End Users License Agreement

This End User License Agreement (the "Agreement") is a legal agreement between Personify, Inc. ("Personify") and you regarding your use of the software product(s), data, materials, and associated documentation made available to you by Personify, including modifications, upgrades and updates to such items (collectively, the "Product"). BY USING THE PRODUCT AND/OR ANY SOFTWARE UPDATES THERETO, YOU SIGNIFY YOUR ASSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS INCLUDES YOUR AGREEMENT TO (A) JURISDICTION AND VENUE IN THE STATE OF CALIFORNIA FOR ANY CLAIM OR DISPUTE REGARDING THE PRODUCTS OR THIS AGREEMENT, (B) THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AND (C) PERSONIFY'S INFORMATION COLLECTION AND PRIVACY PRACTICES. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT INSTALL, CONFIGURE OR OTHERWISE USE THE PRODUCT AND CONTACT PERSONIFY IMMEDIATELY TO ARRANGE FOR THE RETURN OF THE PRODUCT.

1. LICENSE

Subject to your adherence to the terms and conditions of this Agreement, Personify hereby grants to you a limited, nonexclusive, non-transferable license (without the right to sublicense) to install, configure, use and access one copy of the object code version of Product solely for purposes consistent with the terms of this Agreement and only during the term of this Agreement.

2. SOFTWARE/SERVICE.

You acknowledge that the use of the Product is subject to the Terms of Service which you will be required to accept (the "Terms of Service"). We strongly recommend that you backup any content that you may upload to the Product. You shall have sole responsibility for the adequate protection and backup of your data and/or equipment used with the Product.

3. RESTRICTIONS.

By using the Product, you agree that, unless otherwise expressly permitted in this Agreement or the Terms of Service, you will not: (1) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit any portion of the Product; (2) redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to any portion of the Product; (3) modify or create any derivative works based on the Product, including without limitation, customization, translation, or localization; (4) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the Product, or the underlying ideas or algorithms of the Product (e.g. in an effort to develop other applications or services that provide similar or substitute or complimentary functionality to such Product); (5) use the Product to develop other software or services; (6) use the Product to provide services to any third party on an application service provider or service bureau basis; (7) use any Products in any way that violates this Agreement, the Terms of Service or any law; (8) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the Product.

4. LICENSE TO FEEDBACK.

You acknowledge that feedback concerning users' experiences with the Product (collectively, the "Feedback") is essential to the improvement of the Product. You hereby grant Personify a worldwide, perpetual, royalty-free, fully paid-up right and license to use, copy, display, publicly perform or create derivate works of the Feedback relating to the Product.

5. TERM; TERMINATION.

This Agreement and the license granted herein shall remain effective until terminated. You may terminate this Agreement and the license at any time by destroying or deleting all copies of Product. Your rights under this Agreement will terminate immediately without notice from Personify if you fail to comply with any provision of this Agreement or the Terms of Service. Upon termination, you shall destroy or delete all copies of Product in your possession or control. All limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.

6. OWNERSHIP.

Except for the limited license granted to you pursuant to Section 1 above, all right, title and interest in and to the Product and any and all intellectual property rights embodied therein shall remain exclusively with Personify and its licensors.

7. MODIFICATION OF THIS AGREEMENT.

Personify may amend or modify this Agreement at any time in its sole discretion, subject to notice to you. The modified Agreement will be effective immediately upon your receipt of notice to you and you agree to be bound by the new terms and conditions of the posted Agreement by continuing your use of any Product. If you do not agree with the modified Agreement, your only remedy is to discontinue using the Product.

8. YOUR REPRESENTATIONS.

You represent and warrant that (i) you have adequate legal capacity to enter into this Agreement, (ii) you will use the Product only for lawful purposes and in accordance with all terms and conditions of this Agreement and the Terms of Service and (iii) you will not use the Product in violation of (a) any law, regulation, or ordinance or (b) any right of Personify, its licensors, or any third party, including, without limitation, any right of privacy, publicity, patent, copyright or trademark. You agree to defend, indemnify and hold Personify, its parent, licensors, officers, agents, employees and directors harmless from any damages, costs, expenses (including reasonable attorney's fees) incurred as a result of a violation of this paragraph.

9. INJUNCTIVE RELIEF.

You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement may cause Personify irreparable damage for which recovery of money damages would be inadequate and that Personify, therefore, may seek timely injunctive relief to protect its rights under this Agreement, without the necessity of posting a bond, in addition to any and all other remedies available at law or in equity.

10. DISCLAIMER OF WARRANTY.

THE PRODUCT IS PROVIDED "AS-IS, AS THE PRODUCT IS PROVIDED "AS-IS, AS AVAILABLE" WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY PERSONIFY, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED TO THIRTY (30) DAYS FROM THE DELIVERY OF THE PRODUCT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY.

11. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL PERSONIFY OR ITS PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS OR RESELLERS (COLLECTIVELY, THE "PERSONIFY GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE PRODUCT, INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE PERSONIFY GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR PRODUCT, AS DETERMINED AT PERSONIFY'S SOLE DISCRETION. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF PERSONIFY TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE PERSONIFY GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU IN THE FORM OF FEEDBACK, CONTENT OR OTHERWISE. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL THE PERSONIFY GROUP BE HELD RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED TO YOU IN CONNECTION WITH THE USE OF OR RELIANCE UPON ANY CONTENT, GOODS, OR SERVICES AVAILABLE ON OR THROUGH ANY EXTERNAL SITES LINKED FROM A PRODUCT. YOUR SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF ANY DISPUTE WITH PERSONIFY UNDER OR RELATING TO THIS AGREEMENT ARE TO DISCONTINUE USE OF THE PRODUCT.

12. INDEMNIFICATION.

Upon a request by Personify, you agree to defend, indemnify, and hold harmless the Personify Group from all liabilities, claims, and expenses, including attorney's fees, that arise from your use of any Product in a manner not in strict conformance with this Agreement and the Terms of Service. Personify reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Personify in asserting any available defenses.

13. HIGH RISK ACTIVITIES.

The Product is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, PERSONIFY AND ITS LICENSORS AND OTHER SUPPLIERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE PERSONIFY GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF ANY PRODUCT IN SUCH APPLICATIONS.

14. U.S. GOVERNMENT END-USERS.

Each Product is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire such Products with only those rights as set forth herein.

15. GENERAL LEGAL TERMS.

This Agreement constitutes the entire agreement between you and Personify concerning your use of the Product. This Agreement supersedes all representations, agreements and other communications regarding your use of Product. If any term of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, that term shall be construed to reflect the parties' original intent, and the remaining portions shall remain in full force and effect, or Personify may at its option instead terminate this Agreement. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. You agree that this Agreement is not intended to confer and does not confer any rights or remedies from Personify upon any person other than you.

16. CHOICE OF LAW, CHOICE OF FORUM.

Except to the extent applicable law, if any, provides otherwise, the laws of the State of California, excluding its conflicts-of-law rules, shall govern this Agreement and your use of the Product. You expressly agree that exclusive jurisdiction for any claim or dispute arising from your use of the Product or under this Agreement, resides in the federal and state courts of the State of California and you consent to the personal jurisdiction thereof. The foregoing provision may not apply to you depending on the laws of your jurisdiction. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

17. EXPORT CONTROL.

You agree to fully comply with all export and import laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and not to directly or indirectly export, re-export, transfer, or release any Product, any other commodities, software or technology received from Personify, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances.

18. REQUIRED NOTICES.

THE FOLLOWING NOTE APPLIES TO ANY PRODUCT CONTAINING AVC IMPORT AND EXPORT FUNCTIONALITY: THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER AND OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (AVC VIDEO) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO PROVIDER LICENSED TO PROVED AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM.

19. THIRD PARTY SOFTWARE.

The Product contains certain software licensed from third parties (”Third Party Software”). Personify licenses Third Party Software and the terms and conditions under which such Third Party Software is licensed are made a part of and incorporated into this Agreement by reference and are identified at Pixonify iOS Licenses and Pixonify Android Licenses. You acknowledge those terms and conditions applicable to Third Party Software and that any such Third Party Software is provided “AS-IS” with no warranties.