Date of Last Revision: May 19th, 2021
This Evaluation Agreement (this “Agreement”) is by and between Literals, Inc., a Delaware corporation (“Literal”) and the entity you identified as entering in to this Agreement (“Participant”). It is the purpose of this Agreement to provide the Participant with early access to Literal’s platform and services (collectively, the “Services”) for the purposes of engaging in proof of concept (POC) testing and refining of the Services and evaluation of new features for the Services.
BY ACCEPTING THIS AGREEMENT, EITHER BY (I) USING OR ACCESSING THE SERVICES OR (II) CLICKING “I AGREE” (OR SIMILAR BUTTON OR CHECKBOX INDICATING ACCEPTANCE OF THIS AGREEMENT), YOU FULLY ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS AGREEMENT. IN ADDITION, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND PARTICIPANT TO THIS AGREEMENT; AND (II) YOU AGREE ON BEHALF OF PARTICIPANT TO THE TERMS OF THIS AGREEMENT. IF PARTICIPANT DOES NOT AGREE TO THESE PROVISIONS, DO NOT USE OR ACCESS THE SERVICES. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO ACCESSING AND USING THE SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF PARTICIPANT ACCEPTING THIS AGREEMENT (THE “EFFECTIVE DATE”).
LITERAL RESERVES THE RIGHT, AT LITERAL’S SOLE DISCRETION, TO CHANGE OR MODIFY PORTIONS OF THIS AGREEMENT AT ANY TIME. IF LITERAL DOES THIS, LITERAL WILL POST THE CHANGES ON THIS PAGE AND WILL INDICATE AT THE TOP OF THIS PAGE THE DATE THIS AGREEMENT WAS LAST REVISED. ANY CHANGES WILL BECOME EFFECTIVE WHEN POSTED. PARTICIPANT’S CONTINUED USE OF THE SERVICES AFTER CHANGES ARE POSTED CONSTITUTES PARTICIPANT’S ACCEPTANCE OF THE NEW TERMS OF SERVICE. PARTICIPANT SHOULD VISIT THIS PAGE BEFORE USING THE SERVICES EACH TIME TO SEE IF THERE HAVE BEEN ANY CHANGES TO THESE TERMS OF SERVICES. IF PARTICIPANT DOES NOT ACCEPT THE TERMS OF THE AGREEMENT AS SO MODIFIED, PARTICIPANT SHALL NOT BE PERMITTED TO ACCESS THE SERVICES.
1. Access to the Services: Subject to the terms and conditions hereof, Literal hereby grants Participant a non-exclusive, non-transferable, non-sublicensable right to use the Services (the “License”) solely for Participant’s internal evaluation, testing and non-production use only during the Participation Period.
2. Feedback: Participant agrees to provide feedback (including suggestions, comments for enhancements, functionality or usability, etc.) (“Feedback”) to Literal on the Participant’s experience using the Services, as well as needs and integration requirements. Literal shall have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality, and Participant hereby grants Literal the full, unencumbered right to incorporate and otherwise fully exploit Feedback in connection with Literal’s products and services.
3. Duration: This Agreement shall be in effect from the Effective Date until terminated in accordance with this Section 3 (the “Participation Period”). Either party may terminate this Agreement (i) for convenience upon thirty (30) days’ written notice to the other party or (ii) if the other party materially breaches this Agreement and such breach is not cured within ten (10) days after receipt of written notice specifying the breach. Sections 2, 3, 4, 5, 6 and 7 will survive any expiration or termination of this Agreement.
4. Proprietary Rights:
(a) As between the parties, Literal retains all rights, title and interest in and to Services. In addition, notwithstanding anything herein, if, as a result of the parties’ activities hereunder, the parties jointly author or create, or Participant authors or creates, any software, data, information or other intellectual property to be included in the Services (“Platform Improvements”), Literal will own all right, title and interest in and to such Platform Improvements, and Participant hereby makes all assignments necessary to accomplish the foregoing ownership. Participant will reasonably cooperate with Literal to perfect such rights, at Literal’s reasonable expense.
(b) Participant shall not, directly or indirectly, (i) modify, reverse engineer, decompile, or disassemble the Services or otherwise or attempt to derive the source code of any software provided in connection with the Services or (ii) use the Services or any related materials outside of the scope of the License (including for any production usage) or to create a competitive product or service.
(c) “Confidential Information” means any information, software (including the Services) and know-how disclosed or made available by either party (the “disclosing party”) to the other party (the “receiving party”) hereunder, including the existence of this Agreement and the evaluation of the Services. The receiving party shall: (i) not use the disclosing party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any party, other than its employees and consultants who have a “need to know” for the receiving party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information. If the receiving party is required by law to make any disclosure of such Confidential Information, the receiving party shall first give written notice of such requirement to the disclosing party, and shall permit the disclosing party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the disclosing party in seeking to obtain such protection. Information will not be deemed Confidential Information hereunder if such information: (1) is known or becomes known (independently of disclosure by the disclosing party) to the receiving party prior to receipt from the disclosing party from a source other than one having an obligation of confidentiality to the disclosing party; (2) becomes publicly known, except through a breach hereof by the receiving party; or (3) is independently developed by the receiving party without any use of the disclosing party’s Confidential Information.
(d) Participant acknowledges that a fundamental component of the Services is the use of machine learning for the purpose of improving and providing Literal’s products and services. Notwithstanding anything to the contrary, Participant agrees that Literal is hereby granted the right to use any information, data, content, and know-how collected hereunder to train its algorithms internally through machine learning techniques for such purpose.
(e) Participant further agrees that Literal has the right to aggregate, collect and analyze data and other information relating to the performance of the Services and shall be free (during and after the term hereof) to (i) use such data and other information to improve Literal’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Participant or any individual.
5. Disclaimer of Warranties: Participant expressly acknowledges that the Services is not at a level of functionality, performance or compatibility of a commercial offering and may have defects or deficiencies which cannot or may not be corrected by Literal. THE SERVICES IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. LITERAL DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE SERVICES, WHETHER EXPRESS, IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
6. Limitation of Liability: EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR (A) LOSS OF PROFITS, REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (B) ANY OTHER AMOUNTS IN EXCESS OF $100, WHICHEVER IS GREATER, IN EACH CASE EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Miscellaneous: For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California, without regard to the conflicts of law provisions thereof. Neither party shall have the right to assign or transfer this Agreement, except that Literal may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. No waiver, change, or modification to this Agreement will be effective unless in writing signed by both parties. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the address specified below or such other address as may be properly specified by written notice hereunder. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right.