Trial Subscription Agreement

DATE: JUNE 11, 2020

BY ACCESSING THE SERVICES, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS TRIAL SERVICES AGREEMENT (“AGREEMENT”) WITH BIRCH GROVE SOFTWARE, INC. DBA AI TRANSITIONING LLC (“AI TRANSITIOING LLC (OPTIMUS HIVE)”). THE CUSTOMER’S USE OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF THE CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

AI Transitioning LLC (Optimus Hive) agrees to provide the Customer access to a current version of the Trial Services on the terms and conditions contained in this Agreement.

1. Definitions.
   1. “Documentation” means the user manuals, knowledgebase, and any other materials in any form or medium made generally available by AI Transitioning LLC (Optimus Hive) to the Customer regarding the proper installation and use of the Software.
   2. “Trial Services” shall mean the free version of AI Transitioning LLC’s Software provided to the Customer on SaaS service basis, subject to the terms and conditions of this Agreement.
   3. “Software” means each Optimus Hive software, including cloud hosting portion and agents, together with any and all codes, logic, techniques, software tools, formats, designs, concepts, methods, processes, third-party data, and ideas associated with such computer programs and any and all updates provided by AI Transitioning LLC, as specifically provided at Optimushive.com, and Documentation.

2. Trial Services License.

AI Transitioning LLC grants to Customer a non-exclusive, non-transferable, restricted license to access the Trial Services during the term of this Agreement for the sole purpose of using the Trial Services for its internal business purposes, and strictly prohibits any other use thereof for Customer or third parties. No other entity of the Customer shall be allowed access or use of the Trial Services. The customer shall use Trial Services in compliance with AI Transitioing LLC’s Privacy Policy and Acceptable Use Policy. For the avoidance of doubt, the Customer is strictly prohibited from using the Trial Service for collecting Customer Data through the Software on greater than three devices and shall not register more than three Trial accounts on a single domain.

3. Customer Data.

AI Transitioning LLC hereby acknowledges and agrees that all rights, title, and interest in and to data provided by Customer (“Customer Data”) are and shall remain the property of Customer and all intellectual property rights in Customer Data are the property of Customer. Customer hereby grants to AI Transitioning LLC throughout the term of this Agreement, and after the term as necessary for any of AI Transitioning LLC’s post-termination obligations to Customer, the necessary rights or license to use, cache, and transmit Customer Data via the Trial Services solely as necessary for the purposes of this Agreement. AI Transitioning LLC shall at all times maintain the confidentiality of all Customer Data, subject to the ability of AI Transitioning LLC to share Customer Data with its authorized third-party contractors for the performance of Trial Services. AI Transitioning LLC shall use all Customer Data in accordance with AI Transitioning LLC’s Privacy Statement. In addition, AI Transitioning LLC agrees that it shall use all Customer Data solely in accordance with its Data Processing Addendum, which is incorporated herein by reference. Customer shall have the ability to download its Customer Data in either a .pdf or .csv format (large files). AI Transitioning LLC may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures, and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by AI Transitioning LLC and may be used for any lawful business purpose without a duty of accounting to the Customer. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way that does not reveal Customer’s identity. In the event of termination or expiration of this Agreement for any reason, AI Transitioning LLC shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, be entitled to delete all Customer Data by deletion of Customer’s unique instance of the Service; provided that in all cases where it continues to maintain such Customer Data, AI Transitioning LLC will continue to protect the Customer Data in accordance with this Agreement.

4. Feedback.

If Customer provides Feedback, Customer grants to AI Transitioning LLC a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property AI Transitioning LLC develops. “Feedback” means recommendations, suggestions, enhancement requests, or other feedback or any ideas, technology, developments, derivative works, or other intellectual property related to the Service or any services or products provided by AI Transitioning LLC.

5. Term and Termination. The term of this Agreement shall commence upon the Effective Date, and shall remain in effect until terminated by either party. Either party may terminate this Agreement for convenience upon written notice to the other party.

This Agreement shall automatically terminate upon the earliest occurrence of any of the following:

5. Purchase by Customer of one of AI Transitioning LLC (Optimus Hive)’s paid services and acceptance of AI Transitioning LLC (Optimus Hive)’s Master Subscription Agreement; or.
6. Violation by Customer of any of the provisions of this Agreement.

Upon expiration or termination of this Agreement except under (a) above, the Customer shall cease all use of the Trial Services.

6. Ownership.

AI Transitioning LLC shall own all right title and interest in and to the Trial Services and Software and all intellectual property rights in the Software and Trial Services are owned by AI Transitioning LLC and/or its licensors and protected by the United States copyright laws, other applicable copyright laws, other applicable proprietary rights laws, including but not limited to trade secret laws, and other international treaty provisions. AI Transitioning LLC retains ownership of the Software and Trial Services, and no rights are granted to the Customer other than a license to use on terms expressly set forth in this Agreement.

7. Limitations.

THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND DOCUMENTATION ARE PROVIDED TO THE CUSTOMER “AS-IS”. AI TRANSITIONING LLC MAKES NO EXPRESS OR IMPLIED WARRANTIES AND HEREBY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES REGARDING LOSS OF DATA OR RESULTS TO BE OBTAINED FROM THE SERVICES OR SOFTWARE. NEITHER AI TRANSITIONING LLC NOR ITS OFFICERS, AI TRANSITIOING LLC (OPTIMUS HIVE)’S, DIRECTORS, OR EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE FOR (I) ANY LOSS ARISING FROM THE USE OF THE SERVICES OR DOCUMENTATION OR (II) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE. IN NO EVENT SHALL AI TRANSITIOING LLC (OPTIMUS HIVE)’S MAXIMUM AGGREGATE LIABILITY ARISING IN CONTRACT, TORT, OR OTHERWISE EXCEED U.S. $100.

8. Miscellaneous.

This Agreement shall be interpreted in all respects in accordance with the laws of the State of Texas, U.S.A, and the parties consent to venue and jurisdiction to courts located in Travis County, Texas, notwithstanding any conflict of law rules. Sections 3, 4, 5, 6, 7 & 8 shall survive expiration or termination of this Agreement for any reason. AI Transitioning LLC is authorized to use the Customer logo and trademark for promotional purposes, including as a customer reference and providing testimonials for the Service. This Agreement, including any referenced attachments and/ or incorporated documents, constitutes the entire understanding of the parties relating to the subject matter hereof, and any representation, promise, or condition not contained herein shall not be binding on either party.