By clicking to agree as part of Licensee’s account registration or access to the Service, Licensee (1) agrees to all of the terms of this agreement and (2) states that Licensee has all necessary right, power, and authority (including any corporate authorizations) required to enter into this agreement. If Licensee does not agree to the terms of this agreement, Licensee shall not use the Service.
SERVICE AND RESTRICTIONS
- Service and Software: Subject to Licensee’s compliance with sections 1.2, 1.3, and 2, Company shall provide Licensee with access to Company’s software-as-a-service product (the “Service”) only for the purpose of internal evaluation of the Service by Licensee. Company shall provide Licensee with access information and account credentials for the Service, which are Company’s Confidential Information. At any time, Company may replace, modify, alter, improve, enhance, or change the Service. Company does not guarantee or warrant that the Service will be available to Licensee at all times.
- Restrictions: Licensee 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 Service with any software, hardware, or system other than Licensee’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) 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.
- Product Usage Restrictions: Utilization is restricted to one data reliability data source encompassing 10 tables with a maximum of 100,000 rows, a maximum of 10 policies, one compute data source featuring a maximum of 7-day historical data, and one pipeline configured for monitoring.
- No Protected Information: Licensee 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.
- Feedback: Licensee shall promptly provide Company with a report of any actual or potential error or bug in the Service. Company may, at its option and in its sole discretion, correct Service errors or bugs. Licensee 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 without restriction.
- Use of Data: Company may collect usage and technical data in connection with Licensee’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.
- Definition: “Confidential Information” means any information disclosed by Company to Licensee, 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, Licensee should reasonably understand to be the confidential or trade secret information of Company, or (3) is oral information disclosed by Company to Licensee, provided that such information is designated as confidential at the time of disclosure and Company 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 Licensee. The terms and conditions (but not the existence) of this agreement is Company’s Confidential Information.
- Obligations: Licensee shall not use Confidential Information except to exercise its rights and perform its obligations under this agreement. Licensee shall not disclose Confidential Information to any third party without the prior written approval of Company. Licensee shall disclose Confidential Information internally only to those employees of Licensee who need to know Confidential Information in order for Licensee 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. Licensee 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 Licensee to protect its own Confidential Information or those that would be taken by a reasonable person in the position of Licensee, whichever are more effective. Licensee shall promptly notify Company of any actual or suspected misuse or unauthorized disclosure of Company’s Confidential Information.
- Exceptions: Licensee has no obligations under section 2.2 with respect to information that (1) was already public when Company discloses it to Licensee or becomes public (other than as a result of breach of this agreement by Licensee) after Company discloses it to Licensee, (2) when Company discloses it to Licensee, is already in the possession of Licensee as the result of disclosure by a third party not then under an obligation to Company to keep that information confidential, (3) after Company discloses it to Licensee, is disclosed to Licensee by a third party not then under an obligation to Company to keep that information confidential, or (4) was independently developed by Licensee without any use of or reference to Company’s Confidential Information.
- Compelled Disclosure: If Licensee is required to disclose Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, Licensee shall, prior to any such disclosure (1) provide prompt notice to Company of such disclosure requirement and (2) cooperate with Company to obtain a protective order or otherwise prevent public disclosure of such information. Licensee shall limit any required disclosure to the particular Confidential Information required to be disclosed.
- Return of Confidential Information: Upon termination of this agreement, Licensee shall deliver to Company all of Company’s Confidential Information that Licensee has in its possession or control or at the request of Company, destroy it.
- Injunctive Relief: Any breach of Licensee’s obligations with respect to Confidential Information and intellectual property rights may cause substantial harm to Company, which could not be remedied by payment of damages alone. Company 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.
- Survival of Confidentiality Obligations: Licensee shall comply with its obligations under this section 2 during the term of this agreement and thereafter.
TERM AND TERMINATION
- Term: This agreement begins on the Effective Date and continues for a period of 30 days. The Company may in its discretion thereafter allow Read-only access to the Service for a brief period of 30 days to enable a license purchase but the use of the Service and its functionality will terminate upon 30 days from the Effective Date. Licensee would need to contact the Company for any extended trial or license purchase.
- Termination: A party may terminate this agreement for any reason by giving the other party notice.
- Effect of Termination: Upon termination of this agreement, Company will terminate Licensee’s access to the Service and Licensee shall uninstall the Software from all equipment or devices and certify such uninstallation in writing.
DISCLAIMER AND LIMITATIONS
- Disclaimer of Warranties: The Service is provided by Company “as is.” Company makes no warranties, express, implied, statutory or otherwise with respect to the Service or its use or operation. Company disclaims the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
- Limitation of Liability: In no event will Company be liable to Licensee for any consequential damages or damages related to loss of data, loss of system availability, loss of computer run time, lost profits, or costs of cover. Company’s maximum liability to Licensee for claims arising out of this agreement shall not exceed $100.
- Governing Law: California law governs all adversarial proceedings arising out of this agreement.
- 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.
- 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.
- 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.
- Assignment: Except with the prior written approval of Company, Licensee shall not transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of law, (1) any discretion 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 Licensee’s consent.
- Amendment: No modification of this agreement will be effective unless it is in writing and signed by the parties.
- Notices: For a notice of other communication under this agreement to be valid, it must be in writing and delivered (1) by hand, (2) by a national transportation company (with all fees prepaid), (3) by registered or certified mail, return receipt requested and postage prepaid, or (4) by email, when directed to the email address below for Company and to Licensee’s email address on file. A valid notice or other communication under this agreement via the methods (1) through (3) above will be effective when received by the party to which it is addressed and if via email, 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 address for which no notice was given, the notice or communication will be deemed received upon that rejection, refusal, or inability to deliver. Notices or other communications to a party must be addressed using the Company contact information available via the Service and using the information on Licensee’s account for Licensee, or any other information specified by that party in a notice under this section.
- Entire Agreement: This agreement constitutes the entire agreement between the parties relating to their subject matter, and supersedes all prior or contemporaneous discussions, or presentations and proposals, written or oral relating to such subject matter.