Trial Services Agreement

Last Updated: March 28, 2024

This TRIAL SERVICES AGREEMENT is made between OTHERSPHERE SYSTEMS INC. (“Provider”) and individuals given access to the Othersphere Explorer Service on a no-charge, limited time basis (“Trial Customer”).


Provider has developed a web-based, enterprise software tool, known as “Othersphere Explorer” (the “Othersphere Explorer Service”), that enables faster and more successful site search and vetting of infrastructure projects. By reviewing the terms and conditions described in this Trial Services Agreement and then accessing the Othersphere Explorer Service, the Trial Customer is consenting to these Terms and Conditions of Service.

Entire Agreement

This Agreement, including the Terms and Conditions of Service and the other agreements explicitly referenced and incorporated herein and therein, constitute the parties’ entire agreement with regard to the subject matter of this Agreement. All prior or contemporaneous negotiations, understandings, representations, order forms, proposals and agreements, whether oral or written, between the parties with regard to the subject matter of this Agreement are expressly superseded and replaced by this Agreement. Any amendment to this Agreement must be in writing and executed by both parties.

Acceptance and Counterparts

This Agreement is executed as of the Effective Date, which is the latter of the date upon which Othersphere Explorer Service login credentials were provided, or a mutually agreed start date in writing, following review of this Trial Services Agreement.

Standard Terms and Conditions of Service

1. Scope

1.1. This Agreement will control and govern matters associated with the provision of the Othersphere Explorer Services and related offerings to Trial Customer by Provider, during the Trial Period.

2. Service

2.1. Access and Use.  During the Trial Period and subject to any Use Limitations, Trial Customer may (a) access and use the Othersphere Explorer Service; and (b) use the included Software and Documentation only as needed to access and use the Othersphere Explorer Service, in each case, for evaluation purposes and only if Trial Customer complies with the terms of this Agreement. For greater certainty, subject to Section 12, Trial Customer may share materials and information obtained from the Othersphere Explorer Service with its external advisors and other stakeholders as may be strictly necessary in the course of evaluating Othersphere Explorer Service.

2.2. Use Limitations.  Provider may, upon 30 days’ prior written notice to Customer, modify the Use Limitations.

2.3. Changes.  Trial Customer acknowledges and agrees that Provider may, at any time, make changes to the nature and scope of the Product (a “Change”) upon no less than 30 days’ notice to Trial Customer.

2.4. User Accounts.  Trial Customer is fully responsible for all use of and actions on Users’ accounts and for Users’ compliance with this Agreement. Trial Customer and Users must protect the confidentiality and security of their passwords and login credentials. Trial Customer will promptly notify Provider if it suspects or becomes aware of any fraudulent or unauthorized use of its or Users’ accounts, passwords, or login credentials, or if they become compromised, or if it knows of any other breach of security in relation to the Othersphere Explorer Service. Trial Customer agrees to provide assistance to Provider, as requested, to stop or remedy any breach of security related to its or Users’ accounts. Provider is not responsible, and will not be liable, for any loss or damage arising from unauthorized use of Trial Customer’s or Users’ accounts, without or without its or their knowledge.

2.5. Affiliates.  Individuals from Trial Customer’s Affiliates may access Trial Customer’s account as Users under Trial Customer’s Agreement and Trial Customer will be responsible for its Affiliates’ compliance with this Agreement. If a Trial Customer Affiliate enters a separate Order Form with Provider, the Trial Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Trial Customer and Trial Customer will no longer be responsible for such Affiliate’s compliance with this Agreement.

2.6. Feedback.  Trial Customer may, but is not required to, give Provider Feedback, in which case Trial Customer gives Feedback “as is”. Provider may use all Feedback freely without any compensation, notice, restriction or obligation

2.7. Usage Data. Trial Customer acknowledges and agrees that, by operating the Othersphere Explorer Service, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, and enhance Provider’s products and services without restriction or obligation. “Usage Data” means anonymous and aggregated benchmark results, data and other information about the provision, use, and performance of the Product and related offerings based on Trial Customer’s or User’s use of the Product, which, for clarity, does not include Personal Data and which does not identify and may not reasonably be used to identify an individual User.

2.8. Trial Customer Content.  Provider may copy, display, modify, and use Trial Customer Content only as needed to provide and maintain the Product and related offerings to Trial Customer according to this Agreement. Trial Customer is responsible for the accuracy and content of Customer Content.

3. Restrictions & Obligations

3.1. Restrictions on Trial Customer.

3.1.1. Without limiting the generality of anything other provision of this Agreement, Trial Customer will not, directly or indirectly, and will not allow any other person to: reverse engineer, decompile or disassemble, or otherwise attempt to extract or discover any source code or underlying ideas or algorithms of the Product or any part thereof (except to the extent Applicable Laws prohibit this restriction); provide, sell, resell, transfer, assign, license, sublicense, lend, publish, republish, distribute, rent, lease, time-share, or otherwise make the Product available to others or allow others to access or use the Product, or otherwise commercially exploit the Product or any part thereof in any way except in furtherance of Trial Customer’s permitted use according to this Agreement; remove any proprietary notices or labels on or contained in the Product or any part thereof; copy, modify, or create derivative works of the Product, except in furtherance of Trial Customer’s permitted use according to this Agreement; conduct security or vulnerability tests on, interfere with or disrupt the operation of, cause performance degradation of, or circumvent or disable any access restrictions or controls of the Product, or attempt to gain unauthorized access to the Product; access accounts, information, data, or portions of the Product to which Trial Customer does not have explicit authorization; use the Product in any High Risk Activity or in any manner prohibited by Applicable Laws; use the Product to obtain unauthorized access to anyone else’s networks or equipment; access or use the Product to develop, test, validate, and/or improve any product, service ‎or dataset that competitive with the ‎Product (including any portion thereof)‎ for commercialization to third parties; use any data mining, scraping, robot or similar data gathering or extraction methods on the Product; upload, submit, or otherwise make available via the Product any Trial Customer Content to which Trial Customer and Users do not have the proper rights or which otherwise infringes the copyright, trademark, ‎patent, trade secret, or other intellectual property right of any ‎‎person; upload, submit, or otherwise make available via the Product any Trial Customer Content which is abusive, obscene, pornographic, ‎defamatory, harassing, grossly offensive, vulgar, ‎threatening, or ‎malicious‎; aid or implement practices violating basic human rights or civil ‎liberties. For the avoidance of doubt, you ‎may not use the Othersphere Explorer Service to ‎assist in the creation of databases of identifying information for any ‎‎government to abrogate any human rights, civil rights, or civil ‎liberties of individuals whether on the basis ‎of race, gender or gender ‎identity, sexual orientation, religion, or national origin or otherwise;‎ create a false identity or otherwise attempt to mislead others as to the ‎identity or origin of any ‎communication or data communicated ‎through the Product;‎ export, re-export, or permit downloading of any content in violation of ‎any export or import law, ‎regulation, or restriction of Canada or the United ‎States and their agencies or authorities, or without all ‎required ‎approvals, licenses, or exemptions;‎ interfere with or attempt to gain unauthorized access to any computer ‎network;‎ host, transmit to, or provide to Provider any information that is subject to ‎specific government regulation or information ‎subject to export control or ‎economic sanction laws;‎ operate dangerous businesses using the Product such as emergency ‎services, ‎where the use or failure of the Othersphere Explorer Service ‎could lead to death, personal injury or significant ‎property damage;‎ transmit viruses, trojan horses, or any other malicious code or program;‎ engage in any other activity reasonably deemed by us to be in conflict ‎with the spirit or intent of this Agreement; or Trial Customer’s use of the Product must comply with all Documentation.

3.2. Suspension.  If: a) Trial Customer or a User breaches Section 3.1 (Restrictions on Customer); or (b) Customer or a User uses the Product in violation of this Agreement or in a way that materially and negatively impacts the Product or others, then, in each case, Provider may temporarily suspend Trial Customer’s or a User’s access to the Product with or without notice, provided that Provider will try to inform Trial Customer before suspending Trial Customer’s account when practical. Provider will reinstate Trial Customer’s or a suspended User’s access to the Product only if Trial Customer resolves the underlying issue.

4. Privacy & Security

4.1. Personal Data.  Without limiting the generality of any other provision of this Agreement, Provider will use commercially reasonable efforts to (a) protect all Personal Data received by it under this Agreement from unauthorized access, use and disclosure; and (b) fully comply with all Applicable Data Protection Laws.

4.2. Prohibited Data.  Trial Customer will not (and will not allow anyone else to) submit or make available any Prohibited Data via the Product.

4.3. Security.  Provider will use commercially reasonable efforts to secure the Othersphere Explorer Service from unauthorized access, alteration, or use and other unlawful tampering, and to protect Trial Customer Content (including Trial Customer’s Confidential Information) from unauthorized access, use, disclosure, alteration or destruction.

5. Term & Termination

5.1. Trial Period.  Trial Customer and Provider will agree in writing on a Trial Period duration in advance of Effective Date, typically 7 calendar days. The Trial Service Agreement will terminate at the end of this period, unless modified and mutually accepted in writing. For avoidance of doubt, the Trial Services Agreement will not renew, extend, or convert unless the parties enter into a separate follow-on commercial agreement.

5.2. Agreement Term.  This Agreement will be effective as of the Effective Date and continue until all Trial Period has ended.

5.3. Termination.  Either party may terminate this Agreement by giving written notice of termination if the other party: (a) (or a person for which such party is responsible) materially breaches any provision of this Agreement and (i) fails to cure the breach within 30 days after receiving notice of the breach, or the breach cannot be cured within such 30 day period; (b) is subject to any liquidation, dissolution or winding-up, or stops conducting business without a successor; (c) makes an assignment for the benefit of creditors; or (d) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

5.4. Effect of Termination.  The parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of this Agreement. Upon expiration or termination of this Agreement for any reason, and without limiting any remedies available to the parties:

5.4.1. Trial Customer will no longer have any right to use the Product or receive technical support, and will immediately stop using the Product;

5.4.2. Upon Trial Customer’s request, Provider will delete Trial Customer Content within 60 days of such expiration or termination; and

5.5. Survival.

5.5.1. Notwithstanding any other provision of this Agreement, those provisions of this Agreement that by their nature ought to survive any expiration or termination of this Agreement, and all other provisions necessary to their interpretation or enforcement, will so survive and will remain in full force and effect and be binding upon the parties as applicable, including, without limitation, Sections 2.6-2.7 (Feedback and Usage Data), Section 3.1 (Restrictions on Customer), Section 5.4 (Effect of Termination), Section 5.5 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Insurance) for the time period specified therein, Section 11 (Confidentiality), Section 12 (Reservation of Rights), Section 13 (General Terms), Section 14 (Definitions).

6. Representations & Warranties

6.1. Mutual.  Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into and perform its obligations under this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its formation; (c) the individual or individuals accepting this Agreement on its behalf has or have been properly authorized and empowered to enter into this Agreement; (d) this Agreement is legally binding and fully enforceable against it in accordance with its terms; (e) its execution and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that it now or in the future owes to any other person; and (f) it will comply with all Applicable Laws in performing its obligations or exercising its rights under this Agreement.

6.2. From Customer.  Trial Customer represents, warrants and covenants that: (a) it, all Users, and anyone submitting Trial Customer Content each have and will continue to have all rights necessary to submit or make available Trial Customer Content via the Product and to allow the use of such Trial Customer Content as described in this Agreement; and (b) Trial Customer Content will not violate any Applicable Laws, including, without limitation, any applicable intellectual property, privacy, deceptive trade practices, fair competition or consumer protection laws.

6.3. From Provider.  Provider represents, warrants and covenants that: (a) it has and will continue to have all rights necessary to provide the Product and to allow the use of the Product as described in this Agreement.

7. Disclaimer of Warranties

7.1. Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6.3 do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6.3, the Product is provided on an “as is” and “as available” basis, and Provider expressly disclaims all other representations, warranties or conditions, whether express, implied or statutory, including the implied warranties or conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.

8. Limitation of Liability

8.1. Liability Caps.  Except for a breach of Section 12 or a claim that is subject to an indemnity provided in Section 10, under no circumstances will Provider’s total cumulative liability for direct damages arising out of or relating to any trial exceed to total amount of fees actually paid by Trial Customer to Provider in advance of Trial Period. Trials are expected to be provided free of charge.

8.2. Damages Waiver.  Except for a breach of Section 11 or a claim that is subject to an indemnity provided in Section 9, under no circumstances will either party be liable to the other for consequential, special, indirect, exemplary, punitive, or incidental damages, or damages for loss of business opportunities, profits, revenues, data or goodwill, relating to this Agreement, even if the party is informed in advance of the possibility of or could have reasonably foreseen this such damages, and whether or not any limited remedy specified in this Agreement is deemed to have failed of its essential purpose.

9. Indemnification

9.1. Protection by Provider.  Provider will indemnify, defend, and hold harmless Trial Customer from and against any third party action, proceeding or claim (each a “Provider Covered Claim”):

9.1.1. that the Product, when used by Trial Customer according to the terms of this Agreement, violates, misappropriates or otherwise infringes such third party’s intellectual property or other proprietary rights; or

9.1.2. arising from or relating to any fraud, gross negligence or willful misconduct by Provider in connection with the performance of its obligations under this Agreement.

9.2. Protection by Trial Customer.  Trial Customer will indemnify, defend, and hold harmless Provider from and against any third party action, proceeding or claim (each, a “Trial Customer Covered Claim”):

9.2.1. that the Trial Customer Content, when used according to the terms of this Agreement, violates, misappropriates or infringes such third party’s intellectual property or other rights; or

9.2.2. arising from or relating to Trial Customer’s breach or alleged breach of this Agreement, breach of Applicable Laws, or fraud, gross negligence or willful misconduct in connection with its performance of its obligations under this Agreement.

9.3. Procedure.  The Indemnifying Party’s indemnification obligations in this Section 9 are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection, provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party ‎of its indemnification obligations under this Section 9 unless and to the extent the Indemnifying Party is ‎prejudiced by such failure; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in the defense of and settlement negotiations relating to a Covered Claim for which it seeks protection with its own counsel only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or imposes any restriction, obligation or liability on the Protected Party, without the prior written consent of the Protected Party.

9.4. Changes to Product.  If required by settlement or court order, or if deemed reasonably necessary in response to or in anticipation of a Provider Covered Claim pursuant to Section 9.1.1, Provider may, at its expense: (a) obtain the right for Trial Customer to continue using the Product; or (b) replace or modify the affected component of the Product, without materially reducing the general functionality of the Product.

9.5. Exclusions.

9.5.1. Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims pursuant to Section 9.1.1 that result from (i) modifications to the Product that were not carried out or authorized by Provider, or that were made in compliance with Trial Customer’s instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by or on behalf of Provider or approved by Provider in writing; or (iv) use of an old version of the Product where a newer release that would avoid the Provider Covered Claim and that materially complies with this Agreement has been made available by Provider.

9.5.2. Trial Customer’s obligations as an Indemnifying Party will not apply to Trial Customer Covered Claims pursuant to Section 9.2.1 that result from the unauthorized use of the Trial Customer Content, including use in violation of this Agreement.

9.6. Exclusive Remedy.  This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

10. Insurance

10.1. During the term of this Agreement and for six months thereafter, Provider will carry adequate commercial insurance policies with industry-standard coverage limits. Provider’s insurance policies will not be considered as evidence of Provider’s liability.

11. Confidentiality

11.1. Non-Use and Non-Disclosure.  Unless otherwise authorized in this Agreement, Recipient will: (a) at all times keep Discloser’s Confidential Information strictly confidential; (b) only use Discloser’s Confidential Information to fulfill its obligations, or to exercise or defend its rights, under this Agreement; (c) not copy or reproduce any of Discloser’s Confidential Information, except as strictly necessary to fulfill its obligations, or to exercise or defend its rights, under this Agreement; and (d) not disclose Discloser’s Confidential Information to any other person. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information, but in no event less than a reasonable standard of care.

11.2. Exclusions.  The obligations of confidentiality set out in this Section 11 will not apply in respect of uses or disclosures of information where: (a) the Disclosing Party consents in writing; or (b) Recipient can establish with documentary evidence that, other than as a result of a breach of this Agreement, the information: (i) was already known to Recipient, without any obligation of confidentiality, before disclosure by Discloser; (ii) is or becomes publicly known and generally available through; (iii) was disclosed to Recipient by a third party who is authorized to make the disclosure; or (iv) was independently developed by Recipient without use of or reference to Discloser’s Confidential Information.

11.3. Required Disclosures.  Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information strictly to the extent required by Applicable Laws, provided that Recipient provides the Disclosing Party advance written notice of the required disclosure as soon as practicable in the circumstances and reasonably cooperates, at the Discloser’s expense, with the Discloser’s efforts to prevent, restrict or contest such required disclosure.

11.4. Permitted Disclosures.  Recipient may disclose Discloser’s Confidential Information to those of its Users, directors, officers, employees, personnel, advisors, contractors, agents and representatives, as applicable, who each have a need to know the Confidential Information to enable Recipient to fulfill its obligations, or to exercise or defend its rights, under this Agreement, but only if the person is bound by confidentiality obligations at least as protective as those in this Section 11, and provided that, at all times, Recipient will remain responsible for such person’s compliance with the terms of this Section 11.

11.5. Return or Destruction.  Upon expiration or termination of this Agreement, or upon the request of Discloser at any time, Recipient will promptly return or, at Discloser’s option, destroy or erase all of Discloser’s Confidential Information (including all originals, copies or other reproductions, extracts or translations) in its possession or under its care and control, and will provide written confirmation thereof. Notwithstanding the foregoing, each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 4 (Privacy & Security) and Section 11 (Confidentiality) will continue to apply to such retained Confidential Information.

11.6. Ownership.  Recipient acknowledg s and agrees that, as between the parties, Discloser’s Confidential Information is the sole and exclusive property of Discloser. Except as set out in this Agreement, Discloser does not grant Recipient any right, title or interest in or to its Confidential Information.

12. Reservation of Rights

12.1. Ownership of Product.  Except for the limited rights to copy and use Software and Documentation granted to Trial Customer in Section 2.1 (Access and Use), Provider and its third party licensors retain all rights, title, and interest (including all intellectual property and other proprietary rights) in and to the Product, whether developed before or after the Effective Date. The Product (and all components thereof) are licensed and not sold.

12.2. Ownership of Trial Customer Content.  Except for the limited rights granted in Section 2.8 (Trial Customer Content), Trial Customer retains all rights, title, and interest (including all intellectual property and other proprietary rights) in and to the Trial Customer Content.

12.3. Third Party or Open Source IP.  Trial Customer acknowledges and agrees that Provider’s project methodology includes the use of third party and open source intellectual property rights, and that Provider may include same in the Product without Trial Customer’s express prior written consent by concurrently delivering the applicable license agreement therefor and by complying at all times with such license. For greater certainty, this provision applies to “open source” or “free” software or materials, whether or not the license thereto is copyleft, provided that where any Software is commercial off-the-shelf software, it shall be sufficient if the Documentation made available to Trial Customer by Provider contains a reference to the open source or free software used therein.

13. General Terms

13.1. Modification.  Notwithstanding any other provision of this Agreement, Provider may update the terms of this Agreement by giving Trial Customer 30 days prior notice. During the 30-day notice period, Trial Customer may terminate the Agreement.

13.2. Waiver.  Any waiver must be in writing and signed or electronically accepted by each party and will be effective only in the specific instance and for the specific purpose for which it is given. The failure of a party to enforce a term or to exercise right or remedy in this Agreement will not constitute a waiver by that party of the term, right or remedy.

13.3. Severability.  If any term of this Agreement or part thereof is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement or parts of the affected term will remain in full force and effect.

13.4. Governing Law and Chosen Courts.  This Agreement and all disputes related to this Agreement will be governed by, and interpreted in accordance with, the laws of British Columbia and the federal laws of Canada applicable therein, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the courts of British Columbia and each party irrevocably submits and attorns to the exclusive jurisdiction of such courts.

13.5. Injunctive Relief.  Despite Section 13.4 (Governing Law and Chosen Courts), each party agrees that a breach of Section 11 (Confidentiality) or the violation of the other party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 11 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond or proving actual damages, and without limiting its other rights or remedies.

13.6. Non-Exhaustive Remedies.  Except where this Agreement expressly provides for an exclusive remedy, seeking or exercising a remedy under this Agreement does not limit the other rights or remedies available to a party, whether provided by law, equity or any other agreement between the parties.

13.7. Assignment.  Neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement, upon notice to the other party, to an acquirer or successor in interest of the assigning party, whether by merger, change of control, reorganization, or sale of all or substantially all its business or assets, provided that any such assignment will not relieve the assigning party of its obligations under this Agreement. Any attempted assignment in violation of this Section is void. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

13.8. No Publicity.

13.8.1. Provider or Trial Customer may not identify and use the other party’s name, logo and trademarks in any public materials without written permission.

13.8.2. Provider may identify Trial Customer as a tester of the Product in non-public settings, including with potential investors and advisors.

13.9. Notices.  Any notice, request, or approval required or permitted to be given under this Agreement must be in writing and sent to Trial Customer by email.

13.10. Independent Contractors.  The parties are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will constitute the parties as agent/principal, employer/employee, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

13.11. No Third-Party Beneficiary.  There are no third-party beneficiaries of this Agreement.

13.12. Force Majeure.  Neither party will be responsible or liable for a delay or failure to perform its obligations under this Agreement due to a Force Majeure Event, provided that the party so affected (a) notifies the other party as soon as practicable in the circumstances of the nature and anticipated duration of the Force Majeure Event, and (b) takes commercially reasonable steps to prevent or minimize its delay or failure to perform.

13.13. Titles and Interpretation.  In this Agreement, unless expressly indicated otherwise: (a) Section titles are for convenience and reference only;(b) all uses of “including” and similar phrases are non-exhaustive and without limitation; (c) the word “or” is not exclusive; (d) words importing the singular also include the plural, and vice versa, and words importing a gender include all genders. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

13.14. Further Assurance.  Each of the parties agree to execute and deliver, at the request of the other party, all such further documents, and to do and perform all such further acts, as may be reasonable necessary to give full effect to the intent and meaning of this Agreement.

14. Definitions

In this Agreement, the following definitions apply:

14.1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting stock or other ownership interests or such entity.

14.2. “Agreement” means this Trial Services Agreement, including these Terms and Conditions of Service, appended in accordance herewith from time to time, and the incorporated policies and documents, in each case as may be amended in accordance with the terms hereof from time to time.

14.3. “Applicable Data Protection Laws” means the Applicable Laws that govern the processing of Personal Data by a Party under this Agreement.

14.4. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Trial Customer or the performance of their respective obligations under this Agreement.

14.5. “Confidential Information” means any information in any form (including all electronic, physical, visual, oral and intangible forms) disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure, and, in any event, includes Personal Data, trade secrets, know-how, supplier and customer information, employee information, specifications, strategic plans, source code and related data, designs, drawings, financial information, marketing information, information as to business opportunities (including strategies and research and development), consultation records and plans, engineering information and third party data entrusted to Discloser. For greater certainty, (i) Confidential Information includes the existence of this Agreement, (ii) Trial Customer’s Confidential Information includes non-public Trial Customer Content, and (iii) Provider’s Confidential Information includes non-public information about the Product, related offerings and Provider’s other products and services.

14.6. “Covered Claim” means either a Provider Covered Claim or Trial Customer Covered Claim.

14.7. “Trial Customer Content” means data, information, or materials submitted by or on behalf of Trial Customer or Users via the Product, but excludes Feedback.

14.8. “Trial Customer Covered Claim” has the meaning given to it in Section 9.2.

14.9. “Discloser” means a party to this Agreement when that party is providing or disclosing Confidential Information to the other party.

14.10. “Documentation” means the usage and training manuals, instructional materials, guides and other technical materials for the Othersphere Explorer Service or Software that are made available by Provider, including all updates thereto.

14.11. “Effective Date” means Effective Date set forth above.

14.12. “Feedback” means suggestions, ideas, impressions, improvements, comments and other feedback about the Product or related offerings.

14.13. “Force Majeure Event” means an unforeseen event, cause or circumstances outside a party’s reasonable control, including acts of God, natural disasters (such as an earthquake, fire, or flood), war, riots, acts of terrorism, epidemic, pandemic, public health crises, acts of government, or public utility or internet failure.

14.14. “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.

14.15. “High Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage, including full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.

14.16. “Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.

14.17. “Othersphere Explorer Service” means the product describe above.

14.18. “Personal Data” means information about an identifiable individual or information that can be used, either alone or in combination with other information, to identify an individual that that is protected by Applicable Data Protection Laws.

14.19. "Product” means the Othersphere Explorer Service, Software, and Documentation.

14.20. “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act or other Applicable Laws; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR or other similar categories of sensitive information as set forth in the Applicable Data Protection Laws; and (e) content or material that is unlawful, offensive, abusive, threatening, harassing, discriminatory, libelous, defamatory, pornographic, obscene or otherwise objectionable, as determined by Provider, or that violates the rights of any third party.

14.21. “Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.

14.22. “Provider Covered Claim” has the meaning given to it in Section 9.1.

14.23. “Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.

14.24. “Software” means the client-side software or applications made available by Provider for Trial Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

14.25. “Usage Date” has the meaning given to it in Section 2.7.

14.26. “User” means any individual who uses the Product on Trial Customer’s behalf or through Trial Customer’s account.


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