Evaluation terms and conditions
1. Application of these terms and conditions
Business Day means a day (other than a Saturday or Sunday or public holiday in England) when banks in London are open for business;
Confidential Information means any and all confidential information (whether in oral, written or electronic form) given including technical or other information imparted disclosed by one party, which is marked confidential or identified as confidential at the time of disclosure, relating to the other's business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any associate, person, firm, or organisation associated with that party;
Customer Content means any content, including, but not limited to CCTV footage, images, photographs and other data files uploaded to the Facesoft Platform;
Data Protection Laws means all applicable laws from time to time in force relating to the protection of personal information, including, but not limited to the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and (for so long as it is directly applicable in the United Kingdom) the General Data Protection Regulation ((EU) 2016/679), and any laws substituting, re-enacting or replacing any of the foregoing, as amended or updated from time to time and in force in the United Kingdom;
Facesoft Platform means the services provided by Facesoft to the Customer under the Contract via https://www.facesoft.io/ and any related documentation;
Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case:
- -whether registered or not;
- -including any applications to protect or register such rights;
- -including all renewals and extensions of such rights or applications;
- -whether vested, contingent or future; and
- -wherever existing;
Objective means the evaluation of the Facesoft Platform by the Customer for use in the Customer's business;
Trial Period means the trial period set out in the invitation email and any extension to such period agreed by the parties in writing; and
Virus means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
3. Right to evaluate
Subject to the terms and conditions of the Contract, Facesoft grants to the Customer a personal, non-sublicensable, non-transferable, non-exclusive right to use the Facesoft Platform during the Trial Period solely for the purposes of the Objective. The Customer acknowledges and agrees that its access to the Facesoft Platform will, or may, automatically "time out" (that is to say, cease to operate) at the end of the Trial Period if the Customer has not at that time entered into a full agreement for the right to use the Facesoft Platform.
4. Use of the Facesoft platform
4.1 The Customer shall not access, upload, store, distribute or transmit any Viruses, or any material during the course of its use of the Facesoft Platform that:
- is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
- in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
- in any way breaches any applicable local, national or international law or regulation or is otherwise illegal; or
- causes damage or injury to any person or property,
and Facesoft reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
4.2 The Customer shall not:
- and shall procure that the Customer Content does not infringe any third party Intellectual Property Rights, breach the Data Protection Laws or infringe any confidentiality obligations;
- except as may be allowed by any applicable law which is incapable of
exclusion by agreement between the parties and except to the extent
expressly permitted under the Contract:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Facesoft Platform (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Facesoft Platform; or
- establish a link to the Facesoft Platform in such a way to suggest any form of association, approval or endorsement by Facesoft of the Customer where none exists;
- use the Facesoft Platform to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
- use the Facesoft Platform in any manner which interferes with or disrupts the integrity or performance of the Facesoft Platform;
- access all or any part of the Facesoft Platform in order to build a product or service which competes with the Facesoft Platform;
- use the Facesoft Platform to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Facesoft Platform available to any third party; or
- attempt to obtain, or assist third parties in obtaining, access to the Facesoft Platform other than as provided under clause 3.
4.3 Facesoft may delete without giving notice to the Customer any Customer Content that does not comply with this clause 4.
5. Intellectual Property Rights
5.1 Except for the Customer's right to use the Facesoft Platform as expressly granted above, the Customer shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Facesoft Platform. The Customer acknowledges and agrees that Facesoft and/or its licensors own all Intellectual Property Rights in the Facesoft Platform.
5.2 The Customer or its licensors shall own all right, title and interest in and to all of the Customer Content and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content.
5.3 Facesoft may, if so agreed by the Customer, use the Customer Content during the Trial Period to make improvements to the Facesoft Platform (including by training the algorithms underlying the Facesoft Platform).
5.4 If a third party notifies the Customer of any claim that the use of the Facesoft Platform infringes any right of a third party, the Customer agrees to immediately notify Facesoft. If any such claim is made to the Customer or Facesoft, the Customer shall, at Facesoft's request, immediately cease use of the Facesoft Platform. If Facesoft is unable to allow the Customer to continue evaluation of the Facesoft Platform, the provisions of clause 10.1 shall apply.
5.5Facesoft shall defend the Customer against any claim that the Facesoft Platform infringes any United Kingdom patent effective as of the commencement of the Trial Period, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- Facesoft is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to Facesoft in the defence and settlement of such claim, at Facesoft's expense; and
- Facesoft is given sole authority to defend or settle the claim.
6. Confidential Information
6.1 Each party shall maintain the confidentiality of the other party's Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under the Contract.
6.2 Each party undertakes to:
- disclose the other party's Confidential Information only to those of its officers, employees, agents and contractors (including Facesoft personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under the Contract; and
- to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
6.2.2 Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party's Confidential Information immediately upon becoming aware of the same.
6.2.3 The provisions of this clause shall not apply to information which:
- is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
- is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
- is independently developed by the recipient, without access to or use of such information; or
- is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
6.2.4 The obligations under this clause shall survive the variation, expiry or termination of the Contract for a period of 10 years thereafter.
7. Data protection
7.1 Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Laws.
7.2 The parties acknowledge that:
- where Facesoft is permitted by the Customer to use personal data comprised in Customer Content for the purpose of making improvements to the algorithms underlying the Facesoft Platform, Facesoft will be acting as controller for the purpose of the Data Protection Laws and the Customer will be disclosing and sharing that personal data with Facesoft for that purpose; and
- in other circumstances, Facesoft will be acting as a processor on behalf of the Customer when performing its obligations under the Contract (the scope, nature, purpose and duration of which and the types of personal data and categories of data subjects are set out in clause 7.6) and the Customer will be a controller for the purpose of the Data Protection Laws.
7.3 Without prejudice to the generality of clause 7.1, the Customer shall provide clear and sufficient information to the data subjects to enable them to understand what personal data it is sharing with Facesoft, the circumstances in which it will be shared, the purposes for the data sharing and the identity of Facesoft.
7.4 If Facesoft is a processor then without prejudice to the generality of clause 7.1:
- the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Facesoft so that Facesoft may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer's behalf;
- the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Facesoft for the duration and purposes of the Contract;
- Facesoft shall process the personal data only on the written instructions reasonably given by the Customer (which the Customer acknowledges are comprised in Facesoft's obligations and exercise of rights under the Contract), unless Facesoft is required by the laws of any member of the European Union, the United Kingdom or the European Union applicable to Facesoft to process the personal data. Where Facesoft is relying on such applicable laws as the basis for processing, Facesoft shall promptly notify the Customer of this before performing the processing required by such applicable laws unless these laws prohibit Facesoft from notifying the Customer;
- each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- Facesoft shall ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- Facesoft shall assist the Customer, at the Customer's cost, in respect to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- Facesoft shall not transfer any personal data outside the European Economic Area unless the following conditions are fulfilled: (a) the Customer or Facesoft has provided appropriate safeguards in relation to the transfer; (b) the data subject has enforceable rights and effective legal remedies; and (c) Facesoft complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any personal data that is transferred;
- Facesoft shall notify the Customer without undue delay on becoming aware of a personal data breach;
- Facesoft shall at the Customer's written direction, delete or return the personal data and copies thereof to the Customer on termination of the Contract unless Facesoft is required by applicable law to store the personal data; and
- Facesoft shall, within 3 months of a request from the Customer (and at the Customer's
available to the Customer, such information as is reasonably necessary to demonstrate its
with this clause 7, and allow for audit (including inspections) by the Customer or the
designated auditor for this purpose, subject to the Customer:
- giving Facesoft reasonable prior notice of such information request, audit and/or inspection being required by the Customer (and paying Facesoft's reasonable associated costs); and
- ensuring that any such audit or inspection is undertaking during normal business hours, with minimal disruption to Facesoft's business.
For the purposes of this clause 7.4(j), the Customer acknowledges that Facesoft may not be able to procure access to physical facilities of its hosting sub-processors and can only provide such access to audits as any such sub-processor may make available to Facesoft.
7.5 The Customer consents to Facesoft's use of sub-processors engaged in the processing of the Customer's personal data by way of general authorisation in respect of all sub-processors as at the date of the Contract. Facesoft shall make available to the Customer a list of its current sub-processors on its website accessible at https://www.facesoft.io/legal.html#subprocessors and the Customer may sign up to receive notifications of changes by Facesoft to its sub-processors to give the Customer an opportunity to object to such change. The Customer must notify Facesoft in the event that the Customer does not agree to a proposed change within 60 days of receiving a notification from Facesoft, specifying its grounds for such objection (acting reasonably). If Facesoft receives such an objection, then Facesoft may (at its option) without liability for either party:
- cancel its plans to change the affected sub-processor;
- offer an alternative which is acceptable to the Customer; or
- take corrective steps to remove the objection identified by the Customer to the Customer's reasonable satisfaction, after which Facesoft may proceed with appointing the relevant sub-processor.
If none of the above options resolves the objection, then without liability to the Customer Facesoft may terminate the Contract by providing written notice with immediate effect.
7.6 The Customer acknowledges that Facesoft is reliant on the Customer for instructions as to the extent to which Facesoft is entitled to use and process any personal data disclosed to or shared with Facesoft by the Customer. Consequently, Facesoft will not be liable for any claim brought by a data subject arising from any action or omission by Facesoft, to the extent that such action or omission resulted directly from the Customer's instructions. The Customer shall indemnify and keep indemnified Facesoft against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to data subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 7.
7.7 The scope, nature, purpose of processing and the types of personal data and categories of data subjects are set out below:
|Scope, nature and purpose of processing||For the use of the Facesoft Platform by the Customer.|
|Duration of processing||During the term of the Contract.|
|Types of personal data||Data relating to individuals provided to Facesoft by the Customer using the Facesoft Platform including, but not limited to photographs, gender, names, ethnicity and age.|
|Categories of data subjects||Data subjects being individuals whose data has been provided to Facesoft by the Customer using the Facesoft Platform.|
7.8 In this clause 7, personal data, controller, processor, data subject, process and processing shall have the meanings given to them in the Data Protection Laws.
The provisions of the Contract are necessary for the protection of the business and goodwill of Facesoft and are considered by the parties to be reasonable for such purpose. The Customer agrees that any breach of the Contract may cause Facesoft substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, Facesoft shall have the right to seek specific performance and other injunctive and equitable relief.
9. Limitation of liability
9.1 Save for (i) death and personal injury caused by Facesoft's negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any liability which cannot be excluded or limited by applicable law, Facesoft shall have no liability of any kind in any circumstances whatever to the Customer in respect of the Facesoft Platform greater than the limit set out in clause 9.2. In particular, Facesoft shall have no liability in any circumstances whatever for any data loss or corruption greater than that limit and the Customer agrees that it has sole responsibility for protecting its data during evaluation of the Facesoft Platform.
9.2 Subject to clause 9.1, if Facesoft is found liable to the Customer for any reason, the sums payable to the Customer in respect of such liability shall not in any circumstances exceed £ 1,000.
9.3 No representations, conditions, warranties or other terms of any kind are given in respect of the Facesoft Platform and all statutory warranties and conditions are excluded to the fullest extent possible.
10.1 During the Trial Period, the Contract may be terminated:
- immediately by Facesoft giving written notice if the Customer is in breach of any of its obligations under the Contract;
- by either party upon 7 days' written notice to the other party; or
- upon execution by the parties of a full agreement for the right for the Customer to use the Facesoft Platform.
10.2 Upon termination not followed by a full licence, Facesoft shall within 10 Business Days delete the Customer Content from the Facesoft Platform.
10.3 Any termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision in the Contract which is expressly or by implication intended to come into or continue in force on or after such termination.
11.1 Force Majeure. Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which results from circumstances beyond the reasonable control of that party.
11.2 Notices. Notices under the Contract must be in writing and sent to the other party's registered office (or such other applicable address for service agreed by the parties from time to time in writing). Notices may be given, and will be deemed received if correctly addressed:
- by first-class post: two Business Days after posting;
- by airmail: seven Business Days after posting;
- by hand: on delivery; or
- by email: at the time of transmission.
11.3 No partnership. The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
11.4 Third party rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999, the Contract is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions.
11.5 Assignment and other dealings.
- Facesoft may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Facesoft.
11.6 Variation. No amendment or variation of the Contract will be valid unless agreed in writing by an authorised signatory of each party.
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.8 Waiver. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
11.9 Entire agreement. The Contract contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in the Contract. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in the Contract. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
11.10 Governing law and jurisdiction. The Contract is governed by the laws of England and Wales. All disputes under the Contract shall be subject to the non-exclusive jurisdiction of the courts of England and Wales.
List of subprocessors
- Amazon Web Services, Inc. (AWS GDPR DATA PROCESSING ADDENDUM)