TERMS AND CONDITIONS
SUBSCRIPTION LICENSE TRIAL AGREEMENT
THIS DATALOCKER SUBSCRIPTION LICENSE TRIAL AGREMENT (“AGREEMENT“) GOVERNS THE USE OF THE DATALOCKER SERVICE DESCRIBED HEREIN. BY ACCESING AND USING THE DATALOCKER SERVICE, YOU (“CUSTOMER”) ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO THAT BUSINESS. DATALOCKER SERVICE IS BEING LICENSED AND NOT SOLD TO YOU. DATALOCKER PERMITS YOU TO ACCESS AND USE THE DATALOCKER SERVICE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
- “Customer Data” means all electronic data submitted by Customer to the Service.
- “Documentation” means DataLocker’s user guides and other end user documentation for the Service available on the online help feature of the Service, as updated by DataLocker from time to time.
- “Service” means the on-line, web-based or on-premises services provided by DataLocker.
- “Term” means thirty (30) day from commencement of Customer’s first use of the Service.
- “Users” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Users may include but are not limited to Customer’s and Customer’s affiliates’ employees, consultants, clients, external user, contractors and agents.
2. Provision of Service.
- Access Rights. Subject to compliance with the provisions of this Agreement, DataLocker grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term, on a trial basis free of charge, to allow its Users to access and use the Service in accordance with the Documentation, solely for Customer’s business purposes. Customer’s rights to access the Service will be limited to those expressly granted in this Section 2, and DataLocker reserves all other rights, title, and interest therein.
- Customer is responsible for all activities conducted under its and its Users” logins on the Service. Customer shall use the Service in compliance with applicable law and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Service, or any part thereof, or use it for the benefit of any third party, or make it available to anyone other than its Users; (ii) send or store any data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store infringing or unlawful material; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (vi) modify, copy or create derivative works based on the Service, or any portion thereof; (vii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; or (viii) delete, alter, add to or fail to reproduce in and on the Service the name of DataLocker and any copyright or other notices appearing in or on the Service or which may be required by DataLocker at any time.
If in DataLocker’s reasonable determination, Customer is using the Service in a manner that violates laws or creates an Excessive Burden on Datalocker”s systems, in addition to any of its other rights or remedies, DataLocker may, without liability, immediately suspend Customer’s access to the Service. In such event, DataLocker will use commercially reasonable efforts to provide Customer prior notice, and with the help of Customer resolve the issues causing such suspension of Service. “Excessive Burden” means when the Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Service is causing immediate, material and ongoing harm to DataLocker or DataLocker’s other customers.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Data, the DataLocker technology, related benchmark or other similar test results, other technology and technical information, security information, security audit reports, product designs, business and marketing plans, and business processes. Confidential Information (except for Customer Data) shall not include, or shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Receiving Party; (c) were rightfully known to the Receiving Party prior to its receipt thereof from the Disclosing Party; (d) are or were disclosed by the Disclosing Party generally without restriction on disclosure; (e) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession. The Receiving Party shall not: (i) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance.
4. Proprietary Rights and Analytical Data.
- Proprietary Rights. All right, title and interest in and to the Customer Data is owned exclusively by Customer. Except for the rights expressly granted under this Agreement, DataLocker retains all right, title, and interest (including all related intellectual property rights) in and to the Service, all results of Professional Services, and all other products, works, software and technology created, used, or provided by DataLocker in connection with this Agreement. Further, if Customer or its Users provide DataLocker any suggestions, input or other feedback relating to the Services or Professional Services, DataLocker shall have the right to freely and fully exercise and exploit the foregoing in connection with its business.
- Analytical Data. DataLocker shall be permitted to use any data (other than Customer Data) generated in connection with Customer’s use of the Service (e.g., types of devices utilized); provided, however, in the event DataLocker provides such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to Customer or User. The foregoing shall not limit in any way DataLocker’s confidentiality obligations pursuant to Section 4 above.
DataLocker will make the Service available to Customer, on a trial basis free of charge, during the Term until the earlier of (a) the end of the Term, or (b) the start date of any purchased Service subscriptions ordered by Customer under an Order Form for such Service.
6. No Warranty, and Disclaimer.
SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES. DATALOCKER AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED. DATALOCKER MAKES NO WARRANTY REGARDING ANY THIRD PARTY SERVICE WITH WHICH THE SERVICE MAY INTEROPERATE.
7. Limitation of Liability.
- NEITHER DATALOCKER NOR DATALOCKER”S SUPPLIERS, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
- IN NO EVENT WILL DATALOCKER NOR ITS SUPPLIER”S, LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE GREATER OF: (I) TOTAL AMOUNTS PAID TO DATALOCKER BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING DATALOCKER”S RECEIPT OF NOTICE OF THE APPLICABLE CLAIM, OR (II) $10 DOLLARS.
8. Term, Termination, and Effect of Termination.
- Term, Termination. This Agreement shall terminate upon expiration of the Term, unless renewed or extended in a writing signed by both Customer and DataLocker providing for payment of fees for continued access to the Service (an “DataLocker Quote”); provided that if an DataLocker Quote is not signed within such period, DataLocker may extend the length of the Term in its sole discretion. The execution of a DataLocker Quote shall end the Term, and thereafter this Agreement shall continue for the term specified in such DataLocker Quote unless earlier terminated in accordance herewith. The Customer reserves the right to cancel its free trial at any point in time by emailing firstname.lastname@example.org. If the Customer does not cancel this Agreement and does not sign a DataLocker Quote, then the DataLocker instance will be deleted by DataLocker. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Termination due to Customer’s breach shall not relieve Customer of the obligation to pay any fees accrued or payable to DataLocker under the Agreement.
- Effect of Termination. Upon termination, the rights and licenses granted to Customer hereunder shall terminate immediately. The sections titled “Definitions,” “Restrictions”, “Confidentiality,” “Ownership,”, “Warranty Disclaimer,” “Limitation of Liability,” “Term; Termination,” and “General” shall survive any termination or expiration of this Agreement.
- Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or DataLocker without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all DataLocker Quotes), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
- Controlling Law, Attorneys” Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Kansas, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Overland Park, Kansas. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys” fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
- Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
- Equitable Relief. Due to the unique nature of the parties” Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
- Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
- Export Compliance. Customer will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
- Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 2(f) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
- Entire Agreement. This Agreement together with the DataLocker Quote(s) and applicable Exhibit(s) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to capacity licensed, Term, Service, bill to, ship to, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.