Service Evaluation Agreement
This Service Evaluation Agreement (this “Agreement”) is a binding contract between the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Evaluator”) and Samooha, Inc. (“Samooha”), effective as of the date on which you click a button or check a box (or something similar) acknowledging your acceptance of this Agreement (the “Effective Date”). The individual accepting this Agreement represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. Evaluator desires to evaluate Samooha’s proprietary data collaboration platform (the “Service”), and Samooha is willing to provide access to the Service to up to five (5) Evaluator employees authorized by Evaluator to access the Service (the “Authorized Users”) under the terms of this Agreement.
1.1 Access to the Service. Subject to all terms and conditions of this Agreement, during the Evaluation Period, Samooha will: (a) provide Evaluator with credentials to access the Service; and (b) permit Evaluator (through its Authorized Users) to access and use the Service, in each case on a personal, nonexclusive, and nontransferable non-sublicensable basis, and in each case solely for Evaluator’s internal evaluation of the Service. Nothing in this Agreement shall be construed to grant Evaluator any right to receive any copy of the Service or any software. Each Authorized User must have its own unique account on the Service and Authorized Users may not share their credentials with one another or any third party. Evaluator shall be responsible for all of the acts and omissions of its Authorized Users in connection with this Agreement and for all use of the Authorized Users’ accounts.
1.2 Restrictions. Except as expressly set forth in this Agreement, Evaluator shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Samooha product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Samooha may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Evaluator (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Evaluator’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
1.3 Feedback. Evaluator may, from time to time and in its sole discretion, provide to Samooha suggestions for changes, modifications or improvements to the Service (“Feedback”). Notwithstanding anything else, Evaluator shall, and hereby does, grant to Samooha a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Evaluator shall and hereby does make all assignments necessary to achieve such ownership.
1.4 Data & Systems.
(a) Usage Data. Notwithstanding anything to the contrary in this Agreement, Samooha may monitor Evaluator’s use of the Service and collect and compile data derived from Evaluator’s use of the Service (“Usage Data”). As between Evaluator and Samooha, Samooha owns all right, title, and interest in and to all Usage Data.
(b) Evaluator Systems. Evaluator is responsible for providing all servers, devices, storage, software, databases, network and communications equipment and ancillary services needed for Evaluator to connect to, access or otherwise use the Service (“Evaluator Systems”). It is Evaluator’s responsibility to ensure that Evaluator Systems are compatible with the Service.
(c) Test Data and Production Data. The Service has been designed for use only with synthetic data curated and uploaded by Samooha (“Test Data”). Notwithstanding the foregoing, it is possible for users to submit, upload, or otherwise transmit data other than Test Data to and through the Service (“Production Data”). Without limiting the generality of any other term of this Agreement, including without limitation Sections 3 and 4 below: (i) Evaluator hereby assumes all risk from its submission, upload, or other transmission of Production Data to or through the Service and from any processing of such Production Data by Samooha; and (ii) Samooha makes no representations or warranties of any kind with respect to its processing of such Production Data, whether relating to compliance with data protection laws or otherwise. Notwithstanding the foregoing, Samooha agrees that it will process Production Data solely in accordance with Evaluator’s directions; provided that, with respect to Production Data that has been anonymized, aggregated, or otherwise deidentified such that it cannot be linked to a known natural person (“Deidentified Data”), Evaluator agrees that Samooha may use such Deidentified Data for any lawful purpose, including without limitation for the purpose of improving and otherwise modifying the Service and Samooha’s other products and services.
1.5 Reservation of Rights. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Samooha (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service.
“Confidential Information” means all non-public information disclosed by or on behalf of Samooha to Evaluator in relation to this Agreement, including without limitation all non-public aspects of the Service. Evaluator should not disclose to Samooha any non-public information that it considers to be confidential or proprietary. Except for the specific rights granted by this Agreement, Evaluator may not use, copy or disclose any of Samooha’s Confidential Information without Samooha’s written consent, and shall use reasonable care to safeguard Samooha’s Confidential Information, including ensuring that Evaluator’s employees, contractors and agents (“Representatives”) with access to Samooha’s Confidential Information have a need to know for the purposes of this Agreement and are bound by substantially similar confidentiality obligations. The foregoing obligations shall not apply to any Confidential Information that Evaluator can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Samooha, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reference to or use of any of Samooha’s Confidential Information. Promptly upon Samooha’s request at any time, Evaluator shall return all of Samooha’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom. Evaluator agrees that, in the event of any breach or threatened breach of this Section 2, Samooha will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, Samooha shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. EVALUATOR ACKNOWLEDGES THAT CERTAIN FEATURES OF THE SERVICE MAY BE LIMITED, UNAVAILABLE, OR MAY NOT FUNCTION PROPERLY DURING THE EVALUATION PERIOD.
IN NO EVENT SHALL SAMOOHA BE LIABLE (WHETHER UNDER CONTRACT, TORT, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY) FOR (A) ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, (B) ANY LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES OR (C) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF ONE THOUSAND U.S. DOLLARS ($1,000.00). NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DELAY OR FAILURE TO PERFORM, WHICH IS DUE TO CAUSES BEYOND THE CONTROL OF SAID PARTY.
This Agreement commences on the Effective Date and continues for 30 days (the “Evaluation Period”) thereafter. Either party may terminate this Agreement at any time effective immediately upon notice to the other party. Upon any expiration or termination of this Agreement, (a) Evaluator shall return or destroy (with certification of such destruction to Samooha) all Confidential Information in its possession, and (b) all rights, obligations and licenses of the parties shall cease, except that the provisions of Sections 1.3 (Feedback), 1.4(a) (Usage Data), 1.5 (Reservation of Rights), 2 (Confidentiality), 3 (Disclaimer), 4 (Limitation of Liability), 7 (General Provisions) and this Section 5 shall survive.
7.1 Entire Agreement; Waiver and Amendment; Severability; Headers; Notices. This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. No waiver, consent or modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any use of the terms “include,” “included” or “including” shall also be deemed to mean “but not limited to” or “without limitation.” Any notices to Samooha in connection with this Agreement must be in writing and sent via email (receipt requested) to firstname.lastname@example.org. Any notices to Evaluator in connection with this Agreement must be in writing and sent via a reasonable method of Samooha’s choosing to the contact information Samooha has on file for Evaluator.
7.2 Governing Law. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of California (without regard to the conflict of laws principles thereof).
7.3 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party except that Samooha may assign its rights and obligations to a successor to substantially all of its relevant assets or business. Any other non-permitted assignment will be void and of no effect.
7.4 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.