THESE TIGRIS CLOUD SERVICE TERMS (THE "AGREEMENT") GOVERN ACCESS TO AND USE OF THE TIGRIS CLOUD SERVICE (AS DEFINED BELOW) AND CREATES A BINDING CONTRACT BETWEEN EVALUATOR (AS DEFINED BELOW) AND TIGRIS DATA, INC. ("TIGRIS DATA"). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
This Agreement was last updated on July 28, 2022 and is effective between Tigris Data and Evaluator as of the date of Evaluator accepting this Agreement as described above (the "Effective Date").
1. EVALUATION. Subject to the terms and conditions of this Agreement, Tigris Data will make the Tigris Cloud Service available to Evaluator so that Evaluator may evaluate and test on a non-commercial basis the Tigris Cloud Service. As used herein, "Tigris Cloud Service" means the hosted database platform made available by Tigris Data that provides tools and integrations enabling customers to build and maintain their web and mobile apps. Any replacements, additions, or modifications to the Tigris Cloud Service are included within the term "Tigris Cloud Service" and are subject to the terms of this Agreement. If Evaluator is a company or other legal entity, then Evaluator will be responsible for the acts and omissions of its employees and contractors with respect to the Tigris Cloud Service, and any breach of this Agreement by any of Evaluator's employees or contractors is deemed a breach by Evaluator.
2. EVALUATION PERIOD. This Agreement will begin on the Effective Date and continue in effect until the earlier of (a) the date on which Tigris Data makes the Tigris Cloud Service available to customers in a non-evaluation context; and (b) delivery of notice (email sufficient) of termination by either party to the other (the "Evaluation Period"). Upon the expiration or termination of this Agreement: (i) Evaluator will discontinue all use of the Tigris Cloud Service; (ii) Evaluator will promptly deliver to Tigris Data any final Feedback (as defined below) requested by Tigris Data; and (iii) the rights granted in Section 3 will immediately terminate. Any continued access to and use of the Tigris Cloud Service after the expiration or termination of this Agreement will be pursuant to a new agreement between Evaluator and Tigris Data. Sections 2, 4 and 6-13 (inclusive) will survive the expiration or termination of this Agreement.
3. PLATFORM LICENSE. Subject to the terms and conditions of this Agreement, Tigris Data hereby grants to Evaluator, during the Evaluation Period, a non-exclusive, non-transferable, non-sublicensable right to access and use, or if Evaluator is a company or legal entity, to allow its employees and contractors who are performing services for Evaluator and who are expressly authorized by Evaluator ("Authorized Users") to access and use the Tigris Cloud Service to create databases and collections, and storing, access, and processing data ("Evaluator Data"), in each case solely for the purposes of Evaluator's internal evaluation of the Tigris Cloud Service. If applicable, Evaluator is responsible for (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Tigris Cloud Service; (c) maintaining the confidentiality of usernames, passwords, and account information for the Tigris Cloud Service; and (d) all activities that occur under its and its Authorized Users' usernames, passwords or accounts.
4. RESTRICTIONS. Evaluator will not, and will not permit any party accessing or using the Tigris Cloud Service on its behalf to: (a) copy, reproduce, modify, or create derivative works of the Tigris Cloud Service, in whole or in part; (b) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Tigris Cloud Service, in whole or in part; (c) remove any proprietary notices from the Tigris Cloud Service or circumvent or disable any security or other technological features of the Tigris Cloud Service; (d) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available or provide a third party with access to the Tigris Cloud Service, or (e) use the Tigris Cloud Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law. Without limiting the foregoing, Evaluator is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Evaluator will be deemed a breach of this Agreement by Evaluator.
5. EVALUATOR DATA. Evaluator hereby grants to Tigris Data during the term of this Agreement a non-exclusive, non-transferable, non-sublicensable (except as set forth in the following sentence), irrevocable (subject to Evaluator's rights to terminate this Agreement), worldwide and royalty-free license, under the applicable intellectual property rights, to use the Evaluator Data solely to provide the Tigris Cloud Service. Tigris Data may sublicense the foregoing rights to any third party that Tigris Data engages to provide any aspect of the Tigris Cloud Service. Evaluator represents and warrants to Tigris Data that (a) Evaluator has all rights in the Evaluator Data necessary to grant the rights contemplated by this Agreement, and (b) none of the Evaluator Data violates any applicable law or any third party's intellectual property or other right.
6. OWNERSHIP. As between the parties, Tigris Data owns all right, title, and interest, including all intellectual property rights, in and to the Tigris Cloud Service, including any derivatives of or improvements, modifications, and enhancements to the Tigris Cloud Service, and Evaluator owns all right, title, and interest, including intellectual property rights, in and to the Evaluator Data and Evaluator Website. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to Evaluator or to Tigris Data.
7. FEEDBACK. Evaluator has no obligation to provide Tigris Data any suggestions, comments or other feedback regarding the Tigris Cloud Service ("Feedback"). If Evaluator nonetheless provides Feedback to Tigris Data on any version or part of the Tigris Cloud Service, Evaluator hereby grants to Tigris Data and its successors and assigns the right to freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback without limitation and without any fees or credit due to Evaluator.
8. USAGE DATA. Evaluator acknowledges and agrees that Tigris Data may collect anonymous data regarding usage and performance of the Tigris Cloud Service in connection with Evaluator's use thereof ("Usage Data"). Usage Data is and will remain the exclusive property of Tigris Data. Tigris Data may use and disclose the Usage Data for its business purposes, including, without limitation, to monitor, improve, and market Tigris Data's products and services, provided that Tigris Data will not distribute or convey such data in a manner that could reasonably identify Evaluator as its source.
9. CONFIDENTIALITY. Evaluator will maintain the confidentiality of and not disclose to any third party: (a) all non-public information disclosed by Tigris Data to Evaluator under this Agreement; and (b) the Tigris Cloud Service, all Feedback, and all other information obtained through evaluation of the Tigris Cloud Service, unless, in each case of (a), (b), and (c), if disclosure is required by law, regulation, court order, or valid legal process.
10. WARRANTY DISCLAIMER. THE TIGRIS CLOUD SERVICE ARE EACH PROVIDED "AS IS" FOR LIMITED EVALUATION AND TESTING ONLY, AND TIGRIS DATA DOES NOT WARRANT THAT THE TIGRIS CLOUD SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TIGRIS DATA SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) TIGRIS DATA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100; AND (B) IN NO EVENT WILL TIGRIS DATA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES RELATED TO LOSS OF USE, DATA, BUSINESS, OR PROFITS, 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.
12. ACKNOWLEDGMENT. Evaluator acknowledges and agrees that: (a) the Tigris Cloud Service may not operate properly, or be in final form or fully functional; (b) the Tigris Cloud Service may contain errors, design flaws or other problems; (c) the information obtained using the Tigris Cloud Service may not be accurate; (d) use of the Tigris Cloud Service may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (e) Tigris Data is under no obligation to release a commercial version of the Tigris Cloud Service; and (f) Tigris Data has the right to abandon development of the Tigris Cloud Service at any time and without any obligation or liability to Evaluator.
13. 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 Santa Clara 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 Tigris Data. Any attempted assignment without such consent will be null and of no effect. Evaluator will comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and any associated materials provided under this Agreement. Evaluator may not make any public statements regarding the Tigris Cloud Service without Tigris Data's prior written approval, in each instance. This is the entire agreement between the parties relating to the subject matter hereof. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. No waiver of any right, obligation, or remedy arising under this Agreement will be effective unless in writing signed by both parties. Failure to enforce any provision of this Agreement will not constitute a waiver. Tigris Data may modify this Agreement on a go-forward basis at any time. If a modification to this Agreement materially alters Evaluator's rights or obligations, Evaluator may be required to accept the revised terms in order to continue accessing and using the Tigris Cloud Service. By continuing to access or use the Tigris Cloud Service after Pinwheel provides notice of such modification(s), or, if applicable, by otherwise electronically indicating acceptance, Evaluator accepts and agrees to the Agreement as revised by such modification(s). Material modifications are effective upon Evaluator's acceptance; immaterial modifications are effective upon publication. If Evaluator does not agree with any modifications to this Agreement, Evaluator's sole and exclusive remedy will be to terminate this Agreement. Except as expressly permitted in this Section 13, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose. The terms of an Evaluator purchase order or any other document 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. All notices given by Tigris Data under this Agreement will be communicated to Evaluator by email to the e-mail address provided by Evaluator when signing up for the Tigris Cloud Service. All notices given by Evaluator under this Agreement will be communicated to Tigris Data by email to email@example.com.
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