Pilot Evaluation Agreement
Last Updated: February 14, 2023
1. Grant of Rights; Restrictions; Feedback
a. Grant of Rights: Subject to the terms and conditions of this Agreement, and solely during the “Evaluation Period” (which is defined as 14 calendar days from the Effective Date), DeepSource hereby grants to Evaluator a nonexclusive, nontransferable license, without the right of sublicense, royalty-free, limited, personal, non-exclusive, non-transferable and non-sublicensable license to: (i) install on a server and internally run and use the Software; and (ii) use the documentation or other materials supplied by the Company to enable such internal use, in each case solely for evaluation purposes and pursuant to the restrictions set forth in this Agreement. Except for such use, Evaluator does not have the right to copy or redistribute the documentation. Evaluator will have access to Software documentation determined solely by the Company. This Agreement does not, however, entitle Evaluator to any additional documentation or media. The Company retains all rights in the documentation not expressly granted to Evaluator.
b. Restrictions: Evaluator shall not (and shall not permit any authorized user to: (i) use the Software or documentation, as applicable, for any purposes beyond the scope of license with respect thereto granted in this Agreement, including, but not limited to purposes such as for development or production purposes, or in any commercial manner; (ii) in any way profit from the use of the Software or documentation; (iii) electronically transmit the Software from one computer to another or over a network; (iv) distribute, sell, lend, rent, lease, transfer, or grant any rights in or to all or any portion of the Software or documentation; (v) copy the Software or documentation, in whole or in part; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software or documentation; (vii) except as expressly provided for in this Agreement, use the Software in connection with any deployed computer system; (viii) permit third parties to use the Software or documentation, or develop or deploy any system or software including the Software for use by any third parties; (ix) reverse assemble, reverse compile, decompile, translate or otherwise attempt to discover the source code of any component of the Software; (x) reproduce, prepare derivative works of, display, perform, rent, lease, sell, license, sublicense, assign, distribute or otherwise transfer the Software or documentation or any components thereof; (xi) access or use the Software or documentation in order to build a competitive product or service; or (xii) disclose or publish performance benchmark results or test results with respect to the Software. Evaluator shall (and shall cause its authorized users to) comply at all times with the DeepSource Acceptable Use Policy, and incorporated by reference herein.
c. Responsibilities: Evaluator will be responsible for providing, at Evaluator’s sole cost and expense, any IT and other systems required for Evaluator to evaluate the Software. DeepSource has no responsibility for (a) assisting Evaluator in installing or configuring the Software, (b) providing Evaluator instruction on use of the Software (except for any such instruction on use set forth in the documentation with respect to the Software, as applicable), or (c) providing Evaluator with maintenance, support, hosting, training or any other services relating to the Software.
d. Feedback: Evaluator will use reasonable efforts to report to the Company any “bugs” or reproducible errors in the Software as they are encountered. Evaluator agrees that any information or feedback Evaluator may provide to Company related to the Software or this Agreement is non-confidential and Evaluator grants Company a non-exclusive, worldwide, fully paid up, perpetual and irrevocable license to use this information/feedback in Company’s business activities without restriction and without payment or accounting to Evaluator or any third party.
2. Intellectual Property Ownership
The Software contains proprietary and confidential information of the Company and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors, respectively, retains all right, title and interest in and to all patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets in and to that party’s respective products and services. The Company retains all right, title and interest in and to any work product created by the Company in the course of providing the Software and any service or support under this Agreement.
Each party agrees to treat as strictly confidential all information, regardless of its nature and support, received or accessed by each party in connection with this Agreement (“Confidential Information”). Confidential Information includes financial data, product descriptions, any descriptions, product development concepts or ideas, database descriptions and business structures, flows or processes, and business information (including without limitation, computer programs, programs, software, databases, names and areas of expertise of employees, suppliers, and consultants, licensees’ lists, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and all other plans, forecasts, strategies and information of a technical, functional, financial, economic, legal, operational nature) that are confidential, non-public, competitively sensitive, private, and/or proprietary, and which are disclosed by one party under this Agreement to the other party. These confidentiality provisions apply to all information, whether identified as confidential or would be understood to be of a confidential or proprietary nature by a reasonable person, including without limitation, the Software and any documentation. The confidential obligations of this Agreement shall not apply to: (i) information that is or becomes part of the public domain prior to or subsequent to its disclosure, without breaching any obligation under this Agreement, (ii) information that is lawfully acquired from a third-party, without any restriction or breach of the Agreement, (iii) information that is published, without such publication constituting a breach of the Agreement, (iv) information already known by either party, where such knowledge can be demonstrated through appropriate existing documentation, or (v) information resulting from independent developments undertaken in good faith by the receiving party without reference to or use of any Confidential Information, (vi) information that is required to be disclosed in accordance with any judicial or governmental order.
4. No Indemnities; No Warranties
THIS AGREEMENT DOES NOT ENTITLE EVALUATOR TO ANY INDEMNIFICATION OF ANY KIND. THE SOFTWARE AND DOCUMENTATION ARE LICENSED “AS IS.” DEEPSOURCE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE DEEPSOURCE DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR SUCCEED IN RESOLVING ANY PROBLEM. EVALUATOR AGREES THAT USE OF THE SOFTWARE IS AT EVALUATOR’S OWN RISK. EVALUATOR HAS NO WARRANTY OR GUARANTEE UNDER THIS AGREEMENT THAT THE OPERABILITY OF ANY OF EVALUATOR’S APPLICATIONS RUNNING WITH THE SOFTWARE WILL BE MAINTAINED WITH ANY SUBSEQUENT OR GENERALLY AVAILABLE VERSIONS OF THE SOFTWARE OR THAT ANY VERSION OF THE SOFTWARE WILL EVER BE MADE AVAILABLE OR MARKETED. DEEPSOURCE RESERVES THE RIGHT TO MODIFY, SUSPEND OR STOP THE SOFTWARE (OR ANY PART THEREOF), EITHER TEMPORARILY OR PERMANENTLY, AT ANY TIME OR FROM TIME TO TIME, WITH OR WITHOUT PRIOR NOTICE TO EVALUATOR.
5. Limitation of Liability
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE DEEPSOURCE BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, LOST REVENUE OR PROFITS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, OR PUNITIVE DAMAGES ARISING FROM THE USE OF THE SOFTWARE, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL THE DEEPSOURCE’S LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SOFTWARE UNDER THIS AGREEMENT OR FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF EVALUATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
a. Termination: This Agreement will terminate automatically at the end of the Evaluation Period. In addition, DeepSource may terminate the Agreement at any time by giving Evaluator notice of termination.
b. Effect of Termination: Upon termination or expiration of this Agreement, all licenses granted hereunder shall cease. Prior to or immediately upon the expiration of the Evaluation Period or any earlier termination of this Agreement, Evaluator shall remove the Software by deleting the Software and all copies thereof from Evaluator’s premises, and any copies of it made by Evaluator, unless the Company gives Evaluator written authorization before close of the Evaluation Period or any earlier termination to retain possession of the Software and copies for a longer time period.
c. Survival: The following sections shall survive any termination of this Agreement: 1(b), 1(d), 2, 3, 4, 5, 6(b), 6(c), 7, 8 and 9 all associated definitions and all accrued rights to payment, if any.
7. Relationship of the Parties
Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. The parties agree that each is an independent contractor and neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Nothing in this Agreement shall be construed as an obligation by either party to enter into a contract, subcontract, or other business relationship with the other party. Each party shall bear all costs and expenses incurred by it under or in connection with this Agreement.
8. Export Regulations
The Software may be subject to export laws and regulations of the United States and other jurisdictions, including without limitation the Department of Commerce Export Administration Regulations. Evaluator represents and warrants that it is not named on any U.S. government denied-party list. Evaluator shall not, and shall not permit authorized users to, access or use the Software in violation of any U.S. export law or regulation. Without limiting the generality of the foregoing, Evaluator shall not transfer, export or re-export, directly or indirectly, the Software to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).
All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) on the date of receipt, when delivered by email. This Agreement is not assignable or transferable by Evaluator without the Company’s prior written consent. No failure or delay in exercising any right hereunder will operate as a waiver, thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission would frustrate the intent of the parties, in which case this Agreement will immediately terminate. This Agreement may be modified, replaced or rescinded only in writing and signed by a duly authorized representative of each party. This Agreement shall be construed under and governed by the laws of the State of Delaware, without regard to conflict of law provisions.