Testing agreement

Thank you for testing Together!

This TESTING AGREEMENT (this “Agreement”) is by and between Together Computer, Inc. a Delaware corporation (“Together Computer”) and the person or entity you identified as entering in to this Agreement (“Tester”), and is effective as of the date you click “Accept”.  Within the protection of a confidential relationship and on the following terms, Together Computer is willing to provide the Service (defined below) to Tester solely for evaluation and testing as provided below.  Tester desires to have access to the Service for those purposes, is aware of the experimental and untested nature of the Services, and is willing to enter a confidential relationship and to use and test the Service and report to Together Computer regarding the performance of the Service.

By checking the box indicating you have read and agreed to this agreement, you fully accept and agree to all of the provisions of this agreement.  In addition, you represent and warrant that: (i) you have full legal authority to bind tester to this agreement; and (ii) you agree on behalf of tester to the terms of this agreement.  If tester does not agree to these provisions, do not check this box.  Checking this box and using the service (as defined below) establishes a binding agreement between together computer and tester.  Acceptance of this agreement is required as a condition to accessing and using the together computer services.

You understand and agree that together computer may modify this agreement at any time without prior notice.  In the event of a modification to this agreement, you shall be prompted to accept the agreement as modified upon the next log in to the service.  If tester does not accept the terms of the agreement as so modified, tester shall not be permitted to access the service.

Use of Service

Subject to the terms of this Agreement, Together Computer grants to Tester a personal, non-sublicensable, nonexclusive license to use the OpenChatKit Testing Application, including the software, tools, data, and documentation (collectively, the “Service”) in accordance with the documentation and/or instructions supplied by Together Computer,  solely for Tester's internal evaluation and testing purposes, and non-production use during the term of this Agreement. The Together Computer shall at all times retain all title to and ownership of the Service and all copies thereof.

Restrictions

Tester agrees to use the Service only in the ordinary course of testing and evaluation, and Tester will not reproduce or modify the Service or any portion thereof. Tester shall not rent, sell, lease or otherwise transfer the Service or any part thereof or use it for the benefit of a third party. Tester shall not reverse assemble, reverse compile or reverse engineer the Service, or otherwise attempt to discover any Service source code, algorithms, models or underlying Proprietary Information (as that term is defined below).

Confidentiality; Ownership

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Together Computer includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Tester includes non-public data provided by Tester to Together Computer to enable the provision of the Service (“Tester Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (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.  Tester shall own all right, title and interest in and to the Tester Data.  Together Computer shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements or modifications thereto, whether or not developed based on Tester’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with the Service or support, and (c) all intellectual property rights related to any of the foregoing.  Notwithstanding anything to the contrary, Together Computer shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Tester Data and data derived therefrom), and  Together Computer will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Together Computer offerings, and (ii) disclose such data solely in de-identified form in connection with its business.

Feedback

If Tester provides or communicates to Together Computer any feedback, discoveries, ideas, concepts or suggestions relevant to the Service (or improvements, enhancements or modifications thereto) or Together Computer’s business, technology or Proprietary Information (“Feedback”), Tester grants Together Computer, without charge, the fully paid-up, irrevocable right and license to use, share, modify, commercialize and otherwise fully exercise and exploit such Feedback and all related intellectual property or other rights (and to allow others to do so) for any purpose. These rights and the other obligations in this Section 3 survive termination of this agreement in perpetuity.

Warranty Disclaimer

The parties acknowledge that the Service is provided “AS IS” and may not be functional on any machine or in any environment. Together computer disclaims all warranties relating to the service, express or implied, including, but not limited to, any warranties against infringement of third party rights, merchantability and fitness for a particular purpose.  Together computer shall not be liable for the results of any communications sent or any communications that were failed to be sent using the service, and tester acknowledges that the insights or communications provided by the service do not constitute professional advice or counsel.  Together computer is not responsible or liable for any third party platforms, does not guarantee the continued availability thereof or any integration therewith, and may cease making any such integration available in its discretion. Together Computer makes no warranty that the Service will meet Tester’s requirements or be available on an uninterrupted, secure, or error-free basis.

Limitation of Remedies and Damages

Together computer shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other legal or equitable theory (a) for error or interruption of use or for loss or inaccuracy or corruption of data or (b)  for cost of procurement of substitute goods, service or technology, or loss of business (c) for any indirect, exemplary, incidental, special or consequential damages including, but not limited to loss of revenues and loss of profits, or for any amount in the aggregate in excess of the fees paid to together computer under this agreement, or (d) for any matter beyond its reasonable control, in each case, whether or not such party has been advised of the possibility of such damages.

Non-assignability

Although fully assignable and transferable by Together Computer, neither the rights nor the obligations arising under this Agreement are assignable or transferable by Tester, and any such attempted assignment or transfer shall be void and without effect.

Controlling Law, Attorneys' Fees and Severability

This Agreement shall be governed by and construed in accordance with the laws of the State of California.  In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.  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.

Entire Agreement

This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the parties hereto are expressly canceled.  Any modifications of this Agreement must be in writing and signed by both parties hereto.

Equitable Relief

Tester acknowledges and agrees that due to the unique nature of Together Computer’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Tester or third parties to unfairly compete with Together Computer resulting in irreparable harm to Together Computer, and therefore, that upon any such breach or threat thereof, Together Computer shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.

Termination

This Agreement may be terminated by either party for any reason or no reason upon ten (10) days’ written notice to the other party, or immediately by Together Computer upon notice of any breach by Tester of the provisions of this Agreement.  Upon termination, the rights and licenses granted to Tester hereunder shall terminate and Tester shall immediately return anything Tester has obtained in connection with Service, together with any and all documents, notes and other materials respecting the Service to Together Computer, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.

Basis of Bargain

Each party recognizes and agrees that the warranty disclaimers and liability and remedy limitations in this agreement are material, bargained for bases of this agreement and that they have been taken into account and reflected in the decision by each party to enter into this agreement.