Last Updated: APRL 5, 2022
1.EVALUATION. Subject the terms and conditions of this Agreement, Company will provide Evaluator with access to Company’s online, software-as-a-service platform (“Service”) using access credentials provided by Company to permit Evaluator (“Access Credentials”) to evaluate and test the Service during the Testing Period (defined below). Evaluator will provide, at its own expense, all equipment and third-party products and/or services necessary to evaluate the Service. Evaluator must use the Service in compliance with all applicable laws and regulations and related documentation, including, without limitation, Company’s Acceptable Use Policy (available at https://daisi.io/acceptable-use-policy) which is incorporated herein by reference. Evaluator will at all times be liable and responsible for any activities and all other acts or omissions taken (i) by an End User with respect to Evaluator’s User Content (as such terms are defined below), or (ii) by Evaluator or by any other person or entity who accesses or otherwise uses the Service using Evaluator’s Access Credentials (whether or not such activities or acts or omissions are authorized by Evaluator or taken by Evaluator, its employees, agents, or any third party). For purposes of this Agreement, “End User” means any individual or entity that directly or indirectly accesses or uses any software (including machine images and programming code), data, text, or any other works of authorship or materials that Evaluator submits, uploads, publishes, or otherwise transmits to Company through the Service (collectively, “User Content”).
2.FEES. The Service is currently made available to Evaluator free of charge. Company reserves the right to determine pricing for the Service and to charge fees for the Service (or any component, feature, or functionality thereof). Company will provide Evaluator advance written notice of any such fees before they go into effect or become chargeable. Prior to any payment of fees, Evaluator will have an opportunity to review and accept any fees that will be charged to Evaluator. All fees are non-refundable.
3.TESTING PERIOD. This Agreement will begin on the Effective Date and continue in effect until the date Company terminates the Alpha Program (as will be communicated by Company to Evaluator in writing or by providing notice through the Service), unless earlier terminated in accordance with this Agreement (“Testing Period”). Either party may terminate this Agreement for convenience at any time upon written notice to the other party. Company may suspend Evaluator’s access to the Services at any time. Upon the expiration or termination of this Agreement, Evaluator will discontinue all use of the Service. Sections 2 through 16 will survive termination or expiration of this Agreement.
4.RESTRICTIONS; USAGE. Evaluator must not (i) modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or copy any portion of the Service, or (ii) input, upload, transmit, or otherwise provide to or through the Service any information or materials (including User Content) that are unlawful or injurious, or contain, transmit, or activate any virus, worm, Trojan horse, malware, or other malicious computer code (or permit any third party, including End Users, to do any of the foregoing). Evaluator must not circumvent or disable any security or other technological features of the Service. Company reserves the right to (i) monitor and impose limitations on Evaluator’s use of the Service, including, without limitation, limits on the compute usage and storage capacities used by Evaluator in connection with the Service and limits on any usage metrics that may be established by Company from time to time, and (ii) charge fees for any use of the Service by Evaluator in excess of any such usage limitations and/or usage metrics, in accordance with Section 2.
5.OWNERSHIP. Company owns all right, title, and interest, including all intellectual property rights, in and to the Service, including any improvements, modifications, and enhancements to it. Except for those rights expressly granted in this Agreement, no other rights to the Service are granted, either express or implied, to Evaluator.
6.FEEDBACK. If Evaluator provides any suggestions, comments or other feedback regarding the Service or the Alpha Program (“Feedback”) to Company, Evaluator hereby grants to Company the right to freely use, disclose, reproduce, license, distribute, commercialize, and otherwise exploit the Feedback in any Company product, technology, service, specification, or other documentation without restriction or compensation.
8.LICENSE. Evaluator hereby grants to Company a royalty-free, fully paid up, non-exclusive, irrevocable, and worldwide license (with the right to sublicense through multiple tiers) to host, store, transfer, process, publicly display, publicly perform, disclose, distribute, reproduce, modify, and create derivative works of (as authorized under this Agreement) Evaluator’s User Content, in whole or in part, in any media formats and through any media channels (in each instance whether now known or hereafter developed) for the sole purpose of making such User Content available on or through the Service. Evaluator is at all times solely responsible for (i) the development, content, operation, maintenance, and use of Evaluator’s User Content, and (ii) the security, protection, and backing up of its User Content.
9.THIRD PARTY PRODUCTS. For purposes of this Agreement, “Third Party Products” means certain third-party applications, systems, software, products, or services that are or may be used by Evaluator and are not supplied by Company, which are designed to interoperate with the Service. If Evaluator elects to enable, access, or use of such Third Party Products, its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of the provider of such Third Party Products, and Company does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third Party Products, including, without limitation, their content, the manner in which they handle Evaluator’s data, or any interaction between Evaluator and the provider of such Third Party Products. Company is not liable for any damage or loss caused or alleged to be caused by or in connection with Evaluator’s enablement, access, or use of any such Third Party Products, or Evaluator’s reliance on the privacy practices, data security processes, or other policies relating to or used in connection with the Third Party Products. The providers of Third Party Products shall not be deemed sub-processors of personal information for any purpose.
10.WARRANTY DISCLAIMER. THE SERVICE IS PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING ONLY, AND COMPANY DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES WILL NOT BE ERROR FREE AND ARE MADE AVAILABLE FOR TESTING AND EVALUATION PURPOSES ONLY. Company does not represent or warrant that the Service will be available for access or use by Evaluator at any given time, and Evaluator hereby acknowledges and agrees that, unless otherwise expressly agreed to by the parties, Company is under no obligation to support or maintain the Service or to provide any updates, upgrades, or other technical support to Evaluator or any End User with respect to the Service or Evaluator’s User Content.
11.WARRANTIES BY EVALUATOR. Evaluator represents and warrants to Company that: (1) if Evaluator is an entity, it is (i) a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation, and (ii) duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (2) it has the full right, power and authority (i) to enter into this Agreement, (ii) to grant the rights and licenses granted under this Agreement, (iii) to perform its obligations under this Agreement, and (iv) to upload, submit, publish, or otherwise transmit Evaluator’s User Content; (3) the execution of this Agreement by Evaluator has been duly authorized by all necessary action of Evaluator; (4) this Agreement will constitute the legal, valid, and binding obligation of Evaluator, enforceable against Evaluator in accordance with its terms; (5) Evaluator will require, as a condition to an End User’s use of or access to Evaluator’s User Content, that the terms of any agreement entered into with an End User are consistent with, and do not in any conflict with, this Agreement; and (6) Evaluator’s User Content (including and End User’s use thereof) will not (i) infringe, misappropriate, or otherwise violate any intellectual property rights or proprietary rights of any third party, or (ii) violate the Acceptable Use Policy (available at https://daisi.io/acceptable-use-policy).
12.LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100. IN NO EVENT WILL COMPANY HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
13.INDEMNIFICATION. Evaluator will indemnify, defend and hold harmless Company, its affiliates and their respective directors, officers, employers, agents, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, demands, or actions made by a third party (“Claims”), and all liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by the Indemnified Parties from Claims arising from or in connection with: (i) Evaluator’s User Content (including, without limitation, any access or use thereof by any End User); (ii) any breach of this Agreement by Evaluator or by any End User; (iii) a violation of applicable law; or (iv) the gross negligence or willful misconduct of Evaluator or of any third party acting on Evaluator’s behalf.
14.MODIFICATIONS. Company reserves the right to update, change or otherwise modify this Agreement on a going-forward basis at any time and in our sole discretion. If we update this Agreement, we will provide notice of such updates, such as by sending an email notification, providing notice through the Service, or updating the “Last Updated” date at the beginning of this Agreement. Updates will be effective on the date Company takes any of the actions set forth in the immediately foregoing sentence, unless otherwise stated. Company may also, in its sole discretion, require that Evaluator accept any updated Agreement in order to continue (i) to access or use the Service, (ii) to participate in the Alpha Program, or (iii) to make available Evaluator’s User Content through the Service and/or for the duration of the Alpha Program. By continuing to participate in the Alpha Program or by accessing or using the Service after Company’s posting of an updated Agreement, Evaluator agrees to accept and be bound by the updated Agreement, including all of the terms incorporated therein by reference. To the extent Evaluator does not agree to the updated Agreement, then Evaluator must discontinue its use of the Service and its participation in the Alpha Program. Except as expressly permitted in this Section 12, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties to this Agreement.
15.INTELLECTUAL PROPERTY RIGHTS PROTECTION.
15.1.DMCA Notification. Company respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service. Company complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact Company’s Designated Agent at the following address:Daisi Technology, Inc.
Attn: Legal Department (IP Notification)
1334 Brittmoore Road, Suite 1000B
Houston, TX 77043
15.2.Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (b) a description of the copyrighted work or other intellectual property right that you claim has been infringed; (c) a description of the material that you claim is infringing and where it is located on the Service; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and (f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf. Your Notification of Claimed Infringement may be shared by Company with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Company making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
15.3.Repeat Infringers. Company’s policy is to: (a) remove or disable access to material that Company believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. Company will terminate the accounts of users that are determined by Company to be repeat infringers. Company reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
15.4.Counter Notification. If you receive a notification from Company that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Company with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Company’s Designated Agent through one of the methods identified in Section 15.2, and include substantially the following information: (a) your physical or electronic signature; (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under Section 15.2 above or an agent of that person. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
15.5.Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Company in response to a Notification of Claimed Infringement, then Company will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Company will replace the removed content or cease disabling access to it in 10 business days, and Company will replace the removed content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Company’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Company’s system or network.
15.6.False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Company] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” Company reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
16.MISCELLANEOUS. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to the Agreement, will be subject to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Evaluator will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Company, except that Company shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. This Agreement is the entire agreement between the parties relating to the subject matter hereof. No waiver of this Agreement will be valid unless in writing signed by each party. The terms of any other document provided by Evaluator to Company that conflicts with, or in any way purports to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect. The Service is intended for visitors located within the United States. Company makes no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. Evaluator acknowledges that the Service may contain features subject to United States and local country laws governing import, export, distribution and use. Evaluator is responsible for its compliance with United States and local country laws and regulations and shall not export, use or transmit the Service (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.