PLEASE READ THESE EVALUATION TERMS OF SERVICE (THE “ETOS” OR “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICE OFFERED BY CLAVATA INC. (“COMPANY”). BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. SCOPE OF SERVICE AND RESTRICTIONS

1.1 Access to and Scope of Service. Subject to Customer’s compliance with the Agreement, Company will use commercially reasonable efforts to make the Service available to Customer as set forth in this Agreement and the description of the Service made available to Customer in connection with the Service (such description, the “Service Description”).  Customer acknowledges that it is accessing or making use of the Service on an evaluation only basis as described in the Service Description (the “Evaluation”). Customer acknowledges and agrees that the Evaluation is provided on an “as-is” basis, and the Evaluation is provided without any indemnification, support, warranties, or representations of any kind. Further, the Evaluation may be subject to certain additional restrictions, limitations, and differing terms as set forth in the Service Description.

1.2 Restrictions. Customer will use the Service only in accordance with all applicable laws, including, but not limited to, rules and regulations related to data and personally identifiable information. Customer agrees not to, and will not allow any third party to: (i) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available; or (iii) rent, resell or otherwise allow any third party access to or use of the Service.

1.3 Ownership. Company retains all right, title, and interest in and to the Service, and any software, products, works or other intellectual property created, used, provided, or made available by Company under or in connection with the Service. Customer may from time to time provide suggestions, comments, or other feedback to Company with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose. 

1.4 Software. To the extent Company makes any Company proprietary software available to Customer in connection with the Service, Company hereby grants to Customer, and Customer hereby accepts from Company, a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to: run such software solely as necessary to use of the Service. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in Section 1.4; (b) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 1.4; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the software; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the software or copies thereof; or (g) combine or distribute any of the software with any third party software that is licensed under terms that seek to require that any of the software (or any associated intellectual property rights) be provided in source code form (e.g., as “open source”), licensed to others to allow the creation or distribution of derivative works, or distributed without charge.

1.5 Customer Data. Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data; and (c) any claims that Customer Data infringes, misappropriates, or otherwise violates the rights of any third party.   Customer acknowledges and agrees that Customer Data may be irretrievably deleted if Customer’s account is terminated.

1.6 Use of Customer Data.  Company may make use of Customer Data in connection with the Service.  In addition, Company may make use of Customer Data and Usage Data to make improvements and enhancements to the Service, including methods, techniques, and models (“Improvements”).  Customer may opt out of use of Customer Data in connection with Improvements by sending a request to legal@clavata.ai, provided that certain features with respect to the Service may no longer be available to Customer.  “Customer Data” shall mean data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.  “Usage Data” shall mean diagnostic, performance, telemetry, and related data collected or obtained in connection with Customer’s use of the Service, provided that such data is in aggregated, anonymized form.

1.7 Personal Data.  Customer agrees that it will not transfer, share, or deliver to Company any personally identifiable information subject to applicable data privacy laws or regulations data protection laws, in the absence of an executed Data Processing Agreement agreed to by the parties.

2. SERVICE SUSPENSION.

Company may suspend Customer’s access to or use of the Service immediately if any of the following occurs: (a) Company’s use of the Service exceeds the Evaluation; or (b) Company reasonably believes Customer’s use of the Service may pose a security risk to or may adversely impact the Service.  

3. TERM AND TERMINATION

3.1 Term. The term of this Agreement shall commence upon first use of the Service by Customer, (the “Effective Date”) and unless terminated earlier according to this Section 3, will end on the last day specified in the Service Description, unless agreed to otherwise in writing by the Company (the “Term”).  This Agreement and Customer’s authorization to use the Service shall immediately terminate without notice from Company if Customer’s use of the Service exceeds the Evaluation.

3.2 Termination. This Agreement may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable;(b) by Company upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction; or (c) by Company at any time by providing Customer fifteen (15) days prior written notice (including notice via electronic mail).

3.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Company Confidential Information and other materials and information provided by Company. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees, if any, accruing prior to termination. 

3.4 Survival. The following provisions will survive termination of this Agreement: Sections 1.3 (Ownership), 1.5 (Use of Customer Data); 3.3 (Effect of Termination), Section 3.4 (Survival), Section 4 (Confidentiality), Section 5 (Indemnification), Section 6.2 (Warranty Disclaimer), Section 7 (Limitation of Liability), Section 8 (Miscellaneous).

4. CONFIDENTIALITY

During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Company Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.

5. INDEMNIFICATION

Customer will defend, indemnify, and hold Company, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Customer Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.

6. WARRANTY

6.1 Warranty. The Service is provided on an “as-is” basis and without warranty of any kind during the Evaluation.

6.2 Disclaimer of Warranty. Company does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems, or data not provided by Company. COMPANY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. FURTHER, COMPANY HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE OUTPUT OF THE SERVICE MAY NOT BE ACCURATE, COMPANY HAS NO LIABILITY WITH RESPECT TO CUSTOMER’S USE OF THE OUTPUT, COMPANY’S ACTIONS BASED ON THE OUTPUT, OR CUSTOMER’S RELIANCE ON THE SAME.

7. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. COMPANY’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF ONE THOUSAND US DOLLARS ($1,000.00).

8. MISCELLANEOUS

8.1 Export Control. Customer hereby certifies that Customer will comply with all current applicable export control laws. Customer agrees to defend, indemnify, and hold Company harmless from any liability for Customer’s violation of any applicable export control laws.

8.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify, and hold harmless Company from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Company arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.

8.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Company may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition, or sale of all or substantially all of its assets.

8.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”). Notwithstanding the foregoing, if a Force Majeure continues for more than thirty (30) days, either party may terminate this agreement upon written notice to the other party.

8.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.

8.6 No Agency. Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Company.

8.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, or any Purchase Order issued under this Agreement.

8.8 Publicity. Customer hereby grants Company the right to identify Customer as a Company customer, and use Customer’s name, mark, and logo on Company’s website and in Company’s marketing materials with respect to the same. In addition, unless Customer requests otherwise in writing, Customer agrees to participate in certain publicity activity, such as a case study, customer quote, and joint press release.

8.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Service Order document, the terms of this Agreement shall control.