IMPORTANT: PLEASE READ THIS EVALUATION AGREEMENT (“AGREEMENT”) BEFORE CLICKING THE “ACCEPT” BUTTON, AND/OR USING THE OKAHU, INC. (“OKAHU”) SOFTWARE-AS-A-SERVICE PRODUCT THAT ACCOMPANIES OR IS PROVIDED IN CONNECTION WITH THIS AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON, AND/OR USING THE SERVICES IN ANY WAY, YOU AND THE ENTITY THAT YOU REPRESENT (“EVALUATOR”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH OKAHU AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF EVALUATOR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USE OF THE SERVICES IS STRICTLY PROHIBITED. IF EVALUATOR HAS EXECUTED, OR SUBSEQUENTLY EXECUTES, AN EVALUATION AGREEMENT OR AN END USER AGREEMENT WITH OKAHU, THEN THE TERMS AND CONDITIONS OF SUCH EXECUTED EVALUATION AGREEMENT OR END USER AGREEMENT, AS APPLICABLE, SHALL GOVERN AND CONTROL YOUR USE OF THE PRODUCT.
1. Beta Services. Okahu is developing a proprietary, cloud-based software platform that monitors different components of AI applications and infrastructure to measure performance and troubleshoot issues (the “Services”). Evaluator wishes to utilize an evaluation “beta” version of the Services, and Okahu desires to make a beta version of the Services available to Evaluator, subject to the following terms and conditions. Subject to the terms and conditions of this Agreement, Okahu hereby grants Evaluator, during the Term (as defined below), non-exclusive, non-transferable, non-sublicensable right and license to: (i) access and use the Services; and(ii) install, execute and run any sample software code provided by Okahu, in each instance, solely for the purpose of evaluating the performance and functionality of the Services (the “Limited Purpose”).
2. Intellectual Property. The Services (excluding the Evaluator Content (as defined below) hosted thereon), Documentation, and all other materials provided by Okahu hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing, are the exclusive property of Okahu and its suppliers. Evaluator agrees that it will not, and will not permit any other party to: (a) permit any party to access the Services or any accompanying documentation(“Documentation”); (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e)use or copy the Services or Documentation except for the Limited Purpose; or (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Services or the use thereof.
3. Feedback; No Guarantee of Commercial Release. Evaluator understands and agrees that the Services represent a beta test version of unreleased software and services that may contain bugs, defects, and errors. In the event Evaluator reports to Okahu any errors, problems, defects, or otherwise provides any suggestions for changes and improvements to, or other feedback related to, the Services (collectively, “Feedback”). Evaluator acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Okahu, and hereby assigns to Okahu, all right, title and interest to any and all Feedback. Further, Evaluator acknowledges and agrees that Feedback may be used by Okahu in Okahu’s development of and be incorporated into a version of the Services Okahu may make available for commercial distribution (“Commercial Release”)or any other software or intellectual property created by Okahu. Without limiting the foregoing, Okahu may incorporate Feedback into its products and services and Evaluator will gain no rights in such products or services by virtue of having disclosed Feedback. Evaluator agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Okahu, and Evaluator will gain no right, title or interest in or to the Services, Documentation or any Commercial Release by virtue of Evaluator’s provision of Feedback to Okahu or for any other reason. Okahu has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, Okahu has no obligation to offer the Commercial Release to Evaluator or to offer Evaluator any discounted pricing schedules or special terms. Evaluator understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the current beta version of the Services. Accordingly, Evaluator acknowledges that any research or development performed, or business plans made, by Evaluator regarding or in reliance upon the Services are done entirely at Evaluator’s own risk.
4. Disclaimers of Warranties. Evaluator acknowledges that the Services contain prerelease code for testing purposes only and are not at the level of performance and compatibility of a final, generally available product offering. Furthermore, Evaluator acknowledges that the Services may contain bugs, errors, omissions and other problems that could cause system or other failures and data loss. Evaluator acknowledges that Okahu may not introduce a product similar to or compatible with the Services. To the maximum extent permitted by law, the Services, and all other documentation and materials are provided “AS IS” AND WITH ALL FAULTS. OKAHU MAKES NO WARRANTIES WITH RESPECT TOTHE SERVICES OR DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIESOF TITLE, ACCURACY, INTERFERENCE WITH EVALUATOR’S QUIET ENJOYMENT, SYSTEMINTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE. THE ENTIRE RISK ARISING OUT OFTHE USE OR PERFORMANCE OF THE SERVICES IS WITH EVALUATOR NO ORAL OR WRITTEN INFORMATION OR ADVICEGIVEN BY OKAHU OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPEOF THIS WARRANTY.
5. Limitation of Liability. IN NO EVENT WILL OKAHU OR ITSLICENSORS (IF ANY) BE LIABLE TO EVALUATOR OR ANY THIRD PARTY FOR THE COST OFPROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ONANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR EVALUATOR’SUSE OF THE SERVICES, EVEN IF OKAHU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES. THE TOTAL CUMULATIVE LIABILITY,RELATED TO THIS AGREEMENT, OF OKAHU AND ITS LICENSORS (IF ANY) SHALL BE LIMITEDTO FIFTY DOLLARS (U.S. $50).The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
6. Confidentiality. The structure, sequence, organization and code of the software used to provide the Services constitute valuable trade secrets of Okahu and its suppliers. Evaluator will not disclose to any third party: any information about the Services, including its existence, design, performance characteristics, feedback, and test results. Evaluator will use reasonable efforts to prevent any access to the Services by anyone other than its employees who are obligated to comply with the terms hereof.
7. Evaluator Content. Evaluator hereby grants Okahu a non-exclusive, royalty-free, fully paid, perpetual, irrevocable license to use any data or content made available by Evaluator in connection with the Services (“Evaluator Content”) for the purpose of providing the Services, and to use such data and content on an aggregated and anonymized basis for the purpose of improving the Services. Evaluator understands that the Services are being made available as a beta for the Limited Purpose, and that the Services are not intended for use in connection with any production environment or production data. As such, Okahu highly recommends that Evaluator solely utilizes test, sample, non-production and otherwise non-sensitive data in connection with its use of the Services. Okahu does not accept any liability with respect to any loss, corruption, unavailability, deletion, disclosure, access or unauthorized use of any Evaluator Content.
8. Term And Termination. This Agreement commences upon the Effective Date and will continue in effect until terminated in accordance with the terms herein (the “Term”). Either party may terminate this Agreement upon written notice to the other party. Upon termination, Evaluator shall immediately cease all use of Services, and delete or destroy all copies of the Documentation in the possession or control of Evaluator.
9. General Provisions. This Agreement will be governed by the laws of the State of California. Evaluator submits to the exclusive jurisdiction and venue of the federal and state courts located in San Mateo County, California for any disputes arising out of or related to this Agreement. Evaluator may not assign or transfer, by operation of law, change of control or otherwise, any of its rights under this Agreement to any third party without Okahu’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. All waivers must be inwriting. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.