Hatica LegalPROOF OF CONCEPT
This Agreement (“Agreement”) for Proof of Concept (POC) have been entered into this 17th day of July 2023 (“Effective Date”), by
Hatica Inc. with a place of business at 355 Bryant St Unit 403 San Francisco, California 94107 United States (“Company”), and the (“Customer”). This Agreement includes the Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
By using the Services of Hatica (we/us), the Customer (you/your) agree to be bound by this Agreement for the POC.
WHEREAS, Hatica equips engineering teams with software development analytics, alongside team productivity and workflow insights, to help them drive engineering excellence, alignment and well-being. Hatica works by connecting with all the apps used by developers to gather work done, from GitHub and Jira, to CI/CD and incident management systems, to automatically build end-to- end process visibility and activity dashboards for engineering teams and leaders for data-driven management for the Customers.
and, WHEREAS Hatica desires to provide to the Customer, and Customer desires to receive from Hatica, certain of such Services on license basis subject to the terms set forth in this Agreement.
1. SAAS SERVICES AND SUPPORT
1. Subject to the terms hereof, Company will provide Customer with reasonable product support services in accordance with the Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES WITH USE OF THE LICENSED SERVICES
- The licensed Services and software and all related materials are proprietary to the Company, Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or use or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sub licensable license to use such Software during the Term only in connection with the Services. The Customer will also not directly or indirectly (i) use the Licensed Products to modify or reproduce third party material unless the Customer have the legal right to do so; (ii) attempt to unlock or bypass any initialization system, encryption methods or copy protection device in the Software; (iii) alter, remove or obscure any patent, copyright or trademark notice in the Software or documentation; (iv) reverse engineer, decompile or disassemble or remove functions of the Software or any portion of them; (v) make copies of the Software or documentation; (vi) modify, alter or change the Software; (ix) use components of a Software independent of the product they comprise; or (x) extract any data from the Software and use such data for any purpose other than for the Customer’s use of the Software.
- Hatica is not selling the licensed product/Services (Software) to the Customer and, other than the license Hatica is granting, Hatica reserve all rights to Services/Software not expressly granted in this Agreement.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Hatica & Customer Strictly privileged and confidential
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
- Customer shall be totally responsible for using the Services and the software, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “equipment”). Customer shall also be responsible for maintaining the security of the equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the equipment with or without Customer’s knowledge or consent. Hatica will be only responsible in providing the Services / Software license to the Customer. Customer is authorized to install and use the Software on a Computer, or hardware. “Computer” means the server or server configuration or load balanced application servers, terminal or on which the Software is authorized to be installed and used. “User” means a member(s) authorized by the Customer to use the Software.
CONFIDENTIALITY; PROPRIETARY RIGHTS
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 the Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer 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 Services 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) is required to be disclosed by law.
Customer shall only own all rights, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services, licensed product and the Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect, store, process and analyze the data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate, anonymous or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Company may also transfer all Customer Data to its affiliate or use the services of subcontractors, sub processors or any third party located in the jurisdiction other than the jurisdiction of the Customer. The Customer will not be able to sub contract or engage any third party without the prior consent of the Company. If the Company permits any third party contractor to access and use the Services solely for the Customer’s benefit, so long as (i) the contractor agrees to comply fully with all terms and conditions of this Agreement; (ii) Customer remain responsible for the contractor's compliance with this Agreement and any breach; (iii) any User limitation includes User licenses allocated to contractors; and (iv) the contractor is not a competitor of the Company. All rights granted to any contractor under this Agreement terminate immediately upon termination or expiry of this Agreement. Upon termination of such rights, the contractor must immediately cease all use, un-install and destroy all copies of the licensed products and documentation, and must certify in writing its compliance with this Section upon Company’s request.
PAYMENT OF FEES
1. The Customer shall not be charged for this POC during the term of this Agreement. If Customer’s use of the Services exceeds the Service Capacity or the term of this POC or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive
Hatica & Customer Strictly privileged and confidential
an adjustment or credit. Inquiries should be directed to the Company's customer support department.
- TERM AND TERMINATION
- WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES BY ANY THIRD PARTY OR ANY SUBCONTRACTORS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ACCURACY, RESULTS, RELIABILITY, PERFORMANCE AND NON-INFRINGEMENT OR ANY INFORMATION GENERATED BY CUSTOMER’S USE OF THE LICENSED PRODUCTS OR DOCUMENTATION. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY THIRD PARTY'S REQUIREMENTS, WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR FREE FROM OTHER DEFECT OR FAILURE, OR WILL BE COMPATIBLE WITH OR OPERATE IN COMBINATION WITH ANY OTHER SOFTWARE OR HARDWARE SELECTED OR USED BY THE CUSTOMER OR ANY THIRD PARTY, OR THAT ANY DEFECT IS CORRECTABLE.
a. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
b. Customer shall defend and indemnify the Company (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Company may suffer or
Hatica & Customer Strictly privileged and confidential
incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law. Customer shall also will indemnify, defend and hold the Company harmless from all claims and suits (including reasonable attorney’s fees) against the Company by a third party based on: (i) any event described in Section 6 Warranty And Disclaimer that would cause the warranty in this Agreement to be inapplicable; or (ii) use of a release of the Software that is not the most current release made available to the Customer to the extent that a claim or suit could have been avoided or mitigated by Customer’s use of the most current release.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE IN CASE OF MATERIAL BREACH BY THE CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY TO NOT APPLY TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTIONS 2 and 3 HEREOF OR THE LIABILITY OF EITHER PARTY PURSUANT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 7 a AND 7 b HEREOF.
9. FORCE MAJEURE
Neither party shall be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is caused by or due to acts of God, public enemy, war, strikes or labor disputes, floods, fires, accidents, acts of terrorism, inability to obtain sufficient labor, or any legislative, administrative or executive law, order, or requisition of the federal government or any state or municipal government or any subdivision, department or office thereof, or any other cause beyond the parties' reasonable control, including, without limitation, any power outages, loss of telephone or Internet connectivity or similar occurrences that might result from the acts or omissions of third party providers (each a "Force Majeure"), it being understood that lack of financial resources shall not to be deemed a cause beyond a party's control. Each party shall notify the other party promptly of the occurrence of any Force Majeure and carry out this Agreement as promptly as practicable after such Force Majeure is terminated. The existence of any Force Majeure shall not extend the term of this Agreement.
10. THIRD PARTY CONTENT; REGULATED FUNCTIONALITY
Various third party software and other documentation, libraries ("Third Party Content") may have been incorporated into the Services offered by the Company under permission from the Company’s licensors and suppliers. The United States Postal Service ("USPS") or other governmental bodies may regulate certain functionality of the Software. Special terms and conditions applicable to the Third Party Content are included in separate carrier agreements and the Customer agrees to comply with such terms and conditions. Any terms and conditions in the Carrier Agreements that are inconsistent with, or in addition to this Agreement will control with respect to the Third Party Content or its functionality. If the Company’s license to any Third Party Content terminates, Customer agree: (i) that this Agreement and all other agreements with the Company or any of Company' affiliates and the Customer (e.g., equipment) will remain in full force and effect in accordance with their terms; (ii) upon Company’s written request, to discontinue use of, and/or return the terminated Third Party Content; and (iii) in the event of such request for discontinuance, Company will have no further obligation to the Customer with respect to the Third Party Content. Customer will be solely responsible for: (i) entering into their own arrangements with third parties but only with the prior written consent of the Company, including carriers, for software functionality not provided by the Company as part of the Software; and (ii) payment of all fees for third-party software not expressly included in the Service fee paid under the order, including fees associated with the Customer’s operating environment.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by the Customer except with Company’s prior written consent. Company may subcontract, transfer and assign any of its rights and obligations under this Agreement without consent at their own
Hatica & Customer Strictly privileged and confidential
discretion. 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 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 facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Either party may change the address for notice by providing the other party with ten (10) days prior written notice of the new address. The Parties shall each do all that is necessary and within their respective power and control to ensure that it will not at any time offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier (whether a public official or otherwise) with the intention of influencing them and obtaining an advantage in the conduct of its business. The parties agree that they would be irreparably injured by a breach of the terms of this Agreement by the other party or its Agents and that the other party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Agreement. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement by either party or their Agents. The Customer shall not interfere with Company’s relationship with, or endeavor to entice away from Company, any person (Employees, Directors and any other person employed by the Company) at any time and shall not directly or indirectly; (i) solicit or encourage any person to leave the employment or other service of the Company; or (ii) hire, on behalf of the Company or any other person or entity, any person who has left the employment within the six (6) months period following the termination of that person’s employment with the Company. Customer agree that the Company can use the Customer’s name in the Company’s client list and identify the Customer as a client when communicating with prospective clients, in each case along with the Company’s product or Service that the Customer are using. Customer agrees that Company can use the Customer’s name and logo in marketing content, including in an advertising campaign. With 5 days’ written notice to the Customer, Company or the Company’s designated third party may verify Customer compliance with this Agreement at all locations and for all environments in which the Customer use the Software. The verification will take place no more than one time per twelve-month period during normal business hours in a manner that minimizes disruption to Customer’s work environment. Company may use an independent third party under obligations of confidentiality to provide assistance. Company will notify Customer in writing if any such verification indicates that the Customer have used the licensed products/ Software in excess of the use authorized by this Agreement. Customer agree to enter into an additional order and pay all associated fees directly to the Company for the charges that Company specifies, including: (i) any excess use; (ii) maintenance and/or license fees for the excess use for the duration of such excess; and (iii) any additional charges determined as a result of the verification.
This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law’s provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.