This Evaluation Agreement (the “Agreement”), effective as the date you enter into this Agreement (the “EffectiveDate”), is made and entered into by and between you as the entity, company, or organization entering into this Agreement (“Evaluator”) and Verta, Inc. (“Company”). If any individual is entering into this Agreement on behalf of Evaluator, such individual represents and warrants that he/she has the authority to bind Evaluator to this Agreement and agrees to be bound by this Agreement on behalf of Evaluator.
PLEASE READ THE FOLLOWING TERMS OF THIS AGREEMENT CAREFULLY. BY CLICKING “I ACCEPT,” EVALUATOR IS ENTERING INTO THIS AGREEMENT AND EVALUATOR ACKNOWLEDGES AND AGREES THAT EVALUATOR HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS IN THIS AGREEMENT. If Evaluator does not agree to the terms and conditions of this Agreement, Evaluator may not access or use the Service (as defined below).
1. Company Technology
1.1. Service. Company grants Evaluator a nonexclusive right to access and use, on a non-commercial, evaluation basis, Company’s Verta’s proprietary machine learning, data storage, model deployment, and model monitoring platform (the “Service”).
1.2. Company Materials. Subject to the terms and conditions of this Agreement, Company grants Evaluator a limited, royalty-free, nonexclusive, nontransferable, non-assignable, internal use only license during the Term, (without the right to sublicense) to use and reproduce any application programming interfaces, software development kits, executable software, applications, instructions, documentation, and other materials provided by Company (the “Company Materials”), including as may be integrated with any of Evaluator’s applications, solely as necessary for the purpose of accessing and using the Service in connection with Evaluator’s evaluation of the Service.
1.3. Restrictions. The Service and Company Materials (the “Company Technology”) are provided or licensed to Evaluator, as applicable, solely for Evaluator’s internal evaluation. Evaluator shall not, and shall not permit any third party to: (i) modify or create any derivative works based on the Company Technology or any portion of thereof; (ii) distribute, rent, lease, lend, sublicense, transfer, make available to any third party, or provide any third party access to or the benefits of any Company Technology except as expressly permitted hereunder; (iii) reproduce any Company Technology except, with respect to the Company Materials, as necessary to exercise Evaluator’s rights under Section 1.2; (iv) decompile, disassemble, or reverse engineer the Company Technology or otherwise attempt to derive from the Company Technology any underlying algorithms, ideas, structures, techniques or source code not otherwise made available to Evaluator; (v) use any Company Technology for purposes of gathering competitive intelligence about Company or the Company Technology or developing any technology that competes with or is substantially similar to the Company Technology; or (vi) access or use any Company Technology other than as expressly permitted herein.
Company may, at any time and in its sole discretion, replace, modify, alter, improve, enhance, or change any of the Company Technology. Nothing herein grants or transfers to Evaluator any right, title, or ownership interest in or to any Company Technology or any patent, copyright, trade secret, trade name, trademark or other proprietary or intellectual property rights related to Company or the Company Technology, except for the license expressly set forth herein. Company may monitor and collect data regarding the use, operation, and performance of the Service; provided that the foregoing is not a grant for Company to access or make use of any Submitted Data. Evaluator hereby grants Company a limited right to collect and use any data submitted by or on behalf of Evaluator to the Service (“Submitted Data”): (i) during the Term, for the purpose of operating the Service as made available to Evaluator hereunder; and (ii) perpetually, on an anonymized basis for the purpose of providing, administering, improving, and developing the Company’s products and services. Evaluator represents and warrants that it: (a) has all necessary rights, licenses, authorizations, and consents necessary to provide the Submitted Data to Company and permit Company to use the Submitted Data as set forth in this Agreement; (b) has complied and will comply with all applicable privacy and data protection laws regarding Submitted Data. Evaluator agrees to hold Company harmless against any claims, losses, or liabilities arising out of a breach of the preceding representation and warranty.
3. Confidential Information.
Each party agrees to exercise no less than reasonable care to maintain the confidentiality of Confidential Information disclosed (including the terms of this Agreement) by the other party and to only use such Confidential Information in connection with exercising its rights or performing its obligations hereunder. For purposes of this Agreement, “Confidential Information”means: (i) any information disclosed, directly or indirectly, by or on behalf of one party to the other party pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. For purposes of this Agreement, the Company Materials and the function of the Service are the Confidential Information of Company.
Evaluator agrees to provide any feedback to Company that Company may request from time to time. Evaluator acknowledges and agrees that any feedback information that Evaluator discloses or submits to Company regarding the Company Technology and any information or data that Company derives, collects, or observes based on the performance, operation, and use of the Company Technology may be used, disclosed or exploited by Company for the purpose of providing, administering, improving, and developing the Company’s products and services.
5. No Warranties.
EVALUATOR AGREES THAT THE COMPANY TECHNOLOGY IS BEING PROVIDED ON AN EVALUATION BASIS ONLY. ACCORDINGLY, THE COMPANY TECHNOLOGY IS LICENSED AND PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. COMPANY HEREBY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE COMPANY TECHNOLOGY, THE OPERATION THEREOF, AND EVALUATOR’S ACCESS TO AND USE THEREOF. COMPANY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY TECHNOLOGY WILL BE ERROR-FREE, THAT THE COMPANY TECHNOLOGY OR ANY RESULTS THEREFROM WILL BE ACCURATE, OR THAT THE COMPANY TECHNOLOGY WILL WORK WITHOUT INTERRUPTION. EVALUATOR AGREES THAT COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OF SUBMITTED DATA OR ANY FAILURE TO MAINTAIN, STORE, OR BACKUP ANY SUBMITTED DATA.
6. Term and Termination.
This Agreement shall commence on the Effective Date and continue for [seven (7)] (the “Term”) unless otherwise terminated as set forth herein. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement. Promptly after termination or expiration of this Agreement, Evaluator shall return or, at Company’s discretion, destroy and provide written certification of the destruction of any copies of the Company Technology. Sections 1.3 and 2 through 11 shall survive any termination or expiration of this Agreement.
7. Limitation of Liability.
IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES HEREUNDER IN EXCESS ONE HUNDRED US DOLLARS, INCLUDING FOR ANY DAMAGES RELATING TO LOST PROFITS, COST OF COVER OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES ARISING FROM THE USE OF THE COMPANY TECHNOLOGY, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
8. Compliance with Laws.
Evaluator warrants that it will comply in all respects with all applicable laws, including Export Administration Regulations, as applicable, and all other U.S. export and re-export restrictions applicable to the Company Technology licensed hereunder and the collection and laws applicable to the collection and transmission of personal data.
9. Injunctive Relief.
Evaluator agrees that any violation or threatened violation of this Agreement will cause irreparable harm to Company, entitling Company to injunctive relief in addition to all other remedies.
10. Marketing and Publicity.
Evaluator agreements that Company may use contact and identifying information of Evaluator and its personnel connected in connection with this agreement for purposes of marketing its products and services.
Evaluator shall not assign, sublicense, or otherwise transfer, by agreement or operation of law, the rights or licenses granted to it hereunder without the prior written consent of Company, and all assignments in violation of this prohibition shall be null and void. This Agreement is the entire agreement between the parties relating to the subject matter hereof and may only be modified in a writing signed by both parties. Neither party has any obligation under this Agreement to purchase, license or sell any product or service supplied by the other party. The parties are independent contractors, and do not intend that any agency or partnership relationship be created between them by this Agreement. This Agreement shall be governed by the laws of the State of California without reference to conflicts of law principles. In any dispute arising out of this Agreement, Company and Evaluator each consent to the jurisdiction of both the state and federal courts of Santa Clara County, California and agree to bring any actions arising out of this Agreement in such courts. If any provision or clause of this Agreement is held unenforceable, the remainder of this Agreement will continue in full force and effect.