Pilot Agreement

This Pilot Agreement (this “Agreement”) is entered into between The Difference Experience Co, a Delaware corporation (“The Difference”) and Company (referred to this page by The Difference sales lead in conjunction with an order term sheet).

By accepting this Agreement, either by clicking a box indicating your acceptance, executing an order form (“Order”) or other online ordering document, using the Services, or presenting the Services to your Users, you: (A) agree to this Agreement on behalf of the company or other legal entity for which you act (“Company”); and (B) represent that you have the authority to bind Company to this Agreement.

  1. Pilot. Subject to Company’s and its Users’ compliance with this Agreement and any usage restrictions required by The Difference, The Difference will provide members of Company’s professional community (“Users”) with access to apply for designated seats on The Difference’s web-based virtual coaching platform (the “Services”) in accordance with the terms of the applicable Order for the Pilot Term. Any replacements, additions, or modifications to the Services provided to Company or its Users are included within the term “Services” and are subject to this Agreement. Company acknowledges that it or its Users, as applicable, are responsible for all equipment and third-party software necessary to access the Service.  Company will comply with all obligations, including those to market, advertise, or otherwise promote the Service to Users, included in an applicable Order.
  2. Restrictions. Company will not, and will not permit any third parties (including Users) to: (A) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties (including any third party that provides marketing, advertising, public relations, or video or other digital media services, but excluding Users) to use the Services; (B) rent, lease, loan, or use the Services to provide services to third parties for consideration (e.g., as a service bureau or agency), including rebranding the Services; (C) use the Services in any way that would violate this Agreement or exceed any limitations described in any Order or other document relating to the Services or otherwise communicated to Company by The Difference; (D) circumvent or disable any security or other technological features of the Services; (E) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services; (F) modify, translate, or create derivative works based on the Services; (G) remove any proprietary notices or labels from the Services; (H) use the Services in a manner that violates or attempts to circumvent applicable law, or that would cause The Difference to be in violation of applicable law; (I) use the Services to transmit any content that is offensive, harassing, libelous, abusive, threatening, harmful, or otherwise objectionable; (J) use the Services to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Services; (K) use the Services for any purpose not contemplated by the documentation; or (L) access the Services in order to develop a competing product or service. This Section 2 will apply solely to the extent permitted by applicable law.
  3. Company Data.
    1. Definition. “Company Data” means all non-public data provided by Company to The Difference.  Company Data does not include any and all data or information collected by or on behalf of The Difference from any person other than Company, or data or information related to Users.
    2. License. Company hereby grants The Difference a worldwide, non-exclusive, royalty-free, fully paid right, and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, and modify Company Data for the purpose of providing the Services to Users.
    3. Representation. Company represents and warrants to The Difference that: (A) Company has the necessary rights to authorize The Difference to use the Company Data in accordance with this Agreement; (B) Company Data and the use and other processing of Company Data as contemplated by this Agreement, does not and will not: (1) infringe, violate, or misappropriate any third-party right, including any privacy right, or any intellectual property or proprietary right; or (2) violate any law or regulation; (C) Company will access, use, and promote  the Services in compliance with any instructions provided by The Difference and all applicable laws and regulations; and (D) Company will not provide any sensitive or regulated personal data, including but not limited to financial information; health or genetic information; biometric information; government IDs or other government-issued identifiers; credit reports or consumer reports; payment card information or cardholder data; information subject to restrictions under applicable law governing personal data of children, including, without limitation, all information about children under 16 years of age; or any information that falls within any special categories of data under applicable law.  Company is responsible for the actions and inactions of its personnel.
  4. Usage Data. The Difference may collect, analyze and otherwise process information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (e.g. information concerning Company’s and Users’ use of the various features and functionality of the Services and analytics and statistical data derived therefrom) (“Usage Data”), and may (A) process Usage Data internally for its business purposes, including for the purposes of security and analytics, to improve and enhance the Services, or for other development, diagnostic and corrective purposes in connection with the Services or other The Difference products or services; and (B) disclose Usage Data in an aggregated and/or de-identified form in connection with its business in a manner that does not identify Company.
  5. Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of The Difference includes non-public information regarding features, functionality, and performance of the Services. The Receiving Party agrees: (A) to take reasonable precautions to protect the Disclosing Party’s Confidential Information; and (B) not to use (except in performance of the Services or as otherwise expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing does not apply with respect to any Confidential Information of Disclosing Party that the Receiving Party can document: (1) is or becomes generally available to the public; (2) was in its possession or known by it prior to receipt from the Disclosing Party; (3) was rightfully disclosed to it without restriction by a third party; or (4) was independently developed without use of or reference to any Confidential Information of the Disclosing Party. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required under applicable law, so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and reasonable assistance in obtaining an order protecting the Confidential Information from public disclosure, in each case to the extent permitted by applicable law.
  6. Ownership. The Difference owns all right, title, and interest in and to the Services and Usage Data, including any improvements, modifications, and enhancements. Except for those rights expressly granted in this Agreement, The Difference does not grant any other rights, express or implied, to Company. Company owns all right, title, and interest in and to the Company Data. No ownership rights in the Company Data are transferred to The Difference. Except for those rights expressly granted in this Agreement, Company does not grant any other rights to the Company Data, express or implied, to The Difference.  The Difference grants Company a worldwide, non-exclusive, non-transferable, non-sublicensable, freely revocable, limited license during the Pilot Term to use The Difference’s trademarks, service marks, and trade names (“The Difference Marks”) solely as necessary to market, advertise, or otherwise promote the Services as contemplated under the applicable Order. Company will comply with any trademark usage policies that The Difference may provide. All goodwill arising from Company’s use of The Difference Marks will inure solely to The Difference’s benefit.
  7. Feedback. If Company provides any feedback to The Difference concerning The Difference’s Confidential Information or the functionality and performance of the Service (including identifying potential errors and improvements) (“Feedback”), Company hereby assigns to The Difference all right, title, and interest in and to the Feedback, and The Difference may use the Feedback without payment or restriction. To the extent the assignment in the previous sentence is ineffective, Company hereby grants to The Difference an exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable, worldwide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the Feedback for any purpose without payment or restriction.
  8. No Warranty. The Services are provided “as is”, and The Difference does not warrant that the Services will be error- or interruption-free. The Difference disclaims all other warranties, express or implied, including the implied warranties of merchantability, noninfringement, title, quality, accuracy, and fitness for a particular purpose.
  9. Term. This Agreement will begin on the date Company is granted access to the Services and will continue for the pilot term set forth on the applicable Order or otherwise communicated to Company in writing by The Difference (the “Pilot Term”). The Difference may immediately terminate this Agreement at any time. Upon the expiration or termination of this Agreement, Company acknowledges that any pricing or other benefits from the pilot, including those specified under an applicable Order, will immediately terminate. Sections 2 (Restrictions), 3.A and 3.C (Representations), 4 (Usage Data), 5 (Confidentiality), 6 (Ownership), 7 (Feedback), 8 (No Warranty), 9 (Term), 10 (Limitations of Liability), 11 (Remedies), 12 (Assignment), and 13 (Miscellaneous) will survive termination or expiration of this Agreement.
  10. Limitations of Liability. The Difference will not be liable to Company for any consequential, incidental, special, punitive, or exemplary damages arising out of or related to this Agreement, including lost profits, loss of business, loss or inaccuracy of data, or cost of procurement of substitute goods, services or technology, even if The Difference is apprised of the likelihood of such damages occurring. The Difference’s total liability arising out of or related to this Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, will not exceed $100.
  11. Remedies. Company understands that any violation or threatened violation of this Agreement may cause irreparable injury to The Difference, and that The Difference may seek injunctive relief in addition to all legal remedies.
  12. Assignment. Neither party may assign this Agreement or delegate its performance without the other party’s prior written consent, and any attempt to do so is void; except either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
  13. Miscellaneous. This Agreement is governed by New York law without reference to its conflict of laws principles. All claims arising under this Agreement will be litigated exclusively in the federal or state courts of New York County, New York. The parties submit to the jurisdiction in those courts. This Agreement, including any order form issued by The Difference constitutes the entire agreement between the parties and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement this Agreement. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement. The Difference may publicly list Company as a customer and/or partner of The Difference and use Company’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential customers of The Difference, resellers, or investors. The Difference may use subcontractors or other third parties to perform its obligations under this Agreement, but The Difference will remain responsible for all such obligations. There are no third-party beneficiaries of this Agreement. If any provision (or portion of a provision) of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect. This Agreement may only be amended by a written amendment that: (A) states that it is amending this Agreement; and (B) is signed by both parties. This Agreement may be executed in two counterparts; each counterpart is an original, and all counterparts together are the same agreement.