These Tricentis PoV Terms and Conditions apply to the licensing of software as downloadable standard computer program or made available on a remote basis (“Software”) and assisted services performed (“Services”; Software and Services are collectively referred as “Products”) by the Tricentis entity defined below as Company for a free of charge Tricentis Proof of Value (“PoV”) for a limited period of time as defined in the Services description or otherwise mutually agreed by the parties (“Term”).
By accessing, browsing, clicking on an “accept” button, installing, copying or otherwise using the Product you on behalf of the company you are using the Product for (“Customer”) and any and all Customer’s employees or contractors who use the Product hereunder (“Users”) accept this Tricentis Proof of Value Terms and Conditions (“Agreement”) and you confirm that you have the legal power and full authority to bind Customer on these terms. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PRODUCT.
“Company” means Tricentis GmbH, Leonard-Bernstein-Strasse 10, 1220 Vienna, Austria (if Customer is located in Europe, Middle East, Africa or India) OR Tricentis APAC Pty. Ltd., Level 3, 2-12 Foveaux Street, Surry Hills NSW 2010, Australia (if Customer is located in Australia or New Zealand) OR Tricentis USA Corp., 2570 W El Camino Real, Suite 540, Mountain View, CA 94040, USA (if Customer is located in North, South and Central America) OR Tricentis SGP Pte. Ltd, 1 Scotts Road, #21-10 Shaw Center, Singapore 228208 (if Customer is located in Asia Pacific Countries, except Australia and New Zealand).
1.1. “IP Rights” mean any worldwide common law and statutory rights, whether arising under the applicable law or any other state, country, jurisdiction, government, or public legal authority, associated with (i) patents, utility models, and invention disclosures and applications therefor, (ii) trade secrets, or proprietary information, (iii) copyrights; (iv) trademarks and service marks, (v) industrial designs, (vi) all rights in databases and data collections; (vii) all economic rights of authors and inventors, however denominated, (viii) rights to apply for, file for, certify, register, record, or perfect or any similar or equivalent rights to any of the foregoing, provided those rights or applications for any of those rights ( where such applications can be made) are capable of protection in the applicable jurisdiction.
1.2. Ownership. Company retains all rights, title, and interest, including all IP Rights, in and to the Products and its Confidential Information and Customer shall retain all rights, title, and interest in and to any system owned, operated, or managed by Customer (“Customer System”), Customer Materials and its Confidential Information. The Products are made available on a limited license or access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Customer may not remove, alter, or obscure any proprietary rights notices contained in or affixed to the Products. Except for the rights expressly granted in this Agreement, no license or right is granted to Customer by Company by implication or otherwise.
1.3. Customer Material. In case Customer transmits any work, material, content, code, or data provided to Company by Customer in connection with Customer’s use of, or resulting from Customer’s use of, the Products (“Customer Material”) to Company and for the sole purpose of providing the requested services or support to Customer, Customer hereby grants to Company and its affiliates and subcontractors a worldwide, non exclusive, revocable license to use Customer Materials during the Term. Customer shall ensure that its use of the Products and all Customer Materials are at all times compliant with applicable local, state, federal and international laws and regulations.
1.4. Open Source Component. Customer acknowledges that certain software components of the Product may be covered by open source licenses as promulgated by the Open Source Initiative or by the Free Software Foundation. To the extent required by such open source license, the terms of such license will apply to such open source component in lieu of the relevant provisions of this Agreement. If such open source license prohibits any of the restrictions in this Agreement, such restrictions will not apply to respective open source component.
1.5. Feedback. Customer or its Users may submit feedback while using the Products. To the extent that Customer has the right, Customer assigns to Company all right, title and interest in and to any IP Rights associated with any suggestions, enhancement requests, communications, recommendations or other advice (“Feedback”) that it or its Users provide to Company relating to the Products or the Documentation for all possible uses by Company (including adaptation, reproduction, editing, alteration, addition to and/or deletion from, rearrangement, transposition, translation) and exploitation of the Feedback, and otherwise agrees not to enforce, and otherwise waives to the fullest extent legally possible, any rights that it or the User may have now or in the future in respect of such Feedback.
1.6. Aggregated Data. Company may aggregate the metadata and usage data of Customer or User collected or otherwise made available through the Products so that the results are non-personally identifiable with respect to Customer or User (“Aggregated Data”). The Aggregated Data will be deemed Company’s Confidential Information, and Customer acknowledges that Company may use the Aggregated Data, both during and after the Term, (i) for its own internal, statistical analysis, (ii) to develop and improve the Products, and (iii) to create and distribute reports and other materials regarding use of the Products. For purposes of clarity, nothing in this section gives Company the right (or ability) to publicly identify Customer as the source of any Aggregated Data.
2.1. Usage Rights. Subject to Customer’s continuous compliance with the Agreement, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use the Products by its Users in accordance with this Agreement and the Documentation during the Term, solely for Customer’s internal evaluation purposes and Customer may install the Software on its Customer System in non-production environment with test data only.
2.2. Delivery. Customer is solely responsible for installation of any downloadable Software and/or access to Software made available on a remote basis and its User registration. Support or maintenance will not be provided. Company grants Customer and its Users access to the Product only based on a verified registration.
2.3. Restrictions. Customer shall not allow or assist any third party to and shall be responsible for ensuring that its Users do not: (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, reproduce or otherwise attempt to derive the source code of, any part of the Products, any header files or class libraries contained in any part of the Products or any underlying ideas, algorithms, file formats, except as permitted by law, (ii) sell, resell, license, sublicense, distribute, transfer or provide access to a third party, rent or lease any part or include the Products in a service bureau or outsourcing offering, or otherwise encumber the Products with any lien or grant or allow third parties the registration of a security interest, time share or offer as a service, (iii) use the Products for the benefit of any third party, publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Products or publicly disseminate information regarding the performance of the Products or incorporate the Products or any part of it into a product or service provided to third parties, (iv) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Products, (v) use the Products in any hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation, vehicles with autonomous driving systems or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage, (vi) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit the scope of use or to try to gain unauthorized access to or disrupt any service, device, data, account or network, (vii) use the Products in a way prohibited by law, regulation, governmental order or decree, or to violate the rights of others, and (viii) to spam or distribute malware in a way that could harm the Products or impair anyone else’s use of it.
2.4. Usage Scope and Verification. Only Customer and its Users may access and use the Products within the authorized scope and Customer is responsible for all Users’ compliance in accordance with this Agreement. Without limiting the foregoing, the Software may not be simultaneously accessed or used.
2.5. Third-Party Software. Customer is solely responsible for the installation, maintenance, repair, use, and upgrade of software not owned by Company (“Third-Party Software”) the Products are used with. Company disclaims all warranties or statutory guarantees of any kind with respect to such Third-Party Software.
3.1. WARRANTY DISCLAIMER. EXCEPT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXCLUDES ALL WARRANTY AND THE PRODUCTS ARE PROVIDED BY COMPANY “AS IS”. NEITHER COMPANY, ITS AFFILIATES NOR ITS THIRD-PARTY LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
3.2. LIABILITY. EXCEPT TO THE EXTENT PERMITTED BY APPLICABLE LAW UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, ANY LOSS OF REVENUES OR PROFITS, LOSS OF OR INACCURATE DATA, LOSS OF USE, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY COST OF COVER ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY’S AGGREGATE LIABILITY TO THE CUSTOMER (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF FITY DOLLARS (US$ 50.00). THE PARTIES AGREE THAT THIS SECTION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREUNDER.
3.3. INDEMNITY. Customer shall defend, or at Customer’s option, settle any Claim made or brought against Company, its directors, employees, affiliates and agents by a third party arising out of (i) Customer’s breach of its Product usage rights, or (ii) Customer’s operation of the Customer Systems and/or use of Customer Material, and shall indemnify Company from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Company as a result of, or for amounts paid by Company under a court-approved settlement of a Claim. Customer’s obligations under this section include claims arising out of the acts or omissions of its Users and anyone who gains access to the Product as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions were not authorized by Customer. The obligations apply only if (i) Company promptly notifies Customer in writing of a Claim, (ii) Company provides Customer with reasonable assistance, at Company’s reasonable and documented expense, and (iii) Company provides Customer with the right to control and the authority to settle a Claim, provided, however, that Customer will not settle a Claim that admits fault or liability of Company without Company’s prior written consent (which shall not be unreasonably withheld) and (iv) Company will have the right to participate in the matter.
4.1. “Confidential Information” means any data or information that is disclosed to one party (“Recipient”) by the other party (“Discloser”) and not generally publicly available in whatever form, whenever and however disclosed, including but not limited to the Product and Documentation, including all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein, client lists, information security plans, business continuity plans, trade secrets and proprietary information, personal identifiable data or any data or information which is either identified as confidential, or which by its nature a reasonable business person would consider to be proprietary or confidential.
4.2. Confidentiality Obligations. Recipient shall (i) use Confidential Information solely for performing its obligations or exercising its rights under this Agreement, (ii) keep all Confidential Information in strict confidence; and (iii) not disclose, cause, or permit disclosure of the Confidential Information to any third party, except as permitted under this Agreement. Specifically, the Recipient shall limit disclosure of any Confidential Information to its directors, officers, employees, affiliates, agents, or representatives (collectively “Representatives”) that have a “need to know” to carry out the purpose set forth above and ensure that such Representatives have signed an agreement containing disclosure and use provisions similar to those set forth herein. The Recipient shall be held responsible to the same standard of care as it applies to its own confidential information, which shall not be less than reasonable care. The Recipient is responsible for any breach of this Agreement by any of its Representatives.
4.3. Exceptions. Confidential Information shall not include information that the Recipient can demonstrate (i) was in the Recipient’s possession prior to disclosure hereunder; (ii) is or becomes publicly available through no fault of or failure to act by the Recipient in breach of this Agreement; (iii) was rightfully known by the Recipient prior to disclosure of such information by the Discloser to the Recipient; (iv) was independently developed by the Recipient without any use of or access to the Confidential Information; and (v) is required to be disclosed by a judicial or governmental order, and Discloser has been given timely notice (if legally permissible) of such order so that Discloser may seek an injunction or protective order. If only particular parts or aspects of Confidential Information become subject to any of the foregoing exceptions, all other portions or aspects shall remain subject to this Agreement.
5.2. Data Processing. It is under Customer’s sole discretion and Company has no control over the nature, scope, or origin of, the data processed by the Products and Customer shall have sole responsibility for the adequacy, relevancy, accuracy, quality, and legality of it. Customer shall not use any Personal Data in connection with, to input into and process while using the Products. In no event shall Customer use sensitive Personal Data, such as information on health, sexual orientation, political orientation, race, etc.
5.3. Credentials. Access credential for the Products may not be shared with third parties or by and between Users or other Customer’s employees or contractors. Customer shall ensure that all Users keep their user IDs and passwords for the Product strictly confidential and not share such information with any unauthorized persons. User IDs are granted to individual, named persons and shall not be shared. Customer is responsible for all actions taken through use of Customer accounts and passwords. Customer agrees to notify Company immediately if Customer becomes aware of any unauthorized use of the Products.
5.4. Security. Each Party will use adequate contractual and technical mechanisms to protect any data of the other party received by it. Customer is solely responsible for maintaining the security of its Customer System. Company assumes no responsibility or liability for Customer Material.
5.5. Data Hosting. When the Product is provided through a web access, the Customer acknowledges and agrees that its Data may be hosted outside of Customer’s country.
6.1. Term and Termination for Convenience. This Agreement shall remain in effect for the Term, unless terminated earlier in writing pursuant to the terms of this section. Notwithstanding the foregoing, Company has the right to terminate this Agreement at any time.
6.2. Termination for Breach. Any use of the Products by Customer in breach of this Agreement, Customer’s false statement or indication of incorrect user or account information, or Customer’s use of the Product threatens the security, integrity or availability of the Product, results in immediate suspension of Customer’s access to the Product and immediate termination of the Agreement.
6.3. Effect of Termination. Upon termination of this Agreement, all usage or access rights granted to Customer hereunder shall terminate and Customer shall not use the Products, and Company shall have no further obligation to provide the Products.
7.1. Notices. All notices shall be in writing and addressed to through Customer’s account or the email addresses provided to each other.
7.2. Exports. Customer shall comply with all applicable export trade control laws, rules, and regulations with respect to its use of the Product, and shall comply with all restrictions imposed pursuant thereto with respect to complying with prohibitions of trade or transactions with persons or entities whom or which may be sanctioned or blocked by virtue of being subject of an order, directive, proclamation, regulation or otherwise listed as a blocked, barred, suspended, sanctioned or prohibited person identified by such agencies and departments. Without limiting the foregoing, Customer shall not export or re-export all or any part of the Product without Company’s prior written consent and license as may be required by the export trade control laws. Customer agrees to notify Company promptly if Customer or any User may be in non-compliance with this section.
7.3. No Waiver. Company’s failure or delay in exercising any of its rights shall not constitute a waiver of such rights unless expressly waived in writing.
7.4. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and the remaining provisions of this Agreement will remain in full force and effect.
7.5. Entire Agreement. This Agreement constitutes the entire agreement between Company and Customer regarding the subject matter hereof and supersedes all prior oral and written communications.
7.6. Law and Jurisdiction. For Tricentis GmbH: This Agreement will be governed by and construed in accordance with the laws of Republic of Austria, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Product will be subject to the exclusive jurisdiction of the courts competent for the Inner District of Vienna, Austria. For Tricentis APAC Pty. Ltd.: This Agreement will be governed by and construed in accordance with the laws of Australia, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Product will be subject to the exclusive jurisdiction of the courts located in Sydney, New South Wales. For Tricentis USA Corp.: This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Product will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. For Tricentis SGP Pte. Ltd: This Agreement will be governed by and construed in accordance with the laws of Singapore, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Product will be subject to the exclusive jurisdiction of the courts located in Singapore. Notwithstanding the foregoing, Company shall be entitled, in addition to any other rights or remedies, to seek injunctive relief in any jurisdiction where damage may occur. The parties disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
7.7. Subsequent Arbitration. Only if this Agreement is applicable between parties located in different countries and such countries have no bilateral treaty regarding litigation and enforcement in place, each party consents to all disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules and such arbitration shall be final binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be where the Company as specified above is located, and the arbitration language shall be English.