Implicit Usage Agreement

NINOH, INC. D/B/A IMPLICIT. MAY LICENSE THE SERVICES TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS USAGE AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS IN THIS USAGE AGREEMENT CAREFULLY. BY CREATING AN ACCOUNT, CLICKING OR CHECKING "I ACCEPT," OR OTHERWISE MANIFESTING YOUR ASSENT TO THESE TERMS AND CONDITIONS OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS STATED IN THIS Usage AGREEMENT.

IF YOU DO NOT AGREE ANY OF THE TERMS AND CONDITIONS IN THIS USAGE AGREEMENT, YOU ARE PROHIBITED FROM USING THE SERVICES.

This Usage Agreement and the exhibits incorporated herein ( collectively, the “Agreement”) are entered into between Ninoh, Inc. a Delaware corporation doing business as Implicit (“Implicit”) the legal entity that provides the Services, and the legal entity that agrees to participate in the usage (“User” or “You”) and be bound by the terms below, individually a “Party” and together are the “Parties.”  The Parties agree as follows:

USAGE

Subject to the terms and conditions of this Agreement, Implicit may provide User with access to the  Implicit proprietary software products and related materials as set forth in Exhibit A (such products, the “Service”) and grants user a limited, non-transferable and nonexclusive license (with no right to sublicense), during the Usage Period, to use the Services, with access credentials provided by Implicit, for the sole purposes of (a) internal  usage, Usage and testing (for purchase, if applicable), in a secure environment, and/or (b) supporting user’s development activities (“Purpose”).  As part of the usage under this Agreement, User may install Implicit’s proprietary software including the application programming interface (“API”)  into internal environments in accordance with this Agreement, including the restrictions set forth in Section 3.  User will provide, at its own expense, all equipment and third party services necessary to use the Service.  User must use the Service in compliance with all applicable laws and regulations including export control and economic sanctions, and any related documentation. User represents and warrants that it is not the subject or target of, or located in a country or territory that is the subject or target of, economic sanctions. Except as expressly provided in an exhibit, User may not export, import, re-export, or transfer the Service without Implicit’s written consent. Implicit retains the right during the Usage Period to modify, revise, or remove the Service and will retain ownership of any modifications, derivative works, changes, expansions, or improvements to the Services.
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USAGE PERIOD & TERMINATION

This Agreement will begin on the Effective Date and continue in effect for the usage period specified in Exhibit A (and, if none is specified, for ninety (90) calendar days), unless earlier terminated in accordance with this Agreement or as extended by Implicit.  Implicit may terminate this Agreement and the rights granted hereunder at any time upon written notice. Implicit may immediately terminate this Agreement and the rights granted hereunder if User materially breaches any provision of this Agreement.  Upon the earlier of the expiration of the Usage Period or termination of this Agreement, User will promptly discontinue all use of the Service and immediately (a) uninstall, remove and destroy any and all copies of the Services and (b) return, if applicable.  Sections 3 through 13 will survive termination or expiration of this Agreement. If User elects to use and pay for the Services on a non-Usage basis, the purchase of the Services will be governed by the terms and conditions of a separate written agreement between User and Implicit to the extent that it expressly applies to the Services, or to the extent there is no such agreement, by the applicable set of Implicit’s online terms of sale.

RESTRICTIONS

User may only use data collected during the Usage hereunder during the Usage Period to evaluate the Service for User's internal business purposes and not in a production environment. Without limiting the foregoing, User is prohibited from using the Service or information gained from such use for any purpose including for unlawful activity, marketing and commercial purposes, to compete with Implicit and/or for designing, developing, authorizing or assisting others in the developing of software and related offerings. User must not modify, create derivative works, disassemble, decompile, reverse engineer, sell, license, sublicense, assign, rent, lease, loan, transfer, distribute, or copy any portion of the Service.  User must not circumvent or disable any security or other technological features of the Service.  

OWNERSHIP

Implicit owns all right, title, and interest, including all intellectual property rights, in and to the Service, including any improvements, modifications, and enhancements to it.  Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to User.

FEEDBACK

User may provide Implicit any suggestions, comments or other feedback regarding the Service (“Feedback”).  If User provides Feedback to Implicit on any version or part of the Service, User hereby assigns to Implicit all right and title to such Feedback, and Implicit may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any Implicit product, technology, service, specification, or other documentation.

OTHER LICENSE TERMS

If any other “click-to-accept” agreement is included as part of the installation and/or download process for the Services, the terms of such agreement will, in case of conflict with these terms, (a) not prevail with regard to software for which Implicit is the licensor; and (b) prevail (excluding any perpetual license language) with regard to software for which Implicit is not the licensor. Notwithstanding any deviating terms in a “click-to-accept” license, all licenses to use the Services expire at the end of the Usage Period.

CONFIDENTIALITY; DATA

Notwithstanding any nondisclosure agreement entered into between the parties (“NDA”), each party will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement, (b) any non-public information disclosed by the other party under this Agreement, and (c) with respect to User, any Feedback, Service performance data, non-public information related to the Service or other information obtained through Usage of the Service. Implicit will protect any data transmitted by User through the Service using commercially reasonable administrative, technical, and physical safeguards designed to protect against illegal or unauthorized access or disclosure of such data. 

THIRD PARTY PRODUCTS

For purposes of this Agreement, “Third Party Products” means certain third party applications, systems, software, products, or services that are or may be used by User and are not supplied by Implicit that are provided with or designed to interoperate with the Service.  If User elects to enable, access, or use of such Third Party Products, its access and use of such Third Party Products is governed solely by the terms and conditions and privacy policies of such Third Party Products, and Implicit does not endorse, is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third Party Products, including, without limitation, their content, the manner in which they handle User’s data, or any interaction between User and the provider of such Third Party Products. Implicit is not liable for any damage or loss caused or alleged to be caused by or in connection with User’s enablement, access, or use of any such Third Party Products, or User’s reliance on the privacy practices, data security processes, or other policies relating to or used in connection with the Third Party Products. 

WARRANTY DISCLAIMER

THE SERVICE IS PROVIDED “AS IS” WITH ALL FAULTS FOR LIMITED Usage AND TESTING ONLY, AND IMPLICIT DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT ERROR OR INTERRUPTION.  IMPLICIT SPECIFICALLY DISCLAIMS ALL  WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, OR USAGE OF TRADE.

LIMITATION OF LIABILITY

THE TOTAL LIABILITY OF IMPLICIT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (i) THE AMOUNTS ACTUALLY DUE AND PAID BY THE USER OR (ii) $100.  IN NO EVENT WILL IMPLICIT HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.  THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

INDEMNIFICATION

User agrees to defend, indemnify, and hold Implicit and its affiliates and their respective officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, including, without limitation, reasonable legal and accounting fees, arising or resulting from any third party claim, action or proceeding arising from or related to User’s: (i) breach of this Agreement; or (ii) misuse of the Services.

CLASS ACTION WAIVER

User agrees that any proceeding shall be limited to the dispute between User and Implicit individually. To the full extent permitted by law, (i) no proceeding shall be joined with any other; (ii) there is no right or authority for any dispute arising from this Agreement to be resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute arising from this Agreement to be brought in a purported representative capacity on behalf of the general public or any other persons. USER AGREES THAT USER MAY BRING CLAIMS AGAINST IMPLICIT ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

MISCELLANEOUS

This Agreement will be governed by the laws of the State of California without reference to conflict of law principles.  All disputes arising out of or related to the Agreement, will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.  User will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Implicit, except that Implicit shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Along with any NDA and exhibits, this is the entire agreement between the parties relating to the subject matter hereof.  No waiver or modification of this Agreement will be valid unless in writing signed by each party.  The terms of an User purchase order or any other document that conflicts with, or in any way purports to amend, any of the terms of this Agreement are hereby specifically objected to and will be of no force or effect.

EXHIBIT A

PRODUCT INFORMATION 

Product

Additional Order Information

An AI-powered product expertise platform.

Usage Period - 90 days 

EXHIBIT B

FOR US FEDERAL CUSTOMERS ONLY

1. “US Federal Customers” are defined as any entity that is an agency, department, division, or office of the executive, legislative and judiciary branches of the United States government (“US Government”) or any entity that is providing services to or on behalf of the US Government and to which these terms apply to those services. 

2. Parties agree that the Services are intended exclusively for federal customer Usage and (a) do not constitute a “gift” or “gratuity,” as contemplated under relevant regulations such as 5 C.F.R. Part 2635, FAR 3.101-2, and FAR Subpart 3.2, (b) do not give the appearance of a conflict of interest as described under FAR Subpart 3.11 or other relevant regulations, (c) are not intended to influence any current or future business decision; and (d) create no obligation to confer any business advantage on Implicit. By accepting the Agreement, you acknowledge, affirm, and agree that you are authorized to accept the Services pursuant to established gift rules applicable to you and/or your agency. 

3. If any Service provided hereunder is subject to any other license agreement, that includes any clause requiring the US Government to indemnify Implicit or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341) (a) any such clause is unenforceable against the US Government; (b) the US Federal Customer shall not be deemed to have agreed to such clause by virtue of it appearing in the license agreement. If the license agreement is invoked through an "I agree" click box or other comparable mechanism (e.g., "click-wrap" or "browse-wrap" agreements), execution does not bind the US Government or any US Government authorized end user to such clause; and (c) any such clause is deemed to be stricken from the license agreement. In addition, this Agreement is governed by U.S. Federal Law; disputes with are governed by the Contract Disputes Act of 1978, as amended. 

4. The software and documentation provided with the Services are “commercial products” as defined in Federal Acquisition Regulation (“FAR”) Section 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in FAR 12.212 and Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202, as applicable. Consistent with FAR 12.212 and DFARS Section 227.7202, all U.S. Federal Customers acquire the software and documentation with only those rights set forth herein. 

5. If you represent an agency of the US Government as defined in the Section 1 above, by entering into these Agreement, you confirm that (a) you are a contracting officer or other authorized representative of the US Government with authority to bind the US Government for purposes of accepting the Services in accordance with the terms and conditions set forth in the Agreement, and (b) you have read and agree to be bound by the terms and conditions of any licensing agreement applicable to the Services. 

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