Last Updated: January 24, 2022
This Pilot Agreement (this“Agreement”) is made and entered into between Pilot Customer. Together with its affiliates, the (“Pilot Customer”), and Engame Technology Inc., a Delaware corporation (“Vendor”).
The Vendor and the Pilot Customer hereinafter jointly referred to as the “Parties” and each individually as a ”Party”.
The Parties are entering into this Agreement (a) for Pilot Customer to evaluate Vendor’s services (including the KeepWOL software platform) (“Services”), or both, as described in Schedule A, to determine whether a longer-term business relationship may be mutually beneficial. Additionally, and (b) for Vendor to collect baseline data based on Pilot Customer’s use of the Services, as indicated on Schedule A (the “Purpose”).Pilot Customer is not obligated to purchase Services except as set forth inthis Agreement. Pilot Customer does not agree to use Vendor exclusively, nor to enter into any future business relationship with Vendor, nor to provide anyminimum amount of work to Vendor. Vendor shall not subcontract any obligations under this Agreement without Pilot Customer’s prior written consent.
Fees are as specified in Schedule A.
(a) "Proprietary Information" means any information disclosed by one Party to the other, which, (A) if in written, graphic, machine readable or other tangible form is marked "Confidential" or "Proprietary" or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential; or (B) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Proprietary Information includes, but is not limited to, knowledge, data or information of a Party, its affiliated entities, customers and suppliers, including but not limited to information relating to products, processes, know-how, designs, formulas, methods, developmental or experimental work, improvements, discoveries, inventions, ideas, source and object codes, data, programs, otherworks of authorship, and plans for research and development. For the Vendor, Proprietary Information also includes Vendor Intellectual Property.
(b) "Vendor Intellectual Property” means the Vendor's training materials, data processing, and other materials owned by the Vendor, which are necessary forthe Vendor to provide the
(c) Vendor shall own and retain all right, title and interest in and to (i) the Vendor Proprietary Information used by Vendor to deliver the Services, and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology contained within the Work Product, and (iii) all Proprietary Information related to any of the foregoing. Pilot Customer shall own all right, title and interest in and to the Proprietary Information supplied by Pilot Customer to Vendor.“Work Product” means any products, information or results delivered pursuant to the Services.
(d) Vendor grants Pilot Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services and Work Product solely in connection with and subject to the Purpose and the terms of this Agreement. Pilot Customer grants to Vendor a non-exclusive, limited, world-wide, fully-paid, royalty-free license to view, use, and copy the Pilot Customer Proprietary Information to the extent necessary to support the Purpose of this Agreement, for the term of this Agreement.
(e) To the extent that Pilot Customer provides any Proprietary Information to Vendor under this Agreement, Pilot Customer retains ownership of such Proprietary Information and that Vendor retains a non-exclusive, non-transferable, non-sublicensable license to such Proprietary Information inorder to improve the Services.
(f) Pilot Customer agrees that Vendor may feature the results of Work Product in a publicly available case study or list Pilot Customer's name (including the display of any Pilot Customer trademark) for the purpose of identifying the business relationship between the Parties on Vendor's website and in other marketing and advertising collateral.
(a) Each Party (each a “Receiving Party”)agrees that it (i) shall use and reproduce the Proprietary Information (defi of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; (ii) shall restrict disclosure of such Proprietary Information to the Receiving Party's employees, consultants, funders, or advisors who have a bona fide need to know for such purposes; and (iii) shall not disclose such Proprietary Information to any third party without the prior written approval of the Disclosing Party. Notwithstanding anything to the contrary herein, the Receiving Party shall exercise at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Proprietary Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Pilot Agreeent. Notwithstanding the foregoing, itshall not be a breach of this Agreement for the Receiving Party to disclose Proprietary Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
(b) Notwithstanding anything to the contrary herein, the Receiving Party shall not be liable for using or disclosing information that the Receiving Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Proprietary Information; or (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party's rights.
(c) The Receiving Party agrees that a breach of this Section 4 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
(d) Each Party agrees that for a period of one year after termination it shall not, alone or with others, solicit, induce, influence, or attempt to solicit, induce or influence (i) any employee,officer, volunteer, associate, agent, consultant or independent contractor ofthe other Party to discontinue their employment or other business arrangements with the other Party; or (ii) any former, present or future vendor or partywith a business relationship with the other Party to reduce or discontinue any business relationship with the other Party, to refrain from entering into any new business relationship with the other Party, or to otherwise adversely modify its relationship with the other Party.
In addition to the responsibilities of the Parties specified on Schedule A, the following restrictions and responsibilities shall apply:
(a) By receiving and using the Services, Pilot Customer agrees not to directly or indirectly (i) use the Work Product for any illegal purpose or in a manner that it violates any law or rights of any personor third party; (ii) share, disclose or make publicly available the Work Product without Vendor's prior written consent; (iii) disassemble, decompile, unlock, reverse engineer, or decode the Vendor Intellectual in any manner; (iv) use the Vendor Intellectual Property to create similar (or lookalike) Vendor Intellectual Property without Vendor's express written consent; (v) reuse or retransmit the Vendor Intellectual Property; (vi) append any of the Vendor Intellectual Property to any other file without Vendor's express written consent; and (vii) use or permit use of the Work Product in a manner not authorized by this Agreement.
(b) Pilot Customer agrees that Pilot Customer is directly responsible for compliance under this Agreement by any persons or entities that obtain Work Product or Vendor Proprietary Information from Pilot Customer.
(c) Pilot Customer acknowledges that Vendor's ability to perform the Services is dependent upon Pilot Customer's responsibilities under this Agreement.
(d) Pilot Customer shall ensure that Pilot Customer has the necessary authorization to collect and provide the Pilot Customer Proprietary Information to Vendor and for its use in relation to the Services.
Vendor represents and warrants that: (i) it has the legal capacity to enter into and perform this Agreement; (ii) it shall comply with all applicable rules, regulations, ordinances, laws and statutes in performing this Agreement; (iii) it shall provide Services in a professional, workmanlike manner and by qualified personnel.
Each Party (the “Indemnifying Party”) shall defend, indemnify, and hold harmless the other Party (the “Indemnified Party”), the other Party’s affiliates, and their respective directors, officers, shareholders, employees, contractors, and agents, from and against any liabilities, losses, investigations or inquiries, claims, suits, damages, costs and expenses (including reasonable attorneys' fees and expenses) (each, a“Claim”) related to (a) the subject matter of this Agreement; (b) a Party’s performance or failure to perform as required by this Agreement; (c) a Party’s acts or omissions; (d) a Party’s actual or alleged infringement of an Intellectual Property Right of any such third party ("IP Claim"); (e) actual or alleged breach of any of the confidentiality, privacy, or data security provisions contained in this Agreement and any documents incorporated into this Agreement by reference, or Vendor's security standards; (f) the gross negligence, fraud, or willful misconduct of a Party, Vendor's personnel, or any third party acting on Vendor's behalf; (g) any actual or alleged breach of Vendor's representations and warranties contained in this Agreement; and (h) violation of laws by Vendor or any of its personnel. Pilot Customer may elect to participate in any such action with counsel of its own choice and at its own expense.
Pilot Customer may terminate this Agreement for any reason upon two (2) days’ prior written notice to Vendor. Upon termination of this Agreement, the Pilot Customer shall return to the Vendor all copies of the Products and each Party shall delete any documents containing any item of the Proprietary Information of the other Party. If the Parties at any point intend to enter into a longer-term agreement for the subject matter of this Agreement, the terms and conditions of this Agreement shall remain in effect until the effective date of such agreement.
The Pilot Customer hereby acknowledges that the Services are in a test and piloting phase, and that the Vendor cannot guarantee the outcomes based on the Services. The Vendor shall not be liable for any defects, errors, delays or damage caused by the Services or Work Product delivered hereunder.
THE VENDOR HEREBY DISCLAIMS ALL LIABILITY FOR ANY INDIRECT LOSS OR DAMAGE, INCLUDING LOSS OF BUSINESS, LOSS OF DATA OR DAMAGE CAUSED TO PERSONS OR PROPERTY, ARISING OUT OF OR RELATING TO THE SERVICES DELIVERED HEREUNDER. THE LIMITATIONS SET OUT HEREIN SHALL APPLY WHETHER A CLAIM IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF ANY WARRANTY OR CONDITION, MISREPRESENTATION, OR INFRINGEMENT (WHETHER NEGLIGENT OR OTHERWISE), EVEN IF THE VENDOR IS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE OR SUCH LOSS OR DAMAGE IS REASONABLY FORESEEABLE.
(a) Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. Neither Party's election not to exercise or enforce any legal right or remedy which is contained in this Agreement, or any other agreement (or which a Party has the benefit of under any applicable law), shall not constitute a waiver of rights and that those rights or remedies will remain available to the Parties.
(b) If any term or provision of this Agreement is to any extent held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, the remainder of this Agreement will not be affected thereby, and each term and provision of this Agreement will be valid and enforced to the fullest extent permitted by law.
(c) Neither Party will assign or transfer any rightsor obligations under this Agreement without the prior written consent of the other Party.
(d) This Agreement will be governed by and construed in accordance with the laws of the state of Delaware, without regard to Delaware's conflict-of-laws principles. The Parties agree that any claim asserted in any legal proceeding by one Party against the other will be commenced and maintained exclusively in state or federal courts located within the state of Arizona.
(e) All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnightdelivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
(f) This Agreement may be executed in any number of counterparts and all of the counterparts taken together shall be deemed to constitute one and the same instrument.