Terms and Conditions
Last modified: Jan / 2022
Thank you for considering working with BISTelligence (“[BISTelligence]”) and having us evaluate your data and technology using our proprietary technology for participation in the BISTelligence Free POC Program. These Terms of Service (the “Terms”) govern the Evaluation Services (as defined below) provided by BISTelligence to you and/or the entity that you represent (collectively, “You”). [By clicking “I acknowledge and accept the Terms of Service.” below, You agree to be bound by these Terms.]
1. EVALUATION Services
“Evaluation Services” means (a) if applicable, Your use of the data analysis platform and associated tools made available by BISTelligence (collectively, the “Platform”) and (b) BISTelligence’s analysis of any data, content or other information You upload or post to, or otherwise make available on, the Platform (“Content”) and BISTelligence’s presentation of results arising from such analysis (“Results”). Content will only be provided by You in the formats designated by BISTelligence. FREE POC Program Valuation Services will be performed at no charge to You. The Evaluation Services will be performed to determine what additional services You may require from BISTelligence. Should You wish to receive additional services from BISTelligence, You will be required to enter into a separate written agreement for those services.
2. CONFIDENTIALITY OF YOUR CONTENT
(a) All Content disclosed by You to BISTelligence via the Platform for the purposes of receiving the Evaluation Services shall be treated as “Confidential Information” in accordance with these Terms. Confidential Information may include technical specifications, test results and performance data, technical processes and formulas, and information about Your products and services that is not publicly known. Notwithstanding the foregoing, Confidential Information shall not include any information that is (i) in the public domain at the time of disclosure; (ii) known to BISTelligence at the time of disclosure; (iii) rightfully obtained by BISTelligence on a non-confidential basis from a third party, without breaching any provisions of these Terms; or (iv) independently developed by BISTelligence without use of or reference to You Confidential Information, without breaching any provisions of these Terms.
(b) BISTelligence agrees to use Your Confidential Information solely as necessary for providing the Evaluation Services, delivering and explaining the Results to You, and performing its obligations under these Terms. You agree to keep the Results provided by BISTelligence confidential[ and not share access to the Platform with any person]. [You will not allow any other person to use Your login credentials to the Platform.] Notwithstanding the foregoing, each party may disclose Confidential Information or the Results as required by any law, regulation, or order of any court or tribunal.
(c) Unless You enter into a separate agreement with BISTelligence for additional products or services, within [ninety (90)] days following the completion of the Evaluation Services and the delivery of the Results, BISTelligence will erase any Content You provided from BISTelligence’s computer and other information systems (“System”). BISTelligence may publicly disclose that You have used our Evaluation Services.
3. YOUR CONDUCT
You will not share or disclose the Results with any third party without the prior written consent of BISTelligence. You will not upload or post to, or otherwise make available on, the Platform any of the following:
(a) any Content for which You do not have all necessary rights, licenses, consents or permissions, including intellectual property rights, required to upload, post or otherwise make available and use such Content on the Platform or for the Evaluation Services, including any Content subject to copyright that is not Your original work and any confidential information of any third party;
(b) any Content that includes, or will cause to be installed or introduced on BISTelligence’s System, any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code;
(c) any Content that is harmful, threatening, unlawful, defamatory, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, hateful or otherwise objectionable; and
(d) any Content that infringes or misappropriates third-party intellectual property rights or violates or is invasive of privacy or publicity rights of any person.
4. INTELLECTUAL PROPERTY
(a) Subject to the rights granted to BISTelligence in these Terms, You shall retain full ownership of all intellectual property rights in Your Content and any derivative works thereof, including the Results, provided that BISTelligence retains ownership of any format or template in which such Results are presented or otherwise provided by BISTelligence as well as all learnings and training models developed by the artificial intelligence aspects of the Platform as a result of processing or analyzing Your Content. In consideration for the Evaluation Services, You hereby grant BISTelligence a worldwide, non-exclusive, irrevocable, perpetual, transferable, royalty-free license to use, copy, host, transmit, prepare derivative works of (including excerpting, in whole or in part), distribute and display Your Content to provide the Evaluation Services and Results in accordance with these Terms.
(b) BISTelligence owns all right, title and interest in and to the Platform. You hereby grant to BISTelligence and its affiliates a worldwide, irrevocable, perpetual, royalty-free license to use without restriction any suggestions, comments, ideas, insights or recommendations provided by You, in any form, relating to BISTelligence’s products and services, including the Evaluation Services (“Feedback”). BISTelligence shall own all right, title and interest in and to any ideas, concepts, know-hows or techniques resulting from such Feedback, including any modifications or enhancements to BISTelligence’s products or services, including Evaluation Services.
5. WARRANTIES AND DISCLAIMERS
(a) You represent and warrant that You own or otherwise possess all intellectual property, rights, consents and permissions necessary to grant the foregoing license to Your Content and that Your Content does not include personal identifiable information or any other information in violation of any applicable laws, regulations or rules.
(b) THE PLATFORM, EVALUATION SERVICES AND RESULTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW). BISTELLIGENCE DOES NOT GUARANTEE ANY SPECIFIC RESULT FROM USE OF THE PLATFORM, EVALUATION SERVICES, OR RESULTS AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, EVALUATION SERVICES, OR RESULTS ARE ERROR-FREE OR WILL PROVIDE ACCURATE, COMPLETE, RELIABLE OR CURRENT INFORMATION.
You agree to indemnify, defend and hold harmless BISTelligence and its directors, officers, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs and expenses (including reasonable attorney’s fees) arising out of or in connection with (a) any allegation that any of Your Content infringes or misappropriates any intellectual property or other proprietary right of a third party or violates any applicable law; or (b) any violation by You of these Terms.
7. LIMITATIONS ON LIABILITY
(a) IN NO EVENT WILL BISTELLIGENCE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, PARTNERS OR AGENTS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR OTHER SPECIAL OR INDIRECT DAMAGES (INCLUDING FOR ANY LOST BUSINESS PROFITS OR LOST DATA) OR FOR PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM YOUR USE OF THE PLATFORM, EVALUATION SERVICES OR RESULTS, EVEN IF BISTELLIGENCE OR SUCH RELATED PERSONS ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF BISTELLIGENCE AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, PARTNERS AND AGENTS TO YOU (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED [ONE HUNDRED DOLLARS ($100)].
8. ADDITIONAL TERMS
(a) Either party may terminate these Terms at any time on thirty (30) days’ notice to the other party. BISTelligence may need to update these Terms from time to time to accurately reflect its services and practices. Unless otherwise required by law, BISTelligence will notify You before it makes changes to these Terms and give You an opportunity to review them before they go into effect. Once any updated Terms are in effect, You will be bound by them if You continue to use the Platform, Evaluation Services or Results.
(b) All rights not expressly granted by BISTelligence herein are hereby expressly reserved.
(c) Your use of the Platform, Evaluation Services and Report, and these Terms and any disputes arising out of or related hereto shall be governed exclusively by, and construed in accordance with, the internal laws of the State of California without regard to its choice of law or conflicts of law principles or the United Nations Convention on the International Sale of Goods.
(d) For any claim, cause of action or dispute You have against BISTelligence that arises out of or relates to these Terms or the Platform, Evaluation Services or Results, (each, a “Claim”), You agree that it will be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County. You also agree to submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.
(e) These Terms do not confer any third-party beneficiary rights. You may not assign or transfer any of Your rights or obligations hereunder, whether by operation of law or otherwise, without BISTelligence’s prior written consent. All of BISTelligence’s rights and obligations under these Terms are freely assignable and transferable by BISTelligence in connection with a merger, acquisition or sale of assets, or by operation of law or otherwise.
All notices related to these Terms shall be in writing and effective upon personal delivery or the second business day after mailing with confirmed receipt. Notices to BISTelligence shall be addressed to the attention of Legal Department, BISTelligence Tower, 128, Baumoe-ro, Seocho-gu, Seoul, Korea 06754 with a copy to Stewart Chalmers BISTelligence Inc. 2870 Zanker Road, San Jose, CA 95134.
(f) The failure of BISTelligence to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision in that or any other instance.
(g) If any provision of these Terms shall be deemed unlawful, void or unenforceable, such provision shall be deemed severable from the remainder of these Terms and shall not affect the validity and enforceability of any remaining provisions.
(h) These Terms constitute the entire agreement between You and BISTelligence regarding the use of the Platform, Evaluation Services and Results, superseding any prior agreements between You and BISTelligence relating to Your use of the Platform, Evaluation Services and Results.