THESE TRIAL TERMS TAKE EFFECT WHEN YOU ACCESS OR USE THE SERVICE OR DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE AS PART OF A TRIAL (THE "EFFECTIVE DATE"). BY ACCESSING OR USING THE SERVICE, OR BY DOWNLOADING, INSTALLING OR USING THE LICENSED SOFTWARE AS PART OF A TRIAL, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TRIAL TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TRIAL TERMS AND, IF ENTERING INTO THESE TRIAL TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TRIAL TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TRIAL TERMS. IF YOU DO NOT ACCEPT THESE TRIAL TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE OR DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE AS PART OF A TRIAL. YOU MAY NOT ACCESS THE SERVICE OR THE LICENSED SOFTWARE AS PART OF A TRIAL IF YOU ARE A COMPETITOR OF SMARTBEAR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.
1. Free Trial Version.
If you register for a free Trial offered by SmartBear, SmartBear will make the Service or Licensed Software available to you on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered (the “Trial Period”). The Trial Version may be used only by you to review, evaluate and demonstrate the Service or Licensed Software internally. The Trial Version may have limited features. The Trial Version may cease operating after the end of the Trial Period ends or when your use has exceeded the number of uses provided by SmartBear based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, you must stop use of the Service or Licensed Software, as the case may be, at the end of the Trial Period or when the number of specified uses have exceeded their limit.
2.1 General Restrictions. You shall not: (a) use the Trial Version of the Service or the Licensed Software for any commercial purposes whatsoever, including but not limited to training, application deployment or production purposes; (b) disclose the results of performance benchmarks obtained using the Trial Version of the Service or the License Software to any third party without SmartBear’s prior written consent; (c) use the Trial Version other than for the sole purpose of determining whether to purchase access to the Service or a license to the Licensed Software; or (d) access or use the Trial Version of the Service, or download the Trial Version of the Licensed Software, under more than one username.
2.2 Licensed Software Restrictions. If you are using the Trial Version of the Licensed Software, in addition to the restrictions set forth in Section 2.1 above, you shall not (a) alter the contents of a hard drive or computer system to enable the use of the Trial Version for an aggregate period in excess of the Trial Period; or (b) use the Trial Version to update Licensed Software that is no longer eligible for maintenance and support services.
3. No Warranty.
THE TRIAL IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SMARTBEAR HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO (A) THE SERVICE, INCLUDING BUT NOT LIMITED TO SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS; (B) THE LICENSED SOFTWARE; AND (C) MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SMARTBEAR DOES NOT GUARANTEE THAT (A) THE SERVICE OR THE LICENSED SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT SMARTBEAR WILL CORRECT ALL ERRORS IN THE SERVICE OR THE LICENSED SOFTWARE; (B) THE SERVICE OR THE LICENSED SOFTWARE WILL OPERATE IN COMBINATION WITH YOUR DATA, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) YOUR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (D) THE SERVICE OR THE LICENSED SOFTWARE, INCLUDING ANY PRODUCTS, INFORMATION OR OTHER MATERIAL YOU OBTAIN FROM SMARTBEAR UNDER THESE TRIAL TERMS, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT SMARTBEAR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OR THE LICENSED SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. SMARTBEAR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SMARTBEAR IS NOT RESPONSIBLE FOR THE SECURITY OF ANY DATA THAT YOU USE OR CREATE AS PART OF THE TRIAL. SMARTBEAR RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SERVICE OR THE LICENSED SOFTWARE, OR ANY TRIAL VERSION THEREOF, AT ANY TIME WITHOUT NOTICE.
4. Limitation of Liability.
IN NO EVENT WILL SMARTBEAR BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SMARTBEAR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SMARTBEAR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY TRIAL OR THESE TRIAL TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED ONE HUNDRED US DOLLARS ($100.00).
6. Governing Law and Jurisdiction.
These Trial Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to these Trial Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
These Trial Terms were last updated on February 11, 2020.