TRIAL SUBSCRIPTION AGREEMENT
THIS TRIAL SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN SYMPLIFIED, INC. (“SYMPLIFIED”) AND THE PERSON OR BUSINESS ENTITY FOR WHOM YOU ARE ACTING (“CUSTOMER”). THIS AGREEMENT GOVERNS CUSTOMER’S USE OF AND ACCESS TO SYMPLIFIED’S A SOFTWARE AS A SERVICE SOLUTION THAT DELIVERS ON-DEMAND IDENTITY MANAGEMENT, ACCESS CONTROL AND SINGLE SIGN ON SERVICES (THE “SERVICES”), BASED UPON SOFTWARE AND RELATED INTELLECTUAL PROPERTY OWNED BY OR LICENSED TO SYMPLIFIED. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH THE SERVICES WILL BE PROVIDED TO CUSTOMER ON A TRIAL BASIS FOR THE EVALUATION PERIOD (AS DEFINED BELOW).
YOU AGREE THAT YOU ARE ENTERING INTO THIS AGREEMENT FOR USE OF THE SERVICES BY CUSTOMER ON A TRIAL BASIS FOR CUSTOMER’S OWN BUSINESS PURPOSES. YOU HEREBY AGREE THAT YOU ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. THE SERVICES WILL BE PROVIDED TO CUSTOMER ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS IN THIS AGREEMENT. IF YOU AGREE TO THE TERMS OF THIS AGREEMENT, CLICK THE “I ACCEPT” CHECK BOX BENEATH THIS AGREEMENT. BY SUCH ACTION, OR BY ACCESSING OR OTHERWISE USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT AND THAT CUSTOMER AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE SERVICES WILL NOT BE MADE AVAILABLE TO CUSTOMER.
Customer agrees as follows:
1. Trial Use Subscription. Subject to the terms of this Agreement, Symplified grants to Customer use of and access to the Services for a period of thirty (30) days after Customer’s first use of the Services (the “Evaluation Period”) for its internal use, and only to evaluate the features and functionality of the Services as necessary to consider a purchasing decision (“Trial Use”). The Evaluation Period may be extended with Symplified’s written consent prior to the end of the current Evaluation Period. Customer must inform all Users (as defined below) that have access to the Services that the Services are provided without warranty or support of any kind. Customer acknowledges that the hardware and software used by Symplified to provide the Services (the “System”) are hosted by Symplified and certain third party service providers, and use of the System by Customer may be subject to the terms and conditions of use required by such third party service providers.
2. Rights and Restrictions.
2.1 Rights. Subject to the terms and conditions of this Agreement, Symplified grants to Customer, during the Evaluation Period, a non-exclusive, non-transferable, non-sublicensable right to access and use the System, and any related user manuals, handbooks, online materials, specifications or forms furnished by Symplified that describe the features, functionality or operation of the System (the “Documentation”), made available to Customer by Symplified (and/or its licensors and suppliers) solely for Trial Use and in accordance with the Documentation and the terms and conditions of this Agreement.
2.2 Restrictions. The System may only be accessed and used by Customer’s employees, contractors and external users who are authorized by Customer to use the Services on behalf of Customer (“Users”). Customer is responsible for all activities that occur under Customer’s User accounts. Customer agrees to comply with all laws, regulations, rules, ordinances and orders applicable to its use of the Services, the System or the Documentation under this Agreement. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the System; (b) interfere in any manner with the operation of the System or the hardware and network used to operate the Service; (c) sublicense or transfer any of Customer’s rights under this Agreement, or otherwise use the Services for the benefit of a third party or to operate a service bureau; (d) allow any third party to access or use the System or the Documentation, except as otherwise provided in this Agreement; (e) modify, copy or make derivative works based on any part of the System or the Documentation, except as otherwise provided in this Agreement; or (f) otherwise use the Services in any manner other than the Trial Use or in any manner that exceeds the scope of use permitted under Sections 1 and 2.1.
3. No Support Obligations. Symplified may elect to provide certain support and assistance to Customer in connection with Trial Use, however, Symplified has no obligation under this Agreement to correct any bugs, defects or errors in or to otherwise support or maintain the Trial Use of the Services.
4. Term and Termination. This Agreement shall be effective upon Customer’s first use of the Services and continue, unless terminated earlier as provided in this Section 4, for the Evaluation Period, which may be extended for additional thirty (30) day periods with Symplified’s prior written consent. Either party may terminate the Agreement if the other party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. Symplified may terminate this Agreement immediately if Customer is in breach of any of the terms of Section 2.2 hereof or at any time exceeds the scope of the Trial User permitted hereunder. Upon termination or expiration of this Agreement for any reason, (a) all rights granted to Customer in this Agreement will immediately cease to exist, (b) Customer must promptly discontinue all use of the System, and (c) Customer will return to Symplified or destroy all copies of the Documentation or other Confidential Information Customer’s possession or control. Sections 2.2, 4, 5, 6, 7, 8 and 9, will survive expiration or termination of the Agreement for any reason.
5. Ownership. The System and the Documentation, including all copies, improvements, enhancements, modifications and derivative works thereof, and all worldwide intellectual property rights and other proprietary rights relating thereto or embodied therein, are the exclusive property of Symplified and its licensors and suppliers. Symplified and its licensors and suppliers reserve all rights in and to the System and the Documentation not expressly granted to Customer in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise.
6. Confidentiality. “Confidential Information” means information that is disclosed by Symplified to Customer or which Customer has access to in connection with this Agreement, including, without limitation information that should reasonably have been understood by Customer to be proprietary and confidential to Symplified or to its third party licensors or suppliers. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means. Information concerning the Services and the System, including the Documentation, will be considered Symplified’s Confidential Information and shall be subject to the terms of this Section 6. Customer will not use any Confidential Information for any purpose not expressly permitted by the Agreement, and will disclose the Confidential Information only to its employees or contractors who have a need to know such Confidential Information in connection with the Trial Use permitted hereunder and who are under a duty of confidentiality no less restrictive than Customer’s duty hereunder. Customer will protect the Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Customer’s obligations under Section 6 with respect to any Confidential Information will terminate if such information is, or through no fault of Customer, has become generally available to the public. In addition, Customer will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Customer notifies Symplified of such required disclosure promptly and in writing and cooperates with Symplified, at Symplified’s request, in any lawful action to contest or limit the scope of such required disclosure.
7. Disclaimer. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY AND ALL SERVICES PROVIDED TO CUSTOMER PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND CUSTOMER’S USE OF THE SYSTEM AND SERVICES IS ENTIRELY AT ITS OWN RISK. SYMPLIFIED, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS, HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SERVICES AND SYSTEM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE EXTENT THAT, AS A MATTER OF APPLICABLE LAW, ANY IMPLIED OR STATUTORY WARRANTY MAY NOT BE DISCLAIMED, THE DURATION AND SCOPE OF SUCH WARRANTY WILL BE THE MINIMUM PERMISSIBLE UNDER SUCH APPLICABLE LAW.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SYMPLIFIED BE LIABLE FOR ANY DAMAGES OF ANY KIND IN CONNECTION WITH THE TRIAL USE OF THE SERVICES OR OTHERWISE ARISING OUT OF OR RELATING TO THE SYSTEM, THE SERVICES, THE DOCUMENTATION OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, EVEN IF SYMPLIFIED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THIS PROVISION REFLECTS THE AGREED UPON ALLOCATION OF RISK FOR THIS AGREEMENT AND THAT SYMPLIFIED WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
9.1 Assignment. Customer may not assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under the Agreement (including the rights granted to Customer) to any third party without Symplified’s prior written consent, which consent will not be unreasonably withheld or delayed. Any attempted assignment or transfer in violation of the foregoing will be null and void. Symplified may freely assign this Agreement without consent.
9.2 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
9.3 Remedies. Except as provided in Sections 7 and 8, the parties’ rights and remedies under the Agreement are cumulative. Customer acknowledges that the System contains valuable trade secrets and proprietary information of Symplified and its licensors and suppliers and constitutes Symplified’s Confidential Information hereunder. The parties agree that any actual or threatened breach of Section 2.2 or 6 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses.
9.4 Miscellaneous. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” This Agreement (including all attachments which are incorporated into this Agreement by reference) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communication, whether written or oral. This Agreement may be amended only by a written document signed by all parties hereto. The terms of any purchase order or similar document submitted by Customer will have no effect.
Trial Subscription Agreement 081612 Version