This Pilot Release Agreement (this “Agreement”) dated [current_date], 2024, is made by and between Hedgehog SONiC Foundation, a Delaware corporation with its principal offices in Seattle, WA (“Licensor”), and  and the party identified on the program participation page or similar document (“Order Form”) that is entering into this Agreement for the use of the Service (“Pilot Participant”) (Licensor and Pilot Participant are individually referred to in this Agreement as a “Party” and together referred to as the “Parties”).  By clicking “I AGREE”, Pilot Participant acknowledges that it has read and accepts the terms and conditions of this Agreement in its entirety.  IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THE TERM “PILOT PARTICIPANT” INCLUDES YOUR EMPLOYER OR PRINCIPAL CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S OR PRINCIPAL CONTRACTOR’S BEHALF.

Licensor is willing to supply within the protection of a confidential relationship, access to certain Licensor platforms, insights, support and ancillary software, equipment, and tools (“Platform”) and related materials as set forth in more detail on the program participation page located here (collectively “Evaluation Material”) to Pilot Participant and other agents or staff supervised or represented by Pilot Participant (“Staff”) solely for Pilot Participant’s or Staff’s testing, demonstration and evaluation of the Platform for Pilot Participant’s business purposes (“Testing”);

Pilot Participant desires to have access to the Evaluation Material and is aware of the limited and conditional use of the Evaluation Material, and is willing to enter a confidential relationship and to use and test the Evaluation Material and report to Licensor on the performance of the Evaluation Material;

PILOT PARTICIPANT ACKNOWLEDGES AND UNDERSTANDS THAT THE PLATFORM ARE STILL IN ITS PRE-RELEASE PHASE AND THAT THE PLATFORM DO NOT HAVE ALL OF THE FEATURES AND FUNCTIONALITY AND MAY NOT PERFORM AT THE LEVEL OR OFFER THE LEVEL OF SECURITY THAT LICENSOR’S OTHER SERVICES PROVIDE OR AT THE LEVEL OR OFFER THE LEVEL OF SECURITY THAT THE PLATFORM WILL BE OFFERED AFTER RELEASE. 

In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

1. License Grant.  Subject to the terms of this Agreement, Licensor grants Pilot Participant a nonsublicensable, nonexclusive fully-paid-up and royalty-free right to use the Platform in accordance with the documentation supplied by Licensor, solely for Pilot Participant’s Testing.  The foregoing grant includes the right for Pilot Participant to sublicense such rights to Staff to act on Pilot Participant’s behalf and to exercise Pilot Participant’s rights with respect to Testing.  Under no circumstances may Pilot Participant use the Evaluation Material or any element thereof for any commercial purpose.  Licensor will at all times retain all title to and ownership of the Evaluation Material and all copies thereof, including any and all modifications, configurations, or adjustments created during testing and demonstration (except to the extent they include Pilot Participant copyrights or other intellectual property rights in Pilot Participant work product, including any work product produced by or on behalf of Pilot Participant using the Platform (“Pilot Participant IP”)).  Except as specifically provided in this Agreement, Pilot Participant may not, in whole or in part: (a) copy the Evaluation Material, (b) distribute copies of Evaluation Material, in whole or in part, to any person other than Staff; (c) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Evaluation Material or Proprietary Information; (d) use, rent, loan, sub-license, lease, distribute or attempt to grant other rights to Evaluation Material to third parties other than Staff; or (e) use Evaluation Material to act as a service bureau or application service provider, or to permit remote access to Evaluation Material by any means to any person other than Staff.  Nothing in this Agreement will give Pilot Participant the right or license to use any trademarks used in connection with the Evaluation Material and/or any marks of Licensor or Licensor’s providers and suppliers.  Pilot Participant will not owe any fees to Licensor for use of the Evaluation Material, and Licensor will not owe any payments of any kind for Pilot Participant’s performance of the Testing. 

To the extent that the Evaluation Material includes any physical equipment, Licensor and Pilot Participant agree that, at all times, Licensor shall retain title to and ownership of such physical equipment and Pilot Participant will not sell, lease, transfer or otherwise dispose of physical equipment.  Any act contrary to the above restriction will be void.  Pilot Participant will return such physical equipment in the same condition as received.  Pilot Participant further agrees to return the physical equipment immediately upon the expiration or earlier termination of this Agreement.  Pilot Participant will be liable for any loss or damage to such physical equipment, normal wear and tear excepted, and will reimburse Licensor for any and all expenses associated with such damage.

To the extent that Pilot Participant’s use generates any metadata, performance data, or other data related to the Platform (“Performance Data”), all right, title and interest in such Performance Data will be owned by Licensor. 

2. Reports and Feedback.  Pilot Participant agrees to provide at various other times suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the operation of the Platform (collectively “Feedback”).  Licensor will have a royalty-free, fully paid-up worldwide, perpetual, irrevocable license to use, copy, modify, distribute and otherwise incorporate into the Platform or create derivative works from the Feedback.

3. Fees.  Pilot Participant will only pay those fees, if any, set forth on the Order Form for access to and use of the Evaluation Material.  Except as set forth on the Order Form, each party will bear all of its own expenses associated with this Agreement.

4. Warranty Disclaimer.  PILOT PARTICIPANT ACKNOWLEDGES THAT THE PLATFORM BEING OFFERED ARE STILL IN A PRE-RELEASE PHASE AND, THEREFORE, ARE EXPERIMENTAL IN NATURE.  THEREFORE, THE PLATFORM ARE MADE AVAILABLE BY LICENSOR TO PILOT PARTICIPANT “AS IS” AND “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.”  LICENSOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE CONDITION, CHARACTER, NATURE, CAPABILITY, PERFORMANCE, SECURITY, AVAILABILITY, SUITABILITY, TITLE, SOURCE OR ANY OTHER CHARACTERISTIC OF THE PLATFORM OR ANY PORTION THEREOF.  

5. Limitation of Remedies and Damages.  

(a) Limitation on Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR THEIR RESPECTIVE SUPPLIERS, WILL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, SOFTWARE OR TECHNOLOGY, OR (B)  FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY, FOR NEGLIGENCE, AND FOR ANY OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PLATFORM, THE EVALUATION MATERIAL, PILOT PARTICIPANT IP OR ANY ELEMENT THEREOF EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER OF LICENSOR, AND EVEN IF LICENSOR OR ANY SUPPLIER OF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION WILL NOT APPLY WITH RESPECT TO LIABILITY TO THE EXTENT ARISING FROM PILOT PARTICIPANT’S INFRINGEMENT OF LICENSOR’S OR A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS OR PILOT PARTICIPANT’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 6.  THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

(b) In the event of a claim against the Pilot Participant IP, including without limitation any Pilot Participant IP created by Pilot Participant or Staff in conjunction with or as a result of Pilot Participant or Staff’s use of the Platform, Pilot Participant and Pilot Participant’s Staff, affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives release Licensor (and Licensor’s officers, directors, employees, contractors, agents, subsidiaries, joint ventures and representatives) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such claims.

6. Confidentiality; Ownership.  Pilot Participant acknowledges that, in the course of using the Evaluation Material and undertaking any other rights or obligations under this Agreement, it may obtain sensitive or confidential information relating to the Evaluation Material and/or Licensor (“Proprietary Information”).  Such Proprietary Information shall belong solely to Licensor and includes, but is not limited to, the existence of the Evaluation Material, its features and mode of operation, this Agreement, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, software documents, and other technical, business, product, marketing and financial information, plans and data.  With regard to this Proprietary Information:  (a) Pilot Participant shall not during the term of this Agreement and for a period of at least five (5) years after its termination, use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of Licensor unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Pilot Participant, its Staff, officers, directors, employees or agents; (b) during the period specified in (a) above, Pilot Participant agrees to take reasonable measures to secure and maintain the confidentiality of the Proprietary Information and Evaluation Material; and (c) during the period specified in (a) above, Pilot Participant will disclose the Evaluation Material and Proprietary Information only to those of its Staff as are necessary for the use licensed hereunder, and only after such employees and contractors have agreed in writing to be bound by the provisions of this Agreement.  Pilot Participant shall not, without the prior written consent of Licensor, disclose or otherwise make available the Evaluation Material or copies thereof to any third party.

7. Nonassignability.  Pilot Participant may not assign the rights and the obligations arising under this Agreement or otherwise assign or transfer this Agreement without Licensor’s prior written consent.  Any such attempted assignment or transfer will be void and without effect. 

8. Execution of Agreement, Controlling Law, Attorneys’ Fees and Severability.  This Agreement will become effective only upon its execution by both Licensor and Pilot Participant and it will be governed by and construed in accordance with the laws of the State of Oregon without regard to the conflicts of laws provisions.  In any action to enforce this Agreement the prevailing Party will be entitled to costs and attorneys’ fees.  In the event that any of the provisions of this Agreement will be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  

9. Entire Agreement.  This Agreement (including any addendum or amendment) constitutes the entire agreement between the Parties pertaining to the subject matter hereof, and supersedes all prior or contemporaneous written or oral agreements existing between the Parties.  Any modifications of this Agreement must be in writing and signed by both Parties.  To the extent the terms of any Licensor policies or programs for support or other services conflict with the terms of this Agreement, the terms of this Agreement will control.

10. Equitable Relief.  Pilot Participant acknowledges and agrees that due to the unique nature of Licensor’s Proprietary Information, there can be no adequate remedy at law for any breach of Pilot Participant’s obligations hereunder, that any such breach may allow Pilot Participant or other persons to unfairly compete with Licensor resulting in irreparable harm to Licensor, and therefore, that upon any such breach or threat thereof, Licensor will be entitled to injunctions and other equitable relief without posting a bond in addition to whatever remedies it may have at law.

11. Termination.  This Agreement may be terminated by Licensor for any reason with notice to the Pilot Participant at the address listed above. In any case, the term of this Agreement will commence on the Effective Date and, if not terminated earlier, will terminate 6 months from the Effective Date (“Testing Term”).  Upon termination, the license granted hereunder will terminate and Pilot Participant will immediately return or destroy the Evaluation Material to Licensor.

12. Form Terms.  If Pilot Participant submits to Licensor a purchase order to effectuate its ordering or payment of the Services specified on an Order Form or otherwise agreed to by the parties and Licensor acknowledges such purchase order by means of any kind of acknowledgement document, each of Pilot Participant and Licensor hereby rejects any terms or conditions appearing on any such purchase order or acknowledgement document that are in addition to, or different from, the terms and conditions of this Agreement and/or the Order Form (“Form Terms”), and the Parties agree that all Form Terms shall be void and of no force or effect.