Knowledge Base

7. Use Limitations; Liability; Indemnification

7.1. End-User acknowledges that the Software is intended for research or training purposes only and agrees not to use the Software for diagnosis or treatment of disease in human subjects. End-User agrees not to use the Software in any application where the failure, malfunction or inaccuracy of the Software carries the risk of death or bodily injury.

7.2. Noldus Software shall not be used for collection of biometric data from human subjects without prior informed consent from the person whose data is being captured.

7.3. Noldus does not allow the use of its Software for the following applications:

• Active defense, i.e. embedding Noldus Software in a weapon system.
• Biometric data collection in a judicial context with the aim to use such data as evidence in court. Noldus Software cannot and shall not be used as a lie detector.
• Surveillance of people in public spaces for security purposes.
• Any other use that may potentially violate fundamental human rights.

7.4. If Noldus notices that its Software is used for applications that it does not approve, this may lead to discontinuation of customer support and termination of the EULA.

7.5. To the fullest extent permitted by law, and notwithstanding any other provision of this EULA to the contrary: In no event will Noldus or the Authorized Partners be liable to the End-User for Indirect Losses or for special, incidental, consequential, exemplary, enhanced, or punitive damages, including without limitation, any damages resulting from interruption of business, loss of use, loss of profits or revenue, or loss of business, arising out of or in connection with this EULA, the Software, or the performance of Noldus, the Authorized Partners, or third parties engaged by Noldus in the performance of this EULA, regardless of whether Noldus, the Authorized Partners, End-User, or any other person or entity has been advised of (or could have reasonably foreseen) the possibility of such damages or Indirect Losses. If, despite the provisions in this EULA, liability exists anyway, only direct damage will be eligible for reimbursement.

7.6. Noldus' and Authorized Partners' liability shall also be excluded, and Noldus and the Authorized Partners shall not have any liability under this EULA in the event of:

• End-User's use of the Software other than in accordance with Section 7.1.
• In the event of direct and indirect consequences of the End-User's failing to adhere strictly to the user documentation provided or made available by Noldus or the Authorized Partner.
• Any loss of or damage to files or data howsoever caused.

7.7. A liability claim will be unenforceable and lapse unless Noldus or the Authorized Partner receives a written notice thereof no later than 6 months after the discovery of an event or circumstance that gives or may give rise to that claim.

7.8. Noldus will hold harmless, defend, and indemnify End-User from and against all losses, damages, claims, liabilities, and expenses incurred by End-User that arise out of, relate to, or are caused by any third party claim that End-User's use of the Software, pursuant to the terms of this EULA, infringes the intellectual property rights of such third party. If such a claim is made or appears likely to be made, Noldus, at its option, will have the right to either (i) procure for the End-User the right to continue to use the Software, (ii) modify or replace the Software so that it is no longer infringing (in a manner that substantially retains its functionality and quality), or (iii) require End-User to terminate the use of and return the Software and refund a pro rata portion, if any, of the amount paid by End-User to Noldus for the infringing Software. Notwithstanding the foregoing, Noldus will have no liability to End-User if the infringement results from use of the Software in combination with software not provided by Noldus or from modifications made by Noldus to conform to specifications provided by End-User. The indemnification obligations in this section are subject to: (i) End-User giving Noldus prompt written notice of any claim (provided that End-User's failure to provide prompt written notice will only relieve Noldus of its obligations under this Section to the extent such failure materially limits or prejudices Noldus' ability to defend or settle such claim); (ii) the transfer of sole control of the defense and any related settlement negotiations to Noldus; and (iii) End-User's cooperation, at Noldus' expense, in the defense of such claim. THIS SECTION STATES END-USER'S SOLE AND EXCLUSIVE REMEDIES FOR THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

7.9. End-User shall indemnify and hold harmless Noldus, the Authorized Partners, and the third parties engaged by Noldus from and against any and all losses (including Indirect Losses and special, incidental, consequential, exemplary, enhanced, or punitive damages) arising out of or caused by (i) any failure in the performance of the obligations of the End-User under the law, this EULA, or Noldus' General Terms and Conditions, or (ii) any and all third party claims on any grounds whatsoever, directly or indirectly related to the End-User's use of the Software, the contents thereof, or any results or materials generated by the Software.

7.10. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 7 SHALL APPLY EVEN IF END-USER'S REMEDIES UNDER THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE.

7.11. Noldus and End-User acknowledge and agree that the parties entered into this EULA in reliance upon the limitations of liability set forth in this Section 7, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

Source: FaceReader 10 Reference Manual (Help), Noldus Information Technology