End User License Agreement

IMPORTANT—READ CAREFULLY: This End User License Agreement (“EULA”) constitutes a legally binding agreement between the person or entity for whom the Licensed Software will be accessed and/or used (“End User”) and Rank One Computing Corporation (“ROC”), and govern End User’s access to and use of (i) ROC’s ROC SDK, ROC ABIS, ROC Evidence, ROC Watch, ROC Enroll, ROC Examine, ROC Foundation, ROC Post or any other ROC software or other computer software or data made available to End User under this EULA, together with all modifications, Updates and Upgrades thereto (collectively, “Licensed Software,” provided that Licensed Software shall not include any Open Source Software or any other third-party software which may be packaged with such software but is subject to separate license terms as set forth in the User Documentation) and (ii) if applicable, ROC’s standard help files and documentation that are made available (in print or electronic form) to End User relating to the Licensed Software, as may be updated by ROC from time to time (the “User Documentation”). End User acknowledges and agrees that End User is fully responsible for all acts and omissions of End User’s personnel and representatives who access or use the Licensed Software.

PLEASE READ THIS EULA CAREFULLY BEFORE ACCESSING OR USING THE LICENSED SOFTWARE OR ANY PORTION THEREOF. BY CLICKING ON “I AGREE” OR BY ACCESSING OR USING THE LICENSED SOFTWARE OR ANY PORTION THEREOF, YOU, ON BEHALF OF THE END USER, ACKNOWLEDGE AND CONFIRM THAT: (A) YOU HAVE FULL AUTHORITY TO BIND THE END USER TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA; (B) YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS EULA; AND (C) END USER AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS EULA AND ACKNOWLEDGES THAT THIS EULA IS THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN ROC AND END USER. IF YOU OR THE END USER WHOM YOU ARE REPRESENTING ARE NOT WILLING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS EULA, INCLUDING THE PRECEDING ACKNOWLEDGEMENT AND AGREEMENT, THEN YOU MUST NOT ACCESS OR USE THE LICENSED SOFTWARE OR ANY PORTION THEREOF; ROC DOES NOT AND WILL NOT GRANT YOU OR THE END USER ANY RIGHT OR LICENSE TO ACCESS OR USE THE LICENSED SOFTWARE OR ANY PORTION THEREOF.

1. Definitions

1. 1. “Environments” means End User-controlled devices, computers, servers, private or public cloud infrastructures, containerized instances, serverless environments or other physical or virtualized architectures, as permitted by ROC.
   2. “Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
   3. “Intellectual Property Rights” means all present and future worldwide copyrights, trade secrets, patents, patent applications, trademarks, service marks, moral rights, contract rights and other proprietary rights, regardless of whether registered or unregistered.
   4. “License Key” means a computer file, floating license, metered consumption, dynamic scaling, access credential or other technical mechanism that enables, restricts or manages operation of the Licensed Software, which may include technical limitations, as determined by ROC in its sole discretion, to enforce the permitted scope of use of the Licensed Software.
   5. “License Fees” means applicable fees that End User must pay to ROC or ROC’s authorized channel partner for each License Key issued to End User, as separately agreed in writing, including by quote, purchase order and invoice or similar exchange of written documents, provided that any additional terms on any purchase order or similar document submitted by End User to ROC or ROC’s authorized channel partner will have no effect.
   6. “Open Source Software” means any software component that is subject to any open-source license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative.
   7. “Permitted Deployment Model” means (i) native, embedded or integrated software or software components (including SDKs and libraries), (ii) customer-hosted deployment (including private cloud services, on-prem or hybrid), (iii) ROC-hosted or managed cloud or SaaS services or (iv) other deployment model, as permitted by ROC.
   8. “Permitted Interfaces” means the application programming interfaces (APIs), API wrappers, command line interfaces and graphical user interfaces (GUIs) set forth in the User Documentation.
   9. “Source Code” means the human-readable version of a software program that can be compiled into Executable Code.
   10. “Update” means any error correction, bug fix, modification or enhancement to the Licensed Software that ROC makes available to End User under Section 5 (Updates; Upgrades) or Section 6 (ROC Support), represented by “Z” numbers in ROC’s “X.Y.Z” versioning denotation.
   11. “Upgrade” means any release, function or version of the Licensed Software that contains new features or significant functional enhancements to the Licensed Software that ROC makes available to End User under Section 5 (Updates; Upgrades) or Section 6 (ROC Support), represented by “Y” numbers in ROC’s “X.Y.Z” versioning notation.

2. License Grant

To the extent End User has purchased necessary License Keys, ROC hereby grants to End User, a non-exclusive, non-transferable, revocable, limited license, without rights to sublicense, to install (or access through SaaS Services) and use the Licensed Software and User Documentation, solely through the Permitted Interfaces, solely on End User-controlled Environments, solely via Permitted Deployment Models, solely within License Key limitations, solely for End User’s ordinary internal business purposes, and in no event for distribution to third parties.

3. License Restrictions

End User acknowledges and agrees that the Licensed Software is made available to End User in Executable Code form only. End User acknowledges that End User’s rights with respect to the Licensed Software are limited to the scope of the express license granted under Section 2 (License Grant) and that, except as expressly provided herein, this EULA does not permit End User to otherwise reproduce, create derivative works of, distribute, disclose, display or otherwise use the Licensed Software or User Documentation or any portion thereof. End User acknowledges that the Licensed Software and its structure, organization and Source Code constitute valuable trade secrets of ROC. Accordingly, unless otherwise expressly provided in the applicable license granted under Section 2 (License Grant) above, End User will not, and will not allow any third party to: (a) modify, adapt, alter, translate or create derivative works based on the Licensed Software or User Documentation; (b) sublicense, lease, rent, loan, publish, copy, make available or otherwise transfer the Licensed Software or any License Key, password, key, or other access code for the Licensed Software to any third party; (c) merge the Licensed Software with other software; (d) reverse engineer, decompile or disassemble the Licensed Software or otherwise attempt to derive the Source Code of the Licensed Software, including, without limitation, via knowledge distillation from use of the Licensed Software; or (e) defeat or work around any License Keys, access restrictions, encryption or other technical restrictions or limitations in the Licensed Software. End User shall not use the Licensed Software or User Documentation, or any outputs, responses, or data generated by the Licensed Software (“Outputs”), to develop, train, fine-tune, or improve any machine learning models, artificial intelligence algorithms, or competing software products. End User is prohibited from using any automated means, including ‘scraping’ or high-frequency API calls, to extract Outputs for the purpose of creating a dataset for machine learning training. All Outputs generated by the Licensed Software are licensed for the sole purpose of End User’s ordinary internal business operations. End User is expressly prohibited from using such Outputs to create a functional equivalent of the Licensed Software. End User shall not publish or disclose to any third party any benchmarking, performance evaluations, or competitive analysis of the Licensed Software. End User acknowledges that: (A) the Licensed Software, its structure, organization and Source Code and the User Documentation constitute valuable trade secrets of ROC, (B) the Licensed Software is made available to End User in Executable Code form only and (C) End User does not have any rights to any Source Code of the Licensed Software or User Documentation. End User must, at all times during the term of this EULA, use up-to-date, high industry standard technical, administrative and physical security measures to ensure that the Licensed Software is not accessed or used in any unauthorized manner. End User will promptly notify ROC in writing of any actual or suspected unauthorized access to or use of the Licensed Software. End User may not distribute the computer code of the Licensed Software or User Documentation, or any portion thereof, to any third party in any form.  End User will reproduce, on all copies made by or for End User, and will not remove, minimize, block, or modify any titles, trademarks, logos, notices for any Intellectual Property Rights, digital watermarks, disclaimers or other legal notices that are included in the Licensed Software or User Documentation, and shall include all of the same on any copies thereof made in accordance with this EULA. Nothing in this EULA gives End User a right to use any of ROC’s trade names, trademarks, service marks, logos or other branding. All rights not expressly granted to End User herein are reserved by ROC; there are no implied licenses under this EULA.

4. Compliance with Law

End User acknowledges and agrees that the license granted by this EULA is subject to End User at all times strictly complying with all applicable statutes, laws and regulations worldwide related to End User’s rights, obligations and activities under this EULA and/or related to the Licensed Software, Without limiting the foregoing, compliance with applicable laws shall include compliance with (i) all applicable trade and export regulations, (ii) all applicable anti-corruption laws, including, without limitation, the Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act of 2010 (UKBA), (iii) to the full extent relevant to End User’s obligations, all U.S. federal and state securities laws and regulations, (iv) the U.S. Privacy Act (5 U.S.C. §552a), (v) the General Data Protection Regulation of the European Union (GDPR), (vi) the European Union Artificial Intelligence Act (EU AI Act), (vii) the Biometric Information Privacy Act of the State of Illinois (BIPA) and (viii) all other statutes, laws and regulations in all jurisdictions worldwide relating to (A) data privacy, (B) consumer protection, (C) collection, storage, transmission, handling or use of biometric data or information or (D) development or use of artificial intelligence systems or technology. End User shall remain responsible for and hereby indemnifies ROC for any failure to secure all necessary rights, consents, permissions and notifications to collect and process End User Data or to generate Outputs. End User recognizes that artificial intelligence, biometric and computer vision technologies are powerful capabilities that must be used in an ethical manner. End User agrees to abide by ROC’s Code of Ethics, which sets forth the principles that should guide any development and use of artificial intelligence, biometric and computer vision technologies, available at roc.ai/code-of-ethics/, as updated by ROC from time to time.

5. Updates; Upgrades

ROC will provide to End User any minor version Upgrades or incremental patch Updates to which End User is entitled based upon payment of applicable License Fees for License Keys that are current and in effect and qualify for such Upgrades and Updates. Any Updates and Upgrades provided to End User will be deemed to be part of the Licensed Software, and documentation provided in connection with such Updates and Upgrades will be deemed to be part of the User Documentation. In an ongoing effort to address security, quality, and avoidance of potential infringement issues, End User will implement (i) all Updates and Upgrades that address a critical security vulnerability, including, without limitation, those with a CVE/CVSS score greater than 7.0, within seventy-two (72) hours and (ii) all other Updates and Upgrades promptly and in any event within one hundred eighty (180) days from its receipt thereof.

6. ROC Support

ROC will provide End User’s technical contact with troubleshooting technical support services for the Licensed Software used by End User, in accordance with ROC’s then-current support guidelines (“Tier 2 Support”). ROC has no obligation with respect to any issue which is due to failure, limitation, availability, security or performance of End User’s computing Environment, operating system and/or communication networks or a software virus, worm, Trojan, ransomware or any other destructive or disruptive means or which arises as a result of any software, hardware, Environment or communication network not provided by ROC. ROC’s support obligations are limited to the current and two previous Upgrade versions of the Licensed Software. In the event End User provides ROC with access to any End User-controlled Environment, ROC shall act solely at the direction of End User for purposes of support and maintenance, and ROC shall not access, retain, use or disclose any End User data, except as reasonably necessary to provide Tier 2 Support or as required by law.

7. Fees and Payment

End User will pay to ROC or ROC’s authorized channel partner all applicable License Fees for use of the Licensed Software. All payments must be made in U.S. dollars within 30 days of ROC’s invoice delivery (net 30). Any money received by ROC as provided in this EULA shall not be refunded to End User for any reason, except at the sole and absolute discretion of ROC. With respect to any purchase, End User must request all License Keys within six (6) months of the date of the invoice. Any amounts that are not paid when due shall incur a late fee of 1.5% per month as from the due date plus any additional collection costs or other damages caused by such delay. End User will be responsible for payment of all taxes, fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of License Fees under this Agreement or the delivery or license of the Licensed Software to End User.

8. Records and Audit

At all times during the term of this EULA, and for at least two (2) years after the termination of this EULA, End User will maintain at its principal place of business complete and accurate records with respect to End User’s activities pursuant to this EULA, including all data needed to verify calculation of License Fees. No more than once per calendar year, ROC may, itself or through its agents, inspect and audit End User’s relevant business records and internal controls to verify (i) that End User has paid to ROC or ROC’s authorized channel partner the correct amounts owed under this EULA and otherwise complied with all of its terms and (ii) proper revenue recognition and compliance with ROC’s internal financial controls, audit requirements and applicable regulatory requirements, including the Sarbanes-Oxley Act of 2002. Each such audit will be conducted at ROC’s expense, unless an audit reveals that End User has underpaid the amounts owed by five percent (5%) or more in any quarter, in which case End User will reimburse ROC for all reasonable costs (including the cost of an independent audit firm) and expenses incurred by ROC in connection with such audit. End User will promptly pay to ROC any amounts shown by any such audit to be owing with interest on the amounts for the period beginning on their due date and ending on the date of receipt by ROC at the rate per annum equal to ten percent (10%), which shall accrue from day to day and be calculated on the basis of a year of three hundred sixty five (365) days and the actual number of days elapsed. Any confidential or proprietary information of End User or its customers disclosed to ROC or its agents in the course of an audit will be subject to a duty of confidentiality or a reasonable confidentiality agreement.

9. Ownership

The Licensed Software is licensed and not sold by ROC. ROC is and remains the sole and exclusive owner of all right, title and interest in and to the Licensed Software and User Documentation, and all Intellectual Property Rights therein are and will remain the exclusive property of ROC and its suppliers. The User Documentation includes a list of all Open Source Software incorporated in the Licensed Software, which may be updated by ROC from time to time, and the applicable license agreements, which End User hereby agrees to and are incorporated by reference herein. Ownership of all Open Source Software, and all Intellectual Property Rights therein, is and will remain with the respective owners thereof, subject to End User’s rights under the applicable license agreements. All rights not expressly granted to End User in this EULA are reserved by ROC. ROC acknowledges that, as between the parties, End User is and remains the sole and exclusive owner of all right, title and interest in and to any images, personal data or other content processed by the Licensed Software (“End User Data”), as well as any Outputs generated by the Licensed Software, subject to the limitations of Section 3.

10. Confidentiality

Neither party will disclose the specific terms of this EULA, including without limitation any exhibits attached hereto and any pricing information provided to End User, to anyone other than its attorneys, accountants, and other professional advisors, subject to a reasonable confidentiality agreement or similar duty of confidentiality, except (a) as required by law, (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business, provided that any third party to whom the terms of this EULA are to be disclosed signs a reasonable confidentiality agreement. As a public company, ROC is subject to stringent regulatory requirements regarding the disclosure of corporate information and non-public data. End User agrees to strictly safeguard and not disclose or use any non-public information regarding ROC’s business, technical, financial, operational, strategic or commercial information, including any information that constitutes or may constitute “material non-public information” within the meaning of applicable U.S. federal and state securities laws (“Material Non-Public Information” or “MNPI”). End User agrees that neither it nor any of its representatives shall, directly or indirectly, while in possession of MNPI: (i) purchase, sell, or otherwise trade in the securities of ROC or in any derivative or hedging instrument relating to ROC, (ii) recommend or induce any other person to engage in any such transaction, or (iii) disclose such MNPI to any third party except as expressly permitted under this EULA.

11. Limited Warranty

ROC warrants that the Licensed Software will, for a period of sixty (60) days from the date of End User’s receipt of the Licensed Software, perform substantially in accordance with the User Documentation accompanying such Licensed Software. ROC’s sole obligation, for any breach of such warranty shall be for ROC to correct any material errors in the Licensed Software and deliver such corrected deliverables to End User as soon as commercially reasonable. Except as expressly set forth in the foregoing, ROC does not provide any warranties, express, implied or statutory, regarding the Licensed Software, User Documentation or related services, or use of the Licensed Software, User Documentation or related services. ROC does not warrant, guarantee, or make any representation that the Licensed Software, the operation of the Licensed Software, or any related services will be uninterrupted or error free. There are no warranties that may arise from usage of trade or course of dealing. ROC disclaims any and all implied warranties, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and title and noninfringement, relating to the Licensed Software, User Documentation and related services. Some jurisdictions do not allow exclusion of or limitation on duration of an express or implied warranty or limitation on any applicable statutory rights of a consumer; in such event, such warranties are limited to the maximum extent allowed by applicable law.

12. Limitation of Liability

With the exceptions of breach of Section 3 (License Restrictions), Section 4 (Compliance with Law), Section 10 (Confidentiality) or any damages arising from an act or omission that constitutes gross negligence or willful misconduct: (1) in no event and under no legal theory, whether tort (including negligence), strict liability, contract or otherwise, will either party be liable to the other party for any consequential, indirect, exemplary, punitive, statutory, special or incidental damages or for any loss of use, lost data, lost profits, loss of goodwill, procurement of substitute goods or services, business interruption or work stoppage, computer failure or malfunction or any other commercial damages or losses arising from or relating to this EULA, the Licensed Software or any use thereof; and (2) each party’s total cumulative liability in connection with this EULA and the Licensed Software (other than for payment of fees), whether in contract or tort or otherwise, will not exceed the amount of fees paid to ROC by End User under this EULA in the 12 months immediately preceding the event giving rise to the liability. Each party acknowledges that the fees set forth in this EULA reflect the allocation of risk set forth herein, that this amount has been reviewed and discussed with its respective counsel and that neither party would enter into this EULA without these limitations on its liability.

13. Term and Termination

1. 1. Term. This EULA will terminate immediately in the event that End User breaches any of the material terms herein and fails to cure such breach within ten (10) days of the date such breach was discovered or reasonably could have been discovered by End User.
   2. Effects of Termination. Upon termination of this EULA, all licenses received by End User immediately terminate and End User must immediately cease all use of the Licensed Software and destroy all copies of the Licensed Software and User Documentation in its possession or under its control.
   3. Survival. Sections 1 (Definitions), 9 (Ownership), 10 (Confidentiality), 11 (Limited Warranty), 12 (Limitation of Liability), 13(b) (Effects of Termination), and 14 (General) will survive expiration or termination of this EULA.

14. General

1. 1. Assignment. End User may not assign or transfer, by operation of law or otherwise, any rights or obligations under this EULA (including its licenses with respect to the Licensed Software) or delegate any duties under this EULA to any third party without ROC’s prior written consent, and any purported attempt to do so is null and void.
   2. Construction. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used herein, the word “including” means “including but not limited to.”
   3. Commercial Computer Software. The Licensed Software is commercial computer software and the User Documentation is commercial computer software documentation, in each case, including derivative works. Use, duplication or disclosure to the United States Government is subject to the restrictions as set forth in Federal Acquisition Regulation (FAR) clauses 12.212 and 27.405-3 and Defense Federal Acquisition Regulation Supplement (DFARS) clause 227.7202. Accordingly, End User will have the license rights contained in Section 2 of this EULA and no greater rights in the Licensed Software except as may be expressly agreed to in writing by ROC.
   4. Entire Agreement. These EULA, together with all documents and agreements incorporated by reference herein, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Except as expressly provided in this EULA, this EULA may be amended only by a written document signed by both parties. The terms on any purchase order or similar document submitted by End User to ROC will have no effect, except for specifying applicable License Fees, License Key restrictions, Permitted Deployment Models, and other limitations on scope of use.
   5. Export and Import Laws. End User will comply, with all applicable export and import control laws and regulations in its use of the Licensed Software, User Documentation and other materials and information furnished to it pursuant to this EULA and, in particular, will not export or re-export the Licensed Software without all required United States and foreign government licenses.
   6. Governing Law. This EULA will be governed by the laws of the State of New York as such laws apply to contracts between New York residents performed entirely within New York, without giving effect to any choice of law rules and any actions pertaining thereto. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA.
   7. No Third Party Beneficiaries. No term or provision of this EULA is intended to be, or shall be, for the benefit of any person, firm, organization, or corporation other than ROC and End User, and no such third party shall have any right or cause of action hereunder.
   8. Severability. If any provision of this EULA is unenforceable, such provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law. All remaining provisions will continue in full force and effect.
   9. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
   10. Dispute Resolution. The parties agree that in the event of any dispute arising out of or in connection with this EULA, including any question regarding its existence, validity or termination (the “Dispute”), the parties shall, in the first instance, resolve the Dispute by amicable negotiation in good faith upon either party giving a written notice to the other (the “Negotiation Notice”) to enter into such negotiation. If no agreement is reached between the parties within sixty (60) days from the date of the Negotiation Notice, the Dispute shall be referred to and finally resolved by arbitration in New York before a single arbitrator from JAMS mutually agreeable by the parties. The decision of the arbitration shall be final and binding and may be used as a basis for enforcement of this EULA. Notwithstanding the foregoing, if End User is a governmental entity or instrumentality that is prohibited by applicable law from submitting to binding arbitration or from the governing law or venue specified herein, then disputes shall be resolved in accordance with such applicable law, and Section 14(f) (Governing Law) and this Section 14(k) (Dispute Resolution) shall be deemed modified to the extent necessary to comply with such law.
   11. Force Majeure. A “Force Majeure Event” shall mean any event beyond the reasonable control of a party, including any labor dispute, shortage of materials, fire, earthquake, flood, legal prohibition, limitation or constraint, including the adoption of, or change in, any statute, decree, regulation or order by a governmental authority, that would prohibit or materially limit a party’s ability to perform its duties or obligations.  Neither party shall be considered in default in the performance of any of its obligations hereunder (except for any obligation to pay money owed), when and to the extent the failure of performance shall be caused by a Force Majeure Event and such party shall be excused from performance.