Terms & Policies

End User License Agreement

This End User License Agreement (“EULA”) is between Visual Cortex Holdings Pty Ltd (ABN 92 647 710 647) (“VisualCortex”), with principal offices located at Suite 7.01, Level 7, 117 York Street, Sydney, 2000, and you, the Licensee identified in the Proposal Document, and governs the Licensee’s right to use the VisualCortex Software, subject to the terms and conditions outlined in this EULA.

By accessing or otherwise using the Software, you, the Licensee, agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install, copy, download or otherwise access or use any VisualCortex Software.

This EULA may be provided together with a Proposal Document and/or other terms and conditions applicable to products and services offered by VisualCortex (“Other Terms”). To the extent that there are any inconsistencies between this EULA, the Proposal Document and/or any Other Terms, the order of priority is as follows: the Proposal Document; this EULA; and any Other Terms.

1 Definitions

In this EULA, the following terms shall have the definitions as follows:

“Cloud Service” has the meaning given in clause 3.2 (Deployment Models)

“Devices” means end-point data collection devices including cameras, other surveillance devices, independent data channels or other digital or analogue hardware owned, leased or controlled by the Licensee that connects to the Software or that is used as a data source for the Software.

“Documentation” means the Software's standard user manual and all manuals, instructions and other documents and materials that VisualCortex produces or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of the Software.

“Edge Device” means a device that receives video data from Devices (live feed or archived) to be analysed, stored and processed by the Software.
“Effective Date” has the meaning given in clause 2.1 (EULA Term).
“Embedded Software” means any third-party software code licensed by VisualCortex from a third-party and embedded in the Software.
“End User” means an individual that Licensee permits or invites to use the Software.
“Event” means any observation or set of observations that the Licensee determines is to be monitored, tagged or - upon its occurrence in video footage - an action taken by the Software.
“Fees” means the Subscription Fees and any Upfront Fee.
“Further Subscription Term” has the meaning given in clause 2.2 (Initial Subscription and Renewal).
“GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Hybrid” has the meaning given in clause 3.2 (Deployment Models)
“Initial Subscription Term” has the meaning given in clause 2.2 (Initial Subscription and Renewal).
“Intellectual Property” includes all: i. trade marks, logos, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia; and ii. all rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings, programs, source code, dynamic link libraries, graphical user interfaces, trade secrets, data models or data, whether or not protectable by patent application, design registration, copyright, circuit layouts or otherwise anywhere in the world, and whether unregistered, registered or capable of being registered.
“License” has the meaning given in clause 3.1 (Grant of License) of this EULA.
“Licensee Data” means the raw video data that the Licensee uploads or inputs into the Software.
“Licensed Level” means the maximum number of Devices, Edge Devices, servers, End Users and/or other license metrics for which the Licensee is licensed, as specified in the Proposal Document.
“On-Premise” has the meaning given in clause 3.2 (Deployment Models)
“Personal Information” has the meaning given in the Privacy Laws.
“Privacy Laws” means any applicable law, statute, regulation, ordinance, code, standard or requirement of any government, governmental or semi-governmental body that relates to privacy, including in the case of Australia, the Privacy Act 1988 (Cth), the Australian Privacy Principles under that Act, and the Spam Act 2003 (Cth), as amended from time to time.
“Proposal Document” means the written order form or other proposal document or documents provided by VisualCortex to the Licensee setting out the Fees, Licensed Levels and other parameters applicable to use of the Software by the Licensee.
“Protection Mechanisms” means any license protection mechanisms that are designed to manage and protect the Intellectual Property of VisualCortex and its third-party licensors that may be included in the Software.
“Site” means a separate and distinct physical address leased or controlled by the Licensee that uses Software, or for which the Software is used, under this EULA.
“Software” means the VisualCortex software that is being licensed to the Licensee under this EULA as further detailed in the Proposal Document, which includes computer software (in object code format only) and may include associated media, Documentation and other printed or electronic materials, internet-based services, Embedded Software and all Supplementary Software.
“Subscription Fees” means the ongoing fees payable by the Licensee for access and use of the Software, in such amount and frequency as specified in the relevant Proposal Document.
“Subscription Term” means the Initial Subscription Term and any Further Subscription Terms, unless terminated earlier in accordance with clause 12 (Termination).
“Supplementary Software” means updates, upgrades, enhancements, supplements, add-on components, service components, service releases (new builds) and new versions of the Software.
“Support Policy” means VisualCortex’s support policy as published and updated from time to time on VisualCortex’s website (an initial copy of which may be attached to the Proposal Document).
“Uncontrolled Systems” means hardware systems not owned, leased or controlled by the Licensee.
“Upfront Fees” means the upfront fees payable by the Licensee for access and use of the Software, in addition to the Subscription Fees, in such amount and to be paid at the time specified in the relevant Proposal Document.

2 Term

2.1 EULA TERM

This EULA commences on the earlier of the Licensee: (a) executing the Proposal Document; or (b) downloading, installing, accessing or using the Software (“Effective Date”) and will remain in effect during the Subscription Term.

2.2 INITIAL SUBSCRIPTION AND RENEWAL

The Software is licensed on a subscription basis. The initial subscription to the Software commences on the Effective Date and, subject to clause 12 (Termination), will expire three (3) years after the Effective Date (“Initial Subscription Term”). The subscription to the Software will automatically renew for a further 12 month period (“Further Subscription Term”) on expiry of the Initial Subscription Term or then current Further Subscription Term, unless either party gives the other party written notice of non-renewal at least 90 days prior to expiry of the Initial Subscription Term or then current Further Subscription Term (as applicable). All renewals are subject to VisualCortex continuing to offer the Software, and will be on the same terms of this EULA that apply immediately prior to the renewal, except that VisualCortex’s then current list price for the Subscription Fees will apply if no alternative fee is set out in the Proposal Document for the relevant period, unless otherwise agreed to in writing between the parties.

3 License to Software

3.1 GRANT OF LICENSE

VisualCortex grants to the Licensee a non-exclusive, revocable, non-transferable, non-sublicensable license during the Subscription Term to access and use the Software solely for its internal business purposes up to the Licensed Level, and at such Sites, for which the Fees were paid, subject to the terms and conditions set out in this EULA (“License”).

3.2 DEPLOYMENT MODELS

The Software may be deployed as part of a solution for the Licensee via one of the following deployment models, as more particularly outlined in the Proposal Document:

(a) “Cloud Service” means that the Software is made available to Licensee by VisualCortex as a hosted or cloud-based software as a service solution.

(b) “On-Premise” means that an executable copy of the Software is made available to Licensee for installation on Licensee servers (including cloud infrastructure procured by Licensee) or Edge Devices procured by Licensee, or is pre-installed on Edge Devices to be supplied by VisualCortex.

(c) “Hybrid” means that the Software is made available to Licensee through a combination of Cloud Service and On-Premise solutions.

3.3 LICENSED LEVELS

The License is limited to use up to the Licensed Level for which Licensee has paid the Subscription Fees and the following restrictions apply:

(a) for any Software to be made available to Licensee for an On-Premise deployment: (i) installation of the Software only on the number and type of servers and Licensee owned Edge Devices specified in the Proposal Document; (ii) unless an alternative configuration is specified in the Proposal Document, deployment and operation of the Software on only one (1) production server; and (iii) making one (1) copy of the Software for back-up, testing, training and disaster recovery purposes only, provided that such copy is not used in a production environment;

(b) for any Software to be made available via a Cloud Service deployment model: (i) unless an alternative configuration is specified in the Proposal Document, access to the Software operating on only one (1) production instance; and (ii) access by the number of End Users specified in the Proposal Document; and

(c) for all deployment models, limited to processing of data from the number of Devices specified in the Proposal Document.

3.4 INCREASING THE LICENSED LEVEL

Where the Licensee wishes to increase the Licensed Level it may notify VisualCortex. No increase to the Licensed Level will be effective until the Licensee executes a variation or addendum to the Proposal Document, in a form approved by VisualCortex, and pays the associated additional Subscription Fees for that increased Licensed Level.

3.5 PERMITTED COMPUTERS AND CAMERA HARDWARE

Except as otherwise agreed in writing by VisualCortex, the Licensee may only:

(a) install the Software and make the Software available for use on hardware systems owned, leased and otherwise in the control of the Licensee; and

(b) access and use the Software to collect and process data from Devices at the Site(s) that are owned, leased and otherwise in the control of the Licensee.

3.6 RESTRICTIONS ON USE

Licensee must not, and must not allow or assist any third party to:

(a) decompile, reverse engineer, disassemble, or otherwise attempt to obtain or derive the source code, underlying ideas, algorithms or file formats to any portion of the Software, except to the extent expressly permitted by applicable law (and then only after advance notice to VisualCortex);

(b) reproduce, modify, adapt or create derivative works from any portion of the Software;

(c) directly or indirectly access or use any Embedded Software independently of the rest of the Software;

(d) attempt to access, copy or modify the Software on any Edge Device supplied by VisualCortex;

(e) rent, lease, sell, resell, sublicense, redistribute, transfer or provide access to the Software or any Edge Devices supplied by VisualCortex to a third party;

(f) utilize or run the Software beyond the Licensed Level;

(g) post the Software or part of the Software code or data not owned by the Licensee on any website that is accessible to parties other than the Licensee;

(h) utilize or run the Software on video not owned by the Licensee, or obtained from Devices located on property that is not owned by the licensee, or located on property subleased to a third party;

(i) copy or embed elements of the Software into other applications, or use the Software for competitive analysis or to build products or services that are functionally similar or competitive to the Software;

(j) use or permit the Software or any Edge Device supplied by VisualCortex to be used for rental, timesharing, subscription service, hosting, outsourcing or otherwise for the benefit of any third party;

(k) publicly disseminate information regarding the performance of the Software; or

(l) modify or alter any Protection Mechanisms to circumvent or defeat the Software use rules that such Protection Mechanisms are designed to enforce.

3.7 USAGE VERIFICATION

VisualCortex may remotely review Licensee’s use of the Software, and on VisualCortex’s written request, the Licensee will provide reasonable assistance to verify the Licensee’s compliance with this EULA, including the Licensed Level. If VisualCortex determines that the Licensee’s use has exceeded its Licensed Level, VisualCortex will notify the Licensee and within 30 days the Licensee must either: (a) disable any use beyond the Licensed Level; or (b) execute a variation or addendum to the Proposal Document, in a form approved by VisualCortex, to increase the Licensed Level to the Licensee’s actual use, and pay the associated additional Subscription Fees for that use.

3.8 EMBEDDED SOFTWARE

The Licensee acknowledges the Software contains Embedded Software and that breach of this EULA may result in a claim against the Licensee by the third party licensor of that Embedded Software. The Licensee must comply with any additional terms and conditions notified to the Licensee for Embedded Software.

3.9 SUPPORT

During the Subscription Term, VisualCortex will provide technical support for the Software and Edge Devices supplied by VisualCortex in accordance with the Support Policy and Proposal Document.

4 Ownership of Software

4.1 SOFTWARE OWNERSHIP

The Software is licensed as a right to use during the Subscription Term, not sold, and the Licensee does not acquire any rights of ownership in the Software. VisualCortex and its third-party licensors own and retain all rights, title and interest, including all Intellectual Property, in the Software, all subsequent copies of the Software, and all modifications and enhancements to the Software (including any created solely by VisualCortex or as a result of collaboration with Licensee), together with all software code, analytical models and algorithms contained in or generated by or through use of the Software (including through processing of Licensee Data by the Software). The Licensee hereby assigns to VisualCortex, on creation, any rights, including Intellectual Property, it would otherwise have or acquire in any of the foregoing.

4.2 SUPPLEMENTARY SOFTWARE

This EULA applies to and governs all Supplementary Software that VisualCortex may provide or make available to the Licensee after the initial grant of the License. The Licensee acknowledges that its purchase of a subscription is not contingent on the delivery by VisualCortex of any future functionality or features, or dependent on any oral or written comments VisualCortex makes regarding future functionality or features.

4.3 FEEDBACK

VisualCortex encourages suggestions, proposals, ideas, recommendations and other feedback regarding improvements to the Software and VisualCortex’s other products and services (collectively, “Feedback”). If the Licensee provides such Feedback, the Licensee grants to VisualCortex a royalty-free, fully paid, sublicensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, exploit and commercialise Feedback (including by incorporation of such Feedback into VisualCortex products and services) without restriction or any obligation to the Licensee.

5 Data

5.1 OWNERSHIP OF LICENSEE DATA

The Licensee owns the Licensee Data. Licensee grants VisualCortex a non-exclusive, royalty-free right to access, use, process, copy, distribute, export and display the Licensee Data to provide the Software and any support to Licensee.

5.2 LICENSEE RESPONSIBILITIES AND ACKNOWLEDGEMENTS

The Licensee:

(a) is solely responsible for the data it collects, inputs, stores and accesses using the Software, including the quality, legality and appropriateness of that data;

(b) must not upload or input any data or information into the Software that is illegal, immoral or inappropriate, or that the Licensee does not have the right to upload or input;

(c) is solely responsible for the Events that it elects to monitor and tag, and for actions it takes in response to an Event;

(d) must comply with all Privacy Laws applicable to its collection of the Licensee Data and the uploading to and processing by the Software of that Licensee Data, including providing all relevant disclosures to and obtaining and maintaining all required consents from any individual whose Personal Information is disclosed in the Licensee Data or otherwise handled or processed by or on behalf of the Licensee by the Software (and such disclosures and consents must be sufficient to contemplate and allow VisualCortex to exercise its rights and perform its obligations under this EULA);

(e) is responsible for making and maintaining a backup of all data input into the Software by the Licensee or that the Licensee processes using the Software, including all Licensee Data;

(f) acknowledges that Licensee will not have access to any Licensee Data or Events stored or logged in the Cloud Service when Licensee is offline or when the Cloud Service is unavailable; and

(g) acknowledges that Licensee will not have access to any Licensee Data or Events stored or logged in the Software after the Subscription Term except as provided for in clause 12.3 (Access and Deletion of Licensee Data).

5.3 LICENSEE WARRANTIES

The Licensee represents and warrants that:

(a) it has obtained all necessary rights and permissions to collect all Licensee Data and to upload any Licensee Data to the Cloud Service; and

(b) the Licensee Data and the Events that Licensee elects to monitor and tag will not breach or infringe any laws, any third party rights (including privacy and Intellectual Property rights).

5.4 AGGREGATE ANALYTICAL DATA

The Software collects, uses and adapts to aggregate analytical data derived from various sources, including through use of the Software by VisualCortex’s customers. The Licensee acknowledges and agrees that VisualCortex owns, and may freely use, exploit and commercialise any such aggregated analytical data derived from Licensee’s use of the Software, including through processing of Licensee Data, together with any Intellectual Property arising as a result of or derived from such aggregated analytical data.

6 Cloud Services

6.1 APPLICATION OF THIS CLAUSE

This clause 6 applies where the Software is deployed for the Licensee as a Cloud Service, including such Cloud Service component of a Hybrid deployment.

6.2 ACKNOWLEDGEMENT

The Licensee acknowledges that the Cloud Service is hosted and supported using servers and resources of a cloud computing service operated by a third party, and will be passed on to the Licensee at the standard and with the level of service equivalent to that which is obtained by VisualCortex from that third party. VisualCortex will not be liable for any inability of the Licensee to access or use the Cloud Service to the extent caused or contributed to by such third party or the unavailability or degraded availability of the cloud computing service.

6.3 CHANGES TO THE CLOUD SERVICE

The Licensee acknowledges that as a hosted software-as-a-service solution, VisualCortex may make improvements or other changes to the Cloud Service from time to time. While VisualCortex would not typically make changes that would fundamentally decrease the utility of the Cloud Service to Licensee (“Detrimental Change”), if VisualCortex does so during the Subscription Term and the parties are unable to agree an appropriate alternative solution for the Licensee then the Licensee may terminate its subscription by notice to VisualCortex and receive a refund of any unused portion of the Subscription Fee paid in connection with the Cloud Service for a period beyond the termination date (less any cost for third party cloud infrastructure that is associated with that Cloud Service). To exercise this right, Licensee must give VisualCortex notice of termination within 30 days of VisualCortex making the Detrimental Change.

6.4 DISCONTINUING THE CLOUD SERVICE

VisualCortex may discontinue the Cloud Service or any portion or feature of it for any reason at any time. Where this occurs at the end of the Initial Subscription Term or Further Subscription Term, this will be without any liability to the Licensee and the renewal for the subsequent Further Subscription Term (where the Cloud Service has not been discontinued in full) will be for the Cloud Service without the discontinued portion or feature. Where the Cloud Service is discontinued in full during an active Subscription Term, VisualCortex will provide a refund of any unused portion of the Subscription Fee paid in connection with the Cloud Service for a period beyond the discontinuation date (less any cost for third party cloud infrastructure that is associated with that Cloud Service). Where a portion or feature of the Cloud Service is discontinued during an active Subscription Term and this fundamentally decreases the utility of the Cloud Service to Licensee, this will be treated as a Detrimental Change and clause 6.3 (Changes to the Cloud Service) will apply.

6.5 SUSPENDING ACCESS TO CLOUD SERVICE

VisualCortex may suspend Licensee’s access to the Cloud Service where VisualCortex considers such action is necessary based on Licensee’s breach of this EULA or to protect the Cloud Service. Any suspension of access to the Cloud Service does not alter the Licensee’s obligation to pay the Subscription Fees.

7 Edge Devices

7.1 EDGE DEVICES SUPPLIED BY VISUALCORTEX

Any Edge Devices supplied by VisualCortex is leased to Licensee during the Subscription Term, remains the property of VisualCortex and must be returned by Licensee to VisualCortex on expiry or termination of this EULA. Licensee is solely responsible for all loss, damage or misuse of any such Edge Devices in Licensee’s possession or under its control. Licensee must promptly notify VisualCortex of any loss of, fault in or damage to an Edge Device supplied by VisualCortex. If a fault arises in an Edge Device supplied by VisualCortex during the Subscription Term, VisualCortex will replace that Edge Device unless the fault is caused by any loss, damage or misuse of such Edge Device while in Licensee’s possession or under its control.

7.2 EDGE DEVICES PROCURED BY LICENSEE

Where Licensee installs and uses the Software on Edge Devices sourced by Licensee form anyone other than VisualCortex, Licensee is responsible for ensuring those Edge Devices are suitable for and compatible with the Software and Licensee’s intended use of it, and for the maintenance, support, performance and replacement of such Edge Devices.

7.3 PPSR

Licensee acknowledges that the lease of an Edge Device under this EULA constitutes a PPS Lease for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”), and this EULA grants VisualCortex a purchase money security interest (“PMSI”) in the Edge Device and its proceeds to secure all amounts owed by the Licensee to VisualCortex. VisualCortex may register its PMSI over the Edge Device on the Personal Property Securities Register, and Licensee must do all things necessary, and provide VisualCortex on request all information VisualCortex requires, to complete that registration and for VisualCortex to perfect, preserve, maintain, protect or otherwise give full effect to the PMSI created by this EULA.

8 Licensee Obligations

8.1 SYSTEM REQUIREMENTS

The Licensee must ensure that any Devices, servers or Edge Devices that it installs the Software on or uses the Software in relation to meet the system requirements for the Software, as agreed between VisualCortex and Licensee for Licensee’s deployment of the Software.

8.2 RESPONSIBILITIES

At all times during the Subscription Term, Licensee must:

(a) fully comply, and ensure its End Users comply with the provisions of this EULA;

(b) only access and use the Software in accordance with the terms and conditions of this EULA, and in accordance with all applicable laws;

(c) promptly notify VisualCortex in writing, but in no event more than two (2) business days after it becomes aware that any breach of its obligations under this EULA has occurred;

(d) not use the Software to engage in any conduct that is unlawful, immoral, threatening, abusive or in any way that is deemed unreasonable by VisualCortex in its reasonable discretion;

(e) not commit any act or omission the likely result of which is that VisualCortex's or any of its third-party suppliers’ reputation will be brought into disrepute, or which act or omission could reasonably be expected to have or does have a material and adverse effect on VisualCortex's interests;

(f) use all reasonable efforts to protect the Software from unauthorised use, reproduction, distribution or publication; and

(g) use reasonable efforts to avoid transmitting any harmful or malicious code, files, scripts, agents or programs to the Cloud Service.

8.3 END USERS

The Licensee must ensure that all End Users keep their account credentials (username and password) for access to the Software confidential. End Users may not share their account credentials with other End Users or any other person. The Licensee is responsible for granting and removing permissions and credentials to any End Users, and for the activities of all its End Users and any other person using the Software using the account credentials of an End User. The Licensee must notify VisualCortex immediately on becoming aware of unauthorised disclosure or use of account credentials for the Software.

8.4 COMPLIANCE WITH LAW

Without limiting any other provision of this EULA, the Licensee must comply with all laws, and obtain all authorisations, licences, permits and consents required (whether from a third party, government or regulatory body) in connection with Licensee’s access and use of the Software.

8.5 EXPORT CONTROLS

Licensee agrees that it will not import, export or re-export the Software, including technical data, to any country, person, entity or end user in violation of export control or data privacy laws, regulations or restrictions of any of the locations in which the Licensee has a business connection. For example, if Licensee has a business connection in the United States, Licensee agrees not to export, re-export, or provide the Software to:

(a) any country to which the United States has embargoed goods;

(b) any person on the U.S. Treasury Department’s list of Specially Designated Nationals;

(c) any person or entity on the U.S. Commerce Department’s Denied Persons List; or

(d) any person or entity where such export, re-export or provision violates any U.S. export control or regulation.

9 Fees and Ordering

9.1 FEES

Subscription Fees are payable annually in advance. VisualCortex will invoice Licensee for the Subscription Fees due for the first year of the Initial Subscription Term, together with any Upfront Fees, on or after the Effective Date. Subscription Fees for subsequent years during the Subscription Term will be invoiced prior to or on expiry of the preceding subscription year.

9.2 PAYMENT

Licensee must pay the Fees within thirty (30) days of the date of VisualCortex’s invoice. VisualCortex may suspend Licensee’s right to use the Software and any access to the Cloud Service for failure by Licensee to pay the Fees by the due date.

9.3 TAXES

All Fees are exclusive of all taxes, tariffs, duties and other similar charges, including sales, excise or value-added taxes in any jurisdiction where a taxable supply is deemed to take place, and withholding taxes that a relevant authority requires a party to pay, in connection with this EULA (“Taxes”). Licensee must pay any applicable Taxes directly to the relevant authority or to VisualCortex, as required by law, in addition to the Fees. GST is applicable to any Fees in Australia. VisualCortex will issue a tax invoice for all Fees for which GST applies.

9.4 ORDERING

The Licensee may order a subscription to the Software and any Edge Devices to be provided by VisualCortex by executing a Proposal Document. If the Licensee request that VisualCortex reference a purchase order number issued by the Licensee, or provides a purchase order or similar procurement record (“Purchase Record”) to VisualCortex, that Purchase Record and any reference to it by VisualCortex is solely for the Licensee’s record keeping convenience. No terms of trade or other terms contained on a Purchase Record form part of this EULA or otherwise modify, alter or supplement this EULA.

10 Confidentiality

10.1 DEFINITION

“Confidential Information” means oral, electronic or written information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of its disclosure. VisualCortex’s Confidential Information includes, but is not limited to, the Software, information pertaining to the features, functionality and performance of the Software, the analytical model and algorithms contained within the Software, and the Fees. Confidential Information does not include information that:

(a) is now or becomes generally known or available to the public without breach of this EULA by the receiving party (the “Recipient”);

(b) was acquired by the Recipient without restriction on its use or disclosure before the information was received from the disclosing party (the “Discloser”);

(c) is obtained by the Recipient without restriction on its use or disclosure from a third party authorized to make the disclosure; or

(d) is independently developed by the Recipient without using or referring to the Discloser's Confidential Information.

10.2 PROTECTION OF CONFIDENTIAL INFORMATION

The Recipient may only use the Discloser’s Confidential Information to exercise its rights and perform its obligations under this EULA. The Recipient must maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information (including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. The Recipient must not disclose any of the Discloser’s Confidential Information except to:

(a) Recipient’s employees, contractors and agents who need to know the information for a valid purpose in connection with this EULA;

(b) to their legal or financial advisors in order to obtain advice in connection with this EULA; or

(c) in the case of VisualCortex, to any potential purchaser of any part of VisualCortex’s assets or business, or in a prospectus lodged in connection with an IPO or other fund raising activity, provided that the minimum amount of Licensee’s Confidential Information is disclosed to achieve the required purpose. In each case the Recipient must cause those other recipients to agree to and abide by commercially reasonable confidentiality terms and remains responsible for compliance by those recipients. Each party has the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this clause.

10.3 COMPELLED DISCLOSURE

If the Recipient is required by law or a valid court or government order to disclose any of the Discloser’s Confidential Information, then (to the extent permitted under law) the Recipient must promptly notify the Discloser in writing of the required disclosure so that the Discloser may seek to protect its Confidential Information. The Recipient must cooperate with the Discloser in seeking such protection. If the Recipient is required to disclose the Discloser’s Confidential Information, it must disclose only the portion of the Confidential Information legally required and must use reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the maximum extent possible.

10.4 PUBLICITY RIGHTS

Licensee grants VisualCortex the right to include Licensee as a customer in promotional material, and to include Licensee’s name, logo, success stories and testimonials in such materials. Licensee may revoke this right at any time by notice to VisualCortex requesting to be excluded from promotional material. Requests may take up to thirty (30) calendar days to process.

11 Warranties and Disclaimer

11.1 WARRANTIES AND IMPLIED TERMS

Each party represents that it has the legal power and authority to enter into this EULA. Subject to clause 11.2 (Non-excludable Terms), all representations, guarantees, conditions and warranties of any nature that are not expressly set out in this EULA are hereby expressly excluded, and VisualCortex makes no warranties of any kind in relation to the Software or Edge Devices supplied by VisualCortex, including but not limited to any warranties of merchantability, title, non-infringement or fitness for a particular purpose. Without limiting the foregoing, VisualCortex does not warrant or represent that the functions performed by the Software will meet all of Licensee’s requirements, that the operation of the Software (including any Cloud Service) and Edge Devices supplied by VisualCortex will be uninterrupted or error free, that all defects in the Software will be corrected, or that VisualCortex will preserve or maintain the Licensee Data without loss. The Licensee understands that use of the Cloud Services and VisualCortex’s support services necessarily involves transmission of the Licensee’s data over networks that VisualCortex does not own, operate or control, and VisualCortex is not responsible for any of Licensee’s data lost, altered, intercepted or stored across such networks. VisualCortex cannot guarantee that its security measures will be error-free, that transmissions of the Licensee’s data will always be secure or that unauthorised third parties will never be able to defeat VisualCortex’s security measures or those of its third party service providers. VisualCortex will not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications or other systems outside VisualCortex’s reasonable control.

11.2 NON-EXCLUDABLE TERMS

The exclusions in clause 11.1 (Warranties and Implied Terms) do not apply to any implied terms or guarantees (if any) that apply under the Competition and Consumer Act 2010 or other applicable Australian legislation that cannot lawful be excluded in relation to the Licensee, the Software or the Edge Devices. Nothing in this EULA excludes or modifies the Licensee’s rights under an implied term or guarantee granted to consumers under Australian legislation that cannot lawfully be excluded or modified. If VisualCortex is entitled to limit the remedies available to Licensee for breach of such implied terms or guarantees, VisualCortex expressly limits its liability to either supplying the affected product or service again, or refunding the cost of the affected product or service.

11.3 DISCLAIMER REGARDING EVENT DETECTION

The following disclaimer applies in relation to the use of the Software and any other VisualCortex products and services:

(a) the products and services provided by VisualCortex do not include interpretation of the results arising from the Event detection;

(b) VisualCortex does not make any warranties or representations as to the Software’s ability to detect 100% of Events arising;

(c) VisualCortex will not be held liable for any losses, claims or actions arising from failure to detect an Event; and

(d) the Licensee acknowledges and agrees that it is responsible for monitoring the data arising from the use of the Software and determining the actions to be taken, and that VisualCortex will not be held liable for any losses, claims or actions arising from Licensee’s actions taken in response to a detected Event or any failure on the Licensee’s behalf to act upon Events detected by the Software.

11.4 INDEMNITY FROM LICENSEE

Licensee will defend, indemnify and hold harmless VisualCortex and its affiliates against all costs, expenses, losses, damages and claims suffered by or made against VisualCortex arising from or related to:

(a) any infringement or claim of infringement of any third-party’s rights (including privacy and Intellectual Property rights) arising from the Licensee Data or Licensee’s use of the Software;

(b) any breach of the License or any restrictions imposed on the Licensee’s use of the Software under this EULA; and

(c) any action for or resulting in a civil penalty, fine, infringement notice, compensation order or other enforcement outcome brought by a government agency or regulatory body in connection with the Licensee’s use of the Software or any Licensee Data uploaded to or processed by the Software.

11.5 EXCLUSION OF LOSSES

To the extent permitted by law, VisualCortex excludes all liability to Licensee and all other persons for:

(a) any losses, damages and claims of any kind arsing in connection with the use of the Software or otherwise arising out of or in connection with this EULA; and

(b) any consequential loss, loss of profits, loss of data, business interruption or any form of indirect loss, however caused, whether in contract, tort or under any other theory of liability, and whether or not VisualCortex has been advised of the possibility of such damages.

11.6 LIMITATION OF LIABILITY

The aggregate liability of VisualCortex arising out of or in connection with this EULA will not exceed the amount of Fees paid to VisualCortex by the Licensee in the previous 6 months.

12 Termination

12.1 TERMINATION BY VISUALCORTEX

VisualCortex may terminate this EULA at any time upon thirty (30) days written notice to the Licensee. To the extent that the Subscription Fee has been paid for a period beyond the date of termination, VisualCortex shall refund within 30 days the unused portion of the Subscription Fee to the Licensee.

12.2 ACTIONS FOLLOWING TERMINATION OR EXPIRY

The Licensee’s subscription and the License granted under this EULA immediately terminate on expiry or earlier termination of this EULA. Immediately following expiry or termination of this EULA, and in any event not more than 7 days after the date of expiry or termination, the Licensee shall at its own cost:

(a) cease permitting access to and cause all authorized users to immediately cease all use of the Software;

(b) remove all copies of the Software from its computer systems, Device network and any Uncontrolled Systems;

(c) provide VisualCortex with written certification that it has deleted, removed and destroyed all copies of the Software, in its possession, custody or control;

(d) return all Edge Device supplied to Licensee by VisualCortex; and

(e) return all other property belonging to VisualCortex then in its possession (including, without limitation, any Documentation and Confidential Information of VisualCortex).

12.3 ACCESS AND DELETION OF LICENSEE DATA

Licensee will not have access to the Licensee Data or Events stored or logged in the Software (including the Cloud Service) after expiry or termination of this EULA and therefore should ensure that it exports any such data that it wishes to continue accessing after that time using the functionality provided by the Software within the Subscription Term. Notwithstanding the foregoing, where Licensee requests it, VisualCortex may make the Cloud Service available to Licensee for up to 30 days after expiry or termination of the EULA for the sole purpose of exporting such data. VisualCortex is entitled to permanently delete the Licensee Data and other data in the Cloud Service, without any liability to Licensee, on the earlier of:

(a) receiving confirmation from Licensee that it has extracted all Licensee Data that it would like to continue accessing; and

(b) the expiry of 30 days after the expiry or termination of the EULA.

12.4 SURVIVING PROVISIONS

Clauses 4 (Ownership of Software), 5 (Data), 7.1 (Edge Devices Supplied by VisualCortex), 10 (Confidentiality), 11 (Warranties and Disclaimer), 12 (Termination), 13.3 (Applicable Law), 13.4 (Waiver) and 13.6 (Interpretation) will survive expiry or termination of this EULA.

13 General

13.1 ASSIGNMENT

VisualCortex may assign its rights and novate this EULA or any of its obligations under this EULA without consent of or notice to Licensee. Any permitted assignee shall be bound by the terms and conditions of this EULA. The Licensee may not assign or transfer its rights or obligations under this EULA without the express written consent of VisualCortex. Any purported assignment by the Licensee without the consent of VisualCortex will be null and void.

13.2 AMENDMENT

This EULA may not be amended except with the written agreement of VisualCortex, whose consent may be withheld or conditioned in its sole discretion. Licensee acknowledges and agrees that to the maximum extent permitted by law, VisualCortex may independently update the terms of this EULA from time to time. VisualCortex will notify Licensee when it updates the EULA, and the terms of the updated EULA will apply to Licensee and supersede any former terms between the parties unless VisualCortex’s ability to independently update the EULA is restricted by applicable laws, in which case the terms of the EULA without the update(s) will continue to apply to the parties. If VisualCortex updates the terms of the EULA during the Licensee’s Subscription Term in a manner that is detrimental to Licensee and the Licensee objects to the update (acting reasonably), then the Licensee must discontinue its use of the Software and, as its sole and exclusive remedy, may terminate the EULA by notice to VisualCortex and receive a refund of any unused portion of the Subscription Fee paid for a period beyond the date of termination. To exercise this right, Licensee must give VisualCortex notice of termination within 30 days of VisualCortex’s update notice.

13.3 APPLICABLE LAW

This EULA shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of New South Wales, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this EULA, its performance or subject matter. If the Licensee uses the Software outside of Australia, local laws may impose additional obligations on Licensee in relation to such use, but do not alter the governing law or jurisdiction of this EULA. In the event that this EULA conflicts with any law under which any provision may be held invalid by a court with jurisdiction over the parties such provision will be interpreted to reflect the original intentions of the parties in accordance with applicable law and the remainder of the EULA will remain valid and intact. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.

13.4 WAIVER

The failure of either party to enforce any rights granted to it under this EULA or to take action against the other party in the event of any breach will not be deemed a waiver by the first party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

13.5 NOTICES

Notices under this EULA must be given in writing in English and sent via email or registered post. Notices to the Licensee will be sent to the Licensee details specified in the Proposal Document. Notices to VisualCortex must be sent to [email protected] and the physical address specified in this EULA, or such other email or physical address as notified by VisualCortex for the purposes of this clause. A notice sent by email is taken to be received by the recipient on the day it is sent where it is sent before 5:00pm on a business day in New South Wales, or otherwise on the commencement of the next business day where it is sent after 5:00pm or on a day other than a business day in New South Wales, provided in each case the party sending the notice does not receive evidence that the transmission was unsuccessful. A notice sent by registered post is taken to be received two (2) business days after it is sent.

13.6 INTERPRETATION

In this EULA, unless the context otherwise requires:

(a) headings and emphasis are for convenience and do not affect the interpretation of this EULA;

(b) words importing the singular include the plural and vice versa;

(c) the words “include” or “including” mean include or including without limitation;

(d) a reference to any legislation includes any change to, consolidation or replacement of it, whether passed by the same or another government agency with legal power to do so, and any delegated legislation or proclamation issued under it; and

(e) a reference to a party includes that party’s successors and permitted assigns.

Our Principles

VisualCortex provides a video analytics platform that leverages machine learning to detect and capture events such as counting people, license plate recognition, dwell time, and more.

The data created by these events can be used for immediate action or for analytics today or in the future. Furthermore, they can be part of case management or investigations for OHS, insurance claims, or areas of interest. The VisualCortex platform and associated services are designed to facilitate video analytics use cases that benefit society; should not be used against society, our citizens or state; and must remain within legal and ethical guidelines.

We also want to provide a platform for sharing that allows others to benefit and collaborate for the greater good. We are also aware that certain use cases or applications may potentially be at odds with these principles. As such, we will constantly ensure our platform is not being used in contrast to the main principles above. We will also ensure our legal documents, which grant usage to our software, clearly state these conditions of use.

Our Ethical Objectives

Have a positive impact on society

There are many potential use cases for computer vision and VisualCortex. The majority of these use cases would be clearly beneficial to society. In certain cases, however, there will be risks – even though most risks will be limited in comparison to societal gains achieved. It is imperative that the benefits far outweigh the risks AND that the risks are not to the detriment of people, groups of people, or freedom as a basic human right within the context of the law, cultural, social and legal norm in each country or region where we operate.

Constant re-learning for both our ML Models and our organization via the application of VisualCortex’s video analytics capability

It is imperative that, in a constantly evolving technological landscape, that our policies are constantly reviewed and refreshed to ensure we are providing the best solutions possible. In conjunction with said services, we aim to provide the most relevant group of policies and procedures possible. The two need to go hand-in-hand as video analytics capabilities improve, which will constantly inform and reinform considerations regarding and what is fair and ethical usage of those capabilities.

Try to reduce human judgment in our system

Machine learning bias, also sometimes called algorithm bias or AI bias, is a phenomenon that occurs when an algorithm produces results that are systemically prejudiced due to erroneous assumptions in the machine learning process. Similarly human bias is typically based on prejudice whether through ignorance or personal past experiences. However, both forms of bias need to be mitigated and managed to reduce and if possible eliminate unjust impacts on people for whatever reason beit race, ethnicity, religious belief, gender, wealth, mental, and or physical ability etc... As we leverage Machine learning and artificial intelligence it would be a great opportunity to reduce some of the human judgment and prejudices in the world today.

Accountability

Through a combination of feedback mechanisms in our platform and both internal and external ethics committees, we will ensure we are adhering to our own objectives and the expectations of our employees, customers and ecosystem. We will regularly take an “Ethics Pulse” and adjust our behavior, actions and process as required.

Strike the balance between privacy and protection

We will always endeavor to ensure we are protecting individuals basic rights to privacy in the arenas where they are found. We do foresee, however, some use cases where people have already foregone their rights to privacy in certain areas. For example, a person banned from a venue for past aggression, harmful to others or illegal activity, or someone who is a known offenders for child abuse, human slavery, major crimes. People in secure environments that are already under video surveillance such as prisons incorporate our privacy principles in the development and use of our AI technologies. We will give opportunity for notice and consent, encourage architectures with privacy safeguards, and provide appropriate transparency and control over the use of data.

Applications VisualCortex will not pursue

• Deployments or use cases that cause or are likely to cause overall harm. Where there is a material risk of harm, we will proceed only where we believe that the benefits substantially outweigh the risks, and will incorporate appropriate safety constraints and guidelines.
• Weapons or other technologies whose principal purpose or implementation is to cause or directly facilitate injury to people.
• Usage of the VC Platform for Surveillance or Investigations that would use VC or the data in violation of internationally accepted norms.
• Deployments or uses cases whose purpose contravenes widely accepted principles of international law and human rights.

The VisualCortex platform and associated services use cookies to provide and improve our Services, and to better communicate with users for support and marketing purposes.

A cookie is a small data file that is sent to your browser from our servers and stored on your computer’s hard drive. Session cookies disappear from your computer when you close your Web-browser or turn off your computer. We use persistent cookies when it’s helpful to have a holistic understanding of how you use VisualCortex or engage with our marketing and communications materials.

Our Services also use Pixel Tags to send email messages in a format customers can read, and they tell us whether mail has been opened.

Here are details about the cookies we use:

VisualCortex

a) Session cookie: Required to provide basic services to you as a user (for example, to securely login to VisualCortex, and assist with load balancing onto our servers).
b) Persistent cookie: Allows us to provide features that improve your experience (for example remembering your login and password authentication for future logins).

Google Analytics

a) Persistent cookie: Provides us aggregated data around usage and Web traffic. You can opt out of tracking by Google Analytics by visiting: https://tools.google.com/dlpage/gaoptout

Chat Service

a) Persistent cookie: Allows us to provide efficient and contextual customer support.

How can I control cookies?

You can choose to instruct your browser to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you don’t accept cookies, you may not be able to login to our Services. As the means vary between browsers, you should visit your browser’s help menu for more information.

Unless you elect to disable cookies through your browser, your continued use of VisualCortex’s websites and services constitutes your agreement to our use of cookies.

Where can I get further information?

If you have any questions about our use of cookies or other technologies, please email us at [email protected]

Outcomes described are illustrative in nature

To meet specific business outcomes desired by your organization – or discussed and implied on visualcortex.com – custom Machine Learning (ML) Models may need to be built, trained or refined. We endeavour to make as many ML Models available, for use in conjunction with the VisualCortex platform, via the VisualCortex Model Store.

We encourage you to contact VisualCortex for a transparent conversation about your requirements, and our ability to meet your needs out-the-box, via an agreed project or collaboration.

About the VisualCortex Model Store

VisualCortex supports the creation and sharing of quality-controlled models-as-a-service via the VisualCortex Model Store, a secure digital marketplace for ML Models.

Anyone with appropriate security access can upload video footage into the VisualCortex platform, define events to track, select their desired ML Models from the Model Store, and produce data for analysis. This works in one of three ways:

Out-of-the-box ML Models: Core models designed, developed, trained and maintained by the VisualCortex team.

Third-party Supplied ML Models: Models that integrate with the VisualCortex platform, provided by VisualCortex clients and partners.

BYO ML Models: Leverage the VisualCortex platform to deploy and execute your own proprietary models for your exclusive usage.

VisualCortex, its clients, partners, service providers and independent machine learning experts can publish, share and generate revenue from ML Models via the Model Store.

About VisualCortex and ML Models

VisualCortex is a Video Intelligence Platform. It provides a secure and scalable environment that can run any number of ML Models, to support any number of computer vision use cases, across any number of video sources.

Specific ML Models need to be built and trained to detect the occurrence of predefined objects and actions within frames of video footage. This might be the presence of vehicles and people (objects), or when detected objects perform certain actions – such as entering a defined zone or performing a defined motion (like falling).

Video metadata produced by applying ML Models to video footage is then principally used to trigger alerts (when an object or action is detected, known as an ‘event’) or is used in reporting and analytics to display trends over time.