SmartBear Trial Terms of Use
These Trial Terms of Use (these "Trial Terms") are a binding agreement between you ("Customer," "you," or "your") and SmartBear Software Inc., a Delaware corporation with its principal place of business at 450 Artisan Way, Somerville, MA 02145 ("SmartBear," "we,", "our" or "us"). These Trial Terms govern your use on a trial basis (a "Trial") of either (a) SmartBear's Software as a Service offering in which we host our software for your use (the "Service"), or (b) SmartBear's software which we deliver to you for use on your premises (the "Licensed Software").
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. Restrictions.
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).
5. Privacy.
Personal Information collected during a Trial will be handled in accordance with SmartBear's Privacy Policy.
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.
7. Miscellaneous.
These Trial Terms, together with the SmartBear Data Processing Addendum set forth at https://www.smartbear.com/DPA/, if applicable, and SmartBear's Privacy Policy set forth at https://www.smartbear.com/privacy, each as may be amended by SmartBear from time to time, constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The terms of any purchase order or other document relating to the transactions contemplated by these Trial Terms or delivered by you to SmartBear shall not apply. Any notices to us must be sent to our 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 us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to any Trial, the Service or the Licensed Software. You agree that any notices, agreements, disclosures, or other communications that we send to you 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 us with respect to a breach of these Trial Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. These Trial Terms are personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign these Trial Terms and to delegate any of its obligations hereunder.
These Trial Terms were last updated on February 11, 2020.