SmartBear Trial Terms of Use
These Trial Terms of Use (these “Trial Terms”) are a binding agreement between Customer (“Customer”) and SmartBear and govern Customer’s use of any SmartBear Solution on a trial basis (a “Trial”). Capitalized terms used but not defined herein have the meanings set forth in Exhibit 1 to the SmartBear Master Solutions Agreement (“MSA”), solely for definitional convenience and without incorporating the MSA or any of its substantive terms. In the event of any conflict between these Trial Terms and any document incorporated herein by reference (including the Solution Specific Terms, the AUP, or the Privacy Notice), these Trial Terms shall control.
THESE TRIAL TERMS TAKE EFFECT WHEN CUSTOMER ACCESSES OR USES THE SAAS OR DOWNLOADS, INSTALLS OR USES THE LICENSED SOFTWARE AS PART OF A TRIAL (THE “EFFECTIVE DATE”). BY ACCESSING OR USING THE SAAS, OR BY DOWNLOADING, INSTALLING OR USING THE LICENSED SOFTWARE AS PART OF A TRIAL, CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THESE TRIAL TERMS; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TRIAL TERMS, IF ENTERING INTO THESE TRIAL TERMS FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THESE TRIAL TERMS AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY THESE TRIAL TERMS. IF CUSTOMER DOES NOT ACCEPT THESE TRIAL TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SAAS OR DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE AS PART OF A TRIAL.
BY INITIATING A TRIAL BY EXECUTING AN ORDER OR BY CLICKING “AGREE” (OR SIMILAR BUTTON OR CHECKBOX), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS BEEN PRESENTED WITH THE MSA (LOCATED AT HTTPS://SMARTBEAR.COM/TERMS-OF-USE) AND THE PRIVACY NOTICE (LOCATED AT HTTPS://SMARTBEAR.COM/PRIVACY). CUSTOMER’S ACCEPTANCE OF THE MSA THROUGH THAT WORKFLOW IS THE MECHANISM BY WHICH CUSTOMER ACCESSES THESE TRIAL TERMS; HOWEVER, THE MSA DOES NOT GOVERN CUSTOMER’S USE OF THE SOLUTION DURING THE TRIAL PERIOD. UPON CONVERSION OF CUSTOMER’S TRIAL TO A PAID SUBSCRIPTION, THE MSA, INCLUDING THE ADDITIONAL SOLUTION TERMS, SOLUTION SUPPORT MANUAL, DPA (WHEN APPLICABLE), AND POLICIES (COLLECTIVELY, THE “AGREEMENT”), SHALL GOVERN CUSTOMER’S USE OF THE SOLUTION GOING FORWARD WITHOUT NEED FOR RE-EXECUTION.
CUSTOMER MAY NOT ACCESS THE SOLUTION AS PART OF A TRIAL IF CUSTOMER IS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A DIRECT COMPETITOR OF SMARTBEAR (MEANING AN ENTITY THAT OFFERS PRODUCTS OR SERVICES SUBSTANTIALLY SIMILAR TO THE SOLUTION BEING TRIALED), UNLESS CUSTOMER HAS OBTAINED SMARTBEAR’S PRIOR WRITTEN CONSENT.
1. Free Trial Version.
If Customer registers for a free Trial offered by SmartBear, SmartBear will make the Solution available to Customer on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which Customer registered (the “Trial Period”). The Trial Version may be used only by Customer and its authorized Users (as defined in Exhibit 1 to the MSA) to review, evaluate and demonstrate the Solution internally. The Trial Version may have limited features. The Trial Version may cease operating after the end of the Trial Period ends or when Customer’s 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, Customer must stop use of the Solution at the end of the Trial Period or when the number of specified uses have exceeded their limit. Beta Versions (as defined in Exhibit 1 to the MSA) are also subject to these Trial Terms.
2. Restrictions.
2.1 General Restrictions.
Customer shall not: (a) use the Trial Version of the Solution 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 Solution 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 a subscription to the Solution; or (d) access or use the Trial Version of the Solution under more than one username. Customer’s use of the Trial Version is further subject to the AUP, which is incorporated herein by reference.
2.2 Licensed Software Restrictions.
If Customer is using the Trial Version of the Licensed Software, in addition to the restrictions set forth in Section 2.1 above, Customer 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. Customer Data and Restricted Data.
During the Trial, Customer retains all right, title, and interest in and to Customer Data. Customer acknowledges that the Trial Version is intended solely for evaluation purposes and Customer and its Users may only upload non-production, non-personal, non-sensitive data (e.g., synthetic or dummy data) when using the Solution. Without limiting the foregoing, Customer and its Users shall not upload, transmit, or otherwise provide to SmartBear any Customer Data subject to heightened legal or regulatory protections (“Restricted Data”), including but not limited to: (i) classified or export-controlled data (e.g., ITAR, EAR); (ii) regulated health, financial, or payment card data (e.g., HIPAA, GLBA, PCI DSS); or (iii) sensitive or special category personal data as defined under applicable privacy laws. Customer is solely responsible for reviewing and complying with all applicable Additional Solution Terms regarding permissible use of Customer Data. The Solutions do not require or in any way need access to Restricted Data for installation or operation. SmartBear shall have no responsibility or liability for any resulting claims, damages, or losses arising from Customer's failure to comply with the foregoing.
4. Additional Solution Terms.
Customer’s use of the Trial Version is subject to the applicable Solution Specific Terms, which are incorporated into these Trial Terms by reference. If the Trial includes access to AI Enabled Features (as described in the Solution Specific Terms), the AI Terms set forth therein shall apply to such use. For the avoidance of doubt, the Solution Specific Terms are incorporated as part of these Trial Terms and not by operation of the MSA.
5. No Warranty.
THE TRIAL IS PROVIDED TO CUSTOMER 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 SAAS, 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 SOLUTION WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT SMARTBEAR WILL CORRECT ALL ERRORS IN THE SOLUTION; (B) THE SOLUTION WILL OPERATE IN COMBINATION WITH CUSTOMER’S DATA, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) CUSTOMER’S DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (D) THE SOLUTION, INCLUDING ANY PRODUCTS, INFORMATION OR OTHER MATERIAL CUSTOMER OBTAINS FROM SMARTBEAR UNDER THESE TRIAL TERMS, WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.
CUSTOMER ACKNOWLEDGES THAT SMARTBEAR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOLUTION 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 CUSTOMER USES OR CREATES AS PART OF THE TRIAL. SMARTBEAR RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SOLUTION, OR ANY TRIAL VERSION THEREOF, AT ANY TIME WITHOUT NOTICE.
6. 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).
7. Intellectual Property.
SmartBear and its licensors retain all right, title, and interest in and to the Solution, all related technology, and all intellectual property rights therein. Nothing in these Trial Terms transfers or assigns to Customer any intellectual property rights in the Solution. SmartBear may collect Usage Data (as defined in Exhibit 1 to the MSA) during the Trial, and SmartBear owns all right, title, and interest in such Usage Data.
8. Privacy and Usage Data.
Personal Information collected during a Trial will be handled in accordance with SmartBear’s Privacy Notice located at https://smartbear.com/privacy (the “Privacy Notice”). SmartBear may collect and use Usage Data during the Trial to analyze, improve, support, and operate the Solution. Usage Data may include analytics, performance, and usage information generated by Customer’s use of the Solution.
9. Confidentiality.
During and after the Trial, each party will protect the other's Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to these Trial Terms, the receiving party may use the disclosing party's Confidential Information solely to exercise its respective rights and perform its respective obligations under these Trial Terms, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section will supersede any non-disclosure agreement by and between the parties entered into prior to these Trial Terms that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
10. Governing Law and Dispute Resolution.
If Customer’s principal place of business is in the United States or Canada, these Trial Terms are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to any choice or conflict of law provision. If Customer’s principal place of business is outside the United States and Canada, these Trial Terms are governed by and construed in accordance with the laws of Ireland, without giving effect to any choice or conflict of law provision. Any dispute arising out of or related to these Trial Terms shall be submitted to binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, to be held in Boston, Massachusetts (for US/Canada customers) or Dublin, Ireland (for all other customers).
11. Miscellaneous.
These Trial Terms, together with the Solution Specific Terms, the AUP, and the Privacy Notice, each as may be amended by SmartBear from time to time, constitute the sole and entire agreement between the parties with respect to Customer’s use of the Solution during the Trial Period and supersede all prior and contemporaneous understandings, agreements, representations, and warranties with respect to such subject matter. For the avoidance of doubt, the MSA does not form part of, and is expressly excluded from, the agreement governing the Trial. The terms of any purchase order or other document relating to the transactions contemplated by these Trial Terms or delivered by Customer to SmartBear shall not apply.
Any notices to SmartBear must be sent to SmartBear’s corporate headquarters address set forth in the preamble to these Trial Terms and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by SmartBear. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from SmartBear. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to any Trial, the Solution. Customer agrees that any notices, agreements, disclosures, or other communications that SmartBear sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by SmartBear with respect to a breach of these Trial Terms by Customer or others does not constitute a waiver and will not limit SmartBear’s rights with respect to such breach or any subsequent breaches. These Trial Terms are personal to Customer and may not be assigned or transferred for any reason whatsoever without SmartBear’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. SmartBear expressly reserves the right to assign these Trial Terms and to delegate any of its obligations hereunder.
These Trial Terms were last updated on August 19, 2026.