Trial End User Agreement
THIS TRIAL END USER AGREEMENT IS BETWEEN UNSKRIPT, INC. (“COMPANY”) AND “CUSTOMER” WHICH MEANS IN THE CASE OF AN INDIVIDUAL ACCEPTING THIS AGREEMENT ON HIS OR HER OWN BEHALF, SUCH INDIVIDUAL, OR IN THE CASE OF AN INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH SUCH INDIVIDUAL IS ACCEPTING THIS AGREEMENT.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) USING THE SERVICE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THIS AGREEMENT WILL BECOME EFFECTIVE ON THE EARLIER OF THE DATE CUSTOMER ACCEPTS THIS AGREEMENT OR CUSTOMER BEGINS USING THE SERVICE.
- SERVICE AND RESTRICTIONS
1.1 Service. Subject to Customer’s compliance with sections 1.2, 1.3, 1.4, and 2, Company will use commercially reasonable efforts to provide Customer with access to Company’s xRunBooks (the “Service”), for Customer’s internal business purposes and in accordance with the documentation for the Service provided to Customer by Company. Company shall provide Customer with access information and account credentials for the Service, which are Company’s Confidential Information. Customer acknowledges that this is a free trial of the Service and certain features or functionalities of the Service may be disabled or reduced in Company’s sole discretion.
1.2 Restrictions. Customer shall not, and shall not permit, authorize, or assist any third party to: (1) modify, adapt, translate, reverse engineer, decompile, disassemble, or attempt to derive the source code of any part of the Service; (2) use or integrate the with any software, hardware, or system other than Customer’s computer equipment on which the Service is designed to operate; (3) sell, resell, license, sublicense, distribute, rent or lease any part of the Service or provide any third party with access to the Service; (4) access the Service for the purpose of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes or disclose to any third party any results of any benchmark or other performance tests of the Service; (5) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Service; (6) copy, frame, or mirror any part of the Service; (7) attempt to disrupt, degrade, impair, or violate the integrity or security of the Service, including, without limitation, by executing any form of network monitoring; or (8) use the Service to store or transmit any malicious code. Company may monitor Customer’s use of the Service and may prohibit any use of the Service Company reasonably believes may be (or alleged to be) in violation of the foregoing; provided, however, that prior to suspending any provision of Service to Customer, Company shall provide Customer with written notice of any such suspected violation and Customer shall have the opportunity to cure such violation during the 30-day period following receipt of such notice.
1.3 Export Restrictions. Customer may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Company provides the Service, including related software and technology, for ultimate federal government end use in accordance with the following: The Service consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Service shall be as provided in this agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this agreement specifically granting those rights.
1.1 No Protected Information. Customer shall not disclose to Company or process or submit via the Service any information that is: (1) “personal health information,” as defined under the Health Insurance Portability and Accountability Act of the United States of America; (2) government-issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (3) financial account information; (4) payment card data; (5) biometric information; or (6) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament and any national laws adopted pursuant thereto.
1.2 Feedback. Customer may provide suggestions, comments or other feedback (“Feedback”) to Company with respect to the Service. All Feedback is entirely voluntarily and shall not, absent a separate written agreement between the parties, create any confidentiality obligation for Company. Company may freely use, disclose, reproduce, license, distribute, or exploit the Feedback during and following the term of this agreement without restriction.
1.3 Use of Data; Customer Data. Company may collect technical and usage data in connection with Customer’s use of the Service. Any such collected data is owned by the Company and Company may use and exploit it in any manner without restriction. Customer retains ownership of any data or other information input into the Service by Customer (collectively, “Customer Data”). Company may internally use Customer Data to provide the Service to Customer and to improve the Service (during and after the term of this agreement). Customer understands and agrees that any Customer Data Customer enters into the Service during the free trial may be permanently lost unless Customer either (1) purchases a subscription to the Service or (2) exports such data prior to losing access to the Service. Company has no obligation to provide Customer with any post-termination delivery of data.
1.4 Customer Equipment. Customer is responsible for obtaining and maintaining any hardware, equipment, services, or other technology needed to connect to, access, or otherwise use the Service (“Customer Equipment”). Customer is responsible for the security of the Customer Equipment and for all uses of Customer Equipment.
1.5 Technical Support. Company will provide Customer with information to access Company’s community technical support Slack channel. Company has no other support, maintenance, or technical support obligations to Customer.
2.1 Definition. “Confidential Information” means any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether before or after the date of this agreement, that (1) is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, (2) if not marked, Receiving Party should reasonably understand to be the confidential or trade secret information of Disclosing Party, or (3) is oral information disclosed by Disclosing Party to Receiving Party, provided that such information is designated as confidential at the time of disclosure and Disclosing Party reduces such information to writing within a reasonable time after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to Receiving Party.
2.2 Obligations. Receiving Party shall not use Confidential Information except to exercise its rights and perform its obligations under this agreement. Receiving Party shall not disclose Confidential Information to any third party without the prior written approval of Disclosing Party. Receiving Party shall disclose Confidential Information internally only to those employees or independent contractors of Receiving Party who need to know Confidential Information in order for Receiving Party to exercise its rights and perform its obligations under this agreement and who are bound by written confidentiality obligations at least as protective as this agreement. Receiving Party shall take precautions to prevent disclosure or use of Confidential Information other than as authorized in this agreement. Those precautions must be at least as effective as those taken by Receiving Party to protect its own Confidential Information or those that would be taken by a reasonable person in the position of Receiving Party, whichever are more effective. Receiving Party shall promptly notify Disclosing Party of any actual or suspected misuse or unauthorized disclosure of Disclosing Party’s Confidential Information.
2.3 Exceptions. Receiving Party has no obligations under section 2.2 with respect to information that (1) was already public when Disclosing Party discloses it to Receiving Party or becomes public (other than as a result of breach of this agreement by Receiving Party) after Disclosing Party discloses it to Receiving Party, (2) when Disclosing Party discloses it to Receiving Party, is already in the possession of Receiving Party as the result of disclosure by a third party not then under an obligation to Disclosing Party to keep that information confidential, (3) after Disclosing Party discloses it to Receiving Party, is disclosed to Receiving Party by a third party not then under an obligation to Disclosing Party to keep that information confidential, or (4) was independently developed by Receiving Party without any use of or reference to Disclosing Party’s Confidential Information.
2.4 Compelled Disclosure. If Receiving Party is required to disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, Receiving Party shall, prior to any such disclosure (1) provide prompt notice to Disclosing Party of such disclosure requirement and (2) cooperate with Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such information. Receiving Party shall limit any required disclosure to the particular Confidential Information required to be disclosed.
2.5 Return of Confidential Information. Upon termination of this agreement, Receiving Party shall deliver to Disclosing Party all of Disclosing Party’s Confidential Information that Receiving Party has in its possession or control or at the request of Disclosing Party, destroy it. Notwithstanding the foregoing, (1) each party may retain Confidential Information that is contained in an automatic archived computer system backup; provided, however, that any such Confidential Information contained in such automatic archived computer system backup shall be subject to the terms and conditions of this agreement and shall be accessible only to that party’s IT professionals, and (2) nothing in this agreement shall prohibit the a party from retaining one copy of any of the Confidential Information with its legal counsel in a manner designed to ensure compliance with applicable law or legal process.
2.6 Injunctive Relief. Any breach of Receiving Party’s obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to Disclosing Party, which could not be remedied by payment of damages alone. Disclosing Party has the right to seek preliminary and permanent injunctive relief for such breach in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach.
2.7 Survival of Confidentiality Obligations. Receiving Party shall comply with its obligations under this section 2 during the term of this agreement and for a period of two years thereafter, provided that for any Confidential Information that is a trade secret of Disclosing Party, such obligations shall continue in perpetuity for so long as such Confidential Information remains a trade secret.
- TERM AND TERMINATION
3.1 Term. This agreement begins on the Effective Date and continues until the earlier of (1) the end of the free trial period for which Customer registered to use the Service, (2) the start date of any paid subscription for the Service purchased by Customer, or (3) termination.
3.2 Termination. A party may terminate this agreement for any or no reason by providing the other party with written notice of such termination.
3.3 Effect of Termination. Upon termination of this agreement, Company will terminate Customer’s access to the Service.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER AND LIMITATIONS
4.1 Representations and Warranties; Disclaimer. Each party states that it has the power to enter into this agreement and to perform its obligations hereunder. The Service is provided by Company “as is” and Company makes no warranties, express, implied, statutory or otherwise with respect to the Service or its use or operation, or that any data made available via the Service is accurate, complete, or will fulfill Customer’s needs. Company disclaims the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
4.2 Limitation of Liability. In no event will Company be liable to Customer for any consequential damages or damages related to loss of data, loss of system availability, loss of computer run time, or lost profits. Company’s maximum liability Customer for claims arising out of this agreement shall not exceed $100.
5.1 Governing Law. California law governs all adversarial proceedings arising out of this agreement.
5.2 Exclusive Jurisdiction. Any adversarial proceeding arising out of this agreement shall be brought exclusively in the state and federal courts located in Santa Clara County, California and the Northern District of California.
5.3 Severability. The parties acknowledge that if a dispute between the parties arises out of this agreement or the subject matter of this agreement, they would want the court to interpret this agreement as follows: (1) with respect to any provision that it holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; (2) if an unenforceable provision is modified or disregarded in accordance with this section, by holding that the rest of the agreement will remain in effect as written; (3) by holding that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable; and (4) if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.
5.4 Waiver. No waiver of satisfaction of a condition or nonperformance of an obligation under this agreement will be effective unless it is in writing and signed by the party granting the waiver.
5.5 Assignment. Except with the prior written approval of Company, Customer shall not transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of law, (1) any discretion, right, or license granted under this agreement, (2) any right to satisfy a condition under this agreement, (3) any remedy under this agreement, or (4) any obligation imposed under this agreement. Any purported transfer in violation of this section will be void. Company may do any of the foregoing in items (1) through (4) above without Customer’s consent.
5.6 Amendment. No modification of this agreement will be effective unless it is in writing and signed by the parties.
5.7 Notices. For a notice of other communication under this agreement to be valid, it must be in writing and delivered by email, when directed to the email address for the Company and Customer (as included in Customer’s account). A valid notice or other communication under this agreement will be effective when receipt is confirmed by a non-automated response. If the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in e-mail address for which no notice was given, the notice or communication will be deemed received upon that rejection, refusal, or inability to deliver.
5.8 Entire Agreement. This agreement constitutes the entire agreement between the parties relating to its subject matter, and supersedes all prior discussions, or presentations and proposals, written or oral relating to such subject matter.