distributed without a license from the respective owner of such programs. You shall be solely responsible to (i) obtain, if necessary, a separate and independent license from such owner with respect to any such use and (ii) include all applicable license terms and notices in the Developer Application for third party programs contained in the Software that are distributed as part of the Developer Application.  The delivery of the Software does not convey a license, nor imply any rights, to use third party programs. A separate and independent license for such use may be required and You shall be solely responsible to verify whether such license is needed in conjunction with Your use of such third party programs.

4. RESTRICTIONS

4.1. Software Use Restrictions.  

Except as expressly provided in Section 3 (License Grant) above, You may make a single copy the Software only for backup purposes, provided that You reproduce all copyright and other proprietary notices that are on the original copy of the Software. You may not disable, remove, hide, disfigure or otherwise modify any copyright notices, watermarks or other proprietary notices generated by the Software.  You shall not, nor shall You authorize or permit any third party to, incorporate, link, distribute or use any third party software or code in conjunction with (i) the Software (ii) any software, products, documentation, content or other materials developed using the Software, nor (iii) any derivative works that You make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software or other Tesseract software, including without limitation the distribution or disclosure of any source code; or (b) grants, purports to grant, or has the potential to grant to any third party any rights to or immunities under any intellectual property rights or proprietary rights of Tesseract or its affiliates or Licensors, including without limitation as such rights exist in or relate to the Software.  Without limiting the generality of the foregoing, You shall not incorporate, link, distribute or use (1) the Software or any other software provided by Tesseract, (2) any software, products, documentation, content or other materials developed using the Software, nor (3) any derivative works that You make using the source code portions of the Software (if any), with any code or software licensed under any version of the GNU General Public License (“GPL”), Affero General Public License (“AGPL”), Lesser General Public License (“LGPL”), European Union Public License (“EUPL”), Apple Public Source License (“APSL”), Common Development and Distribution License (“CDDL”), IBM Public License (“IPL”), Eclipse Public License (“EPL”), Mozilla Public License (“MPL”), or any other open source license, in any manner that could cause or could be interpreted or asserted to cause the Software, other Tesseract software (or any modifications thereto), or the patents of Tesseract or those of its licensors to become subject to the terms of the GPL, AGPL, LGPL, EUPL, APSL, CDDL, IPL, EPL, MPL, or any other Open Source License. You, and each party receiving Software or any copies thereof from You, shall not receive any rights to use such Software or copies thereof in a manner that will cause any patents, copyrights or other intellectual property rights which are owned or controlled by Tesseract or any of its affiliates (or for which Tesseract or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any third party or open source license (including, without limitation, any open source license listed on http://www.opensource.org/licenses/alphabetical) (each an “Open Source License”).  These restrictions, limitations, exclusions and conditions shall apply even if Tesseract or any of its affiliates becomes aware of or fails to act in a manner to address any violation or failure to comply therewith.  Also, no act by Tesseract or any of its affiliates that is undertaken under this Agreement as to any software or technology shall be construed as being inconsistent with the intent not to cause any patents, copyrights or other intellectual property rights which are owned or controlled by Tesseract or any of its affiliates (or for which Tesseract or any of its affiliates has received license rights) to become subject to any encumbrance or terms and conditions of any Open Source License.

4.2. Additional Restrictions.  

You will not: (i) reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code version of the Software, except if and only to the extent expressly permitted by applicable law; (ii) use the Software and/or Documentation or any portion thereof to create or develop any developer tools (including without limitation plug-ins and middleware) or any software other than end-user targeted software applications; (iii) make more copies of the Software and/or Documentation than specified in this Agreement or allowed by applicable law, despite this limitation; (iv) except as expressly permitted hereby, rent, lease, loan or otherwise in any manner provide or distribute the Software and/or Documentation or any copy of thereof to any third party; (v) access or use for any purpose any application protocol interface (API) except as expressly described in the Documentation; or (vi) except as expressly permitted under Section 3 (License Grant), reproduce, distribute, publicly perform, publicly display or create derivative works of or based on the Software and/or Documentation, or disclose, provide or otherwise transfer, in any manner, to any third party the Software (except as expressly permitted for the Sample Code), Documentation or any portion thereof.

 

5. CONFIDENTIALITY.

You hereby acknowledge and agree that the Services and any information relating to the Services (including without limitation any information regarding Service availability, performance, benchmarking, confidential business terms or the like), the Software (excepting the Sample Code in object/binary form), the Documentation, and related information and communications from Tesseract which are designated as confidential or proprietary (“Confidential Information”) are the confidential and proprietary information of Tesseract.  Except as expressly permitted in this Agreement, You shall not disclose, or permit the disclosure of, the Confidential Information in any form to any third party without Tesseract’s prior written permission; provided that, You may otherwise generally make mention of and discuss the Services and Software with others. Without limiting the generality of the foregoing, any data and analytics provided by Tesseract to You are Confidential Information, and You are bound by the terms of confidentiality set forth herein to not disclose, and to use reasonable efforts to prevent the disclosure of, any such information to any third party. All data and analytics are provided to You for its internal forecasting and accounting purposes regarding Service usage only and may not be used for any other purpose. You further acknowledge and agree that any unauthorized use or disclosure of the Confidential Information may cause irreparable harm and significant injury to Tesseract that would be difficult to ascertain or quantify; accordingly, You agree that Tesseract shall have the right to seek and obtain injunctive or other equitable relief to enforce the terms of this Agreement and without limiting any other rights or remedies that Tesseract may have.

6. DISCLAIMER OF WARRANTIES.  

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF THE SERVICES, SOFTWARE, DOCUMENTATION, AND STATISTICS (IF ANY) IS AT YOUR SOLE RISK. THE SERVICES, SOFTWARE, DOCUMENTATION, STATISTICS (IF ANY), AND TECHNICAL SUPPORT (IF ANY) ARE PROVIDED "AS IS" AND WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TESSERACT AND ITS AFFILIATES, LICENSOR(S), AND SERVICE PROVIDER(S) (FOR THE EASE OF REFERENCE IN SECTIONS 5 (DISCLAIMER OF WARRANTIES), 7 (LIMITATION OF LIABILITY), AND 8 (INDEMNITY), TESSERACT AND ITS AFFILIATES, LICENSOR(S) AND SERVICE PROVIDER(S) SHALL BE COLLECTIVELY REFERRED TO AS TESSERACT) EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.  TESSERACT DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES OR SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES OR SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; OR THAT THE SOFTWARE OR SERVICES WILL ALWAYS BE AVAILABLE, OR THAT THE SERVICES, SOFTWARE OR THE SERVER(S) THAT MAKE THE SOFTWARE AND SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT DEFECTS IN THE SERVICES, SOFTWARE OR DOCUMENTATION WILL BE CORRECTED. FURTHERMORE, TESSERACT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICES, SOFTWARE, DOCUMENTATION, OR STATISTICS (IF ANY) IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TESSERACT OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY OR MAY BE LIMITED.

7. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, , SHALL TESSERACT, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SERVICES, SOFTWARE AND/OR DOCUMENTATION, EVEN IF TESSERACT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY OR MAY BE LIMITED. IN NO EVENT SHALL TESSERACT’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTIONS (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED ONE DOLLAR ($1) OR THE EQUIVALENT THEREOF IN ANY OTHER CURRENCY. THE LIMITATIONS SET FORTH IN THIS SECTION 7 (LIMITATION OF LIABILITY) SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT.  IF APPLICABLE LAW PRECLUDES TESSERACT FROM DISCLAIMING A PARTICULAR KIND OF DAMAGE OR TO CAP THE LIABILITY FOR CERTAIN TYPES OF ACTIONS OR CLAIMS, THEN THE ABOVE PROVISIONS WILL BE DEEMED AMENDED TO CONFORM WITH APPLICABLE LAW, AND THE BALANCE OF THIS SECTION 7 (LIMITATION OF LIABILITY) SHALL REMAIN IN FULL FORCE AND EFFECT. THE PARTIES HAVE FULLY CONSIDERED AND FIND REASONABLE THE FOREGOING ALLOCATION OF RISK, AND THE FOREGOING LIMITATIONS IN THIS SECTION 7 (LIMITATION OF LIABILITY) ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

8. INDEMNITY.

If an application is written by You using any component of the Software and such application is used, distributed, or otherwise deployed, then You agree to indemnify and hold Tesseract, its affiliates and each of their respective officers, directors, employees and successors and assigns (each, a “Tesseract Indemnitee”) harmless from and against any and all claims, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred or otherwise suffered by each Tesseract Indemnitee (including but not limited to costs of defense, investigation and reasonable attorney’s fees) arising out of, resulting from or related to (i) any use, reproduction or distribution of the Software, as modified or integrated by You, which causes an infringement of any patent, copyright, trademark, trade secret, or other intellectual property, publicity or privacy right of any third parties arising in any jurisdiction anywhere in the world, except and solely to the extent such infringement is caused by the unmodified Software, or portions thereof, as supplied to You by Tesseract under this Agreement, (ii) the download, distribution, installation, storage, execution, use or transfer of such software, products, documentation, content, materials or derivative works by any person or entity, (iii) Your use of the Services, and/or (iv) any breach of this Agreement by You.  If and as requested by Tesseract, You agree to defend each Tesseract Indemnitee in connection with any third party claims, demands, or causes of action resulting from, arising out of or in connection with any of the foregoing.

9. TERM AND TERMINATION.

9.1. Term.

The term of this Agreement shall commence on the date You accept this Agreement and shall remain in effect until terminated as provided herein.

9.2. Termination without Cause.

You may terminate the Agreement at any time by deleting and destroying all copies of the Software and all related information in Your possession or control, provided that You also inform TESSERACT in writing at that time of such termination. Additionally, TESSERACT may at any time terminate this Agreement or any License, either with or without cause, upon thirty (30) days prior written notice to You.

9.3. Termination for Cause.

TESSERACT shall have the right to immediately terminate this Agreement or any License upon notice in the event that You fail to comply with any provision hereof.  Immediately upon notice to You, TESSERACT shall have the right to terminate this Agreement and all rights and licenses granted by TESSERACT hereunder if You or Your affiliates assert any claims or rights by commencing or causing to be commenced any action or proceeding that alleges infringement by TESSERACT or its affiliates of Your (or Your affiliates) intellectual property rights based on the Holoboard products and services.

9.4. Effects of Termination.

Upon termination of the Agreement, (i) the Services will no longer be available to You or any end users of the Developer Application(s), (ii) You must delete or destroy all copies of the Software and Documentation that are in Your possession or otherwise under Your control, and (iii) the license and other rights granted to You in this Agreement shall terminate.

9.5. Survival.

Section 5 (Confidentiality), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Indemnification) and 9 (Term and Termination), shall survive any termination of this Agreement, and You shall, within a reasonable time after such termination, pay any amounts that became due TESSERACT prior to such termination.

10. CONSENT TO COLLECTION AND USE OF DATA.

You understand and agree that the Software sends to Tesseract and/or its affiliates and service providers certain technical and related information. You further understand and agree that Tesseract and/or its affiliates and service providers may collect and use Statistics: (a) to provide the Software and Services, (b) to improve and optimize the Software and Services for different hardware and software requirements on various consumer devices (commonly referred to as device fragmentation), (c) to facilitate the provision of new products, updates, enhancements, technologies, and other services, (d) to improve the Software, the Services, and other products, services and technologies of Tesseract or its affiliates, and for any business purpose if de-identified and/or anonymized.

11. NOTICES.

Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested, or delivered by a national overnight express service.

Either party may change the address to which notice or payment is to be sent by written notice to the other party pursuant to the provisions of this paragraph.

 

12. JURISDICTION AND DISPUTES.

This Agreement shall be governed by the laws of India.

All disputes hereunder shall be resolved in the applicable state or national courts of India. The parties consent to the jurisdiction of such courts, agree to accept service of process by electronic and waive any jurisdictional or venue defenses otherwise available without reference to conflict of laws principles.

13. AGREEMENT BINDING ON SUCCESSORS.

This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.

14. WAIVER.

No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.

15. SEVERABILITY.

If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.

16. INTEGRATION.

This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.