HYPRFACE PERSONAL - TERMS OF SERVICE

(Updated April 22nd, 2020)

BINARYVR, INC. d/b/a HYPRSENSE (“Hyprsense”, “our” or “we”) provides the Hyprface Software Development Kit and any accompanying Documentation (collectively, “Software”). Unless you and Hyprsense have executed a separate agreement, these terms and conditions exclusively govern your use of the Software and constitute a binding legal agreement between you and Hyprsense (the “Terms”). These Terms are, collectively, the “Agreement.”

If you accept or agree to the Agreement on behalf of a company, organization or other legal entity (a “Legal Entity”), you represent and warrant that you have the authority to bind that Legal Entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.

You acknowledge and agree that, by accessing, purchasing or using the Software, you are indicating that you have read, understand and agree to be bound by the Agreement. If you do not agree to these Terms, you are not authorized to use the Software in any manner.

 

Tier Eligibility

You and everyone using the Software on your behalf must be Tier Eligible at all times.  “Tier Eligible” means that your Total Finances cannot exceed the defined Financial Thresholds for the tier of Software you (or those providing services to you) are using.  Tier Eligibility is measured for the most recent one (1) month period.  If you are mid-project, and your Total Finances grow to exceed the Financial Threshold of the Software tier you are using, you do not need to start from scratch - you can simply upgrade your license and continue working. How we measure your Total Finances varies based on who you are.  Financial Thresholds are shown in US currency and your Total Finances will be converted to US currency to determine your Tier Eligibility.

 

Financial Thresholds for Hyprface Basic and Hyprface Pro:

The Financial Threshold for Hyprface Basic is US $500 for the most recent one (1) month period.  To be eligible to use Hyprface Basic, your Total Finances may not exceed US $500.  If your Total Finances exceed US $500 you may not use Hyprface Basic at all, even for internal projects or prototyping.  There is no Financial Threshold for Hyprface Pro. You do not need to be Tier Eligible to use Hyprface Pro. Hyprface Pro may be used by anyone who pays the applicable subscription fees.

How we measure your Total Finances varies based on who you are:

if you are a Legal Entity using the Software (other than to provide services to someone else), your Total Finances are your gross revenues (no matter what the source),

If you are an individual or a Legal Entity providing services to a third party, your Total Finances is deemed to be your customer or client’s Total Finances, and

if you are an individual using the Software, but not providing services to a third party, your Total Finances are the amount generated in connection with your use of the Software.

By using the Software, you represent and warrant that you are eligible to use the tier of Software.  You understand that it is your responsibility to maintain complete records establishing your eligibility and you bear the burden of proving your eligibility if we ask.  

 

1. Definitions

1.1. “Documentation” means any related explanatory materials accompanying the Software.


1.2. “Hyprface Core” means the portion of the Software that is comprised of the header file, the library files, static or shared, for each operation platform, and the model file, with the applicable extensions, containing the necessary data for running the Software.

1.3. “Hyprface Example” means the set of example projects for each operation platform that demonstrates the usage of Hyprface Core and helps you to integrate the Software into your projects easily.

1.4. “Legal Entity” means any company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, proprietorship, joint venture or other form of business organization.

 

1.5. “Models” means tracking models for sparse facial landmarks, and three-dimensional representations of human faces residing in a computer, created using Statistical Data.

 

1.6. “Object Code” means the binary executable code as provided to you.

 

1.7. “Software” means the Hyprface Software Development Kit (SDK), including the Statistical Data, APIs, Source Code, Object Code, Models, Documentation, and related items licensed to you under the terms of this Agreement.

 

1.8. “Source Code” means the human readable source code of the Software as provided to you.

 

1.9. “Statistical Data” means the statistical shape, landmark, volumetric mesh and color data as provided to you, or generated by you using the Software.

2. Rights to use the Software

 

2.1. Eligibility

The Software is intended for persons 13 and older provided, however, you must be at least 18 to make purchases. If you are under the age of 18 or whatever is the age of legal majority where you access the Software, you may purchase access to the Software only with the involvement of your legal guardian, and you represent and warrant that your legal guardian has read, understood and agreed to this Agreement.

 

2.2. Your Responsibilities

You represent and warrant that: (a) you have the legal capacity to agree to the Agreement; (b) you are not located in a country embargoed by the United States and that you are not on the U.S. Treasury Department's list of Specially Designated Nationals; and (c) you will comply with all applicable laws and regulations in connection with your use of the Services (including but not limited to applicable Federal Trade Commission rules and COPPA), and in accordance with the terms and conditions specified in the Agreement.

 

2.3. Use Rights

Conditioned upon your compliance with the terms and conditions of this Agreement and payment of all applicable subscription fees, Hyprsense grants you a non-exclusive, non-transferable, royalty-free license to install the Software, solely for internal use by a single person to develop your Project Content during the applicable term.  If you are a Legal Entity, you may allow affiliated entities or third party contractors who are testing, developing and operating your Project Content on your behalf (each, a “Designated User”), to exercise your rights on your behalf. You remain responsible for your Designated Users’ compliance with the terms and conditions of the Agreement or any breach thereof.   All use of the Software, including any third party exercise of your rights under this paragraph, is subject to this Agreement, including any restrictions set forth below, and you may not otherwise allow third parties to use the rights granted in this Agreement.

 

2.4. Copies of Software

You (and your Designated Users) may install the Software on both a primary and a secondary computer or operating system, solely for your convenience, but only for use by a single person. You may make a single copy of the Software solely for backup or archival purposes. For the sake of clarity, you (or your Designated User) may only use one installation at any given time. Hyprsense may in its sole discretion authorize you to install the Software on additional computers or operating systems upon deactivation of the Software installed on existing computers.

 

2.5. Third Party Software

The Software incorporates or is bundled with Third Party Software governed by separate terms, including open source licenses. Such Third Party Software terms are identified in the Documentation. You agree that you have reviewed and accepted those terms and that your use of the Software will be deemed acceptance thereof.

 

3. Your Hyprsense Account

In order to use the Software, you must register for a “Hyprsense Account”.  To create a Hyprsense Account, you will be required to provide certain information. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Hyprsense reserves the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your sign-in information. You agree not to disclose your sign-in information to any third party and to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify Hyprsense of any unauthorized use of your account.

 

You may cancel your Hyprsense Account at any time by sending an email to support@hyprsense.com. Canceling your Hyprsense Account does not relieve you of the obligation to pay any and all remaining amounts owing for your existing Software subscriptions.

4. Restrictions

You will not, and will not authorize any third party to, (a) copy the Models, Software, Source Code, or Statistical Data; (b) loan, rent, or lease the Software, Models, Source Code, or Statistical Data or otherwise transfer or assign the right to use the Software, including but not limited to posting or otherwise making the Software available on the Internet; (c) itself, nor permit or encourage others to, reverse engineer, decompile, decipher, disassemble, translate or otherwise decrypt or discover the source code of all or any portion of the Software, Models, Source Code, or Statistical Data; (d) modify, adapt or write or develop any derivative works based on the Software, Models, Source Code, or Statistical Data or use the Software in any manner except as expressly provided in this Agreement; and (e) interfere with or disrupt the integrity or the operation of the Software, Models, Source Code, or Statistical Data. You shall not permit any third party to access Statistical Data, Models, Software or Source Code and shall only use Statistical Data, Models, Software, and Source Code for its internal, non-commercial business purposes. You shall not use Statistical Data, Models, Software, or Source Code for any commercial purpose, including without limitation for research and development, evaluation, or to train its machine learning models or algorithms.

5. Consent to Data Collection; Privacy Policy Obligations

You acknowledge and accept Hyprsense's Privacy Policy. You agree that the Software (including the runtime in your Project Content) may send data to Hyprsense to validate seats in order to prevent unauthorized use. You acknowledge and agree that Hyprsense may deliver messages and contact you about the Software and other Hyprsense product and service offerings.

 

6. Intellectual Property Rights

6.1. Hyprsense’s Ownership

The Software is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in the Agreement, Hyprsense and its licensors exclusively own all right, title and interest in and to the Software, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software.

 

6.2. Your Content

As between you and Hyprsense, you own all right, title and interest (including, all intellectual property rights) in and to the content you create using the Software (“Project Content”) (other than any components of the Software contained therein or used in connection therewith).

 

6.3. Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Hyprsense used herein are trademarks or registered trademarks of Hyprsense. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

 

7. Payment

7.1. Fees

Fees for the Software are set forth in the quote or invoice.  Hyprsense may increase, modify or add new fees and charges for any of the Software from time to time.  Hyprsense will provide you with at least 30 days’ notice of any changes affecting existing Software you have already started using, and your continued use of such Software after the effective date of any such change means that you accept and agree to such changes, as applicable.

You agree to pay all amounts due for the Software as set forth in the quote or invoice and in accordance with Hyprsense's payment terms and, if applicable, those of any payment processor. If any payment is not made on time, Hyprsense may deactivate your access to the Software. 

Payments made under the Agreement shall be made without deduction or set-off for any withholding taxes, levies, imports, duties, charges and/or fees imposed by any governmental taxing authority except as required by law. If you are compelled to make any such deduction, you will pay to Hyprsense such additional amounts as are necessary to ensure Hyprsense's receipt of the full amount that Hyprsense would have received but for the deduction. You will be responsible for, and agree to promptly pay, all taxes or duties of any kind (including but not limited to sales, use and withholding taxes) associated with any purchase or your receipt or use of the Software, except for taxes based on Hyprsense’s net income.  In the event that Hyprsense is required to collect any tax for which you are responsible, you will pay such tax directly to Hyprsense or its payment processor.  Hyprsense reserves the right to collect any applicable sales, use or value added tax.

All sales are final and there shall be no refunds except as required by law. Further, Hyprsense will not allow changes to your purchase after you complete it. Hyprsense may disable all copies of the Software you have licensed or subscribed to in the event you fail to make all payments when due.

7.2. Billing

If you purchase Software, you will be asked to provide customary billing information, such as name, company name, billing address, credit card information, and VAT or GST number, either to Hyprsense or its third party payment processor. VAT and GST numbers cannot be added or changed after the purchase is completed. When you provide billing information to Hyprsense or its third party payment processor, you: (i) represent and warrant that you are the authorized user of the card, PIN, key or account associated with such billing information; (ii) agree to pay Hyprsense for all purchases (including all applicable taxes) made; and (iii) thereby authorize Hyprsense or its third party payment processor to charge your credit card or otherwise process your payment for any purchase, subscription or other fees incurred by you. If you are directed to Hyprsense’s third party payment processor, you may be subject to terms and conditions governing use of that third Hyprsense’s service and that third party’s privacy policy. Please review such third party’s terms and conditions and privacy policy before using such services.

7.3. Subscription Terms

Any subscriptions you purchase will remain in effect for the initial subscription period, and thereafter will automatically renew on a month-to-month basis at the then-current list price, unless you renew the subscription for a new subscription term or terminate and cancel it.

8. Compliance

To ensure compliance with the Agreement, you agree that within ten (10) days from the date of Hyprsense or its authorized representative’s request, you shall provide all pertinent records and information requested in order to verify that your installation and use of any and all Software is in compliance with the Agreement along with a signed verification that all such information is complete and correct. Furthermore, if you are a Legal Entity, Hyprsense or its authorized representatives may upon reasonable prior notice access and inspect your facilities and computer systems to review and verify your compliance with the Agreement.  Any such inspection shall be conducted during regular business hours at your facilities or electronically via remote access. In the event you have impermissibly used Software (or other products) or have not paid the applicable fees for the Software you have deployed or used, you agree to immediately pay for such Software, as well as the reasonable inspection costs, upon Hyprsense’s demand.

9. Termination And Cancellation

Hyprsense will have the right in its sole discretion, and without prior notice to you, to terminate the Agreement and/or your right or ability to access or use any of the Software if: (a) you breach this Agreement; (b) your use of the Software poses a security risk to, or otherwise adversely impacts, the Software or any third party; (c) your use of the Software subjects Hyprsense, our affiliates or any third party to liability; (d) your use of the Software may be fraudulent; (e) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

In the event of any suspension, disablement or termination, you acknowledge that: (i) Hyprsense will have no further obligation to provide the Software to you; (ii) all rights granted to you under the Agreement will immediately cease; and (iii) you will remain liable for all fees and charges for the Software ordered.  If Hyprsense suspends, disables or terminates due to your breach, you will also remain liable for any remaining amounts owing for the entire term of your subscriptions. Any suspension, disablement or termination will not affect your obligations to Hyprsense (including, without limitation, proprietary rights and ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, disablement or termination.

 

10. Support

You may email support@hyprsense.com for assistance. Technical support may be offered by Hyprsense at its sole discretion. You acknowledge and agree that Hyprsense has no obligation under this Agreement to provide patches, updates, new releases or new versions of the Software.

 

11. Terms

A subscription based seat will automatically renew on a month-to-month basis at the then-current list price, unless you terminate and cancel it. Upon termination, you must at Hyprsense’s option either promptly delete and destroy or return to Hyprsense all copies of the Software in your possession or control.

12. U.S. Government Rights

The Software and Documentation are “commercial items” as that term is defined in the Federal Acquisition Regulation (“FAR”) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If acquired by or on behalf of a civilian agency, the U.S. Government acquires or will acquire the Software and/or Documentation and other technical data subject to the terms of this Agreement as required in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires or will acquire the Software and/or Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or technical data.

13. Export Law

You agree to comply fully with all export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

14. Modifications

Hyprsense may update these Terms at any time for any reason and without notice (the “Updated Terms”) and those Updated Terms will apply to the most recent current-year version of the Software, provided that, if the Updated Terms adversely impact your rights, you may elect to continue to use any current-year versions of the Software (e.g., 2020.x and 2020.y and any Long Term Supported (LTS)  versions for that current-year release) according to the terms that applied just prior to the Updated Terms (the “Prior Terms”). The Updated Terms will then not apply to your use of those current-year versions unless and until you update to a subsequent version of the Hyprsense Software (e.g. 2020.z).  If material modifications are made to these Terms, Hyprsense will endeavor to notify you of the modification. If a modification is required to comply with applicable law, the modification will apply notwithstanding this section.  Except as explicitly set forth in this paragraph, your use of any new version or release of the Software will be subject to the Updated Terms applicable to that release or version.  You understand that it is your responsibility to maintain complete records establishing your entitlement to Prior Terms.

15. Disclaimer

THE SOFTWARE IS PROVIDED BY HYPRSENSE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. HYPRSENSE AND ITS LICENSORS DO NOT WARRANT OR REPRESENT THAT THE SOFTWARE, OR ANY PART THEREOF, WILL OPERATE UNINTERRUPTED OR ERROR-FREE. HYPRSENSE AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT HYPRSENSE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HYPRSENSE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.

YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR CONTENT, AND YOU UNDERSTAND THAT YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH YOUR USE OF THE SOFTWARE, OR YOUR RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SOFTWARE.

16. Indemnity

To the maximum extent permitted by law, you agree to defend, indemnify, and hold Hyprsense, its officers, directors, employees and agents, harmless from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with: (i) your access to or use of any of the Software; (ii) Your Content; or (iii) your violation of the Agreement or any other agreement/license with Hyprsense.

17. Limitation of Liability

HYPRSENSE AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY RELATED TO THE SOFTWARE WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNTS PAID BY YOU IN THE MOST RECENT THREE (3) MONTHS FOR USE OF THE SOFTWARE; OR (B) ONE HUNDRED U.S. DOLLARS  (US$100). IN NO EVENT WILL HYPRSENSE OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS, GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT HYPRSENSE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 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 TO YOU.

 

18. Controlling Law and Jurisdiction

18.1. Choice Of Law

This Agreement will be governed by the laws of California, U.S.A. without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.

18.2. Arbitration

Except as set forth below in Section 11.3, any disputes arising out of or in connection with this Agreement will to the extent possible be settled amicably by negotiation between the parties within 30 days from the date of written notice by either party of the existence of such a dispute and, failing such amicable settlement, will be finally settled by arbitration in California, U.S.A. in accordance with the applicable Optional Expedited Arbitration Procedures then in effect by JAMS. The proceedings shall be conducted in San Francisco County, California, U.S.A. and the language shall be English. Each party irrevocably submits to the foregoing jurisdiction and venue in any such action or proceeding.

 

18.3. Arbitration Exceptions

Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an action in court: (a) to enforce its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), including without limitation to seek injunctive relief; (b) in cases that do not involve intellectual property rights, to seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages); or (c) collect fees due pursuant to the Agreement. If the parties have an intellectual property rights dispute, you and Hyprsense agree to submit to the personal and exclusive jurisdiction of and venue in the state and federal courts located in San Mateo County, California. The parties agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

 

19. General

The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Hyprsense have executed a separate agreement governing your use of the Software, in which case such separate agreement(s) will control. Any terms or conditions contained in your purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of the Agreement are hereby rejected by Hyprsense and will be deemed null. You may not assign or transfer the Agreement or any rights granted hereunder, by operation of law or otherwise, without Hyprsense’s prior written consent. Any attempt by you to do so, without such consent, will be void. Hyprsense may assign or transfer the Agreement, at its sole discretion, without restriction. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.   Except as expressly set forth in the Agreement, the exercise by either party of any of its remedies under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise. Hyprsense will deliver all notices, approvals or other communications required or permitted under the Agreement, including those regarding modifications to the Agreement: (a) via e-mail (in each case to the address that you provide); or (ii) by posting to the Site.  For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. The failure by either party to enforce any provision of the Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of the Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of the Agreement is held to be unenforceable or invalid that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.

If you have questions about these Terms of Service or your software license key, you may contact support@hyprsense.com.

700 Airport Blvd, Suite 400, Burlingame CA 94010, USA BinaryVR, Inc. © 2020

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