DEXTRO, INC.

MASTER TERMS AND CONDITIONS

These Master Terms and Conditions apply to an Order Form executed by the customer identified on the order form (“Customer”) and Dextro, Inc. (“Dextro”), which references these Master Terms and Conditions.

  1. Definitions
    • 1.1. “Effective Date” means the date set forth on the Order Form as the “Effective Date.”
    • 1.2. “API” means Dextro’s application programming interface through which Calls can be sent to and Responses can be received from the Dextro Service.
    • 1.3. “API Documentation” means Dextro’s API reference materials, as amended or revised from time to time.
    • 1.4. “API Key” means the unique identifier issued by Dextro to Customer that must be sent as part of each Call.
    • 1.5. “Authorized Product” means the product or service made commercially available by Customer which is identified in the Order Form, hereto where such product or service provides significant functionality in addition to the functionality provided the Dextro Service.
    • 1.6. “Call” means a Training Request, Identification Request and any other request for a result from the Dextro Service enabled by Dextro to be sent through the API.
    • 1.7. “Dextro Service” means the software-as-a-service made available by Dextro which allows authorized users to submit digital videos through the API, either through submission of a digital video file or submission of a URL for a digital video file, for analysis by Dextro’s video recognition software for purposes of: (i) training the software to recognize a specified concept within a video; and (ii) determining whether the software detects whether a specified concept is represented in a video.
    • 1.8. “Identification Request” means a request sent to the Dextro Service through the API which queries the Dextro Service whether a specified concept is represented in a specified digital video.
    • 1.9. “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
    • 1.10. “Response” means a response sent by the Dextro Service through the API in response to a Call.
    • 1.11. “Training Request” means a request sent to the Dextro Service through the API including the API Key, a digital video (or URL therefor) and a description of the concepts within such video for purposes of training the Dextro Service to recognize such concepts in other videos in connection with subsequent Identification Requests for such concepts.
  2. License to Use API
    • 2.1. Grant. Subject to the terms and conditions of this Agreement, including Customer’s compliance with all payment obligations hereunder, Dextro hereby grants to Customer, under Dextro’s copyrights in the API and the API Documentation, a restricted, non-exclusive, non-transferable, non-sublicensable, royalty-bearing, limited license to send Calls through the API to the Dextro Service through use of the API Key and to display Responses within the Authorized Product, in each case in the manner prescribed by the API Documentation and as otherwise specified by Dextro. Such license does not include (i) the right to grant independent access to or use of the API or Dextro Service by third parties, including any end users of Authorized Product; (ii) the right to conduct any of the activities set forth in Section 2.2 below; or (iii) the right to charge a fee to any third party, including such end users, where such fee is for receiving Responses or access to any element of the Dextro Service.
    • 2.2. No Other Rights. Customer has no right or license to use, reproduce, sublicense or distribute the API, the API Documentation or any element of the Dextro Service. Customer is not authorized to use the Dextro Service or API in connection with any product or service which consists of or is associated with sexually explicit or pornographic content or that promotes illegal activities, discrimination against any person or group, violence or gambling or is competitive with the Dextro Service. In addition, Customer may only use the API and Dextro Service in connection with the Authorized Product so long as the functionality provided by the Dextro Service represents a minority of the overall features and functions offered by the Authorized Product.
  3. Video License.
    • Customer hereby grants Dextro a nonexclusive, irrevocable, royalty-free, fully-paid, worldwide right and license to: (i) use, process, analyze and store all video content submitted in connection with a Call as reasonably necessary to send a Response and to otherwise operate the Dextro Service for Customer’s benefit during the term of this Agreement; and (ii) to modify such content to render it machine readable (i.e., such that it is no longer playable by consumer video player software) and store, analyze, and otherwise use such machine-readable content for training the software in a manner that does not identify Customer. Dextro shall not distribute such content to third parties other than Dextro’s service providers who are authorized to use it only on behalf of Dextro in conducting activities authorized under the foregoing license.
  4. Ownership.
    • As between the parties, Dextro owns all right, title and interest (including all Intellectual Property Rights) in and to the Dextro Service, API, API Documentation and any software, technology, materials and information owned by Dextro prior to the Effective Date or created, authored, developed, conceived or reduced to practice after the Effective Date. Nothing herein shall be construed to transfer any rights, title or ownership of any Dextro software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not obligated to provide Dextro with any feedback or suggestions regarding the API or Dextro Service. If Customer has provided (including prior to the Effective Date) or does provide any such feedback or suggestions, Customer agrees to assign and hereby does assign all right, title and interest (including all Intellectual Property Rights) in and to such feedback and suggestions to Dextro and acknowledges that Dextro may freely exploit such feedback and suggestions without compensation to Customer. As between the parties, all elements of the Authorized Product and all modifications to any of the foregoing and all derivative works thereof shall at all times remain the property of Customer.
  5. Additional Terms and Conditions.
    • 5.1. Responsibility. Customer assumes full responsibility for any breach of this Agreement accomplished in connection with the API Key, whether such breach was the result of the actions of Customer or a third party.
    • 5.2. Transaction Limit. Dextro reserves the right from time to time to impose limits on the number of Calls sent by the Authorized Product to the Dextro Service if the number of Calls exceeds the maximum set forth in the Order Form. Such maximum may be modified from time to time pursuant to an amendment to this Agreement. Dextro will not unreasonably refuse to amend the Agreement to increase such maximum provided that Dextro has adequate prior notice and lead time for Dextro to prepare its technology infrastructure.
    • 5.3. Interference with the API. Customer will not take any action that imposes an unreasonably or disproportionately large burden on Dextro’s infrastructure, including the API and Dextro Service, as determined by Dextro in its sole discretion. Customer shall not, nor attempt to: (i) modify, reverse engineer, decompile, disassemble or otherwise access the source code underlying the API or any other element of the Dextro Service; (ii) work around any technical limitations in the API or the Dextro Service or access any aspect of the API or Dextro Service not intentionally made available by Dextro; (iii) modify the API or any other element of the Dextro Service; or (iv) publish any part of the API, Dextro Service or underlying code.
    • 5.4. Support. The API and Dextro Service are provided “AS IS” and Dextro has no obligation to provide any technical support or assistance to Customer, including, without limitation, assisting Customer with the integration of the API with the Authorized Product. Customer is solely responsible for ensuring that Calls are sent in accordance with the API Documentation and any other Dextro specifications, and is solely responsible for configuring its systems to receive and process Responses. Any support or assistance Dextro agrees to provide shall be provided pursuant to Dextro’s standard professional services agreement and payment of applicable fees thereunder.
  6. Payment.
    • 6.1. Usage Fee. Customer shall pay Dextro for the use of the API and Dextro Service based on the fee structure set forth in the Order Form.
    • 6.2. Method of Payment. Payments are due on a monthly basis in arrears. Dextro shall invoice Customer via e-mail or regular mail. All invoices issued by Dextro hereunder shall be due and payable in full within thirty (30) days after receipt. All fees paid are non-refundable. Dextro may charge a late fee on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law.
    • 6.3. Audit. Customer shall keep and maintain complete and accurate books of account and records of the sale, lease or other transfer or disposition of Authorized Products hereunder by Customer and its distributors, resellers and other channels, and shall allow Dextro or its representative, during office hours and no more than once every twelve (12) months to inspect and make extracts or copies of such records for the purpose of ascertaining the correctness of all statements provided by Customer hereunder and the accuracy of all payments hereunder. If any such examination and audit shall disclose any deficiency, Customer shall promptly pay Dextro the amount of such deficiency plus interest equal to 1.5% per month (or the amount allowed under law, whichever is lesser). If the deficiency is five per cent (5%) or more, Customer shall pay, in addition to such deficiency, the costs of such examination and audit. All books of account and records shall be kept available for at least five (5) years after end of the Term.
  7. Payment Terms; Taxes. All amounts due under this Agreement are payable in U.S. dollars. Customer shall be solely responsible for the payment of any and all sales, use, value added, excise, import, or other similar taxes or payments in lieu thereof, including interest and penalties thereon, imposed by any authority, government or governmental agency arising out of or in connection with amounts due hereunder (other than those levied on Dextro’s income), and Customer shall make such payments, and timely file any return or information required by treaty, law, rule or regulation. Upon request, Customer shall provide Dextro with documentation evidencing such payments. If Dextro is required to pay any such taxes, duties or fees, Customer shall reimburse Dextro immediately upon receipt of Dextro's invoice thereof.
  8. ConfidentialityEach party shall keep confidential all information and materials provided by the other party that is marked as confidential or proprietary (“Confidential Information”). The API, API Documentation, the features and functionality of the Dextro Service, as well as any information regarding planned modifications or updates thereto or information regarding future Dextro products and services constitutes Confidential Information of Dextro. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party; (ii) known to the receiving party prior to the time of disclosure by the disclosing party; (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis; or (iv) developed by the receiving party without reference to Confidential Information. In addition, a disclosure of Confidential Information that is required by law or legal process shall not constitute a breach of this Section 8, provided that the party subject to such requirement promptly provides notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 8, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
  9. Representations and Warranties.
    • 9.1. Mutual. Each party represents, warrants and covenants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
    • 9.2. By Customer. Customer represents, warrants and covenants to Dextro that: (i) it has all rights, title, and interest in and to the Authorized Product and any other software or technology in connection with which it utilizes the Dextro Service and API that are necessary for such use, including all Intellectual Property Rights; (ii) it shall not use the Dextro Service or API in relation to any activity that would violate any law, rule or regulation; and (iii) it has all rights, title, interest, licenses, consents, permissions and release, including all Intellectual Property Rights, necessary: (x) to validly grant to Dextro the license granted under Section 3; and (y) with respect to all content submitted to the Dextro Service for use as contemplated hereunder.
  10. Disclaimer.
    • THE API, DEXTRO SERVICE, API DOCUMENTATION AND ANY RESPONSES OR OTHER INFORMATION TRANSMITTED VIA THE API IS MADE AVAILABLE OR PROVIDED TO CUSTOMER “AS IS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, DEXTRO AND ITS LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. DEXTRO DOES NOT WARRANT THAT THE API, DEXTRO SERVICE OR RESPONSES SHALL BE ACCURATE OR SHALL MEET CUSTOMER’S REQUIREMENTS, OR THAT ACCESS TO OR USE OF THE FOREGOING SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. DEXTRO DOES NOT WARRANT THE RESULTS OF USE OF THE API, DEXTRO SERVICE OR RESPONSES.
    • CUSTOMER ACKNOWLEDGES AND AGREES THAT THE INTERNET IS A PUBLIC NETWORK OVER WHICH DEXTRO EXERTS NO CONTROL. DEXTRO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL HAVE NO LIABILITY WHATSOEVER, WITH RESPECT TO THE ACCURACY, DEPENDABILITY, PRIVACY, SECURITY, AUTHENTICITY OR COMPLETENESS OF DATA TRANSMITTED OVER OR OBTAINED USING THE INTERNET, OR ANY INTRUSION, VIRUS, DISRUPTION, LOSS OF COMMUNICATION, LOSS OR CORRUPTION OF DATA, OR OTHER ERROR OR EVENT CAUSED OR PERMITTED BY OR INTRODUCED THROUGH CUSTOMER’S USE OF THE INTERNET. CUSTOMER IS SOLELY RESPONSIBLE FOR IMPLEMENTING ADEQUATE FIREWALL, PASSWORD AND OTHER SECURITY MEASURES TO PROTECT ITS SYSTEMS, DATA AND APPLICATIONS FROM UNWANTED INTRUSION, WHETHER OVER THE INTERNET OR BY OTHER MEANS.
  11. Limitation of Liability. EXCEPT FOR A BREACH OF SECTION 8 OR IN CONNECTION WITH SECTION 12, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNDER OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DEXTRO’S LIABILITY UNDER OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID HEREUNDER BY CUSTOMER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.
  12. Indemnification.
    • 12.1. Customer agrees to indemnify, defend, and hold Dextro and its directors, officers and employees harmless from and against any liabilities, damages, costs or expenses (including reasonable attorneys’ fees) arising out of or relating to any claim, demand, action, or proceeding initiated by a third party arising out of or relating to: (i) any breach by Customer of any representation, warranty or obligation under this Agreement; or (ii) the Authorized Product or Customer’s other products or services, including any claims that any of the foregoing infringe, violate or misappropriate any third party Intellectual Property Rights, provided that Dextro: (i) promptly notifies Customer in writing of the claim, except that any failure to provide this notice promptly only relieves Customer of its responsibility pursuant to this Section 12.1 to the extent its defense is materially prejudiced by the delay; (ii) grants Customer sole control of the defense and/or settlement of the claim, provided that Customer may not agree to any settlement that admits fault by Dextro or purports to bind Dextro without Dextro’s prior written consent; and (iii) provides Customer, at Customer’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim.
    • 12.2. Dextro agrees to, at its expense, defend and/or settle any claim made by a third party against Customer alleging that Dextro’s software underlying the Dextro Service or API infringes or misappropriates such third party’s copyright, trademark or trade secret right (a “Claim”), provided that Customer provides Dextro with: (i) prompt written notice of the Claim, except that any failure to provide this notice promptly only relieves Dextro of its responsibility pursuant to this Section 12.2 to the extent its defense is materially prejudiced by the delay; (ii) sole control over the defense and settlement of the Claim; and (iii) all assistance, information and authority reasonably required for the defense and/or settlement of the Claim, at Dextro’s expense. If a Claim is sustained in a final judgment from which no further appeal is taken or possible, then Dextro will pay or otherwise satisfy any monetary award entered against Customer as part of such final judgment to the extent that such award is adjudged in such final judgment to arise from such infringement or misappropriation. If Dextro, in its sole discretion, believes a Claim or an adverse judgment in connection with a Claim is likely, then Dextro may, at its option: (a) obtain a license from such third party claimant that allows Customer to continue the use of the Dextro Service or API; (b) modify the Dextro Service or API so as to be non-infringing; or (c) if neither (a) nor (b) is available to Dextro at a commercially reasonable terms, terminate this Agreement upon written notice to Customer. Dextro shall have no obligation under this Section 12.2 with respect to any Claim that arises out or relates to: (x) any unauthorized use of the API or Dextro Service; (y) any open source or other third party software utilized within or in connection with the API or Dextro Service; or (z) any combination of the API or Dextro Service with any non-Dextro software, technology or service. This Section 12.2 sets forth the entire liability of Dextro and the sole and exclusive remedy of Customer in the event of any claim of infringement, violation or misappropriation of third party Intellectual Property Rights relating to the Dextro Service or API.
  13. Term and Termination. The term of this Agreement shall be as set forth in the Order Form. Either party may terminate this Agreement prior to the end of such term if the other party: (a) becomes insolvent; (b) files or has filed against it a petition in bankruptcy that is not dismissed within ninety (90) days of commencement; (c) makes an assignment for the benefit of its creditors; or (d) materially breaches such Statement of Work or this Agreement and the breach, if capable of cure, is not cured within thirty (30) days from receipt of written notice of such breach from the non-breaching party. In addition, Dextro may terminate this Agreement upon thirty (30) days prior written notice to Customer in the event Dextro discontinues the Dextro Service.
  14. Rights and Obligations Upon Termination. Upon termination of this Agreement, Customer shall immediately cease any use of the API and the Dextro Service. Termination of this Agreement shall not extinguish any accrued but unpaid payment obligations hereunder.
  15. Surviving Obligations and LimitationsThe following provisions shall survive expiration or termination of this Agreement: 1, 2.2, 3, 4, 5.1, 5.3, 5.4, 6, 7, 8, 9, 10, 11, 12, 14, 15 and 16.
  16. Miscellaneous.
    • 16.1. Publicity. Neither party will make any public statement regarding this Agreement without the prior written consent of the other party, provided that Dextro may reference Customer and/or the Authorized Product on Dextro’s website and other marketing materials. Without limiting the generality of the foregoing, Customer shall not make any statement indicating that Dextro endorses the Authorized Product.
    • 16.2. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. In the event of any merger, change in control or sale of all or substantially all of the assets of Customer (a “Customer Transaction”), all of Customer’s right hereunder relating to the Dextro Service shall be limited to use with the Authorized Product in substantially the same form as such Authorized Product was made available by Customer immediately prior to such Customer Transaction, and shall not, for the avoidance of doubt, encompass any products or services of the counterparty to such Customer Transaction. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
    • 16.3. Notices. All notices under the terms of this Agreement shall be given in writing and sent by an internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand, in each case to the address set forth in the Order Form for the party to which the notice is being sent. All notices shall be sent to the attention of “Legal Department.” All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
    • 16.4. Independent Contractors. The relationship between Dextro and Customer is that of independent contractors and nothing herein contained shall be deemed to establish or otherwise to create a relationship of principal and agent, partners, fiduciaries, or joint venturers between Dextro and Customer. Neither party has any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of the other party.
    • 16.5. Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
    • 16.6. Waivers. No waiver by either party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by either party with respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
    • 16.7. Entire Agreement. This Agreement constitutes the entire agreement between Dextro and Customer with respect to the use and license of the API, API Documentation and other elements of the Dextro Service, and hereby supersedes and terminates any prior agreements or understandings relating to such subject matter. No addendum, waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either party unless in a writing that references this Agreement and is signed by duly authorized representatives of Dextro and Customer.
    • 16.8. Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement
    • 16.9. Severability; Counterparts. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provision shall be not be affected, and the parties shall negotiate a substitute provision that, to the extent possible, accomplishes the original business purpose. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
    • 16.10. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions. All disputes arising in relation to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties hereby consent to such exclusive jurisdiction. Notwithstanding the foregoing, nothing in this Section 16.10 shall be deemed to limit the parties’ rights to seek injunctive relief in any other court of law of competent jurisdiction
    • 16.11. Headings. Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, or other subdivision. The words “include” and “including” shall not be construed or interpreted as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year. Section headings are for reference purposes only, and should not be used in the interpretation hereof.