Non-Production License Agreement

PLEASE READ THIS NON-PRODUCTION LICENSE AGREEMENT (THESE “Terms”) CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY DYNAMOFL, INC. (“Dynamo AI”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS AND/OR STATEMENTS OF WORK WITH Dynamo AI WHICH REFERENCE THESE Terms (EACH, AN “Order Form”), YOU AGREE TO BE BOUND BY THESE Terms (TOGETHER WITH ALL Order Forms, THE “Agreement”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE Order Form WHICH YOU SUBMIT (OR, IF APPLICABLE, WHICH THE Company SUBMITS) TO Dynamo AI AND WHICH IS ACCEPTED BY Dynamo AI SHALL BE DEEMED TO BE MUTUALLY EXECUTED BY EACH OF Dynamo AI AND YOU (OR, IF APPLICABLE, THE Company). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN: (a) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO (AND HAVE ALL APPROVALS, CONSENTS, AND AUTHORITY NECESSARY TO) BIND SUCH ENTITY TO THE TERMS OF THIS Agreement (AND SUCH ENTITY SHALL BE THE “Company” FOR PURPOSES OF THIS Agreement); AND (b) THE Company AGREES TO BE BOUND BY THIS Agreement (INCLUDING WITHOUT LIMITATION THESE Terms AND ALL Order Forms, WHETHER SUCH Order Forms WERE SUBMITTED BY YOU OR THE Company) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE NOT ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU SHALL BE THE “Company” FOR PURPOSES OF THIS Agreement. IF THE TERMS OF THIS Agreement ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. 

1. Non-Production Period. 
   
   1. Dynamo AI will make available for a limited time those certain products of Dynamo AI identified on the Order Form (the “Products”) to Company for evaluation as part of a free or paid trial, implementation, evaluation, or pilot (collectively, the “Non-Production Period”) as described in and subject to the applicable Order Form.
   2. Company acknowledges and agrees that the Non-Production Period and Company’s evaluation of the Products do not require, and Company agrees not to transmit to Dynamo AI or provide Dynamo AI with access to, any personally identifiable information. If Company inadvertently provides Dynamo AI with any personally identifiable information, Company shall promptly notify Dynamo AI and Dynamo AI shall delete such information. Company understands and agrees that: (i) all information Dynamo AI obtains from Company will be subject to and governed by the then-current Privacy Policy, Terms of Service, and Acceptable Use Policy of Dynamo AI, as such policies may be amended from time to time (the “Policies”); (ii) each of the Policies is hereby incorporated into and made part of this Agreement by reference; and (iii) Company will be bound by, subject to, and comply with the Policies.
   3. Dynamo AI will have no responsibility or liability for any delays or failures to deliver the Products, in whole or in part, due to: (i) Company’s non-performance of any of its obligations under the Order Form; or (ii) Dynamo AI not having sufficient access to the appropriate networks, servers, software, systems, information, data, or databases necessary for Dynamo AI to deliver the applicable Products.
2. Evaluation License.
   
   1. Subject to the terms of this Agreement, Dynamo AI grants to Company a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited, personal license to use the Products in accordance with the Policies and the documentation supplied by Dynamo AI solely for Company’s internal evaluation purposes during the period set forth for the Non-Production Period in the Order Form (the “Non-Production Period Term”). The Products will only be installed, used, and accessed on the deployment locations identified in the Order Form. 
   2. Company shall not use the Products or any data, information, reports, analysis, images, files, or any other results or outputs generated by the Products during the course of the Non-Production Period, including, without limitation, any models that are created, fine-tuned, or otherwise modified by Dynamo AI (collectively, the “Outputs”) for any purpose other than to evaluate the Products during the Non-Production Period Term. Without limiting the foregoing, Company shall not use the Outputs for production purposes, including, without limitation, for use in any commercial products.
   3. If Company provides any data, information, models, or other materials to Dynamo AI in connection with the Non-Production Period (“Company Materials”), Company grants Dynamo AI a license to use such Company Materials in connection with the Non-Production Period. Company represents and warrants that: (i) it has all rights necessary to provide the Company Materials to Dynamo AI and for Dynamo AI to use such Company Materials as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy); and (ii) it has made all necessary disclosures and obtained all necessary consents required in connection with providing Company Materials to Dynamo AI under this Agreement and for the use of the Company Materials by Dynamo AI as contemplated by this Agreement (including, without limitation, all disclosures and consents required by applicable privacy laws and license agreements). 
   4. Company 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 Products (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Products; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products; (iv) use the Products for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Products or any portion thereof; (vi) use the Products to build an application or product that is competitive with any Dynamo AI product or service; (vii) interfere or attempt to interfere with the proper working of the Products; or (viii) bypass any measures Dynamo AI may use to prevent or restrict access to the Products. 
3. Third Party IP and Models.
   
   1. To the extent any third party software, information, data, or other intellectual property is used or incorporated in the Products or is otherwise provided or accessible as part of the Non-Production Period (collectively “Third Party IP”), all such Third Party IP is provided or made available to Company, as applicable, solely pursuant to the terms of use, policies, licenses, agreements, and arrangements applicable to such Third Party IP as designated by the owner thereof (collectively “Third Party Terms”). Company agrees to be bound by and subject to and is solely responsible for complying with all such Third Party Terms with respect to its access or use of Third Party IP. To the extent that any Third Party IP (including, without limitation, models or data sets) is used in connection with the Non-Production Period or use of the Products (including without limitation as may be suggested, requested, or required by Company), Company represents and warrants that the Third Party Terms permit the use of such Third Party IP by both Dynamo AI and Company in connection with the Products and as otherwise required in accordance with this Agreement.
   2. Without limiting the foregoing, Company acknowledges and agrees that the 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”). Company acknowledges that Third Party Models are not developed by Dynamo AI. While Dynamo AI uses commercially reasonable efforts to review and conduct due diligence with respect to Third Party Models, Dynamo AI 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. Company agrees that Dynamo AI will not be liable for any loss or damages arising from or related to Third Party Models. Notwithstanding anything to the contrary, the representations, warranties, and indemnities provided by Dynamo AI in this Agreement do not apply with respect to Third Party IP or Third Party Models.
4. Termination.
   
   1. This Agreement commences on the effective date set forth in the Order Form (the “Effective Date”) and shall continue until the expiration of the Non-Production Period Term, unless terminated earlier pursuant to Section 4.2.
   2. This Agreement may be terminated by either party for any reason or no reason upon 15 days’ written notice to the other party, or upon 10 days’ written notice of any breach by the other party of the provisions of this Agreement if the breaching party has not cured such breach within such 10 day period. 
   3. Upon termination, the license granted hereunder will terminate, Company shall immediately destroy any copies of the Products, and each party will return all Proprietary Information of the other party to such other party, but the terms of this Agreement will otherwise remain in effect. Sections 2.2, 2.3, 2.4, 3, 4.3, and 5 through 12 (inclusive) will survive the termination or expiration of this Agreement and remain binding on the parties.
5. Fees. Company shall pay Dynamo AI the fees set forth in the Order Form (the “Non-Production Period Fees”) within seven (7) days of Company receiving an invoice for the same (including, without limitation, any fees for the Non-Production Period and, if applicable, any extension fees for any extension period). Past due invoices are subject to interest on (and Company shall pay Dynamo AI interest on) any outstanding past-due balance of the lesser of 1.5% per month or the maximum amount permitted by law. Company shall be responsible for all taxes associated with the Non-Production Period (excluding taxes based on Dynamo AI’s net income). All fees (including without limitation all Non-Production Period Fees): (i) shall be paid in US dollars; (ii) are non-refundable; and (iii) are not subject to set-off.
6. Ownership. Dynamo AI shall at all times retain all title to and ownership of the Products, the Outputs and all copies thereof, and upon termination of the Agreement Company shall promptly return all of the foregoing to Dynamo AI (and securely delete any remaining copies thereof that remain in Company’s possession or control). Company 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. 
7. Confidentiality. 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 of the Disclosing Party without the Disclosing Party’s prior consent, (ii) to give access to such Proprietary Information of the Disclosing Party solely to those employees of the Receiving Party with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of the Disclosing Party’s Proprietary Information that the Receiving Party takes with its own proprietary information, but in no event less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing restrictions and obligations in this Section 7 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; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (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 Agreement will prevent the Receiving Party from disclosing the Proprietary Information of the Disclosing Party pursuant to any judicial or governmental order, provided that the Receiving Party, to the extent permitted to do so under applicable law, gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
8. Indemnification; Warranty; Disclaimer. 
   
   1. Company will defend, indemnify, and hold harmless Dynamo AI, its affiliates, and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) that arise from or relate to (i) any claim that the Company Materials or Company’s use of the Products (in whole or in part) infringe, violate, or misappropriate any third party intellectual property or proprietary right; (ii) a breach by Company of this Agreement (including without limitation a breach of Company’s representations or warranties under this Agreement); (iii) any violation of law, or use of any Products in violation of any law, by or through Company; or (iv) the negligence, intentional misconduct, or fraud of Company.
   2. Company EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL AI MODELS CONTAIN INHERENT RISKS, ALL OF WHICH ARE EXPRESSLY ASSUMED BY Company HEREUNDER. 
   3. The parties acknowledge that the Products are experimental in nature and that the Products and Proprietary Information are provided exclusively on an “AS IS” and “AS AVAILABLE” basis, without any representation or warranty of any kind, and may not be functional on any machine or in any environment. EXCEPT AS EXPRESSLY SET FORTH HEREIN, Dynamo AI DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (a) ANY EXPRESS OR IMPLIED WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE; AND (b) ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING.
   4. Company acknowledges that the Products contain a disabling functionality, which Dynamo AI reserves the right to enable upon the expiration or termination of the Non-Production Period Term. Company agrees not to disable, interrupt, block, or otherwise interfere with such functionality.
9. Limitation of Liability. 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 Dynamo AI 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. Dynamo AI’s aggregate liability for any and all claims, causes of action, liabilities, or other obligations pursuant to this Agreement will in no event exceed the amount of fees actually paid by Company to Dynamo AI pursuant to this Agreement in the six (6) month period immediately preceding the event giving rise to such claim, cause of action, liability, or other obligation.
10. Feedback. Company may (but is not obligated to) provide suggestions, comments or other feedback to Dynamo AI with respect to the Products (“Feedback”). Notwithstanding anything else, Company shall, and hereby does, grant to Dynamo AI a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. 
11. Non-Solicit. During the Non-Production Period Term and for 1 year after any termination of this Agreement, Company will not, without the prior written consent of Dynamo AI, either directly or indirectly, on Company’s own behalf or in the service or on behalf of others, encourage, solicit or attempt to solicit any person employed by Dynamo AI or any contractor of Dynamo AI to leave Dynamo AI for any reason. 
12. Miscellaneous. This Agreement shall become effective only upon its execution by both Dynamo AI and Company 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 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 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 Company, and any such attempted assignment or transfer shall be void and without effect. For any breach or threatened breach of this Agreement, Dynamo AI shall be entitled to equitable relief (including without limitation injunctions, restraining orders, specific performance, or any other appropriate equitable relief) in addition to whatever any other remedies it may have (whether in law, in equity, by contract, or otherwise). This 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 canceled. Any modifications of this Agreement must be in writing and signed by both parties. Dynamo AI is permitted to disclose to third parties that Company is one of its customers at its sole discretion (including, without limitation, by using Company’s name, mark, and logo in its publicity and marketing materials). All notices under this Agreement shall be in writing and shall be deemed to have been duly given: when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Dynamo AI is an independent contractor of Company and no agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. Without limiting the generality of the foregoing, neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. The headings used for sections of this Agreement are for convenience only and in no way define, limit, or construe the scope or extent of the sections. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction will be applied against either party. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement may be (by way of execution of the applicable Order Form), executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Signatures to this Agreement (including without limitation to an Order Form) may be electronic or transmitted by email, pdf, or any other electronic means, and shall have the same effect as the physical delivery of the paper document bearing the original signatures.