Terms of Service
This agreement is entered into between Datawave, Inc. (dba Coval), a Delaware corporation ("Coval") and the entity or person placing an order via the Order Form ("Customer" or "you"). The "Effective Date" of this agreement is the date set forth in the applicable Order Form (or if none is provided, the date that Customer first registers for the Services).
1. Overview
Coval provides an AI copilot, which allows you to input test cases or conversations (collectively, "Inputs") in order to assist you in evaluating agents ("Outputs"). The Services are powered by a combination of Coval's proprietary machine learning and large language models (LLMs) provided by third-party AI platforms, such as OpenAI ("Third-Party LLM Providers"). You understand and agree that any information contained on, or Outputs generated by, the Services is not guaranteed to be correct, complete or up-to-date.
2. Access to the Services
Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer's compliance with the terms of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Coval grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right to access and use the Coval service(s) described in such Order Form (collectively, the "Services") during the subscription term set forth in such Order Form. Customer may only use the Services for its internal business purposes and only in accordance with Coval's applicable official user documentation (the "Documentation").
3. Professional Services
Upon payment of any applicable fees set forth in the applicable Order Form, Coval agrees to use commercially reasonable efforts to provide the professional services described in such Order Form. If Coval provides professional services in excess of any agreed-upon hours estimate, or if Coval otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Coval at its then-current hourly rates for consultation.
4. Fees; Payment
Customer shall pay Coval the fees applicable to the subscription selected by Customer via the Subscription Page (the "Subscription") or the fees otherwise set forth in each Order Form (the "Fees"). Customer shall provide Coval with valid and updated credit card information. Customer authorizes Coval to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the section titled "Subscription Term; Termination." Such charges shall be made in advance in accordance with the Subscription or with any different invoice frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Coval will invoice Customer in advance or otherwise in accordance with the relevant Order Form. Payments will be payable in U.S. dollars and are due within thirty (30) days from the invoice date (if applicable). Coval currently uses Stripe as its third-party service payment processor, and, by using the Services, Customer agrees to be bound by Stripe's Services Agreement, available at stripe.com/us/legal. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Coval's net income). All Fees paid are non-refundable and are not subject to set-off. Coval reserves the right to amend the Fees upon renewal of the then-current subscription term by providing notice to Customer. Customer's continued use of the Services following the effective date of such amendment to the Fees constitutes acceptance of the amended fees. If Customer does not agree to the amended Fees, then Customer may not use the Services.
5. Customer Intellectual Property and Data
For purposes of this Agreement, "Customer Data" shall mean all Inputs and all other data, information and materials provided, uploaded, or submitted by Customer to the Services and all Outputs generated therefrom. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer acknowledges and agrees that Coval may use and display Customer Data to provide the Services under this Agreement.
6. Personal Data
Insofar the Customer Data includes information relating to an identified or identifiable natural person ("Personal Data"), the processing of such Personal Data by Coval for the provision of the Services shall be governed by the Coval Data Processing and Transfer Agreement (the "Coval DPTA"). The attached Coval DPTA forms an integral part of this Agreement.
7. Coval Intellectual Property
As between the parties, Coval retains all right, title, and interest in and to (a) the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Coval for the purposes of this Agreement, including any copies and derivative works of the foregoing and (b) Coval's Confidential Information (as defined below). No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Coval with respect to the Services ("Feedback") and Coval may freely use and exploit such Feedback. Coval may generate Anonymized Data (as defined below) and freely use and disclose Anonymized Data to analyze and improve the Services and for other lawful business purposes. "Anonymized Data" means logs, metadata, statistics, and other data that are anonymized or aggregated such that they are not identifiable with Customer, its customers or any natural person. Anonymized Data does not constitute Customer or Personal Data and does not include any Personal Data, and Coval owns all right, title and interest in and to Anonymized Data, including all intellectual property rights therein.
8. Customer Responsibilities
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party, except with respect to Customer's clients as contemplated by the Services; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build any product or service that is competitive with any Coval product or service or any third-party LLM; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any measures Coval may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service); (ix) represent that any Output is human-generated; or (x) "crawl," "scrape," or "spider" any page, data, or portion of or relating to the Services (or any information, data or content made available through the Services), whether through use of manual or automated means. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer shall ensure (and is solely responsible for ensuring) that it has given all notices, and obtained all rights, permissions and consents, as are necessary to use the Services and to provide Customer Data to Coval for use as contemplated by this Agreement. Customer is solely responsible for all of Customer's activity in connection with the Services and all activity associated with the Services' user accounts provisioned to Customer, including but not limited to uploading Customer Data onto the Services. Customer shall use the Services in compliance with this Agreement and all applicable local, state, national and foreign laws, treaties and regulations and all applicable rules and professional standards in connection with Customer's use of the Services. Customer shall not use the Services in a manner that is harmful, deceptive, threatening, harassing or obscene or that violates any third-party intellectual property, contractual or other proprietary rights. Customer shall indemnify, defend and hold harmless Coval from and against any damages, losses, liabilities, settlements and expenses (including reasonable attorneys' fees) in connection with any claim or action that arises from any violation of the foregoing or otherwise from Customer's use of Services.
9. Confidentiality
The parties acknowledge and agree that each party (the "Receiving Party") may have access to certain confidential information ("Confidential Information") of the other party (the "Disclosing Party"). "Confidential Information" means all information provided by the Disclosing Party to the Receiving Party hereunder that is (a) proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries, and its affiliates, including any business plans, strategy, pricing, or financial information; (b) the terms of this Agreement; and/or (c) any other information that is designated as confidential by the Disclosing Party. Confidential Information of Coval shall also include the Services and Anonymized Data, and Confidential Information of Customer shall also include Customer Data. Confidential Information does not include any information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) rightfully disclosed to the Receiving Party by a third party; (iii) already in the Receiving Party's possession prior to the date of receipt from the Disclosing Party without restriction; or (iv) independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information. At all times, the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; (2) not use the Disclosing Party's Confidential Information other than as permitted under this Agreement; and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement or to the extent necessary to comply with applicable law.
10. Third-Party Services
Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (such as Third-Party LLM Providers) (collectively, "Third-Party Services"). Except as expressly provided in this Agreement, Coval is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services. Coval does not make any representations or warranties with respect to Third-Party Services or any third-party providers. Customer agrees that Customer's use of the Services will not breach or violate any Third-Party Services' terms, policies or other agreements.
11. Subscription Term; Termination
Unless earlier terminated as provided in this Agreement, this Agreement shall begin on the effective date of the first Order Form and end as of the expiration of the last active Order Form. For each Order Form, unless otherwise provided therein or earlier terminated as provided in this Agreement, the subscription term of such Order Form shall begin as of the date of such Order Form and shall continue until the end of the subscription term set forth in such Order Form, and shall automatically renew for successive renewal subscription terms of equal duration to the initial subscription term unless either party provides notice of non-renewal prior to the end of the then-current subscription term, or, in the case of a subscription term longer than one month, at least thirty (30) days prior to the end of the then-current subscription term. Either party may terminate this Agreement for the other party's material breach that remains uncured thirty (30) days (ten (10) days in the case of a one-month subscription term) after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, Coval may suspend Customer's access to the Services if Customer's account is more than sixty (60) days past due. All provisions of this Agreement that by their nature should survive termination shall survive termination, including without limitation accrued payment obligations, confidentiality obligations, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability.
12. Indemnification
Each party (the "Indemnitor") shall indemnify, defend and hold harmless the other party, its affiliates and each of its and its affiliates' employees, contractors, directors, suppliers and representatives (collectively, the "Indemnitee") from and against all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys' fees) ("Losses"), that arise from or relate to any claim that (a) in the case of Customer as the Indemnitor, the Customer Data or Customer's use of the Services infringes, violates, or misappropriates any third-party intellectual property, proprietary or contractual right or violates any applicable law, or (b) in the case of Coval as the Indemnitor, the Services infringe, violate, or misappropriate any third-party intellectual property or proprietary right. Each Indemnitor's indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim; (ii) the option to assume sole control over the defense and settlement of any claim; and (iii) reasonable information and assistance in connection with such defense and settlement.
13. Warranty; Disclaimer
Coval will provide the Services and any other services provided hereunder in a professional and workmanlike manner. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES (IF ANY) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. OUTPUTS MAY CONTAIN INACCURATE OR INCOMPLETE INFORMATION AND COVAL MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNITIES WITH RESPECT THERETO; CUSTOMER AND ITS END USERS ARE RESPONSIBLE FOR ALL DECISIONS MADE, ADVICE GIVEN, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON THEIR USE OF THE SERVICES. CUSTOMER IS ADVISED TO SAFEGUARD CUSTOMER DATA AND ITS OTHER DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SERVICES OR DOCUMENTATION.
14. Limitation of Liability
EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, EACH PARTY'S CONFIDENTIALITY OBLIGATIONS RESULTING FROM ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND FOR CUSTOMER'S BREACH OF THE SECTION TITLED "CUSTOMER RESPONSIBILITIES," IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (A) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING), OR (B) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO COVAL HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER (THE "GENERAL LIABILITY CAP"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, EITHER PARTY'S AGGREGATE LIABILITY ARISING FROM OR RELATED TO ITS INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS SHALL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP. NOTHING IN THIS AGREEMENT WILL LIMIT, EXCLUDE, OR RESTRICT A PARTY'S LIABILITY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
15. How to Contact
Please contact Coval at support@coval.dev with any questions or concerns about the Services or these Terms of Service.
16. Publicity; Marketing Use
Customer grants Coval a non-exclusive, worldwide, royalty-free, fully paid-up, sublicensable license to use, reproduce, display, perform, and distribute Customer's name, logo, trademarks, service marks, trade names, and other brand identifiers (collectively, the "Customer Marks") in Coval's marketing, promotional, sales, and investor materials, including without limitation Coval's website, social media accounts, customer lists, case studies, testimonials, press releases, blog posts, sales decks, product demonstrations, conference and event materials, fundraising and investor decks, and other public-facing or private communications, in each case to identify Customer as a customer of Coval and to describe the nature of the relationship between the parties. Coval will use the Customer Marks in accordance with any reasonable written brand guidelines provided by Customer. This license shall continue for the term of this Agreement and shall survive termination solely for historical and archival purposes.
17. Miscellaneous
This Agreement represents the entire agreement between Customer and Coval with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Coval with respect thereto. In the event of a conflict between these Terms of Service and any Order Form, such Order Form shall govern. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and any dispute between the parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in the State of California under the rules of JAMS. All notices under this Agreement will be sent via email to support@coval.dev. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party's business relating to this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.