This Trial Services Agreement (“Agreement”) is a contract between PrenticeWorx, LLC (“Provider”, “we”, “our”, or “us”) and any person using our Software (“Customer”, “you”, or “your”). You enter into this Agreement by downloading, installing, or using our Software, or by continuing to use our Software after being notified of this Agreement or any changes to its provisions. If you are not willing to be bound by all of the terms of this Agreement, then you must immediately uninstall and stop using the Software. All terms that are capitalized when used or that have been given a particular definition in this Agreement have the meanings indicated in Section 4 below.
Background
Microsoft and our other partners have developed Partner Apps for enterprise resource planning, customer relationship management, and other business management purposes. Partner Apps enable us to design, develop, and offer our own interoperable Software to enhance or expand the Partner Apps’ capabilities. To help prospective customers evaluate our Software, we may occasionally offer that Software on a trial basis. If you download, install, or use the Software, we may collect or generate some information about you and your users, including some Personally Identifiable Information. This Agreement sets forth the terms and conditions for the trial Software, including our handling of your data in connection therewith.
General Terms
- General
- Trial Period. This Agreement becomes effective at the beginning of your Trial Period, which starts immediately when you begin downloading, installing, or using the Software. Unless we agree in writing to extend that Trial Period, this Agreement automatically expires at the end of such period or the date upon which you purchase the Software by making a Subscription Order with us, whichever occurs first. Either may terminate this Agreement earlier at any time and for any or no reason by providing the other party with notice thereof. Upon the expiration or other termination of this Agreement, all rights and licenses granted to you under this Agreement will immediately end, and unless the Agreement terminated in connection with a Subscription Order you make for the production versions of the Software, you promise to immediately uninstall the Software and destroy all physical and electronic copies of any Software-related documentation that you have downloaded, printed, or saved.
- Availability, Maintenance, Updates, and Support. We will try to keep the Software available during the Trial Period, but the Software may be unavailable at any time and from time to time, including for maintenance or updates. Because you may be unable to retrieve Customer Data when all or part of the Software is unavailable, we recommend you regularly backup any Customer Data that may be stored in the Software. At any time and without notice, our partners may update the Partner Apps, and we may update the Software, to maintain or enhance the capabilities, performance, security, compliance, or other characteristics of those Services. Notwithstanding the foregoing, we are not obligated to maintain or make any updates to the Software, and we don’t guarantee that any updates will include or support all existing features or functionalities of the Services. We will not provide any support for the Services during your Trial Period unless we agree in writing to do so.
- Software Use. In accessing and using the Software, you promise to not, and to not permit any of your users or any other person to, (a) bypass or breach any security measures or other technical limitations in the Software, including by sharing account credentials with a person without a license; (b) modify, remove, or obstruct any disclaimer, warning, or other notice in the Software; (c) decompile, disassemble, reverse engineer, or otherwise attempt to discover any proprietary information in the Software for any reason; (d) input, upload, or otherwise transmit to the Software any information containing harmful or unlawful code; (e) reproduce, create derivative works of, or otherwise access or use the Software for any competitive purpose, including for research, analysis, or product development; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise make available any part of the Software to any other person; or (g) access or use the Software in any other manner that violates this Agreement, our partners’ licensing terms and conditions, or applicable law.
- Conditional Software License. Subject to your compliance with this Agreement, we grant you a non-exclusive, non-transferable, and non-sublicensable right and license to download, install, access, and use the Software for the Permitted Uses during the Trial Period. We retain all other rights, title, and interest in and to the Software. (If you do not accept all of the provisions of this Agreement, then you receive no licenses or other rights hereunder). Except for applications that by their nature are intended to be used by multiple users, your license to the Software is a single-user license and may be accessed by only one natural person. If the Software requires Partner Apps to operate as designed, then you may not access or use any of the Services until you have received a separate license for the applicable Partner Apps from us or from our applicable partner, and any such Partner Apps licenses may be subject to other terms and conditions.
- Data Ownership and Use. You grant us a non-exclusive, non-transferable, and non-sublicensable right and license to collect, store, process, analyze, transmit, and otherwise use the Customer Data in connection with our rights and obligations under this Agreement, including in providing the Services, and you authorize us to disclose that data our affiliates, partners, employees, subcontractors, and representatives who are under nondisclosure obligations with respect to such data. You retain all other rights, title, and interest in and to the Customer Data. In sharing the Customer Data with us, you represent and warrant that (a) you have full power and authority to grant the licenses granted herein to such information; (b) such information does not infringe upon any domestic patent, copyright, trademark, trade secret, or other intellectual property rights of any third-party; (c) you have obtained all consents from third parties required for your use and disclosure of such information; and (d) your use and disclosure of such information otherwise complies with all third-party agreements and applicable law. You also authorize us to collect, generate, store, process, use, disclose, sell, or otherwise exploit the System Data and Derived Data for any lawful purpose, except that we will not sell your Confidential Information or any Personally Identifiable Information. The System Data and Derived Data are our sole and exclusive property, and we retain all rights, title, and interest in and to such data.
- Feedback. All rights, title, and interest in and to any creations, designs, developments, discoveries, ideas, inventions, recommendations, suggestions, and all other feedback that you or any of your users share with us about the Services (whether or not patentable) are our sole and exclusive property, and you hereby irrevocably assign to us any rights, title, and interest that you may now have or may later obtain in and to any of the foregoing, including the right to commercialize such feedback in any manner and for any purpose, without charge or any other obligation to you. To the extent that any such rights are not transferable, you hereby irrevocably and unconditionally waive the enforcement of such rights to the maximum extent permitted by applicable law.
- Legal Compliance. You promise to comply with all federal, state, local, and other laws applicable to the Services, including any domestic and international export laws, which may have restrictions on the destinations, end users, and end use of the Software. You also promise to comply with all agreements that you may have with any of our partners in relation to the Partner Apps.
- Liability
- Indemnification. Except as otherwise set forth in this Agreement, you promise to defend, indemnify, and hold harmless the Company and its parents, subsidiaries, and other affiliates (as well as all members, managers, shareholders, directors, officers, employees, contractors, and other agents of each of the foregoing) from and against all losses (including attorneys’ fees and costs) arising out of or relating to any claims, demands, suits, or other proceedings by any third-party based on your actual or alleged material breach of any representation, warranty, or covenant in this Agreement, or negligent, reckless, or intentionally wrongful act or omission. (For all purposes of this Agreement, you will be responsible for all acts and omissions of your users, and any act or omission by any of your users will be deemed to be your act or omission.)
- Disclaimer. During the Trial Period, we will have no obligations to you relating to the availability, maintenance, update, or support of the Services. Except as otherwise expressly set forth in this Agreement, all Services are provided on an as-is and as-available basis, and we disclaim all warranties of every kind whatsoever to the maximum extent permitted by law, including without limitation warranties of merchantability, warranties of fitness for a particular use or purpose, and warranties that the Services or your use thereof will be uninterrupted, will be error- or virus-free, will be of a particular quality or standard, will yield particular results, or will not infringe upon the intellectual property rights of any third parties.
- Limitation of Liability. In no event will we ever be liable to you for any damages arising out of or relating to problems with your internet, utilities, hardware, or other infrastructure; problems with the availability or functionality of any Services; unauthorized access to any of our partners’ online cloud services or other information systems; or any other reason inconsistent with this Agreement. In no event will we ever be liable to you for any loss of use, loss of revenue, loss of profits, or any other indirect, incidental, special, punitive, exemplary, or consequential damages of any kind, regardless of the theories upon which such damages are made or whether the parties knew or should have known about the possibility of such damages. In no event will our aggregate liability under this Agreement, including under Section 2.1, exceed $1,000.00 (USD).
- Miscellaneous
- Relationship. The parties are independent contractors, and nothing in this Agreement may be construed to create a partnership, agency, or other relationship between them.
- Survival. Termination of the Agreement will not release the parties from any liability or obligation in this Agreement that is expressly stated to survive such termination, or that by its nature would be intended to be applicable following such termination.
- Governing Law, Venue, and Forum. This Agreement will be deemed made in, governed by, and construed under the state laws of Utah and federal laws of the United States, as applicable, without giving effect to any choice or conflict of law rule that would permit the application of the laws of any other jurisdiction. Any disputes, actions, suits, and all other proceedings arising out of or relating to this Agreement must be brought exclusively in Salt Lake City, Utah, and each party consents and submits to the exclusive jurisdiction, venue, and forum of the tribunals therein.
- Severability. If any portion of this Agreement is held invalid or unenforceable, then all remaining portions will remain valid and enforceable to the extent they can be given effect without the invalid portions.
- Integration. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior or contemporaneous oral or written representations, warranties, covenants, or other agreements between them relating to the subject matter hereof. We may change this Agreement at any time, and we will notify you when we do. If you don’t agree to the modified terms, then you must immediately uninstall and stop using the Services.
- Definitions
“Agreement” has the meaning in the preamble above.
“Confidential Information” means any nonpublic information in any form that a party discloses to the other party, as well as any analyses, compilations, reports, or other reference materials relating to such nonpublic information. It includes all information that at the time of disclosure is identified as confidential, as well as all information that at the time of disclosure is or should reasonably be understood by the receiving party as being confidential, regardless of whether the nonpublic information is commingled with public information and regardless of from whom such nonpublic information was obtained. It does not include any information that is or becomes generally available to the public through no breach of this Agreement or other fault of the receiving party, that was previously known by the receiving party without any obligation to hold it in confidence, or that was independently developed by the receiving party without use of any nonpublic information received from the other party.
“Customer”, “you”, and “your” have the meanings in the preamble above, regardless of whether such terms are capitalized when used.
“Customer Data” means any information or data (except for any System Data or Derived Data) that is collected, downloaded, or otherwise received directly or indirectly from you or any of your users, or from your or any of your users’ devices or information systems, through the Services or otherwise in connection with this Agreement.
“Derived Data” means any information or data that is derived from the Customer Data, System Data, or any other source, provided that it does not contain any of your Confidential Information and that it has been anonymized, deidentified, or otherwise rendered to not contain any Personally Identifiable Information.
“Partner Apps” means all of our partners’ programs, applications, software, and related documentation upon which the trial Software operates, including all improvements, enhancements, and other modifications thereto and derivative works therefrom.
“Party” means either Provider or Customer, and “Parties” means both of them, regardless of whether such terms are capitalized when used.
“Permitted Uses” means solely for your own internal business purposes during the Trial Period in accordance with this Agreement and applicable law.
“Person” means any natural or fictitious person, including any estate, trust, partnership, corporation, or limited liability company, regardless of whether such term is capitalized when used.
“Personally Identifiable Information” means any information or data that could directly or indirectly reasonably identify the person to whom the information relates, such as a person’s biometrics, social security number, full name, or email address, regardless of how such information was obtained.
“Providing” or “to provide” with respect to the Services means, regardless of whether such terms are capitalized when used, (a) delivering our Services; (b) updating, enhancing, or otherwise modifying the features and functionalities of our Services; (c) monitoring, preventing, detecting, investigating, and repairing errors within our Services; (d) developing, configuring, customizing, deploying, and supporting the Services; (e) migrating data to the Services; (f) advising, guiding, planning, or otherwise consulting on matters relating to the Services; (g) enhancing the delivery, efficacy, quality, or other details of the Services; and (h) performing internal reportings, trainings, or any other business operations incidental to any of the foregoing.
“Provider”, “we”, “our”, or “us” have the meanings in the preamble above, regardless of whether such terms are capitalized when used.
“Software” means the trial versions of all of our programs, applications, software, and related documentation that you have started downloading, installing, or using, including all improvements, enhancements, and other modifications thereto and derivative works therefrom. (It does not include the production versions of any of the foregoing).
“Services” means the trial Software, the production versions of that Software, the Partner Apps, and any other products or services that we may offer from time to time, except for any such products or services that you have purchased from us through a separate Subscription Order.
“Subscription Order” means a separate written instrument between the parties setting forth the terms and conditions for the Customer’s purchase of all or part of the Services.
“System Data” means statistics, analytics, metrics, or other information or data that is collected, generated, downloaded, or otherwise received directly or indirectly from you or any of your users, or from your or any users’ devices or information systems, relating to the configurations, operations, performance, or other details of those devices and information systems, your or any your user’s activities within those devices and information systems, or the interactions between our Services and any of the foregoing (including behavioral, telemetry, and other similar data).
“Trial Period” means thirty (30) days from the date you begin downloading, installing, or using the Software.