Trial Agreement

This Genesis Trial Agreement (“Agreement”) is made between Genesis Computing, Inc. (“Genesis”) and Customer (defined below) and governs the Customer’s use of the Genesis Assets (as defined below).

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses a Genesis Asset. Genesis reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Genesis Asset(s).

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE GENESIS ASSETS. THE GENESIS ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

1. If Customer and Genesis have executed a written agreement governing Customer’s access to and use of the Genesis Assets as a Genesis customer, then the terms of such signed agreement will govern and will supersede this Agreement. The parties agree as follows: 1. Definitions. Capitalized terms used in these Terms and Conditions have the meanings set forth above or as defined below:
   1. “Affiliate(s)” means any entity that now or hereafter controls, is controlled by, or is under common control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such control exists.
   2. "Authorized User" means one individual whether for themself or on behalf of their entity, that are authorized by Customer to use the Software.
   3. "Beta Features" means any Software feature, functionality or service which Genesis may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
   4. “Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement, and with respect to Genesis the Genesis Assets and Usage Data. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
   5. “Customer Data” means any information submitted or provided to the Software.  
   6. “Customer Environment” means equipment, systems, servers, and workstations, and including each of the foregoing’s operating systems and software contained therein including for clarity web-browsers, servers and online platforms, owned or managed by Customer.
   7. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software, as may be provided or made available by Genesis to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
   8. “Genesis Assets” means the Software and Documentation.
   9. "Software" means software that Genesis develops and maintains, to automate data-driven workflows for marketing, finance, and other functions. The Software includes Beta Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof to each of the foregoing.
   10. "Trial Period" is 30 days from the Effective Date.
   11. “Usage Data” means data pertaining to Customer’s interaction with, and use of, the Software which includes, but is not limited to, performance of the Software, metrics, and other measures of Customer’s use of each of the foregoing.
2. Evaluation of Genesis Products.
   1. Limited Use License. Subject to the terms of this Agreement, Genesis grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Trial Period, solely for the Purpose for Customer's internal business operations to use the Genesis Assets solely in accordance with the Documentation and this Agreement. Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users, subject to the terms of this Agreement, and provided any use of the Service by such individuals will be for the sole benefit of Customer.
   2. Usage Data. The Software will generate Usage Data that Genesis  may collect to debug and improve the Software. The Software may contain administrator options to opt out of such collection. To the extent Usage Data contains any elements of data or information process by Customer via the Software, Genesis will aggregate and anonymize such Usage Data
   3. Genesis Changes.  Genesis may update and modify the Software, or suspend or revoke access to the Software, at any time during the Trial Period and without notice or liability to Customer.
   4. Customer Data. The Customer acknowledges and agrees that: (i) Customer Data submitted to or processed through the Service is not treated as confidential information; (ii) such Customer Data may be accessible to third parties; and (iii) Customer should have no expectation of privacy with respect to Customer Data, which should be treated as publicly available information similar to content posted in a public forum or public square.  Customer shall not submit, upload, or transmit any personally identifiable information (PII), sensitive data, confidential information, trade secrets, or any critical, proprietary, or regulated data to the Software.
   5. Term. The Agreement lasts for the Trial Period, unless terminated earlier as provided herein. Either party may terminate the Agreement for convenience at any time upon delivery of written notice to the other party. Upon expiration or earlier termination of the Agreement, or upon written request by Genesis at any time during the Trial Period, Customer shall immediately cease use of all Genesis Assets, return all Genesis Confidential Information. The provisions of Sections 4, 6, 7, 9 and 10 (as applicable) shall survive the termination or expiration of this Agreement.
3. ‍Fees. Customer will not pay Genesis any fees for the use of Genesis Products as set forth herein, unless otherwise agreed between the parties in writing (“Fees”).  Where no Fees are paid, the acceptance of the Agreement and the use of the Genesis Products will be adequate consideration hereunder. Any Fees paid to Genesis under this Agreement will be noncancellable and non-refundable.
4. ‍Feedback. Customer may provide comments, suggestions and recommendations to Genesis with respect to the Genesis Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Customer hereby irrevocably assigns to Genesis all right, title, and interest in and to the Feedback, including all intellectual property rights therein. Genesis will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as it sees fit, without obligation or restriction of any kind on account of intellectual property rights or otherwise.
5. ‍Customer Obligations.
   
   1. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Genesis Assets; (ii) share any Genesis issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (iv) modify, adapt, or translate the Genesis Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Genesis Assets; (v) make copies, store, or archive, any portion of the Genesis Assets without the prior written permission of Genesis; (vi) use the Genesis Assets in violation of any applicable law; (vii) conduct or publish benchmarks or performance tests; (viii) use the Software for competitive purposes; or (ix) use the Software to develop, build, or improve any competitive solution or product (together, (i) through (vi) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
   2. Export. The Genesis Assets are subject to export control laws and regulations. Customer and its Affiliates may not access or use the Genesis Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Genesis Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
6. ‍Confidential Information. The Genesis Assets (including benchmarking or competitive analysis derived therefrom) are the confidential and proprietary information of Genesis and deemed Genesis Confidential Information. Customer will safeguard Genesis Confidential Information as it safeguards its own confidential information of a like nature. Customer will not disclose, distribute, make available or provide access to any Genesis Assets or content thereof except as explicitly permitted hereunder. Customer will limit access to the Genesis Assets to its Authorized Users and employees on a strict need-to-know basis for the purpose of the trial license hereunder and is responsible for their non-compliance. Customer acknowledges that a breach of the Agreement may cause irreparable harm to Genesis for which money damages would be inadequate, and Genesis will be entitled to obtain timely injunctive relief, in addition to any and all remedies available at law.
7. ‍Ownership. As between Genesis and Customer, Genesis is the sole owner of all rights, title and interest, including all intellectual property rights, in and to Genesis Confidential Information including, for clarity, the Genesis Assets and Usage Data. As between Genesis and Customer, Customer is the sole owner of all rights, title and interest, in and to Customer’s intellectual property rights and Customer Confidential Information that does not contain any Genesis Confidential Information or portions thereof and is not developed in violation of the terms and covenants set forth herein.
8. ‍Representations and Warranties; Disclaimer.
   
   1. Each party represents and warrants that it: (i) has all rights, title, permits, and authority necessary to execute this Agreement and to grant the rights granted hereunder and agree to the covenants set forth herein; and (ii) will comply with all applicable laws and regulations.
   2. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 8, THE GENESIS ASSETS ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. GENESIS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. GENESIS DOES NOT WARRANT THAT THE GENESIS ASSETS: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.
9. Limitation of Liability.
   1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT.
   2. EXCEPT FOR A VIOLATION OF THE PROHIBITED USES, A BREACH OF CONFIDENTIALITY, OR FOR EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT IN THE AGGREGATE FOR ANY AMOUNT IN EXCESS OF ONE-HUNDRED DOLLARS ($100) WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE PARTY SEEKING A REMEDY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10. Miscellaneous. This Agreement will be construed and interpreted in accordance with the laws of the state of New York, USA, excluding its rules for choice of law. The state and federal courts located in New York, NY will have exclusive jurisdiction and venue of all matters that related to or arise from the subject matter of this Agreement. This Agreement does not create any agency or partnership relationship. Any failure to enforce any provision of this Agreement shall not constitute a waiver of any other provision. If any provision is held to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof. This Agreement may not be amended, nor any obligation waived, except by a writing signed by the parties hereto. All notices under this Agreement shall be in writing and delivered to the respective addresses set forth herein. The parties hereto accept and agree to the execution of the Agreement electronically and in counterparts, each of which shall be deemed an original. Neither party will assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, without the prior written consent of the other party and any attempt to do so will be null and void; provided, however, that either party may assign this Agreement (i) in the event of a merger, consolidation, change of control, or sale of all or substantially all of a party's securities or assets, or (ii) to a wholly-owned subsidiary.