Pilot Terms and Conditions
These Pilot Terms and Conditions govern any Order Form that incorporates them and are entered into between Rogo Technologies, Inc. (“Rogo”) and the customer identified in the applicable Order Form as of the Effective Date therein. The Order Form, together with these Pilot Terms & Conditions constitutes the “Agreement.”
1. Purpose
Customer wishes to evaluate the Platform, and Rogo desires to make a version of the Platform available to Customer on a trial basis, subject to the following terms and conditions.
2. Pilot license
Subject to the terms and conditions of this Agreement, Rogo hereby grants Customer, during the Pilot Period (as defined below), the non-exclusive, non-transferable, non-sublicensable right and license to access and use those portions of the Platform that Rogo makes available to Customer solely for the purpose of evaluating whether or not Customer wishes to enter into a commercial agreement with Rogo (“Limited Purpose”). Customer agrees to use and evaluate the Platform for the period set forth in the accompanying Order Form (the “Pilot Period”).
3. Intellectual property
As between the parties, the Platform, all other materials and documentation provided by Rogo or its third-party partners hereunder, and all intellectual property rights in the foregoing (collectively, “Rogo IP”), are the exclusive property of Rogo. Customer agrees that it will not, and will not permit any third party to: (a) permit any party other than Customer to access the Rogo IP; (b) modify, adapt, alter or translate the Rogo IP; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Rogo IP 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 Rogo IP; (e) use or copy the Rogo IP for any commercial purposes, or for any reason other than the Limited Purpose; or (f) publish or disclose to any third party any analysis, performance, or benchmark tests or other non-public information relating to the Platform or Customer’s use thereof. As between the parties, Customer owns and will continue to own all rights, title and interest, including all intellectual property rights, in and to the Customer Content (as defined below). As part of ordinary course SaaS practices, Rogo monitors Customer’s use of the Platform to ensure the functionality is working and is responsive to Customer’s needs. As part of that process, Rogo collects and compiles telemetry data, including, without limitation, usage data collected and processed by Rogo in connection with Customer’s use, support, and/or operation of the Platform. For the avoidance of doubt, telemetry data does not include Customer Content (as defined below).
4. Feedback
If Customer offers any suggestions, feedback, or comments for changes or improvements to the Platform or other offerings of Rogo (collectively, “Feedback”), Rogo will have the right to use the Feedback and related information in any manner that Rogo deems appropriate for its business, products, and services, both during and after the Pilot Period, without any obligation or compensation to Customer.
5. Confidentiality
5.1 Categories of Personal Data We Collect
“Confidential Information” means all non-public information about the disclosing party’s business or activities that is marked or designated by such party as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the nature of the information or the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation, (i) requests and other information input by Customer in connection with its use of the Platform and information generated by the Platform and delivered to the Customer in direct reply to such inputs (“Customer Content,” which, except for any underlying Rogo IP, is Customer’s Confidential Information hereunder); (ii) information concerning the other party’s business, plans, customers, data, technology, and products; and (iii) in the case of Rogo as the disclosing party, the Platform and the terms and conditions of this Agreement. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants, and other advisors as reasonably necessary), any of the other party’s Confidential Information and shall take precautions to protect the confidentiality of such information that are no less protective than the precautions it takes to protect its own confidential information of like nature and importance, but no less than reasonable care. Information will not be deemed Confidential Information if such information (w) was in the public domain at the time it was disclosed to the receiving party or entered the public domain subsequent to the time it was disclosed to the receiving party, through no fault of the receiving party; (x) was in the receiving party’s possession free of any obligation of confidence at the time it was disclosed to the receiving party; (y) was rightfully communicated to the receiving party free of any obligation of confidence subsequent to the time it was disclosed to the receiving party; or (z) was developed by employees or agents of the receiving party independently of any information communicated to the receiving party by the disclosing party.
5.2 Categories of Personal Data We Collect
Due to the nature of Rogo’s products and services, which includes artificial intelligence functionality and draws upon data provided by Rogo and its third-party providers, output produced by the Platform may not be unique and other customers may receive similar outputs (notwithstanding that any such similar outputs are not based on Customer Content).
6. Termination
Either party may terminate this Agreement upon written notice to the other party; otherwise, this Agreement will expire at the end of the Pilot Period. Upon termination, Customer shall cease all use of the Platform and delete, return, or destroy any data or other aspect of the Platform in the possession or control of Customer. Sections 3 to 9 shall survive the expiration or termination of this Agreement. Upon termination or expiration of the Pilot Period, Customer acknowledges that, to continue accessing the Platform, Customer must enter into a commercial agreement with Rogo upon terms, conditions, and pricing to be agreed upon, but neither party is obligated to enter into such commercial agreement.
7. Disclaimers of Warranties
7.1
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLATFORM, AND ALL OTHER DOCUMENTATION AND MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. ROGO MAKES NO WARRANTIES WITH RESPECT TO THE PLATFORM OR DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PLATFORM IS WITH CUSTOMER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ROGO OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
7.2
ROGO IS A SOFTWARE PROVIDER AND IS NOT REGISTERED OR REGULATED AS AN INVESTMENT ADVISER, BROKER-DEALER OR OTHER FINANCIAL INSTITUTION IN ANY JURISDICTION. NEITHER THE PLATFORM NOR ANY OUTPUTS SHALL CONSTITUTE OR BE USED OR RELIED UPON IN ANY WAY AS PROVIDING ANY TAX, LEGAL, ACCOUNTING OR FINANCIAL ADVICE TO CUSTOMER OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, CUSTOMERS, OR CLIENTS. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY AND APPROPRIATENESS OF ALL OUTPUTS.
8. Limitation of liability
IN NO EVENT WILL ROGO OR ITS LICENSORS (IF ANY) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER’S USE OF THE PLATFORM, EVEN IF ROGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF ROGO RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED THOUSAND DOLLARS (U.S. $100,000). 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 Rogo is waiving its typical fees for the Platform, and the terms of this Agreement have been entered into in reliance upon these disclaimers and limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. General provisions
This Agreement will be governed by the laws of the State of New York. Both parties submit to the exclusive jurisdiction and venue of the federal and state courts located in New York, New York for any disputes arising out of or related to this Agreement. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. 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 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.