End-User License Agreement

Last Revised: December 3, 2020

Please read this Pinecone End User License Agreement (“Agreement”) before clicking the “I accept” button, and/or using the Pinecone Systems, Inc. (“Pinecone”) Hosted Services or the underlying Platform (as defined below). By clicking the “I Accept” button, and by using the Hosted Services in any way, you and the entity that you represent (“Customer” or “you”) are unconditionally consenting to be bound by and becoming a party to this Agreement with Pinecone and you represent and warrant that you have the authority to bind such entity to these terms. If you do not unconditionally agree to all of the terms of this Agreement, use of the Hosted Services is strictly prohibited. If Customer has executed, or subsequently executes, a separate agreement with Pinecone with respect to use of the Hosted Services (“Other Agreement”), then the terms and conditions of such Other agreement shall govern and control your use of the Hosted Services.

PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY PINECONE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Pinecone will make a new copy of this Agreement available on the Platform. We will also update the “Last Updated” date at the top of the Agreement. If we make material changes to this Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail or another manner through the Platform (which may include posting an announcement on our Platform). Pinecone may require you to provide consent to the updated Agreement in a specified manner before further use of the Hosted Services is permitted. If you do not agree to any of the changes after receiving a notice of such changes, you shall stop using the Platform and Hosted Services. Otherwise, your continued use of the Platform and/or Hosted Services constitutes your acceptance of such changes.

  1. PLATFORM AND HOSTED SERVICES.

    1.1. Access. Pinecone’s proprietary solution is a platform that leverages machine learning to improve serving capacity, including hosting, real time scoring, operations, scaling, reporting, monitoring, and testing to solve problems related to “many-to-many relationships,” such as search, retrieval, ranking, matching, and deduplication (the “Platform”). Customer wishes to access and utilize the Platform, and Pinecone desires to make the Platform available to Customer, subject to the following terms and conditions (the provisioning of the Platform, the “Hosted Services”). Pinecone hereby grants Customer, during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Hosted Services, including by installing any downloadable components of the Platform made available by Pinecone and using and accessing any other materials provided to Customer by Pinecone in connection with the Hosted Services (“Materials”), solely for Customer’s internal business purposes. Access to the Hosted Services and the underlying Platform is at no cost to Customer. Notwithstanding the foregoing, Pinecone reserves the right to introduce a fee structure in the future at Pinecone’s sole discretion. Customer agrees to provide only truthful and accurate information in connection with obtaining usernames and passwords (including API access keys) (collectively, “User IDs”) to access to the Hosted Services. Customer will not allow any third party to use its account or User ID at any time. Customer is responsible for maintaining the confidentiality of the User IDs, and is solely responsible for all activities that occur thereunder. Customer agrees to notify Pinecone promptly of any actual or suspected unauthorized use of its account or User ID, or any other breach or suspected breach of this Agreement. Pinecone reserves the right to terminate any User ID that Pinecone reasonably determines may have been used by an unauthorized third party.

    1.2. Open Source. Certain items of software may be provided to Customer as part of the Platform or with the Hosted Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 1.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Pinecone makes such Open Source Software, and Pinecone’s modifications to that Open Source Software, available by written request at the notice address specified herein.

    1.3. Changes. From time to time, Pinecone reserves the right to release updates or upgrades of the Hosted Services, including new versions of the Hosted Services, and to otherwise change or discontinue any aspect or feature of the Hosted Services. Changes may not be consistent across all platforms and devices. Pinecone will use commercially reasonable efforts to notify Customer (including posting through the Hosted Services) of changes to the Hosted Services that Pinecone believes will materially affect use of the Hosted Services.

  2. RESTRICTIONS ON USE. Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (i) license, sublicense, sell, resell, transfer, assign, distribute or make available, in whole or in part, the Hosted Services or the Materials to any third party; (ii) copy, translate, decompile, disassemble, reverse-engineer or otherwise modify or make derivative works based upon the Hosted Services or the Materials; (iii) build a product using similar ideas, features, functions or graphics of the Hosted Services or Materials; (iv) disclose the results of any benchmark test of the Hosted Services or the Materials to any third party without Pinecone’s prior written approval; (v) use the Hosted Services to (A) send or store infringing, threatening, harassing, defamatory, libelous, obscene, pornographic, indecent or otherwise unlawful or tortious materials, including materials harmful to children or violating third-party privacy rights, or (B) send or store materials containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (vi) interfere with or disrupt the integrity or performance of the Hosted Services or the data contained therein; or (vii) attempt to gain unauthorized access to the Hosted Services or its related systems or networks, including the Platform itself.

  3. DATA.

    3.1. License to Customer Data. “Customer Data” means any data, information, or materials that Customer discloses or submits to Pinecone in the course of using the Hosted Services. Customer hereby grants Pinecone and its suppliers a non-exclusive, royalty-free license to access, use, reproduce, modify and display the Customer Data solely for the purposes of (i) providing the Hosted Services, and (ii) generating Aggregated and Anonymous Data (as defined below). All rights in and to the Customer Data not expressly granted herein are retained by Customer.

    3.2. Performance Data. “Performance Data” means any analytics or similar data collected, generated or processed by Pinecone based on Customer’s access to and use of the Platform or Hosted Services (“Performance Data”). Performance Data will be owned by Pinecone, and Pinecone may collect and use such Performance Data for any lawful purpose, provided Pinecone will only disclose Performance Data to third parties, including its subcontractors, for the purposes of facilitating the Hosted Services, for internal purposes, including to improve its products and services, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law.

    3.3. Aggregated and Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Pinecone may obtain and use Customer Data and Performance Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any individual or entity (the “Aggregated and Anonymous Data”). Customer further agrees that Pinecone shall own such Aggregated and Anonymous Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.

    3.4. Disclaimer. Customer assumes all risks associated with providing or uploading Customer Data to the Hosted Services, including misuse, deletion, data breach, data disclosure or any other outcome or harm. Pinecone has no obligation to protect or safeguard any Customer Data. Pinecone does not ensure compliance with any security guidelines or regulations and will have no obligation to provide notice in the event of a data breach.

  4. PROPRIETARY RIGHTS.

    4.1. Ownership. Pinecone and its suppliers own all right, title and interest in and to the Hosted Services (including the Platform, but excluding any Customer Data hosted therein), Performance Data, Aggregated and Anonymous Data, and any Materials, including but not limited to concepts, specifications, integration scenarios and examples of code, and all intellectual property rights in each of the foregoing. All rights in and to the Hosted Services, including the Platform, and Materials not expressly granted herein are retained by Pinecone.

    4.2. Feedback. Notwithstanding anything to the contrary herein, Pinecone may freely use and incorporate into Pinecone’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Hosted Services, the Platform, and the Materials (“Feedback”). Customer acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Pinecone, and hereby assigns to Pinecone, all right, title and interest to any and all Feedback.

  5. NO SUPPORT. Customer acknowledge and agrees that Pinecone will have no obligation to provide Customer with any support or maintenance in connection with the Hosted Services under this Agreement. Furthermore, Pinecone shall have no obligation under this Agreement to correct any bugs, defects or errors in the Hosted Services or to otherwise support or maintain the Hosted Services.

  6. CONFIDENTIALITY.

    6.1. “Confidential Information” means any proprietary, confidential and/or trade secret information concerning or relating to the property, business and affairs of the party disclosing such information (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, or any other information that the Receiving Party would reasonably understand to be confidential given the nature of the information or the circumstances surrounding disclosure. For the avoidance of doubt, Customer’s Confidential Information includes Customer Data, and Pinecone’s Confidential Information includes Performance Data, the proprietary and non-public portions of the Hosted Services, and the Materials provided in connection with this Agreement. Confidential Information shall not include information that a Receiving Party can demonstrate by reasonably sufficient evidence (i) was known to the Receiving Party before receipt thereof under this Agreement, (ii) is disclosed to the Receiving Party by a third party who has a right to make such disclosure without any obligation of confidentiality to the Disclosing Party, (iii) is or becomes generally known to the public or in the trade without violation of either this Agreement by the Receiving Party or any confidentiality obligation owed to the Disclosing Party by any third party, (iv) is furnished by the Disclosing Party to a third party without restriction on subsequent disclosure, or (v) is independently developed by the Receiving Party or its employees or subcontractors without reliance on such Confidential Information.

    6.4. The Receiving Party shall (i) not disclose Confidential Information to third parties (except to its directors, employees, agents or subcontractors to the extent such disclosure is necessary for the performance of this Agreement and who have agreed to restrictions similar to those set forth in this Section or except as may be required by law), (ii) not use Confidential Information except for the purposes contemplated by this Agreement and (iii) use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances.

    6.4. Upon expiration or termination of this Agreement, the Receiving Party shall return to the Disclosing Party or destroy all Confidential Information in the possession of the Receiving Party. Each party acknowledges that it will not obtain any right, title or interest in or to the Confidential Information of the other Party as a result of disclosure under this Agreement.

    6.4. The parties acknowledge that the Confidential Information is unique and valuable, and that the Disclosing Party will have no adequate remedy at law if the Receiving Party does not comply with its obligations under this Agreement. Therefore, the Disclosing Party shall have the right, in addition to any other rights it may have, to seek in any court of competent jurisdiction temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any obligations of the Receiving Party if the Receiving Party fails to perform any of its obligations under this Agreement.

  7. WARRANTY; DISCLAIMER.

    7.1. By Customer. Customer represents and warrants that it (a) will use Hosted Services, Platform and Materials in accordance with the terms herein and all applicable laws; and (b) uses and will use commercially reasonable efforts in accordance with industry standards to ensure that the Customer Data, and any other materials or code it uses with the Hosted Services or transmits to Pinecone in connection with the Hosted Services shall not contain any viruses intended to damage or disable any network, systems or data of Pinecone or any other third party.

    7.2. Disclaimer. To the maximum extent permitted by law, the Hosted Services, the Platform, and all other Materials are provided “AS IS” AND WITH ALL FAULTS. PINECONE MAKES NO WARRANTIES WITH RESPECT TO THE HOSTED SERVICES, THE PLATFORM OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE HOSTED SERVICES, THE PLATFORM, OR THE MATERIALS IS WITH CUSTOMER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PINECONE OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

  8. LIMITATION OF LIABILITY. IN NO EVENT WILL PINECONE OR ITS LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT OR CUSTOMER’S USE OF THE HOSTED SERVICES, THE PLATFORM, OR THE MATERIALS, EVEN IF PINECONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF PINECONE AND ITS LICENSORS RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS (U.S. $100). The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that this Agreement has been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

  9. TERM.

    9.1. Term and Termination. This Agreement commences upon Customer’s acceptance of the terms and conditions of this Agreement (as described in the preamble) and will continue for so long as Pinecone grants Customer access to the Hosted Services. Either party may terminate this Agreement (and Customer may elect to remove Customer’s account) by providing written notice to the other party by email with electronic return receipt. Upon termination, Customer shall immediately cease all use of the Hosted Services (including the Platform), and delete or destroy all copies of any other Materials in the possession or control of Customer.

    9.2. Survival. Sections 1.1 (Access), 1.2 (Open Source), 2 (Restrictions on Use), 3 (Data), 4 (Proprietary Rights), 6 (Confidentiality), 7 (Warranty; Disclaimer), 8 (Limitation of Liability), 9 (Term and Termination), and 10 (General Provisions) shall survive termination or expiration of this Agreement.

  10. GENERAL.

    10.1. Trade Control Laws. Customer shall comply with all export control and economic sanctions laws and regulations (collectively, “Trade Control Laws”) applicable to Customer in the performance of this Agreement. Pinecone shall not be required under this Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable Trade Control Laws. Customer represents and covenants that it (a) is not identified on, or owned or controlled by or acting on behalf of any individuals or entities identified on, applicable government restricted party lists (“Restricted Parties”); (b) is not located in, organized under the laws of or ordinarily resident in Cuba, Iran, North Korea, Sudan, Syria or Crimea (region of Ukraine/Russia) (“Restricted Countries”); and © will not directly or indirectly export, re-export or otherwise transfer any goods, technology or services covered by the Agreement to or for use in or from Restricted Countries or Restricted Parties.

    10.2. Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations, in whole or in part, without the prior written consent of Pinecone, and any unauthorized assignment or transfer shall be void.

    10.3. Notices. Where Pinecone requires that you provide an e-mail address, you are responsible for providing Pinecone with your most current e-mail address. In the event that the last e-mail address you provided to Pinecone is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Pinecone’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pinecone at the following address: 400 Concar Drive, San Mateo, California 94402, Attn: NOTICE, or info@pinecone.io. Such notice shall be deemed given when received by Pinecone by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address, or by electronic mail.

    10.4. Choice of Law; Venue. This Agreement shall be governed by laws of the State of California, without regard to the choice of conflicts of law provisions of any jurisdiction. Customer submits to the exclusive jurisdiction and venue of the federal and state courts located in Santa Mateo County, California for any disputes arising out of or related to this Agreement.

    10.5. Severability. If any term of this Agreement is found by competent judicial authority to be unenforceable in any respect, the validity of the remainder of this Agreement will be unaffected, provided that such unenforceability does not materially affect the parties’ rights under this Agreement.

    10.6. Waiver. An effective waiver under this Agreement must be in writing signed by the party waiving its right. A waiver by either party of any instance of the other party’s noncompliance with any obligation or responsibility under this Agreement will not be deemed a waiver of subsequent instances.

    10.7. Independent Contractor. Neither this Agreement nor the cooperation of the parties contemplated under this Agreement shall be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Except as otherwise expressly permitted in this Agreement, neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise

    10.8. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the transactions and matters contemplated hereby and supersedes all previous communications, representations, agreements and understanding relating to the Hosted Services, the Platform, and the Materials. No representations, inducements, promises or agreements, whether oral or otherwise, between the parties not contained in this Agreement shall be of any force or effect.

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