E-Developer Agreement

IMPORTANT — READ CAREFULLY. YOUR USE OF MITEK’S SOFTWARE,DOCUMENTATION AND ANY RELATED SERVICES (THE “LICENSED PRODUCT(S)”) AND DEVELOPMENT OF ANY APPLICIATION(S) THAT ACCESS OR INTERACT WITH THE LICENSED PRODUCT(S) (THE “APPLICATION(S)”) IS CONDITIONED UPON YOUR COMPLIANCE WITH, AND ACCEPTANCE OF, THE FOLLOWING AGREEMENT.  YOU ACKNOWLEDGE AND AGREE THAT BY CLICKING ON THE ‘I ACCEPT’ BUTTON OR SIMILAR BUTTONS OR LINKS AS MAY BE DESIGNATED BY MITEK TO SHOW THESE TERMS AND/OR ALLOW AGREEMENT WITH THESE TERMS AND CONDITIONS, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT.  IF AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE A DULY AUTHORIZED REPRESENTATIVE OF SUCH COMPANY AND EMPOWERED TO AGREE TO THIS AGREEMENT ON ITS BEHALF.  YOU WILL NOT BE PERMITTED TO USE THE LICENSED PRODUCT(S) NOR DEVELOP ANY APPLICATIONS THAT ACCESS OR INTERACT WITH THE LICENSED PRODUCT(S) UNLESS AND UNTIL YOU ACCEPT THIS AGREEMENT AND ANY OTHER RULES OR POLICIES THAT MITEK MAY CREATE AND MAKE AVAILABLE ON ITS WEBSITE FROM TIME TO TIME.  YOUR USER ID AND PASSWORD TO LOGIN CANNOT BE SHARED IN ANY WAY OR WITH ANY ONE.  YOU ARE RESPONSIBLE FOR ANY ACTIVITY CONNECTED WITH YOUR USER ID AND PASSWORD.

1. This E-Developer Agreement (the “Agreement”) is a legal agreement between you (“You” or “Your”) and Mitek Systems, Inc. (“Mitek”, “We”, “Us” or “Our”), stating the terms that govern Your use of the following Licensed Product(s):  Mitek’s MiSnapTM SDK (“MiSnap”), Mitek’s Mobile Imaging PlatformTM Software (“MIPS”), including any other software or services related thereto provided by Mitek, if any.  The Licensed Product(s) are licensed, not sold, to You for Your use only under the terms of this Agreement, unless the Licensed Product(s) are subject to a separate license agreement signed by both parties, in which case the terms of that separate license agreement will govern.  Mitek reserves all rights not expressly granted to You hereunder. 

2. Under this Agreement, You are granted a limited, non-exclusive, royalty free, non-assignable and non-transferable right to develop Applications that access the Licensed Product(s) via existing application programming interfaces (“API(s)”) available within the Licensed Product(s).  You will not be given access to the source code of the Licensed Product(s).  You will access and download MiSnap via a link provided to You, and access MIPS via a link to Mitek’s server which is hosted in a cloud environment.  Your access to and use of the Licensed Product(s) is for the purposes of developing Application(s) only (the “Purpose”), and no hotline support or training shall be provided to You by Mitek.  You will be given a certain number of transactions which interact with the Licensed Product(s) via the API(s) during a certain amount of time as determined solely by Mitek, for the purposes of developing the Application(s).  Any use of transactions in excess of the number granted or the timeframe specified by Mitek may result in immediate termination.

3. You will be subject to an approval process, which Mitek will conduct, in order to allow You to access the Licensed Product(s).  Failure to be appropriately approved will terminate this Agreement and Your right to develop Application(s).  Any Application(s) built hereunder will also be subject to approval by Mitek.  Failure of Application(s) to be certified will result in the Application(s) not being approved for any use whatsoever.  No other right or license is granted to You hereunder, including but not limited to the right or license to use the Licensed Product(s) in a commercial or production environment.  If you are a Mitek Competitor, you may not download or use the Licensed Products. You hereby represent that as of the time you accept this Agreement and thereafter continuously during the Development Period, that you are not a Mitek Competitor.  For purposes of this Agreement, “Mitek Competitor” means any person or entity that is involved in the research or development of optical character recognition and/or image quality related software, programs, documentation or services related thereto.

4. You are prohibited from use of the Licensed Product(s), the API(s) or development of any Application(s) that:

A. violate any law, statute, ordinance or regulation.

B. relate to transactions involving: (i) narcotics, steroids or other products that present a risk to consumer safety; (ii) drug paraphernalia; (iii) items that encourage, promote, facilitate or instruct others to engage in illegal activity; (iv) stolen goods including digital and virtual goods; (v) items that promote hate, violence, racial intolerance, or the financial exploitation of a crime; (vi) items that are considered obscene; (vii) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction; (viii) certain sexually oriented materials or services; (ix) ammunition, firearms, or certain firearm parts or accessories; or (x) certain weapons or knives regulated under applicable law.

C. relate to transactions that: (i) show the personal information of third parties in violation of applicable law; (ii) support pyramid or ponzi schemes, matrix programs, other “get rich quick” schemes or certain multi-level marketing programs; (iii) are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card; (iv) are for the sale of certain items before the seller has control or possession of the item; (v) are by payment processors to collect payments on behalf of merchants; (vi), are associated with the sale of traveler's checks or money orders; or (vii) involve certain credit repair, debt settlement services, credit transactions or insurance activities.

D. involve the sales of products or services identified by government agencies to have a high likelihood of being fraudulent.

E. violate applicable laws or industry regulations regarding the sale of: (i) tobacco products; or (ii) prescription drugs and devices.

 

Any violation of the above shall result in immediate termination of this Agreement.

5. No legal partnership or agency is created between You and Mitek by this Agreement, and neither party has the authority to bind the other party.  You also represent that You are of the legal age of majority in the jurisdiction in which You reside (at least eighteen (18) years of age in many jurisdictions).  You may not use the Licensed Product(s) nor the API(s) in a manner that adversely impacts the stability of Mitek’s servers or adversely impacts the behaviors of the Licensed Product(s) or other applications using the API(s).

6. Except for the limited right to develop Application(s) that access or interact with the Licensed Product(s) as expressly provided in this Agreement, no intellectual property rights are granted with respect to the Licensed Product(s).  Mitek shall retain all ownership of the Licensed Product(s) including all modifications, enhancements, derivative works, and software documentation, and all trademarks, trade names, trade secrets and other confidential information related thereto.  No title to, or ownership of, or any other rights, in the Licensed Product(s), modifications, enhancements, derivative works, software documentation, trademarks, trade names, trade secrets or other confidential information related thereto or any part thereof, is transferred to You, except for the specifically enumerated rights granted by this Agreement.  This license is non-exclusive and Mitek retains the right to license the Licensed Product(s) to other parties, license the right to integrate and assemble products, and to distribute the products manufactured or assembled, under such third parties’ trademarks or trade names, as original equipment manufacturers, worldwide and also to appoint exclusive or non-exclusive distributors of its Licensed Product(s) anywhere in the world.  In no event will Mitek be precluded from developing for itself, causing to be developed, acquiring, licensing or developing for third parties any products of services that are competitive with Your Application(s), including the development of marketing and distribution materials.

7. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Product(s) or the Application(s) created, unless a separate agreement is entered into between You and Mitek.  You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Product(s), any updates, or any part thereof, except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Product(s).  Any attempt to do so is a violation of the rights of Mitek and its licensors.  If You breach this restriction, You may be subject to prosecution and damages.  

8. The Agreement, including Your right to develop Application(s), will begin when You click the ‘I Accept’ or ‘I Agree’ button (or similar button below) and are approved by Mitek, and terminate sixty (60) days later (the “Development Period”), which may be extended through Your re-acceptance of this Agreement by clicking the ‘I Accept’ button when and if prompted to do so by Mitek.  This Agreement does not allow You to use the Licensed Product(s) on any mobile device that You do not own or control.  Your use of the Licensed Product(s) may require Internet access, a wireless connection, data connectivity, or other services which may be specific to Your mobile device or Your phone or internet provider.  Your rights under this Agreement will terminate automatically without notice from Mitek if You fail to comply with any term(s) of this Agreement. Upon termination of this Agreement, You shall: (i) cease all use of the Licensed Product(s); (ii) destroy all copies, full or partial, of the Licensed Product(s); and (iii) destroy any images You have captured using the Licensed Product(s).  

9. You agree that during the Development Period, Mitek may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate this Agreement, the provision of software updates (if any), product support and other services to You (if any) related to the Licensed Product(s).  Mitek may also use this information during or after the Development Period has concluded to improve its products or to provide services or technology to You or other Mitek customers.  You also agree any images or data that You transmit to Mitek during the Development Period (the “Submitted Matter”) may be used by Mitek for similar purposes, and in compliance will all applicable laws.  

 

10. Confidentiality.

A. Proprietary Information.  In the performance of this Agreement, each party (“Discloser”) may disclose to the other party (“Recipient”) certain Proprietary Information.  For the purposes of this Agreement, “Proprietary Information” means the trade secrets and confidential information of Mitek, Company or of a third party which has provided such information to either Mitek or Company, including, without limitation, business plans, product plans, designs, component specifications, algorithms, inventions (whether or not patentable) costs, prices and names, finances, licensing strategies, marketing and advertising plans, research, software, information regarding customers, executives and employees, and any copies made of the foregoing in accordance with this Agreement.  The Proprietary Information of Mitek shall also include, without limitation, Mitek’ intellectual property and the terms and conditions of this Agreement and Your Proprietary Information shall also include the Submitted Matter.  

B. Ownership and Disclosure of Proprietary Information.  Recipient acknowledges and agrees that Proprietary Information provided by Discloser shall remain the sole and exclusive property of Discloser or a third party providing such information to Discloser.  Recipient shall not disclose or use, directly or indirectly, by any means, or for any purpose, the Proprietary Information provided by Discloser (or assist in any of the foregoing) except as expressly provided for in this Agreement.  The disclosure of such Proprietary Information to Recipient does not confer upon Recipient any license, interest, or rights of any kind in or to the Proprietary Information, except as expressly provided under this Agreement.  Subject to the restrictions set forth above, Recipient shall protect the Proprietary Information provided by Discloser with the same degree of protection and care Recipient uses to protect its own Proprietary Information, but in no event less than reasonable care.  With regard to Proprietary Information that constitutes a trade secret or nonpublic personal information (as defined below), under applicable law, the obligations in this Section shall continue for so long as such information continues to be a trade secret or nonpublic personal information.  With regard to all other Proprietary Information, the obligations in this Section shall continue for the term of this Agreement and for five (5) years thereafter.  Nothing in this Section shall prevent either party from disclosing Proprietary Information to its contractors who are under equivalent or greater confidentiality obligations on a need to know basis.  Unless otherwise subject to a license in this Agreement or necessary for a party to perform legal or compliance obligations or its obligations under this Agreement, within ten (10) business days of Discloser’s written request, Recipient shall either return to Discloser or destroy all copies of such Proprietary Information in Recipient’s possession or under its control (including, without limitation, all summaries, notes and tangible copies created by Recipient).  An authorized representative of Recipient shall certify compliance with the preceding sentence in writing, upon Discloser’s request.

C. Information Not Considered Proprietary Information.  Nothing in this Section shall prohibit or limit Recipient’s disclosure or use of information if Recipient proves: (i) such information is generally available to the public, except through breach of this Agreement by Recipient; (ii) such information was in Recipient’s possession prior to the time of disclosure by Discloser and was not acquired directly or indirectly from Discloser; (iii) the information becomes available to Recipient from a third party which is not legally prohibited from disclosing such information; or (iv) the information was developed by or for Recipient independently of the disclosure of such information by the Discloser or its affiliates.  If the Recipient is required to disclose Proprietary Information by a governmental agency or by operation of law (including without limitation pursuant to a legal dispute between the Parties), then Recipient shall first notify Discloser (if permitted by applicable law) prior to disclosure in order to give Discloser an opportunity to seek an appropriate protective order and/or waive compliance with the terms of this Agreement and shall disclose only that part of the Proprietary Information which Recipient is required to disclose.

D. Use of Proprietary Information.  Any Proprietary Information submitted or transmitted by You to Mitek in addition to the Submitted Matter shall be used: (i) to provide the Licensed Product(s) during the Development Period; (ii) for purposes similar to those enumerated herein; and (iii) in compliance with all applicable laws.  Any Proprietary Information submitted or transmitted by Mitek to You or learned by You regarding Mitek’s products, services or technology during the Development Period shall only be used by You for the Purpose, and shall be deleted by You upon termination of this Agreement.

E. Nonpublic Personal Information.  To the extent that any information obtained by the Recipient is nonpublic personal information, then in addition to the obligations of the Recipient under this Section, the Recipient agrees that it will not disclose or use such nonpublic personal information provided to it by the Discloser under this Agreement other than to carry out the purpose for which it was provided or to exercise its rights under this Agreement.  The Recipient further covenants and agrees to maintain appropriate measures designed to meet the objectives of the applicable guidelines establishing information security standards as adopted by the federal banking agencies.  Without limiting the foregoing, each party represents and warrants that its information security program is designed to: (a) ensure the security and confidentiality of nonpublic personal information; (b) protect against any anticipated threats or hazards to the security or integrity of nonpublic personal information; and (c) protect against unauthorized access to or use of nonpublic personal information that could result in substantial harm or inconvenience to any consumer.  Nonpublic personal information means “nonpublic personal information” about “consumers” or “customers” as such terms are defined in Title V of the Gramm-Leach-Bliley Act 15 U.S.C. Section 6801 et seq.

11. You grant to Mitek a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into the Licensed Product(s) any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of the Licensed Product(s).

12. You agree that the Licensed Product(s) may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright and patent laws, and that You may not exploit the Licensed Product(s) in any unauthorized way whatsoever, including but not limited to by trespass or burdening network capacity. You further agree not to use the Licensed Product(s) in any manner to infringe or violate the rights of any other party.  Mitek is not in any way responsible for any such use. 

13. Mitek makes no representation that the Licensed Product(s) are appropriate or available for use in any particular location. To the extent You choose to access the Licensed Product(s), You do so on Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.  Mitek, and its licensors, reserve the right to change, suspend, remove, or disable access to any Licensed Product(s) at any time without notice.  In no event will the Mitek be liable for the removal of or disabling of access to any Licensed Product(s). Mitek may also impose limits on the use of or access to certain Licensed Product(s), in any case and without notice or liability.  By using the Licensed Product(s), You acknowledge and agree that the Mitek is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, quality or any other aspect of the Licensed Product(s) or the Submitted Matter. 

14. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED PRODUCT(S) IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS YOURS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED PRODUCT(S) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND, AND MITEK HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED PRODUCT(S), EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.  MITEK DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED PRODUCT(S), THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED PRODUCT(S) WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED PRODUCT(S) OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED PRODUCT(S) OR SERVICES WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MITEK OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY.  SHOULD THE LICENSED PRODUCT(S) PROVE DEFECTIVE, YOUR SOLE REMEDY SHALL BE CESSATION OF USE OF THE LICENSED PRODUCT(S).

15. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL MITEK BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED PRODUCT(S), HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MITEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.  IN NO EVENT SHALL MITEK’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).  THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 

16. To the maximum extent permitted by applicable law, You hereby release and waive all claims against Mitek, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to Your use of the Licensed Product(s). If You are a California resident, You waive Your rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor”. You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and You accept and assume the risk of such possible differences in fact. In addition, You expressly waive and relinquish any and all rights and benefits which You may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

17. To the maximum extent permitted by applicable law, You agree to hold harmless and indemnify Mitek and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from and against any third party claim arising from or in any way related to Your use of the Licensed Product(s) and/or your creation of Application(s), including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.  Mitek shall use good faith efforts to provide You with written notice of such claim, suit or action.

18. You may not or re-export the Licensed Product(s).  In particular, but without limitation, the Licensed Product(s) may not be exported or re-exported: (a) into any U.S. embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.  By using the Licensed Product(s), You represent and warrant that You are not located in any such country or on any such list.  You also agree that You will not use the Licensed Product(s) for any purposes prohibited by United States law. 

19. The Licensed Product(s) and related documentation are “Commercial Items” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in the Federal Acquisition Regulations at 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 et seq., as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation, if licensed to U.S. Government end users, are being licensed: (a) only as Commercial Items; and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Any unpublished rights of Mitek are reserved under the copyright laws of the United States. 

20. The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and Your use of the Licensed Product(s). Your use of the Licensed Product(s) may also be subject to other local, state, national, or international laws.

21. Any of Your questions, complaints or claims related to the Licensed Product(s) can be directed to Mitek Systems, Inc., attention to the following e-mail address:  mitekdevelopers@miteksystems.com.

22. This Agreement contains the entire understanding between the parties relating to the subject matter herein and supersedes all prior oral and written understandings, arrangements and agreements between the parties relating to the Purpose.