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            This Evaluation Agreement (this “Agreement”) is entered into between Numerify, Inc., a Delaware corporation (“Numerify”) and [Your Company] (“Customer”), effective as of the date it is signed by the last party to sign (the “Effective Date”).  This Agreement concerns the Customer conducting a free evaluation of Numerify’s online, web-based data analytics and reporting service (the “Service”).

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, as well as other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the Parties agree as follows:

1.  Deployment of Evaluation Service.  Numerify and Customer will work together to define Customer’s requirements for the Service.  Numerify will configure and deploy an evaluation version of the Service for Customer, based upon Customer’s requirements (the “Evaluation Service”).  Numerify will notify Customer when the Evaluation Service is functional and ready for use by Customer (“Completion Notice”), which is expected to be approximately eight (8) weeks after the Effective Date of this Agreement.

2.  Duration of Evaluation.  Customer will be entitled to use the Evaluation Service for a period of up to thirty (30) days after receipt of the Completion Notice (the “Evaluation Period”).  Customer is under no obligation to purchase a paid subscription to the Service and either party shall be entitled to terminate this Agreement at any time on notice to the other.  Upon termination of this Agreement, Numerify may delete all Customer Data (as defined below) contained in the Evaluation Service.  Sections 8 through 16 of this Agreement will survive any termination of this Agreement, as well as any other provisions that should logically survive.

3.  Fees.  Customer will not be required to pay any compensation, fees, or expenses to Numerify for development or use of the Evaluation Service.

4.  Limitations on Use.  Customer will designate the employees and consultants of Customer who Customer authorizes to use the Evaluation Service on behalf of Customer (“Users”).  Customer agrees to use the Evaluation Service only for Customer’s internal business operations, and Customer will not license, sublicense, sell, rent, transfer, assign, distribute, time share or otherwise commercially exploit the Evaluation Service or make the Evaluation Service available to anyone other than its Users. Customer agrees not to (a) attempt to gain unauthorized access to the software, hardware, processes, data models, algorithms, designs, know-how, or other technology or proprietary information that is used by Numerify to provide the Evaluation Service (the “Numerify Technology”), (b) attempt to probe, scan, or test the security or vulnerability of the Evaluation Service, (c) access or use the Evaluation Service for the purpose of benchmarking or creating a similar or competitive product, or (d) violate any applicable laws or regulations including but not limited to those regarding the export of technical data.  Customer acknowledges that the Evaluation Service may cancel or terminate a Customer query if such query puts an unreasonable load or burden on the systems used by Numerify to provide the Evaluation Service.

5.  Ownership and Use of Customer Data.  “Customer Data” is all data, information or material that is submitted to the Evaluation Service by or on behalf of Customer in the course of using the Evaluation Service, or that is extracted or retrieved by the Evaluation Service from third parties who generate or store data or information for or on behalf of Customer.  As between Numerify and Customer, Customer owns all right, title and interest in and to all Customer Data.  Customer grants Numerify and its subcontractors a non-exclusive right to use, copy, and process Customer Data through the Evaluation Service, solely for the purposes of providing the Evaluation Service to Customer.  Numerify will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. Numerify may analyze Customer Data, and data of other customers, to create aggregated statistics that do not identify Customer or any individual, and Numerify may use and disclose such statistics in its discretion.

6.  Content of Customer Data.  Customer agrees not to use the Evaluation Service to transmit or process (a) any material that is infringing, unlawful, or that otherwise violates the rights of any third party, (b) any information or data comprised of “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act (“HIPAA”) or that would otherwise require Numerify or the Evaluation Service to be HIPAA compliant, or (c) any software viruses or other code, files or materials designed to interrupt, damage or interfere with any computer software or hardware or telecommunications equipment.  The content of Customer Data shall be Customer’s sole responsibility.

7.  Third Party Offerings.  In order to function properly, the Evaluation Service may require compatible Customer Data from other business applications or services used by Customer (“Third Party Offerings”), such as CRM or ERP software or services.  Customer must provide Numerify with all required account information and passwords relating to such Third Party Offerings. Third Party Offerings may be subject to their own terms of service and Customer agrees to comply with all such terms of service. Numerify makes no representations or warranties regarding Third Party Offerings or the Customer Data derived therefrom.

8.  Ownership of Evaluation Service.  Numerify, and/or its licensors, own all right, title and interest in and to the Evaluation Service and the Numerify Technology, including all rights under patent, copyright, trademark, trade secret and other intellectual property laws.  Numerify reserves all rights not expressly granted to Customer under this Agreement.  In addition, Numerify shall exclusively own all right, title and interest in and to any and all suggestions, enhancement requests, recommendations or other feedback that may be provided by Customer or its Users from time to time relating to the Evaluation Service, and all intellectual property rights thereto, and Numerify may use such information to improve the Service or for any other purpose.

9.  Confidentiality.  Each party agrees that in connection with the use and provision of the Evaluation Service, information that is confidential may be disclosed to the other party, including, but not limited to Numerify Technology, Customer Data, passwords for Third Party Offerings, marketing plans, budgets, financial information, technical information, methods, processes, techniques, designs, computer programs and other business information (“Confidential Information”). Confidential Information, however, shall not include information that the receiving party can demonstrate (a) is or becomes publicly known through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party.  Except as provided for in this Agreement, each party shall not make any disclosure of the other party’s Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the Confidential Information and shall require them to comply with these obligations. These confidentiality obligations shall survive three years beyond the expiration or termination of this Agreement. Numerify shall have the right to identify Customer as a customer of Numerify on Numerify’s websites and in public communications unless Customer notifies Numerify that Customer does not approve thereof.

10. Indemnification by Numerify.  Numerify, at its expense, will defend and indemnify Customer against any third party claim brought against Customer to the extent based on a claim that Customer’s use of the Evaluation Service in accordance with this Agreement infringes a third party’s United States copyright or United States patent issued as of the Effective Date, provided Customer notifies Numerify promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits Numerify to control the defense and settlement thereof.  If any such infringement claim arises, Numerify may, at its option (a) obtain for Customer the right to continue to use the Evaluation Service, (b) substitute for, or modify the Evaluation Service, so that it becomes non-infringing, or (c) terminate this Agreement.  The obligations of Numerify in this paragraph shall not apply to a claim of infringement that arises out of (i) Customer Data, (ii) software, hardware, networks, processes or systems not supplied by Numerify, or the combination thereof with the Evaluation Service, or (iii) Customer’s continued use of the Evaluation Service after Numerify notifies Customer of an infringement claim. This paragraph states Numerify’s sole obligations, and Customer’s sole remedies, for infringement claims relating to the Evaluation Service.

11.  Indemnification by Customer.  Customer, at its expense, will defend and indemnify Numerify against any third party claim brought against Numerify to the extent based on a claim that the Customer Data infringes any intellectual property rights or other rights of a third party, or alleging facts that, if true, would constitute a breach by Customer of its representations, warranties or covenants in this Agreement.   Numerify shall notify Customer promptly in writing of any such claim, provide reasonable assistance in connection with the defense and settlement thereof, and permit Customer to control the defense and settlement thereof.

12.  Limitation of Liability.  NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA OR PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE EVALUATION SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED ONE THOUSAND DOLLARS ($1,000).  THE LIABILITY LIMITATIONS IN THIS PARAGRAPH ARE INCLUDED IN PART BECAUSE NUMERIFY OFFERS THE EVALUATION SERVICE WITHOUT CHARGE, AND SUCH LIMITATIONS AND EXCLUSIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

13. Notices. Any notice required or permitted hereunder shall be given (i) by established overnight courier, to be effective on delivery, (ii) by certified or registered mail, return receipt requested, to be effective upon verification of receipt, or (iii) by email, to be effective upon verification of receipt. Either party may change its address for notices by means of notice given in accordance with this paragraph.

14.  Force Majeure. Neither party shall be liable to the other party, or be deemed in breach of this Agreement, for any failure or delay in performance (other than payment of money) to the extent caused by circumstances beyond such party’s reasonable control, including without limitation an act of God, fire, flood, explosion, war, strike, government regulation, acts of vandals or hackers, unavailability or performance of Third Party Offerings, or acts or omissions of the other party or any third party. The party suffering a force majeure event shall be excused from performance for the duration of such force majeure event.

15.  General Provisions.  The parties agree to comply with the Privacy Policy attached at Exhibit A.  Numerify and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, or other relationship between the parties. This Agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all prior agreements or understandings regarding that subject matter.  This Agreement may not be amended except in a written instrument signed by both parties. No waiver shall be effective unless in a signed writing.  If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be modified and interpreted so as best to accomplish the intent of the original provision to the fullest extent possible, and the other provisions shall not be affected. This Agreement shall be governed by and construed under the laws of the State of California excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Customer may not assign or transfer this Agreement to any third party, including in connection with a merger or otherwise by operation of law, without the prior written consent of Numerify.  Numerify may assign this Agreement to a successor to its business relating to the Evaluation Service resulting from a sale of assets, merger, or similar transaction.  Numerify may subcontract the hosting of the Evaluation Service, and other portions of the Evaluation Service, in accordance with its business needs.

16.  No Warranties.  THE EVALUATION SERVICE WILL BE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

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