This Pilot License Agreement (“Pilot Agreement”) is entered into as of the Effective Date set forth above between DynamoFL, Inc. (“DynamoFL”) and Customer (“Customer”). This Agreement includes and incorporates the fully-executed Order Form and Customer’s Terms and Conditions, which are attached hereto, and all of which are in each case hereby incorporated by reference. This Agreement contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
a) “Order Form” means the document that records the business transaction between DynamoFL and Customer; it defines the Pilot Products, Pilot Term, Pilot Fees, and Extension Fees (as applicable) specific to the transaction.
b) “Pilot Products” means the the SDK, API, web-app, authentication, database, model store, and penetration testing components, reports, deliverables, information, data, and on-premise computer software program(s) provided by DynamoFL in connection with the Customer’s fully-executed Order Form.
c) “Pilot Term” means the period of time during which DynamoFL will provide Customer with access to the Pilot Products.
d) “Pilot Fees” means the costs associated with the provision of the Pilot Products during the Pilot Term.
e) “Extension Fees” means the additional costs in connection with any mutually-agreed upon extension of the original Pilot Term.
a) DynamoFL will make available the Pilot Products to Customer for evaluation as part of an Pilot program (the “Pilot”), as further described in the Order Form.
c) DynamoFL will have no responsibility or liability for any delays or failures to deliver the Pilot Products, in whole or in part, due to: (i) Customer’s non-performance of any of its obligations under the Order Form; or (ii) DynamoFL not having sufficient access to the appropriate networks, servers, software, systems, information, data, or databases necessary for DynamoFL to deliver the applicable Pilot Products.
a) DynamoFL grants to Customer a non-exclusive, non-transferrable, and non-sublicensable license to use the Pilot Products in accordance with the documentation supplied by DynamoFL solely for Customer’s internal evaluation purposes during the Pilot Term. The Pilot Products will only be installed, used, and accessed on the network, device, or other location as identified in the Order Form.
b) Customer shall not use the results and outputs generated by the Pilot Products during the course of the Pilot, including, without limitation, any models that are created, fine-tuned, or otherwise modified by DynamoFL (collectively, the “Outputs”) for any purpose other than to evaluate the Pilot Products during the Pilot Term. Without limiting the foregoing, Customer shall not use the Outputs for production purposes, including, without limitation, for use in any commercial products.
c) If Customer provides any data or its own models to DynamoFL in connection with the Pilot (“Customer Materials”), Customer grants DynamoFL a license to use such Customer Materials in connection with the Pilot.
d) Customer 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 Pilot Products (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Pilot Products; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Pilot Products; (iv) use the Pilot Products for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Pilot Products or any portion thereof; (vi) use the Pilot Products to build an application or product that is competitive with any DynamoFL product or service; (vii) interfere or attempt to interfere with the proper working of the Pilot Products; or (viii) bypass any measures DynamoFL may use to prevent or restrict access to the Pilot Products.
b) Without limiting the foregoing, Customer acknowledges and agrees that the Pilot Products may incorporate artificial intelligence or machine learning algorithms, programs or other models, including large language models, developed or operated by a third party (each, a “Third Party Model”). Customer acknowledges that Third Party Models are not developed by DynamoFL. While DynamoFL uses commercially reasonable efforts to review and conduct due diligence with respect to Third Party Models, DynamoFL does not control or influence the training or hosting of Third Party Models, and is unable to guarantee the suitability, accuracy, quality, security, legality and reliability of Third Party Models. Customer agrees that DynamoFL will not be liable for any loss or damages arising from or related to Third Party Models. Notwithstanding anything to the contrary, the warranties and indemnities provided by DynamoFL in this Agreement do not apply with respect to Third Party Models.
a) This Pilot Agreement commences on the Effective Date and shall continue until the expiration of the Pilot Term, unless terminated earlier pursuant to Section 5(b).
b) DynamoFL may terminate this Pilot Agreement at any time: (i) immediately without notice if DynamoFL reasonably suspects that Customer has violated Customer’s obligations under this Pilot Agreement in a manner that may cause harm or material risk of harm to DynamoFL or to any other party; or (ii) if Customer fails to pay undisputed Fees after receiving notice that Customer is delinquent in payment.
c) Upon termination, the license granted hereunder will terminate, Customer shall immediately destroy any copies of the Pilot Products, and each party will return all Proprietary Information to the other party, but the terms of this Agreement will otherwise remain in effect. Sections 2.b, 2.d, 4.c, and 5-12 (inclusive) will survive the termination or expiration of this Agreement.
Customer shall pay DynamoFL the Pilot Fees and, if applicable, the Extension Fees set forth on the Order Form within seven (7) days of Customer receiving an appropriately calculated invoice for the same. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Pilot (excluding taxes based on DynamoFL’s net income). All fees paid are non-refundable and are not subject to set-off.
DynamoFL shall at all times retain all title to and ownership of the Pilot Products, the Outputs and all copies thereof. Customer shall retain all rights in the Company Materials. Except as expressly set forth herein, no rights or licenses are granted by either party to the other.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Pilot Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Pilot Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
a) CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL AI MODELS CONTAIN INHERENT RISKS, ALL OF WHICH ARE EXPRESSLY ASSUME BY CUSTOMER HEREUNDER.
b) The parties acknowledge that the Pilot Products are experimental in nature and that the Pilot Products and Proprietary Information are provided “AS IS” and may not be functional on any machine or in any environment. EXCEPT AS SET FORTH HEREIN, DYNAMOFL DISCLAIMS ALL WARRANTIES RELATING TO THE PILOT PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c) Customer acknowledges that the Pilot Products contain a disabling functionality, which DynamoFL reserves the right to enable upon the expiration or termination of the Pilot Term.
NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR (EXCEPT FOR RETURN OF AMOUNTS, IF ANY, PAID TO DYNAMOFL HEREUNDER) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS.
Customer may (but is not obligated to) provide suggestions, comments or other feedback to DynamoFL with respect to the Pilot products (“Feedback”). Notwithstanding anything else, Company shall, and hereby does, grant to DynamoFL a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
During the Pilot Term and for 1 year after any termination of this Pilot Agreement, Customer will not, without the prior written consent of DynamoFL, either directly or indirectly, on Customer’s own behalf or in the service or on behalf of others, encourage, solicit or attempt to solicit any person employed by DynamoFL or any contractor of DynamoFL to leave DynamoFL for any reason.
This Pilot Agreement shall become effective upon Customer’s use of the Pilot Products and it shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of laws provisions therein. In the event that any of the provisions of this Pilot Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Pilot Agreement shall otherwise remain in full force and effect and enforceable. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer, and any such attempted assignment or transfer shall be void and without effect. For any breach or threatened breach of this Pilot Agreement, DynamoFL shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law. This Pilot Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. DynamoFL is permitted to disclose to third parties that Customer is one of its customers at its sole discretion (including, without limitation, by using Customer’s name, mark, and logo in its publicity and marketing materials).