OPSLEVEL PILOT TERMS OF USE

THESE PILOT TERMS OF USE ARE A LEGAL AGREEMENT BETWEEN J/K LABS INC. (‘J/K LABS’, ‘OPSLEVEL’, ‘US’, ‘WE’, OR ‘OUR’) AND THE COMPANY YOU REPRESENT (‘YOU’ OR ‘YOUR’) FOR PILOTING OUR SELF-HOSTED FULL SERVICE CATALOG AND DEVELOPER PLATFORM. BY PARTICIPATING IN THIS PILOT PROGRAM OR OTHERWISE USING THE OPSLEVEL SELF -HOSTED FULL SERVICE CATALOG AND DEVELOPER PLATFORM (THE “PRODUCT”) YOU ARE ACCEPTING THESE TERMS OF USE (THE “AGREEMENT”), YOU AGREE TO BE BOUND BY ALL OF THESE PROVISIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE ON THE COMPANY’S BEHALF. IF YOU DO NOT AGREE WITH THE TERMS OF USE, YOU SHOULD NOT INDICATE ACCEPTANCE AND MAY NOT USE THE PLATFORM.

PLEASE READ THESE TERMS OF USE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.

1. Pilot Period

The pilot period for the Product commences on the date that you received a confirmation email and subscribed to the Product (the “Effective Date”) and shall last for a period of thirty (30) days (the “Term”). For clarity, each user is only granted a maximum of one (1) pilot period. You are strictly prohibited from entering into more than one (1) pilot test of the Product unless otherwise mutually agreed upon by the Parties.

You will be required to attend an onboarding meeting with us where we will direct you on how to access the Product.  

During the Term, we grant you and you accept a non-exclusive, non-transferable, royalty-free license, during the Term, to use the Product solely for the purpose of evaluating whether you wish to subscribe to the Product, subject to the terms and conditions of this Agreement. We shall provide to you without charge, reasonable support requested by you in connection with the use and operation of the Product.

2. Restrictions

You agree not to directly or indirectly: (i) 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 Product or any software, documentation or data related to the Product (“Software”); (ii) modify, translate, or create derivative works based on the Product or any Software (except to the extent expressly permitted by us or authorized within the Product); (iii) use any components of the Product outside of the Product; (iv) license, sell, lease, transfer, assign, distribute or otherwise use the Product or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; (v) access or use the Product for purposes of building a competitive offering; or (vi)  remove any proprietary notices or labels.

3. Ownership

You acknowledge and agree that the Product is owned by us or our licensors, and is protected by Canadian and international intellectual property laws.  You are not obtaining title to or ownership of the Product as a result of this Agreement. No rights or licenses are granted to you except as expressly set forth herein.

4. Charges

This pilot is offered by us at no charge to you. However, notwithstanding the foregoing, we may amend the pricing of the Pilot Program in our sole discretion on reasonable notice to you.

5. Confidentiality

As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including our pricing and other terms reflected in all SOWs hereunder), your data, non-public aspects of the Product, business and marketing plans, technology and technical information, product designs, and business processes.  Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.  Our Confidential Information includes non-public information regarding features, functionality and performance of the Product.  Your Confidential Information includes your data. The Receiving Party agrees: (i) to use at least the same degree of care to protect such Confidential Information as it employs to protect its own confidential information of a similar nature but in no event less than a reasonable standard of care consistent with accepted industry practices, and (ii) not to use (except in performance or use of the Product or as otherwise permitted herein) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to 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 and not subject an obligation of confidence of any kind, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party if and to the extent it is required to be disclosed by law, provided that the Receiving Party gives reasonable prior notice of such compelled disclosure (except where prohibited by law from doing so).

6. Disclaimer of Warranties

BECAUSE YOU ARE USING THE PRODUCT PURELY FOR EVALUATION PURPOSES, WITHOUT CHARGE, THE PRODUCT IS BEING LICENSED TO YOU “AS IS”, WITH ALL FAULTS.  WITHOUT LIMITING THE GENERALITY OF THE PREVIOUS SENTENCE, WE SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF ACCURACY, TITLE, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Indemnification

We shall indemnify and hold you harmless from any damages, costs, expenses and settlements actually awarded to third parties by a court of competent jurisdiction resulting from infringement by the Product of any United States or Canadian patent or any copyright or misappropriation of any trade secret (an “IP Claim”).  As conditions for the defense and indemnification to be provided by us, you shall: (i) provide us with prompt written notice of any IP Claim and copies of relevant documentation regarding any IP Claim for which indemnification may be sought; (ii) give us sole control of the defense and settlement of such IP Claim; (iii) cooperate fully with us, at our expense, in the defense or settlement of such IP Claim; and (iv) not settle any IP  Claims or admit liability in respect to any IP Claims.  This obligation shall survive the termination or expiration of this Agreement.  We will not be responsible for any settlement we do not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Product (a) not supplied by us, (b) made in whole or in part in accordance with your specifications, (c) that are modified after delivery by us, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (f) relating to your data itself, or (g) where your use of the Product is not strictly in accordance with this Agreement.  THIS FOREGOING SECTION CONSTITUTES OUR ENTIRE LIABILITY IN RESPECT OF ANY IP CLAIM.

You agree to defend, indemnify and hold us harmless from and against all third party claims, losses and damages, suits, government investigations, fines, actions, damages, settlements, losses, liabilities, costs and expenses (including reasonable attorney’s fees) for your gross negligence, willful misconduct, or violation of applicable laws or arising from any of your data infringing on any third party’s rights . As a condition to being indemnified we shall promptly notify you of any claim, and allow you control of the defense and settlement of the claim, except that you shall not enter into any settlement affecting our rights or obligating us without our prior written consent.

8. Limitation of Liability

OTHER THAN IN RESPECT OF A CLAIM ARISING OUT OF OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT WILL WE OR OUR LICENSORS, BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEMONSTRATION OF THE PRODUCT.  IN ANY EVENT, OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID UNDER THIS AGREEMENT.  THE ABOVE LIMITATIONS AND EXCLUSIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

9. Termination

You agree to notify us, in writing, ten (10) days notice of your intention to either negotiate in good faith concerning the licensing of the Product or not license the Product.   Upon such notification, the parties agree to negotiate mutually acceptable terms and conditions for such licensing.  In the event mutually acceptable terms and conditions cannot be reached within thirty (30) days of such written notification by you or if you have notified us of your intention not to license the Product, you agree to return the Product and purge your computer(s) and all storage media of the Product and provide to us an officer’s certificate to such effect.  

We can terminate this agreement at any time with prior notice. Immediately upon termination of this agreement for any reason, you will (i) cease use of the Product, (ii) pay in full all fees due upon termination, and (iii) return or destroy all copies of our Confidential Information. Upon termination of the Terms for any reason your account shall be deactivated and all Contact Information deleted. The following provisions shall survive cancellation or termination of this Agreement; Limitations of Liability, Disclaimer of Warranties, Ownership and Confidentiality.

10. Modification to this Agreement

We reserve the right, at our sole discretion, to modify or replace any part of this Agreement by posting revised Terms of Use on this website and by continuing to use of the Product of the Pilot Program you shall signify acceptance of any new terms.  

11. Applicable Law

This Agreement shall be governed by the laws of Ontario without regard to its principles of conflict of laws.  Us and you hereby agree on behalf of ourselves and any person claiming by or through us that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or provincial court located in Ontario.

12. Entire Agreement

This Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements among the parties in connection with the subject matter hereof except as set forth in this Agreement.  This Agreement, and the rights and obligations hereunder, may not be assigned or delegated by you without our prior written consent.

13. Miscellaneous

You may not assign, sublicense, delegate or otherwise transfer any of your rights or obligations under this Agreement without our prior written consent. We may assign this Agreement with you at our sole discretion. This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be construed to reflect the parties original intent, and the remainder of this Agreement shall remain in full force and effect. This Agreement constitutes the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings. The failure of either party to enforce any of the provisions of this Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf. Notices required hereunder shall be effective if delivered by email (effective upon transmission, as evidenced by transmission reports), courier or delivery service (effective upon receipt), or first class Canada mail, return receipt requested (effective upon receipt).

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