PILOT SERVICE AGREEMENT
BLACK ORE TECHNOLOGIES, INC.
PILOT SERVICE AGREEMENT
This Pilot Service Agreement ("Agreement") governs access to and use of the Subscription Services (as defined below) provided by Black Ore Technologies, Inc., a Delaware corporation ("Black Ore"), to the entity or individual accessing or using the Subscription Services ("Customer"). By accessing or using the Subscription Services, or by indicating acceptance of this Agreement, Customer agrees to be bound by this Agreement. If an individual is accepting this Agreement on behalf of an entity, such individual represents and warrants that it has the authority to bind such entity. Black Ore and Customer are each a "party" and together, the "parties."
This Agreement governs a limited pilot evaluation of Black Ore's Tax Autopilot platform. The parties intend that, upon successful completion of the Pilot Period, they will negotiate in good faith a Master Service Agreement for production use.
1. Definitions
"Authorized Users" means Customer's employees, consultants, and/or contractors authorized by Customer to access the Subscription Services, up to the number specified on the Order Form.
"Black Ore Materials" means the Subscription Services, APIs, documentation, credentials, Black Ore systems, Performance Data, and all other information, data, software, work product, and materials provided, used, or developed by Black Ore in connection with the Subscription Services, including any derivatives thereof or modifications or improvements thereto (excluding Customer Materials and Customer Output).
"Confidential Information" means all nonpublic data, materials, and other information of a party, whether disclosed orally or in written, electronic, or other form, that is either (a) marked as "confidential" or (b) would reasonably be understood to be confidential. The Black Ore Materials and the terms of this Agreement are Black Ore's Confidential Information. Customer Materials and Customer Output are Customer's Confidential Information. Confidential Information excludes information that is: (i) publicly available without fault of the receiving party; (ii) known to the receiving party at the time of disclosure; (iii) rightfully obtained from a third party on a non-confidential basis; or (iv) independently developed without breach of this Agreement.
"Customer Materials" means information, data, and content submitted or transmitted by or on behalf of Customer through the Subscription Services.
"Customer Output" means the Customer-specific output generated by the Subscription Services in response to Customer interaction with the Subscription Services.
"Effective Date" means the date Customer first accepts this Agreement or first accesses or uses the Subscription Services, whichever occurs first, and this Agreement shall be effective as of such date.
"Order Form" means the mutually executed ordering document referencing this Agreement that specifies the Subscription Services, Pilot Period, Fees, number of Authorized Users (if applicable), and other commercial terms.
"Performance Data" means all data: (a) regarding installation, registration, and use of the Subscription Services; and (b) related to performance of the Subscription Services, including response times, load averages, usage statistics, activity logs, and metadata. For the avoidance of doubt, Customer Materials and Customer Output exclude Performance Data.
"Pilot Period" means the evaluation period specified in the Order Form, commencing on the Effective Date.
"Subscription Services" means Black Ore's proprietary cloud-based services as identified on the Order Form (excluding any third party products).
2. Access and Use
2.1. Right of Access
Subject to Customer's compliance with this Agreement, including timely payment of all Fees, Black Ore grants Customer during the Pilot Period a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to permit Authorized Users to access and use the Subscription Services and other Black Ore Materials solely for Customer's internal evaluation purposes, including for the purpose of Customer performing United States tax preparation services for Customer's clients ("Clients") as part of the pilot evaluation (the "Permitted Use"). Black Ore is under no obligation to provide any services except as expressly provided herein. Black Ore reserves all rights not expressly granted herein.
2.2. Authorized Users
Customer shall ensure Authorized Users keep Credentials strictly confidential, access the Subscription Services only via their own individual accounts, and comply with all terms of this Agreement. Customer is responsible for use of credentials provided to Customer. Any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach by Customer.
2.3. Use Restrictions
Customer shall not, and shall not permit any Authorized User or third party to: (a) use Black Ore Materials beyond the Permitted Use; (b) copy, modify, distribute, or create derivative works of Black Ore Materials; (c) sublicense, assign, transfer, or make Black Ore Materials available to third parties; (d) reverse engineer, decompile, or disassemble the Black Ore Materials or attempt to derive source code; (e) defeat or circumvent any security mechanisms or use restrictions related to the Black Ore Materials; (f) remove, obscure, or alter any proprietary notices from the Black Ore Materials; (g) use the Black Ore Materials to build or improve a competitive product or service or for benchmarking purposes (or assist anyone else therewith); (h) use the Black Ore Materials in violation of intellectual property rights, privacy rights, or applicable law; (i) input, upload, or transmit materials or data Customer does not have the lawful right to process or any data that is unlawful, defamatory, offensive, or contains harmful code; (j) interfere with or disrupt the integrity or performance of the Subscription Services; or (k) attempt to do any of the foregoing.
2.4. Third Party Products
The Subscription Services may include or integrate with third-party products, which are subject to their own terms. Black Ore is not responsible for any third-party products or Customer's use thereof. Customer is solely responsible for compliance with any third-party terms.
3. Customer Responsibilities
3.1. Fees
Customer shall pay the Fees specified in the Order Form. Fees are exclusive of applicable taxes, which are Customer's responsibility. All payments must be made in full without deduction or offset.
3.2. Customer Materials and Professional Responsibility
Customer is solely responsible for: (a) the accuracy, quality, and legality of all Customer Materials and regularly backing up Customer Materials; (b) compliance with applicable law in connection with use of the Subscription Services; and (c) tax advice, accounting services, and the preparation and accuracy of tax returns. Customer shall review any Customer Output exercising its professional judgment and is solely responsible for any use of Customer Output and shall not misrepresent Customer Output as human-generated when it is not. Customer acknowledges that Black Ore provides no tax, accounting, or other professional advice, that Customer will not rely on Black Ore for any professional advice, and that Black Ore has no liability in connection therewith.
3.3. Cooperation and Security
Customer agrees to provide Black Ore with reasonable cooperation, materials, information, and access required to provide the Subscription Services during the Pilot Period. Customer shall notify Black Ore in writing within 24 hours if it suspects any credentials or the Subscription Services have been compromised. Black Ore may suspend access to the Subscription Services if it suspects any such compromise or misuse.
4. Intellectual Property
4.1. Black Ore Materials
As between the parties, Black Ore retains all right, title, and interest in and to the Black Ore Materials, including all intellectual property rights therein. The Black Ore Materials are furnished for use solely as set forth in Section 2.1 and are not sold.
4.2. Customer Materials and Customer Output
As between the parties, Customer owns all right, title, and interest in Customer Materials and, to the extent permitted by applicable law, Customer Output. Customer may use Customer Output solely for the Permitted Use and shall not sell, share, or use Customer Output to build or improve or assist anyone else in building or improving a competitive product or service or for benchmarking purposes. Customer acknowledges that Customer Output may not be unique and the Subscription Services may generate the same or similar output for other users; responses that are requested by and generated for users other than Customer are not considered Customer Output. Customer grants Black Ore a non-exclusive, sub-licensable, worldwide, royalty-free license to access, receive, download, store, reproduce, distribute, modify, process, and otherwise use Customer Materials and Customer Output internally: (a) to provide the Subscription Services and other Black Ore Materials to Customer and its Authorized Users; and (b) to monitor, test, tune, train, retrain, validate, modify, and/or improve the Subscription Services and other Black Ore Materials on a perpetual basis. Notwithstanding the foregoing, Black Ore will not use any Personal Data (as defined by applicable law) or any Customer Materials that could identify Customer or its Clients to train its models. Black Ore will process Customer Materials and Customer Output in accordance with this Section 4.2 and applicable laws.
4.3. Performance Data
As between the parties, Black Ore owns all right, title, and interest in and to Performance Data. Performance Data does not include Customer Materials or Customer Output, but may include aggregated or anonymized information derived from Customer Materials or Customer Output. Black Ore may use Performance Data for any business purpose, including to improve, modify, monitor, test, tune, train, retrain, validate, and/or improve the Subscription Services or other Black Ore Materials, and/or develop additional services and offerings. Performance Data will not include any Personal Data.
4.4. Feedback
Any feedback Customer or its users provide regarding the Subscription Services or other Black Ore Materials is hereby irrevocably assigned to Black Ore, including all intellectual property rights therein, and Black Ore may use such feedback for any purpose without attribution or obligation to Customer.
5. Term and Termination
5.1. Pilot Period
This Agreement is effective for the Pilot Period specified in the Order Form. This Agreement does not auto-renew. If the parties wish to continue the engagement beyond the Pilot Period, they will negotiate a Master Service Agreement or other definitive agreement.
5.2. Termination
Customer may terminate this Agreement for convenience upon written notice. Black Ore may terminate immediately upon written notice if Customer breaches any provision of this Agreement or for convenience upon seven (7) days' written notice. Termination does not relieve Customer of the obligation to pay any Fees due, provided that if Black Ore terminates for convenience, Black Ore shall refund any pre-paid unused Fees on a pro-rata basis.
5.3. Effect of Termination
Upon expiration or termination, Customer and its users shall cease all use of the Subscription Services and other Black Ore Materials and promptly return or destroy any copies in their possession.
5.4. Conversion
Upon successful completion of the Pilot Period, the parties agree to negotiate in good faith the terms of a Master Service Agreement for ongoing production use of the Subscription Services. Nothing in this Section obligates either party to enter into such agreement.
6. Warranties
BLACK ORE MAKES THE SUBSCRIPTION SERVICES AND ALL OTHER BLACK ORE MATERIALS AND CUSTOMER OUTPUT AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, CUSTOMER OUTPUT MAY BE INACCURATE OR INCORRECT. BLACK ORE EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BLACK ORE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, OTHER BLACK ORE MATERIALS, OR CUSTOMER OUTPUT WILL MEET ANY CUSTOMER REQUIREMENTS OR EXPECTATIONS, BE UNINTERRUPTED, ERROR-FREE, FREE FROM DATA LOSS OR CORRUPTION, COMPATIBLE, SECURE, ACCURATE, OR COMPLETE. ALL THIRD PARTY PRODUCTS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND BLACK ORE DOES NOT MAKE ANY WARRANTY CONCERNING ANY THIRD PARTY PRODUCTS.
7. Limitation of Liability
IN NO EVENT SHALL BLACK ORE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR LOSS OF GOODWILL), OR FOR ANY DAMAGES ARISING FROM CUSTOMER MATERIALS, CUSTOMER OUTPUT, OR THIRD-PARTY PRODUCTS, REGARDLESS OF THE FORM OF ACTION. BLACK ORE'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF FEES PAID BY CUSTOMER DURING THE PILOT PERIOD OR $1,000. THE FOREGOING LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Indemnification
8.1. By Black Ore
Black Ore shall indemnify and hold harmless Customer from losses (including reasonable attorneys' fees) arising from third-party claims that the Subscription Services, used in accordance with this Agreement, infringe a third party's intellectual property rights, except to the extent arising from Customer Materials, Customer Output, or third-party products, or from modifications to Black Ore Materials, or combinations of Black Ore Materials with items, not provided by Black Ore.
8.2. By Customer
Customer shall indemnify and hold harmless Black Ore from losses (including reasonable attorneys' fees) arising from third-party claims resulting from: (a) use of Black Ore Materials not authorized by this Agreement; (b) Customer Materials, Customer Output, or Customer's provision of services to its Clients; (c) breach of applicable law or this Agreement or third-party terms by Customer; or (d) modifications to Black Ore Materials, or combinations of Black Ore Materials with items, not provided by Black Ore, or third party integrations made available or accessible by or on behalf of Customer.
9. Confidentiality
Each party shall maintain the other party's Confidential Information using at least a reasonable degree of care, and, except as permitted by this Agreement, shall not use the other party's Confidential Information except to the extent necessary to fulfill its obligations or receive Subscription Services under this Agreement and shall not disclose it to third parties except: (a) on an "as-needed" basis to directors, employees, advisors, and contractors bound by similar obligations (provided that the receiving party will remain liable for any breach of these provisions by such parties); or (b) as required by law or court order (with reasonable prior notice to the disclosing party where permitted). Each party's confidentiality obligations survive for three (3) years following expiration or termination of this Agreement; provided that obligations with respect to trade secrets will continue to survive for as long as such information remains a trade secret.
10. General Provisions
10.1. Governing Law
This Agreement is governed by the laws of the State of Texas without regard to conflict of laws provisions.
10.2. Dispute Resolution
Any dispute arising under this Agreement shall first be addressed through good-faith executive discussions. If unresolved within thirty (30) days, the dispute shall be resolved by binding arbitration in Travis County, Texas, administered by JAMS under its Comprehensive Arbitration Rules, before a single arbitrator. EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL.
10.3. Modifications to Agreement
Black Ore may modify this Agreement at any time, for any reason, in its sole discretion. The updated Agreement will be effective upon posting through the Subscription Services or otherwise making it available. Customer's continued access to or use of the Subscription Services following such posting constitutes Customer's acceptance of the modified Agreement. If Customer does not agree to the modified Agreement, Customer must discontinue use of the Subscription Services.
10.4. Entire Agreement
This Agreement, including any Order Form, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior understandings and agreements. No terms in a Customer purchase order shall apply.
10.5. Assignment
Neither party may assign this Agreement without the other party's prior written consent, except that either party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets.
10.6. Equitable Relief
Each party acknowledges that a breach of Sections 2.3 or 9 or any other unauthorized use of the Subscription Services by Customer, would cause irreparable harm and that the non-breaching party shall be entitled to equitable relief without the requirement of posting a bond.
10.7. Independent Contractors
The parties are independent contractors. Nothing herein creates a partnership, joint venture, or employment relationship.
10.8. Severability
If any provision is held unenforceable, it shall be modified to the minimum extent necessary, and all other provisions shall remain in full force.
10.9. Counterparts
This Agreement may be accepted electronically, including through click-through or other online acceptance mechanisms, which shall be deemed binding acceptance of this Agreement.
10.10. Publicity
Black Ore may issue press releases and publish website content and other marketing materials referencing Customer as a customer of Black Ore. Customer hereby grants Black Ore a non-exclusive, limited license to use Customer's name and logo for such purposes.
10.11. Survival
Sections 4, 5.3, 6, 7, 8, 9, and 10, any other provisions that by their nature are intended to survive, and any outstanding payment obligations, survive expiration or termination of this Agreement.
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