Trustgrid Express Evaluation License Terms
These terms and the Trustgrid Express Registration page make up the agreement between Trustgrid and Customer (this “Agreement”). Capitalized terms not otherwise defined herein have the meanings set forth in Section 11.
1. Background
This Agreement applies to Customer’s download and use of Trustgrid Express, a limited agent version of the Trustgrid software, for Customer’s evaluation of the Trustgrid technology on an “AS IS” basis. Trustgrid Express is subject to performance restrictions compared to the full version of the Trustgrid software.
2. License; Third-Party Software.
Subject to and conditioned upon Customer’s compliance with its obligations under this Agreement, Trustgrid grants Customer a non-exclusive, revocable, non-assignable, non-transferable, non-sublicensable, term-limited license solely to download and execute the Trustgrid Express agent software (the “Trustgrid Software”) for internal testing purposes. Use of the Trustgrid Software is restricted by Export laws as described in Section 8, and Customer shall not use the Trustgrid Software if prohibited by applicable laws.
Such license shall continue until terminated as provided herein. Trustgrid may terminate this Agreement and the license hereunder at any time with or without cause. If this Agreement is terminated or expires, Customer shall immediately cease all use of the Trustgrid Software and delete or destroy all copies of the Trustgrid Software and Confidential Information in its possession or control and/or permit Trustgrid to remotely delete the Trustgrid Software and Trustgrid Confidential Information from Customer’s hardware. Any and all rights, obligations or conditions that, by their express terms or nature and context are intended to survive the termination or expiration of this Agreement, shall survive any such termination or expiration hereof.
In the event that Customer purchases a commercial license from and executes a written subscription agreement with Trustgrid, Customer’s use of Trustgrid Express shall be solely governed by the terms of the subscription agreement.
Trustgrid may provide Third-Party Software with the Trustgrid Software, which third-party software is subject to third-party license agreements and are excluded from the term “Trustgrid Software.” Third-Party Software, if any, may be identified in the applicable Documentation. Further, the License rights granted herein do not apply to any third-party software not provided to Customer by Trustgrid that is used by Trustgrid to run the Systems or to provide services to Customer.
3. Customer Obligations and Restrictions.
Customer shall not, and shall not permit any third party to, directly or indirectly: (i) copy or otherwise use the Trustgrid Software, except as permitted under this Agreement; (ii) decrypt, circumvent or disable any security or other technological features or measures of the Trustgrid Software; (iii) alter, modify, adapt, translate, or create (or attempt to create) derivative works based upon the Trustgrid Software or Documentation either in whole or in part; (iv) distribute, display, or transfer any of the Trustgrid Software, except in connection with an assignment permitted under Section 10; (v) sublicense, sell, resell, rent, lease, or otherwise transfer rights or usage to the Trustgrid Software for any purpose including timesharing, rental, or service bureau purposes; (vi) remove, alter, or obscure any copyright, trademark or proprietary notice in or displayed by the Trustgrid Software; (vii) use, transfer, import, or export, directly or indirectly, the Trustgrid Software in violation of any laws or regulations of any applicable government or governmental agency; (viii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any portion of the Trustgrid Software, except and only to the extent expressly permitted by the law in effect in the jurisdiction in which Customer is located, despite this limitation; provided that Customer must first request from Trustgrid any applicable interoperability information and provide Trustgrid written notice of such intended reverse engineering, decompilation, disassembly, or other derivation of source code; (ix) use any portion of the Trustgrid Software to create a competitive service, product or technology with that of Trustgrid; (x) interfere with or disrupt the integrity or performance of the Trustgrid Software or Systems; or (xi) use, combine, compile, or link the Trustgrid Software with any software subject to: (i) any license that requires, or purports to require, as a condition of use, modification, or distribution, that (1) the code that is or could become subject to the license, be disclosed or distributed in source code form, or (2) others have the right to modify or create derivative works of the code that is or could become subject to the license.
Customer shall not, and shall not knowingly permit any third party to, use the Systems or Trustgrid Software to directly or indirectly upload or transmit any Customer Data or other data, documents, or other material that (a) infringe the intellectual property rights or other personal or proprietary rights of any third party, (b) violate any applicable law, statute, ordinance, regulation or treaty (collectively, “applicable law”), or (c) contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personal Information of any person or entity. Further, Customer agrees not to use any of the System: (i) for illegal or tortious purposes or in any illegal manner; (ii) to knowingly interfere with or disrupt other Trustgrid network users, network services or network equipment; or (iii) in a manner contrary to the Documentation. Customer shall ensure that all employees and any independent contractors that are Users are legally bound by and comply with the terms and conditions contained in this Agreement. Customer shall remain fully liable for all acts and omissions of its employees, independent contractors, and any other person or entity gaining access to the Trustgrid Software by and through Customer, as if such acts and omissions had been committed by Customer itself.
4. No Warranties or Obligation of Support.
Trustgrid Express is provided “AS IS” without any warranties express or implied. Trustgrid has no obligation to support or update Trustgrid Express or Customer’s use thereof.
TRUSTGRID HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, GUARANTEES, CONDITIONS, AND REPRESENTATIONS, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY LAW, USAGE OF TRADE OR COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRECTNESS, RELIABILITY, AND ACCURACY. WITHOUT LIMITATION, TRUSTGRID MAKES NO WARRANTY, GUARANTEE, OR REPRESENTATION, AND HEREBY DISCLAIMS ALL WARRANTIES, GUARANTEES, AND REPRESENTATIONS, WITH RESPECT TO (I) NETWORK TRANSMISSION CAPACITY; (II) DELAYS IN DELIVERY OR SENDING OF CUSTOMER DATA AND INFORMATION; (III) THAT THE TRUSTGRID SOFTWARE, SYSTEMS, SERVICES, DOCUMENTATION, OR CONFIDENTIAL INFORMATION (COLLECTIVELY, “TRUSTGRID MATERIALS”) WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS; (IV) THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE TRUSTGRID MATERIALS; OR (V) ANY OF THE TRUSTRGRID MATERIALS WILL MEET CUSTOMER’S OR ITS END USERS’ REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE TRUSTGRID MATERIALS OR ANY SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY TRUSTGRID.
TRUSTGRID WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR CUSTOMER’S END USERS’ DATA FILES, PROGRAMS, PROCEDURES, DATA OR OTHER INFORMATION THROUGH CRIMINAL OR FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, UNLESS AND TO THE EXTENT SUCH ACCESS, ALTERATION, THEFT, OR DESTRUCTION IS CAUSED AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY TRUSTGRID. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING ALL APPROPRIATE BACKUPS OF ITS FILES AND CUSTOMER DATA. TRUSTGRID EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SYSTEM WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING HIPAA OR THE GRAMM-LEACH-BLILEY ACT OF 1999. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE TRUSTGRID SYSTEM OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5. Limitations of Liability.
TRUSTGRID SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR (A) INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, WHETHER CLAIMED UNDER CONTRACT, TORT, FAILURE OF WARRANTY OR ANY OTHER LEGAL THEORY OR (B) LOSS OF OR DAMAGE TO CUSTOMER’S HARDWARE OR SOFTWARE COMPUTER SYSTEMS, DATA, OR PROGRAMMING. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TRUSTGRID’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT WILL BE AN AMOUNT EQUAL TO THE GREATER OF (X) FEES ACTUALLY PAID TO TRUSTGRID BY CUSTOMER HEREUNDER OR (Y) $100.
THE EXCLUSIONS AND LIMITATIONS OF LIABILITY ABOVE SHALL APPLY REGARDLESS OF WHETHER (A) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER; OR (B) UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, AND REGARDLESS OF WHETHER SUCH LIABILITIES ARE FORESEEABLE AND WHETHER TRUSTGRID HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH LIABILITIES. THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF TRUSTGRID’S BARGAIN HEREUNDER, AND CUSTOMER ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK.
6. Ownership; Feedback.
Except for the explicit license rights expressly provided herein, Trustgrid and its licensors have and will retain all rights, title and interest in and to the Trustgrid Materials, in each case including all copies and modifications of the foregoing. Customer retains all rights, title and interest in its Confidential Information and Customer Data (but in all cases excluding any Trustgrid Materials or any rights of Trustgrid as set forth in this Agreement). Trustgrid and Customer will execute such instruments reasonably requested by the other Party which are necessary to give effect to the provision of this Section or to perfect an interest allocated herein.
Customer may provide Trustgrid with feedback regarding the Trustgrid Materials (“Feedback”), including bugs, errors and feature requests. Trustgrid owns all right, title and interest in and to all such Feedback provided to Trustgrid, excluding any Customer Confidential Information or Customer Data.
7. Confidentiality.
By virtue of this Agreement, the Parties may be exposed to or be provided with Confidential Information of the other Party or third parties. “Confidential Information” means non-public information designated as confidential in writing or that reasonably should be considered confidential and proprietary of the disclosing Party. Confidential Information of Customer includes Customer Data. Confidential Information of Trustgrid and/or its licensors includes all trade secrets, software, source code, object code, specifications, documentation, business plans, customer lists and customer-related information, financial information, proposals, budgets as well as results of testing and benchmarking of the System, product roadmaps, data and other information of Trustgrid and its licensors relating to or embodied in the System, Trustgrid Software or Documentation.
Each Party will protect the other Party’s Confidential Information from unauthorized dissemination and use the same degree of care that such Party uses to protect its own confidential information of similar value, but in no event less than a reasonable amount of care. Trustgrid will establish and maintain commercially reasonable safeguards against the unintended destruction, loss, or alteration of Customer Confidential Information processed by the System. Neither Party will use Confidential Information of the other Party for purposes other than those necessary to directly further the purposes of this Agreement, and each Party agrees not to use any information received for any purpose not expressly contemplated hereunder. Neither Party will disclose to any third party Confidential Information of the other Party without prior written consent of such other Party. Notwithstanding the foregoing, Trustgrid may share Customer Confidential Information with contractors and third party service providers to the extent necessary for such contractors and third-party service providers to perform Services under this Agreement; provided that prior to any such disclosure, each such contractor and third-party service provider shall have agreed in writing to protect Customer’s Confidential Information to the same extent as Trustgrid is required under this Agreement.
Information shall not be considered Confidential Information to the extent that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was in the receiving Party’s possession before receipt from the disclosing Party as evidenced by records existing before such receipt; (iii) is lawfully obtained from a third party who has the right to make such disclosure; or (iv) has been independently developed by the receiving Party without reference to any Confidential Information of the disclosing Party. For the avoidance of doubt, data that Trustgrid derives or creates from information gathered by Trustgrid that relates to performance of the System (such as log data or meta-data) shall not be deemed to be Customer Data or Customer Confidential Information to the extent such information does not contain (or is stripped of all) Personal Information (collectively, “De-identified Data”) and is aggregated with similar De-identified Data of other Trustgrid customers. Such De-identified Data may be used by Trustgrid solely for internal development of products and services.
The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by applicable law to do so, including the Communications Assistance for Law Enforcement Act (CALEA) and Fight Online Sex Trafficking Act, H.R. 1865 (FOSTA), and any enrolled variation of such legislation, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. The Parties shall otherwise cooperate in providing any response as may be required by any governmental authority or applicable law.
The Parties acknowledge that disclosure of any Confidential Information may give rise to irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party may seek injunctive relief against the other Party’s breach or threatened breach of this Section as well as any other legal remedies that are available.
8. Export.
Customer shall comply fully with all relevant export laws and regulations of the United States and any other applicable jurisdiction to ensure that the Trustgrid Materials are not used or exported, directly or indirectly, in violation of applicable law. Customer shall not export any Trustgrid Materials to any party or jurisdiction without the prior written consent of Trustgrid. Customer understands that the Arms Export Control Act (AECA), including its implementing International Traffic In Arms Regulations (ITAR), and the Export Administration Act (EAA), including its Export Administration Regulations (EAR), are some (but not all) of the laws and regulations that comprise the U.S. export laws and regulations, which apply to one or more components of Trustgrid Materials. Customer further understands that the U.S. export laws and regulations include: (i) ITAR and EAR product/service/data-specific requirements; (ii) ITAR and EAR ultimate destination-specific requirements; (iii) ITAR and EAR end user-specific requirements; (iv) Foreign Corrupt Practices Act; and (v) anti-boycott laws and regulations. Customer will comply with all then-current applicable export laws and regulations of the U.S. Government (and other applicable U.S. laws and regulations) pertaining to the Trustgrid Materials (including any associated, computer software, media, services, technical data, and other information). Customer certifies that it will not, directly or indirectly, use, export (including any deemed export), nor re-export (including any deemed re-export) the Trustgrid Materials (including any associated computer software, media, services, technical data, and other information) in violation of applicable U.S. laws and regulations.
9. Indemnification.
Customer will indemnify, defend and hold Trustgrid and its officers, directors, agents and employees harmless against any claim by a third party (including a Customer employee) that arises from: (i) Customer Software; (ii) Customer Data or other information uploaded to the System or transmitted by the Trustgrid Software by Customer allegedly infringing, misappropriating or violating any third party’s intellectual property rights or other personal or proprietary rights or any applicable law, and/or (iii) Customer’s use of the Trustgrid Materials in violation of this Agreement or with applicable laws. Customer shall pay costs, damages, settlements and reasonable attorneys’ fees that result from such claims.
10. General.
Trustgrid may include services or products, such as Third-Party Software, which are provided, developed, operated, hosted, or maintained by a third-party provider (“Third-Party Services”). Notwithstanding the terms of any Third-Party Services agreement, Trustgrid may change, modify or discontinue any Third-Party Service(s) at any time with or without notice to Customer, provided that the change, modification or discontinuance shall have no material adverse effect on the operation of the Trustgrid Software. Except as expressly set forth in this Agreement, Customer is granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third-Party Services.
Except as expressly stated to the contrary in this Agreement, all remedies hereunder are cumulative and not exclusive, may be exercised concurrently, and nothing herein shall be deemed to prohibit or limit any party from pursuing any other remedy or relief available at law or in equity for any actual or prospective breach or default, including recovery of damages.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Texas without regard to conflict of laws principles, because all or a part of the services to be provided hereunder are provided in Texas. The Parties hereby submit to the exclusive jurisdiction and venue of the state and federal courts located in Travis County, Texas for the resolution of all disputes under, arising from or relating to this Agreement, its performance or otherwise between the Parties, and both Parties agree that they shall not contest venue in such courts. Customer consents to the personal jurisdiction of such courts and hereby waives any objection to venue of such courts. The parties hereto agree that any suit filed in any other venue shall be dismissed with prejudice, and that the filing party shall pay all attorney fees of the party moving to dismiss such claim.
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same shall be and remain in full force and effect.
No change, amendment, or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both Parties. This provision requiring amendments to be in writing may not be amended, unless set forth in a written instrument signed by both Parties. For the sake of clarity, to the extent any Order, exhibit to this Agreement, or other modification is agreed to by the Parties, it shall not become effective unless reduced to writing, mutually executed by the Parties.
All notices required or permitted under this Agreement shall be in writing addressed to the respective Parties as set forth below, unless another address shall have been designated, and shall be deemed to be given on the date when delivered by email or hand, by certified mail, or by national overnight delivery service, with written verification of receipt, as applicable. A Party may change its contact address upon ten (10) days written notice to the other Party in accordance with this Section.
IF TO CUSTOMER:
To the email address submitted by Customer on the Registration page.
IF TO TRUSTGRID:
Trustgrid, Inc.
ATTN: Chief Executive Officer
12710 Research Blvd, Suite 365
Austin, Texas 78759
Customer shall not assign its rights and obligations under this Agreement without the prior written permission of Trustgrid. Notwithstanding the above, Customer may assign this Agreement in conjunction with a merger, consolidation, or sale of all or substantially all its assets. Trustgrid may freely assign this Agreement without permission of Customer. This Agreement shall be binding on each Party’s successors and permitted assigns (it being understood and agreed that nothing contained in this Agreement is intended to confer upon any party other than Trustgrid and Customer any rights, benefits or remedies of any kind or character whatsoever under or by reason of this Agreement).
If any term or provision of this Agreement or the application thereof to any person, entity or circumstance shall be invalid or unenforceable, then the term or provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in a manner that complies with applicable law. The remainder of this Agreement shall be unaffected thereby and each remaining term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
This Agreement sets forth the entire understanding between the Parties concerning the subject matter of this Agreement and supersedes all contemporaneous and prior negotiations, understandings, and agreements with respect to the subject matter of this Agreement. No representation or warranty has been made by or on behalf of any Party to this Agreement (or any officer, director, employee, or agent thereof) to induce any other Party to enter into this Agreement or to abide or consummate any transactions contemplated by any terms of this Agreement, except representations and warranties, if any, expressly set forth in this Agreement. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Customer or any affiliate in connection to this Agreement be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of Trustgrid to object to such terms, provisions, or conditions. The expiration or termination of this Agreement for any reason will not release either Party from any liabilities or obligations set forth herein or therein which the Parties have expressly agreed will survive any such expiration or termination.
For purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and viceversa; (v) words denoting any gender include all genders; and (vi) section headings are included for convenience only and do not affect the construction or interpretation of any provision of, or the rights or obligations of any party under, this Agreement. Unless the context otherwise requires, references in this Agreement: (a) to Articles, Sections, Schedules, and Exhibits refer to the Articles and Sections of, and the Schedules attached to, this Agreement; (b) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
The individual accepting this Agreement on behalf of Customer represents and warrants that he or she has been duly authorized by the entity on whose behalf such individual is entering into this Agreement.
11. Additional Definitions.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer Data” means all data that Customer or its Users enter into or supply for processing on the System, with the exception of log data and/or metadata that cannot be associated with and that does not identify a User.
“Customer Software” means any Software which is provided, developed, operated, hosted, or maintained by Customer and which is not Trustgrid Software.
“Documentation” means such manuals and other standard end user materials, whether in written, printed, electronic or other format, that Trustgrid generally makes available to its customers with the Trustgrid Software related to the functionality, operation and use of the System, including all user, technical support and training materials.
“Personal Information”meansany information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, and any other information relating to an identified or identifiable individual. Personal Information includes all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), and “Personal Data” as that term is defined in EU Data Protection Directive (Directive 95/46/EEC) on the protection of individuals with regard to processing of personal data and the free movement of such data, and all rules and regulations issued under any of the foregoing.
“System” means the Trustgrid Software and all related ideas, concepts, systems, software, interfaces, tools, utilities, templates, forms, content, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information of Trustgrid for purposes of providing services to Customer in accordance with this Agreement.
“Third-Party Software” means any Software which is provided, developed, operated, hosted, or maintained by a third party and which does not include Trustgrid Software nor any Customer Software.
“Users” mean personnel of Customer, which are authorized by Customer to use or access the Trustgrid Software or Systems in accordance with the terms of this Agreement.