IMPORTANT: PLEASE READ BEFORE ACCESSING OR OTHERWISE USING THE H2O.AI (“H2O”) DRIVERLESS AI SOLUTION (“SOLUTION”). BY ACCESS OR USING THE SOLUTION, YOU AND THE ENTITY OR COMPANY THAT YOU REPRESENT (COLLECTIVELY, “USER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT (“AGREEMENT”) WITH H2O. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN H2O AND USER WITH RESPECT TO PROCUREMENT OF THE SOLUTION, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
1. ACCESS GRANT. Subject to the terms of this Agreement, H2O hereby grants User a non-sublicensable, non-transferable, nonexclusive right to access and use (on a remote software-as-a-service basis) the Solution only for User’s internal use for the purpose of evaluating the Solution to determine whether or not to enter a commercial relationship with H2O. User’s use will only be in accordance with any H2O-provided documentation (including as provided electronically). The Solution may be accessed by the number of users agreed to by the H2O and User during the registration process. If applicable, such users will be specific individuals named by User during the purchase process, or subsequently, in writing (email is sufficient). Once such named individuals are selected by User – they may be changed only on written notice to H2O (email is sufficient). The named individuals will not allow any other User personnel to use their Solution log-in credentials (passwords, etc.). No source code will be provided. With respect to any User proposed modifications, derivatives, enhancements or improvements to the Solution (“Feedback”), User hereby grants H2O.ai a perpetual, irrevocable, royalty free, fully paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise fully exploit such Feedback for any purposes. All Feedback is provided by User “AS IS”.
2. RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, User shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, resell, or distribute the Solution; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Solution (except the foregoing will not apply to the extent prohibited by applicable local law); (iii) rent, lease, or use the Solution for timesharing or service bureau purposes, or otherwise use the Solution on behalf of any third party; (iv) use the Solution to develop any other product or services whether delivered internally or as an external service offering, or (v) use the Solution for performing comparisons or other “benchmarking” activities, either alone or in connection with any other Solution (and User will not publish or disclose any such performance information or comparisons). User shall maintain and not remove or obscure any proprietary notices on or in the Solution. As between the parties, title, ownership rights, and intellectual property rights in and to the Solution, and any copies or portions thereof, shall remain in H2O and its suppliers or H2Os. The Solution is protected by the copyright laws and treaties. This Agreement does not give User any rights not expressly granted herein. On ten (10) days notice, H2O shall have the right to (itself or through a designated third party) audit User’s facilities, networks, systems, books and records to confirm User’s use of the Solution is in accordance with the terms and conditions of this Agreement. User will fully cooperate and assist with such audits.
3. SUPPORT. User is not entitled to any support hereunder.
4. FEES. No fees are payable for the evaluation use hereunder.
5. INDEMNITY. User shall indemnify and hold harmless H2O from any claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from User’s use of the Solution as well as from User’s negligence, willful misconduct or failure to comply with any term of this Agreement.
6. WARRANTY DISCLAIMER. THE SOLUTION IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND H2O HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT
7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL H2O OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO USER OR ANY OTHER PERSON IN CONNECTION WITH THE SOLUTION OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, (II) ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF US$100.00, (III) THE COST OF PROCUREMENT OF SUBSTITUTE SOLUTION, OR (IV) MATTERS BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF H2O SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
8. DATA. User will only load into the Solution, or otherwise process via the Solution, non-sensitive, test data. User acknowledges that H2O makes no representations, warranties, guarantees, or covenants with respect to information security. It is User’s sole responsibility to ensure that the data it provides is not of a sensitive or otherwise valuable nature.
9. TERM AND TERMINATION. This Agreement is effective as of the Effective Date and will have the term designated by H2O to User in writing during the Solution registration process. If no term is designated, this Agreement will have a term of thirty (30) days from the Effective Date. Either party may terminate this Agreement, for any or no reason, on five (5) days written notice (email is sufficient). Upon termination of this Agreement for any reason, User shall immediately cease use of the Solution (and return to H2O all H2O provided documentation and materials, if any). Sections 2 and 4 through 14 shall survive termination of this Agreement.
10. EXPORT CONTROLS. User shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and User shall not export, or allow the export or re-export of the Solution in violation of any such restrictions, laws or regulations. By installing or using the Solution, User agrees to the foregoing and represents and warrants that User is not located in, under the control of, or a national or resident of any restricted country.
11. NOTICE. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (i) if to User, the address listed by User during the Solution registration process (or as otherwise provided by User; but if none is provided, such address will the address H2O reasonable identifies) and (ii) if to H2O, 2307 Leghorn Street, Mountain View CA 94043 Attn: Legal (or at such other address as may be given by H2O at any time) – and shall be deemed to have been received by the addressee (iii) if given by hand, immediately upon receipt; (iv) if given by overnight courier service, the first business day following dispatch or (v) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, to be effective, legal notices to H2O (such as for breach) must also be provided in email to: firstname.lastname@example.org (subject heading: Attn: Legal Notice) (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence). Notwithstanding the foregoing, an electronic notice to User (such as via email) is sufficient to the extent related to breach or termination.
12. LOGO USAGE. During the term of this Agreement and for a reasonable wind-down period thereafter, H2O may use User’s name and logo on its website and in marketing materials as part of a general list of customers.
13. MISCELLANEOUS. This Agreement represents the complete agreement concerning the Solution between the parties, to the exclusion of any pre-printed or contrary terms of any User purchase order (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement between H2O and User (not including any User purchase order or similar document) covering User’s purchase of a license to use the Solution, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of H2O to act with respect to a breach of this Agreement by User or others does not constitute a waiver and shall not limit H2O’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to User and may not be assigned or transferred for any reason whatsoever without H2O’s consent and any action or conduct in violation of the foregoing shall be void and without effect. H2O expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California, without regard to the Uniform Computer Information Transactions Act. Without limiting Company’s right to seek injunctive or other equitable relief in court, either party may elect (by written notice given prior filing a complaint or, in the case of the defendant, prior to answering a complaint) to resolve a dispute by binding arbitration in the English language in San Francisco, California under the Rules and Procedures of the Judicial Arbitration and Mediation Service, Inc.; the decision of the arbitrator will be enforceable in any court. The JAMS Streamlined Rules will be used if available. Subject to the foregoing, all disputes will be subject to the sole and exclusive jurisdiction of, and venue in, the state and federal courts located in San Francisco, California. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.