End User Licensing Agreement

COGNIAC.CO END USER LICENSE AGREEMENT

PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING ANY SOFTWARE OR OTHERWISE USING ANY SOFTWARE OR SERVICES MADE AVAILABLE BY COGNIAC CORPORATION (“COGNIAC”). IF YOU HAVE OBTAINED A PAPER OR ELECTRONIC COPY OF THIS AGREEMENT FROM AN AUTHORIZED RESELLER OF COGNIAC, YOU ACKNOWLEDGE THAT BY ORDERING ANY SOFTWARE AND/OR SERVICES FROM SUCH AUTHORIZED RESELLER, THAT YOUR ACCEPTANCE OF THIS AGREEMENT IS A CONDITION PRECENDENT TO YOUR USE THEREOF. BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, OR INSTALLING ANY, OR EXECUTING AN ORDER WITH AN AUTHORIZED RESELLER FOR USE OF THE, COGNIAC SOFTWARE AND/OR COGNIAC SERVICE, YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT, AND CUSTOMER AGREES TO BE BOUND BY IT. BY ENTERING INTO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE ALL AUTHORITY NECESSARY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT (THE “CUSTOMER”).

1. DEFINITIONS. As used in this Agreement:

1.1 “Authorized Reseller” means one or more solution providers, service providers or resellers who, with the permission of Cogniac, market, demonstrate and arrange for the licensing of Cogniac software and services.

1.2 “Cogniac Client-Side Software” means any software and APIs intended for download, installation or use on or with Connected Cameras.

1.3 “Cogniac Service” means the automated visual observation service delivered by Cogniac to Customer via Cogniac’s web application, mobile application and SDKs.

1.4 “Connected Camera” means any device capable of capturing and storing a video, image, and/or audio visual content including any camera, video camera, mobile device camera, surveillance camera or close circuit TV camera, connected to the Cogniac Service by or on behalf of Customer.

1.5 “Customer Data” means any images, video, audio-visual data, or other image-related information provided by or on behalf of Customer to Cogniac in connection with the Cogniac Service.

1.6 “Documentation” means any user manuals, handbooks, and online materials provided by Cogniac to Customer that describe the features, functionality or operation of the Cogniac Service.

1.7 “Trained Model” means any machine learning model, structure, or artifact produced or built from Customer Data that can be used to make data-driven predictions and decisions.

2. COGNIAC SOFTWARE AND SERVICE.

2.1 Licenses. Subject to the terms and conditions of this Agreement, Cogniac hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to: (a) use and access the use the Cogniac Service in accordance with the Documentation solely for Customer’s internal business purposes in connection with the number of Connected Cameras, objects and events for which fees have been paid to the Authorized Reseller; and (b) install, execute and run the Cogniac Client-Side Software on Connected Cameras for the sole purpose of accessing and using the Cogniac Service in accordance with the license granted in Section 2.1(a).

2.2 Restrictions. Customer will not, and will not permit any user or other party to: (a) reverse engineer, disassemble or decompile any component of the Cogniac Client-Side Software or Cogniac Service; (b) interfere in any manner with the operation of the Cogniac Client-Side Software or the Cogniac Service, or the hardware and network used to operate the Cogniac Service; (c) sublicense any of Customer’s rights under this Agreement, or otherwise use the Cogniac Client-Side Software or the Cogniac Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Cogniac Client-Side Software; or (e) otherwise use the Cogniac Client-Side Software or the Cogniac Service in any manner that exceeds the scope of use permitted under Section 2.1.

3. OWNERSHIP.

3.1 Cogniac Service and Technology. Cogniac retains all right, title and interest in and to the Cogniac ClientSide Software, Cogniac Service, Trained Models and all software and all Cogniac proprietary information and technology used by Cogniac or provided to Customer in connection with the Cogniac Service (the “Cogniac Technology”), and Customer acknowledges and agrees that the Cogniac Technology is protected by intellectual property rights owned by or licensed to Cogniac. Other than as expressly set forth in this Agreement, no license or other rights in the Cogniac Technology are granted to the Customer. Customer hereby grants Cogniac a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Cogniac Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer. Cogniac shall not identify Customer as the source of any such feedback.

3.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Cogniac may only use the Customer Data to provide and improve the Cogniac Service; provided that Cogniac shall not be restricted in any manner from its use of any learning resulting from its access to and use of the Customer Data, nor its use thereof on an aggregated and anonymized basis, to provide, improve and market the Cogniac Technology, including to build Trained Models. By default, Cogniac will not share Customer Data with other customers Cogniac Service; provided, that, Customer may, at its option, choose to make Customer Data available to other users of the Cogniac Service. Customer will not provide, post or transmit any Customer Data to Cogniac that: (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) is deceptive, defamatory, obscene, pornographic or unlawful. Customer will be solely responsible for obtaining any necessary rights to provide the Customer Data to Cogniac for the purposes set forth herein.

4. TERMINATION.

This Agreement terminates upon the earliest of: (a) thirty (30) days after written notice from one party to the other of the defaulting party’s material breach of this Agreement, which is not cured during such thirty (30) day period; (b) upon notice to Cogniac from the applicable Authorized Reseller of termination/expiration of the agreement between Customer and Authorized Reseller relating to the access or licenses to the Cogniac Client-Side Software and/or Cogniac Services; (c) immediately upon written notice from Cogniac to Customer of a breach of Section 2; and (d) immediately upon written notice by either party if the other party (i) is declared insolvent; (ii) files a petition, or has a petition filed against it, under any laws relating to insolvency, and the related insolvency proceedings are not dismissed within sixty (60) days after the filing of such petition; (iii) enters into any voluntary arrangement for the benefit of its creditors; (iv) appoints, or has appointed on its behalf, a receiver, liquidator or trustee of any part of such party’s property or assets; or (v) ceases to carry on its business in the ordinary course. After any termination of this Agreement or Customer’s license to use any of the Cogniac software or services contemplated herein, Customer must promptly destroy/permanently delete any Cogniac Client-Side Software in its possession, including all copies thereof, and certify such destruction to the Authorized Reseller or Cogniac upon request.

5. DISCLAIMERS.

5.1 General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE COGNIAC SERVICE, COGNIAC CLIENT-SIDE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) COGNIAC AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE. Customer understands that, if it purchased the Cogniac Service and/or Cogniac Client-Side Software from an Authorized Reseller, then such Authorized Reseller is not Cogniac’s agent and is not authorized to make any representations, conditions, covenants or warranties on Cogniac’s behalf nor to vary any provision of this Agreement.

5.2 Special Disclaimer. Customer acknowledges and agrees that: (A) the Cogniac Services are designed to recognize certain objects and detect certain events designated by Customer based on images and/or video footage captured by Customer’s Connected Cameras, and that such recognition is developed over time based on Customer’s placement or use of object tags as well as Customer’s actions, instructions and other inputs provided to Cogniac (collectively, “Inputs”): (B) any outputs and responses provided to Customer via the Cogniac Service (“Outputs”) are wholly dependent upon Customer’s Inputs; and (C) the ability of the Cogniac Service to recognize objects and detect events, and provide Outputs is dependent upon the quality and volume of the Customer Data provided by Customer, and that external factors, such as, lighting, weather, video resolution of Connected Cameras, Internet speeds and third party interference may degrade the quality thereof. Cogniac makes no warranty or guarantee regarding the Outputs, including the accuracy or reliability thereof.

6. LIMITATION OF LIABILITY.

EXCEPT AS SET FORTH IN THIS SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COGNIAC BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL COGNIAC’S TOTAL AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID FOR THE SPECIFIC PRODUCT OR SERVICE THAT DIRECTLY CAUSED SUCH LIABILITY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY HEREUNDER. COGNIAC WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.

7. GENERAL PROVISIONS.

7.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Cogniac’s principal place of business is located for any lawsuit filed there against Customer by Cogniac arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from California law.

7.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Cogniac, or any products utilizing such data, in violation of the United States export laws or regulations.

7.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

7.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

7.5 Remedies. The parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Cogniac Service, Cogniac Client-Side Software or Documentation contain valuable trade secrets and proprietary information of Cogniac, that any actual or threatened breach of the section titled Restrictions or any other breach by Customer of its obligations with respect to intellectual Property rights of Cogniac will constitute immediate, irreparable harm to Cogniac for which monetary damages would be an inadequate remedy. In such case, Cogniac will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

7.6 No Assignment. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Cogniac, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.

7.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

7.8 Independent Contractors. Customer’s relationship to Cogniac is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Cogniac.

7.9 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Cogniac.