MAGPIE PLATFORM EVALUATION LICENSE TERMS AND CONDITIONS
Last Updated: January 27, 2022
These Evaluation License Terms and Conditions and the Order Form you submitted to us (collectively, this “Agreement”) constitute a legally binding agreement between you (“Customer”) and Silectis, Inc, a Delaware corporation with an address at 1701 Rhode Island Ave NW, Second Floor, Washington, DC 20036, U.S.A. (“Silectis”), regarding Customer’s access to and use of Silectis’ Magpie platform (the “Platform”) and related documentation, materials and services for evaluation purposes.
Please read this Agreement carefully. By clicking on the “I Accept” button associated with these Evaluation License Terms and Conditions, or by accessing or using the Platform, you agree to all of the terms and conditions of this Agreement. If you do not agree with all of the terms and conditions of this Agreement, you must click on the “I Do Not Accept” button and you must not access or use the Platform.
You represent and warrant that you are at least 18 years old and that the information shown in the Order Form is accurate. If you are accessing or using the Platform on behalf of, or for the benefit of, any corporation, company, partnership or other entity, then you agree to this Agreement on behalf of yourself and such entity, and you represent and warrant that you have the authority to bind such entity to this Agreement. References to “you” and “Customer” in this Agreement will refer to you and to such entity.
- Grant of Rights
1.1 Evaluation License. Subject to the terms and conditions of this Agreement, Silectis grants Customer a limited, royalty-free, non-exclusive, non-sublicensable, non-transferrable, worldwide license during the Evaluation Term to permit Authorized Users to access and use the Platform and Documentation solely in a non-production capacity for Customer’s internal testing and evaluation of the Platform and in order to provide Feedback (defined herein) to Silectis regarding such access and use. Authorized Users may access and use the Platform and Documentation only in accordance with the terms and conditions of this Agreement. The Platform may be accessed and used only by Authorized Users through User Accounts and only in connection with processing Customer Data on the number of Authorized Nodes set forth on Customer’s Order Form.
1.2 Restrictions. Customer shall not (and shall not allow any third party to): (a) copy any portion of the Platform; (b) decompile, disassemble, scrape or otherwise reverse engineer the Platform, or any portion thereof, or attempt to determine any source code, algorithms, methods or techniques embodied in the Platform, or any portion thereof; (c) modify, translate or create any Derivatives; (d) distribute, disclose, market, rent, lease, assign, sublicense, pledge or otherwise transfer the Platform, in whole or in part, to any third party; (e) engage in any activity that materially interferes with or disrupts the Platform; (f) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Platform or the Documentation; (g) perform, or release the results of, benchmark tests or other comparisons of the Platform with other programs or services; (h) incorporate the Platform or any portion thereof into any other program, product or service, or use the Platform to provide similar services or functionality to third parties; (i) provide any third party with access to the Platform, other than as expressly permitted herein; (j) use the Platform for any unlawful or tortious purpose; (k) store or process restricted or sensitive data which, according to the Documentation, the Platform is not approved, certified, or accredited to process; (l) use the Platform for production purposes; or (m) use the Platform other than in accordance with the Documentation and the terms and conditions of this Agreement.
1.3 Authorized Users. Customer shall ensure that each Authorized User complies with the terms and conditions of this Agreement. Customer shall be responsible for each Authorized User’s compliance with this Agreement. Customer shall monitor and manage all Authorized Users in connection with their access to and use of the Platform.
1.4 Updates. Silectis is under no obligation to provide any modifications, error corrections, bug fixes, new releases or other updates for the Platform (each, an “Update”). In the event Silectis, in its sole discretion, makes an Update available, such Update will be part of the Platform and shall be subject to the terms and conditions of this Agreement.
1.5 Third Party Services; Third Party Content. The Platform may link to, or otherwise enable Authorized Users to access and use (a) content, data, information or materials through third party databases, resources or websites (“Third Party Content”), and (b) software or services made available by third parties (“Third Party Services”). Silectis does not control Third Party Content or Third Party Services, and Silectis is not responsible for Third Party Content or Third Party Services, including any lack of accuracy, availability, completeness, reliability, security, substance or timeliness of Third Party Content or Third Party Services. Access to and use of Third Party Content and Third Party Services may be subject to certain additional limitations required by Silectis’ third party vendors, as provided to Customer from time to time.
1.6 Inferences. From time to time, the Platform may draw inferences based on an analysis of Customer Data by the Platform (“Inferences”). Silectis is not responsible for any actions that Customer or any Authorized User undertakes or fails to undertake as a result of the Inferences. Reliance by Customer on the Inferences is at Customer’s sole risk.
1.7 Customer Feedback. In consideration for the access and use of the Platform under this Agreement, Customer agrees that, from time to time during the Evaluation Term, Customer and Authorized Users shall provide suggestions, recommendations and other feedback concerning the functionality and use of the Platform (collectively, “Feedback”). Any Feedback provided to Silectis by Customer or Authorized Users shall be the sole property of Silectis, and Silectis may use such Feedback at its discretion without the consent of Customer or any Authorized Users.
2. Platform Access & Security
2.1 Access. Customer is responsible for obtaining access to the Internet in order to enable its Authorized Users to access and use the Platform. Network issues may prevent, interrupt or delay Customer’s access to the Platform. Silectis does not guarantee that access to or use of the Platform will be continuous, uninterrupted or error free. Unforeseen downtime and unscheduled remedial maintenance of the Platform or Silectis’ cloud provider’s equipment, software or Internet access may interrupt Customer’s ability to access or use the Platform.
2.2 Security. Silectis makes no representation or warranty that any security measures employed by Silectis in connection with the provision of the Platform will be effective, and Silectis shall not be responsible for any breach of security measures, any viruses or other harmful programming or codes, or the integrity of the Platform. Silectis may use contractors and consultants in performance of its obligations under this Agreement.
3. Customer’s Obligations
3.1 Account Management. Silectis shall issue accounts to Customer with unique user names, passwords or other access credentials that Authorized Users can use to access and use the Platform (each, a “User Account”). The User Accounts are solely for Customer’s internal use. The User Accounts may not be shared. Customer is responsible for the confidentiality and all use of User Account credentials and for all access and use of the Platform using User Accounts and credentials. If Customer believes that unauthorized access to or use of the Platform has occurred, Customer shall immediately notify Silectis.
3.2 Technical Requirements. Customer is responsible for obtaining and maintaining, at Customer’s expense, all third-party software, hardware, network access, telecommunications and other services and equipment necessary for Customer and Authorized Users to access and use the Platform (“Infrastructure”) and for ensuring that all Infrastructure meets the minimum requirements applicable to Infrastructure set forth in the Documentation.
3.3 Provision of Customer Data. Customer grants to Silectis a perpetual, non-exclusive right and license to reproduce, distribute, transmit, display, reformat, modify, create derivative works of, and otherwise use any (a) Customer Data in order to perform Silectis’ obligations under this Agreement and for Silectis’ other business purposes, and (b) Metadata in order to improve Silectis’ products and services. Customer shall obtain, at its sole expense, all consents, rights, licenses, permissions and clearances required under applicable laws for Silectis to use the Customer Data for the purposes contemplated by this Agreement. Silectis shall not be responsible for maintaining copies, backing up or archiving Customer Data used in connection with the Platform. Customer represents and warrants to Silectis that: (i) Customer has all rights in Customer Data necessary to grant the license to Silectis set forth in this Section 3.3; and (ii) none of the Customer Data or any Customer’s or Authorized Users’ use of Customer Data in connection with the Platform will violate (1) any agreement, contract or commitment of Customer, or (2) the intellectual property rights or other rights of any third party.
3.4 Compliance with Laws. Customer shall be solely responsible for its compliance with applicable laws governing Customer’s and Authorized Users’ access to or use of the Platform. In particular, Customer shall comply with all applicable laws governing (a) export control and transfer of information into or out of the United States, the European Union and other jurisdictions, and (b) privacy and data security (including laws governing the use, handling, processing and security of data), in each case in connection with Customer’s access to and use of the Customer Data or the Platform (including the Silectis Data).
As between Customer and Silectis, Silectis or its licensors own all right, title and interest in and to the Platform and the Documentation. All enhancements, improvements and modifications to and derivative works of the Platform and the Documentation shall be the sole and exclusive property of Silectis, and Customer hereby assigns to Silectis any rights Customer may have or acquire in such enhancements, improvements, modifications and derivative works. Customer shall not take any action to jeopardize, limit or interfere in any manner with Silectis’ ownership of and rights with respect to the Platform or any Derivative thereof. Customer shall have only those rights in or to the Platform granted to it pursuant to this Agreement.
5.1 Confidential Information. For purposes of this Agreement, “Confidential Information” means all data, information or material that Silectis or any of its representatives has disclosed or otherwise made available to Customer or any of its representatives, or which Customer has observed or otherwise obtained from Silectis, whether made available orally, in writing or in electronic format, that (a) is marked as “proprietary” or “confidential” at the time of disclosure, (b) if disclosed in a form not susceptible to marking, is described and designated as “proprietary” or “confidential” in a writing provided to Customer within thirty (30) days of such disclosure, or (c) should reasonably be deemed confidential under the circumstances. “Confidential Information” also includes the terms and conditions of this Agreement. The Platform (including the Documentation and the Silectis Data) includes unpublished works and trade secrets and, as between the parties, shall be Confidential Information of Silectis. Metadata shall be Confidential Information of Silectis.
5.2 Use and Disclosure Restrictions. Customer shall not use any Confidential Information of Silectis for any purpose other than as required to exercise its rights and perform its obligations under this Agreement (the “Purpose”). Except to the extent expressly permitted by this Agreement or by Silectis in writing, Customer shall hold all Confidential Information of Silectis in strict confidence and shall not publish, disseminate or otherwise disclose, or permit or facilitate the disclosure of, any Confidential Information to any third party. Customer may disclose the Confidential Information only to its employees, officers, agents and representatives who have a need to know such information to carry out the Purpose and are bound in writing or under applicable laws by restrictions regarding use and disclosure of such information comparable to, and in no event less restrictive than, those set forth in this Agreement. Customer shall be responsible for all acts and omissions by its employees, officers, agents and representatives as if such acts or omissions were acts or omissions of Customer. Any copy, extract, portion or derivative of any Confidential Information of Silectis shall be identified by Customer as belonging to Silectis and prominently marked “Confidential.”
5.3 Exclusions. The foregoing restrictions on disclosure and use shall not apply with respect to any Confidential Information that: (a) is publicly known, or becomes publicly known through no fault of Customer; (b) was known by Customer before receipt from Silectis, as evidenced by Customer’s contemporaneous written records; (c) becomes known to Customer without confidential or proprietary restriction from a source other than Silectis that does not owe a duty of confidentiality to Silectis with respect to such Confidential Information; or (d) is independently developed by Customer without the use of the Confidential Information of Silectis. In addition, Customer may use or disclose Confidential Information to the extent (i) approved by Silectis, or (ii) Customer is legally compelled to disclose such Confidential Information, provided, however, that prior to any such compelled disclosure, Customer shall cooperate fully with Silectis in protecting against any such disclosure or obtaining a protective order narrowing the scope of such disclosure or use of the Confidential Information.
5.4 Equitable Relief. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law to compensate Silectis for the breach of any provision of this Section 5; that any such breach shall allow Customer or third parties to compete unfairly with Silectis resulting in irreparable harm to Silectis that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, Silectis shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies it may have at law.
6. No Warranty
THE PLATFORM, DOCUMENTATION AND SILECTIS DATA ARE PROVIDED “AS IS,” AND SILECTIS DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PLATFORM, DOCUMENTATION, AND SILECTIS DATA, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.
7. Term and Termination
7.1 Term. This Agreement shall commence on the date Customer has accepted the terms and conditions of this Agreement (the “Effective Date”) and, unless sooner terminated, shall continue in full force and effect for the Evaluation Term.
7.2 Termination for Convenience. Either party may terminate this Agreement at any time upon five (5) days’ prior written notice to the other party.
7.3 Termination for Cause. Silectis may terminate this Agreement immediately upon written notice to Customer in the event of any breach of this Agreement by Customer.
7.4 Effect of Termination. Upon the expiration or termination of this Agreement, all rights granted to Customer hereunder shall terminate. Within five (5) days after any termination or expiration of this Agreement, Customer shall return to Silectis all of Silectis’ Confidential Information, including all copies and extracts of the foregoing. The provisions of Sections 1.2, 1.3, 1.5, 1.6, 1.7, 2.2, 3.3, 3.4, 4, 5, 6, 7.4, 8, 9, and 10 will survive the expiration or any termination of this Agreement. Silectis shall delete all Customer Data in its possession or control thirty (30) days after the expiration or termination of this Agreement. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
8. Limitation of Liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) IN NO EVENT SHALL SILECTIS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR OTHER ECONOMIC LOSS ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SILECTIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED, AND (B) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SILECTIS SHALL HAVE NO LIABILITY WHATSOEVER ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE). IN NO EVENT SHALL SILECTIS BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OR FINANCIAL LOSS ARISING OUT OF OR RESULTING FROM (I) ANY CUSTOMER DATA, (II) THE USE OF OR RELIANCE ON THE SILECTIS DATA BY CUSTOMER OR ANY AUTHORIZED USER, OR (III) ANY DAMAGE TO, OR LOSS OF, DATA, INFORMATION OR WORK PRODUCT OF CUSTOMER, AUTHORIZED USER OR THIRD PARTIES IN CONNECTION WITH THE USE OF THE PLATFORM OR THE DOCUMENTATION.
9. General Provisions
9.1 Force Majeure. Neither party shall be liable for any failure to perform any of its obligations under this Agreement due to unforeseen circumstances or causes beyond the party’s reasonable control, including acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, flood, acts of terror, computer attacks or malicious acts (such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility) and accidents.
9.2 Notices. All notices, consents, demands and requests required or permitted to be given under this Agreement shall be given in writing and addressed to the customer name and corresponding address entered into the Customer’s Order Form and to Silectis at the following address: Silectis, Inc., 641 S Street N.W., Third Floor, Washington, DC 20001, U.S.A., Attn: CEO. Any notice or demand required or allowed under this Agreement shall be in writing and shall be delivered by: (a) registered or certified mail, return receipt requested; (b) delivery by a reputable delivery service with signature required; (c) electronic mail if the notice address includes an electronic mail address with hard copy to follow by method (a) or (b) of this Section. Notice given by counsel to a party shall be considered notice given by a party. Any notice or demand shall be deemed to have been given upon actual delivery (or refusal of delivery). Any party may change its address for notices under this Agreement by giving formal written notice to the other party in accordance with this Section 9.2.
9.3 Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by Customer without the prior written consent of Silectis. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective successors and permitted assigns and is binding on the parties and their successors and permitted assigns. Any attempted assignment other than in accordance with this Section 9.3 shall be null and void.
9.4 Governing Law, Jurisdiction and Venue. This Agreement shall be construed, interpreted and enforced solely in accordance with the laws of the State of Delaware, U.S.A., without regard to conflict of laws principles. The parties agree to submit to exclusive subject matter jurisdiction, personal jurisdiction and venue of the courts of the District of Columbia, U.S.A., for any disputes between the parties under or arising out of this Agreement. Any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed.
9.5 Attorneys’ Fees. If any legal action, including, without limitation, an action for injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs and reasonably attorneys’ fees paid or incurred.
9.6 Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
9.7 Severability. If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
9.8 Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
9.9 No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a party to this Agreement.
9.10 Restricted Rights. All software and any technical data contained in the Platform (including the Documentation and the Silectis Data) are “commercial items,” as defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212. The use, duplication, reproduction, release, modification, disclosure or transfer of the Platform (including the Documentation and the Silectis Data), and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. This is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.
9.11 Entire Agreement. This Agreement, including the Customer’s Order Form, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. Silectis may change this Agreement from time to time by notifying Customer of such changes by any reasonable means, including by posting a revised Agreement through the Platform. Any such changes will not apply to any dispute between Customer and Silectis arising prior to the date on which Silectis posted the revised Agreement incorporating such changes, or otherwise notifying Customer of such changes. Customers use of the Platform following any changes to this Agreement will constitute Customer’s acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed.
9.12 Execution. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon and relating to this Agreement to the same extent and subject to the same conditions as other records originally generated and maintained in printed form.
10.1 “Authorized Node” means a virtual server instance that operates in parallel with other Authorized Nodes to execute data transformations, model training and other processing jobs within the Platform.
10.2 “Authorized User” means an employee, contractor, consultant or agent of Customer who is designated by Customer to access and use the Platform in accordance with this Agreement.
10.3 “Customer Data” means the information or data (procured from or created by sources other than Silectis) provided by Customer or its representatives to Silectis for use in connection with the Platform, as well as any changes, corrections and updates thereto.
10.4 “Derivative” means any addition, enhancement, improvement, modification, update or upgrade to, or derivative work of, the Documentation, the Platform or any part thereof.
10.5 “Documentation” means the user documentation associated with the Platform, as made available by Silectis to Customer.
10.6 “Evaluation Term” means the term indicated on the Customer’s Order Form.
10.7 “Metadata” means metadata elements of Customer Data, including structural metadata (i.e., the definition of the tables and columns present in the repository processed by the Platform), profile metadata (i.e., profile the data that is stored on the Platform), job metadata (i.e., information that describes the process flow, scheduling, and notifications for jobs created by Customer to automate data ingestion), and data sources (i.e., user credentials for each of the data sources that the Platform accesses as part of its processing).
10.8 “Silectis Data” means any data, databases, data sets and data layers provided as a part of the Platform which Silectis makes available to Customer pursuant to this Agreement (but excluding Customer Data).
[End of Platform Terms and Conditions]