Abstract Trial Services
“Services” means the applicable version of Abstract’s version control and design workflow management platform and downloadable software that facilitates the use of such platform. “Trial Services” means the evaluation edition of the applicable Services.
License Grants, Limitations, and Restrictions
During the Trial Period (as set forth below), Abstract grants to Recipient and its employees and contractors working on behalf of and authorized by Recipient the right to access and use the Trial Services (each an “Authorized User”), a non-transferrable, nonexclusive right to use the Trial Services, in accordance with the documentation or instructions supplied by Abstract. Abstract shall at all times retain all title to and ownership of the Trial Services, and all enhancements, modifications and improvements thereto. Recipient hereby makes all assignments necessary to accomplish the foregoing. Recipient agrees to use the Trial Services solely for Recipient’s internal testing and evaluation, and Recipient will not modify or copy the Trial Services or any portion thereof and shall not rent, sell, lease, transfer or otherwise make available the Trial Services or any part thereof or use it for the benefit of a third party. Recipient shall not reverse assemble, reverse compile or reverse engineer the Trial Services, or otherwise attempt to discover any Trial Services source code or underlying proprietary information. Recipient agrees, and will ensure that all Authorized Users agree, to comply with Abstract's Acceptable Use Policy, located at https://www.abstract.com/legal/acceptable-use-policy (“AUP”). Recipient shall be responsible for its Authorized Users’ acts or omissions with the terms of this Agreement, including the AUP.
The period for the Trial Services will commence upon activation of the Trial Services and continue for fourteen (14) days (“Trial Period”), unless otherwise extended upon mutual agreement between the Parties. Any extension of the Trial Period shall continue to be governed by this Agreement. If at any time during or after the Trial Period, Recipient wishes to enter into a paid subscription license for the Services, Recipient must execute an order form, detailing, inter alia, the Services, subscription period, number of Authorized Users, and fees applicable to the use of the Services and agree to the applicable terms of service.
Abstract reserves the right to suspend or terminate this Agreement and the Trial Services, with or without cause, at any time, with or without notice. Recipient may terminate the Trial Services, with or without cause, at any time, by providing written notice to Abstract.
Recipient shall provide suggestions, comments or other feedback to Abstract with respect to the Trial Services (collectively, “Feedback”). Recipient hereby grants Abstract and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as we see fit, entirely without obligation or restriction of any kind, except that Abstract will not identify Recipient as the provider of such Feedback
By accessing or using the Trial Services, Recipient hereby grants Abstract the right to use Recipient’s company name and logo and agrees to provide a quote for use in a customer story, case study, website, marketing materials, press release or other public announcements.
Abstract collects data pertaining to Authorized Users’ interactions with the Trial Services, including information about the performance of the Trial Services and measures of the operation of the Trial Services (“Usage Data”). Notwithstanding anything else to the contrary and provided that the Usage Data is aggregated and anonymized, and no personal identifying information of Recipient is revealed to any third party, the parties agree that Abstract is free to use the Usage Data in any manner. Abstract owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give Abstract the right to identify Recipient as the source of any Usage Data.
The Trial Services, its performance, evaluation results, features and mode of operation, as well as all internal documentation, specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data relating to the Trial Services are the proprietary information of Abstract (“Confidential Information”). Recipient will not publish any results of any benchmarking or other tests run on the Trial Services without the prior written consent of Abstract. Recipient will return or destroy all Abstract Confidential Information upon Abstract’s request. In the event that Recipient destroys Abstract Confidential Information, Recipient will provide a written certification of destruction signed by an authorized officer of Recipient. Recipient will not disclose Abstract confidential information to any third party other than its employees or agents who have a business need to know and who are bound by written confidentiality obligations to Recipient not to disclose the confidential information. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation under this Agreement; (b) was known to Recipient prior to its disclosure by Abstract without breach of any obligation under this Agreement; (c) is received from a third party without breach of any obligation owed under this Agreement; or (d) was independently developed by Recipient without use or reference to Abstract’s Confidential Information.
“Recipient Information” means information, videos, images, music, comments, questions, documents, spreadsheets, design files, and any other content or materials submitted, posted, or otherwise made available by Recipient via the Trial Services. By submitting, posting, storing, or otherwise making Recipient Information available through the Trial Services, Recipient hereby grants Abstract, and represents and warrants that it has all rights necessary to grant Abstract (including, without limitation, any necessary consents, authorizations and licenses), a royalty-free, sublicensable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, distribute, and display, solely for use in connection with our provision of the Trial Services. Recipient is solely responsible for ensuring compliance with all applicable laws that may apply to Recipient Information, including but not limited to privacy laws. Unless otherwise agreed to in writing by both parties, Recipient may NOT submit any Recipient Information that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card data, or any other information which may be subject to data privacy and security laws intended to protect sensitive personal information including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children's Online Privacy Protection Act (COPPA). The Services are also not intended for and should not be used by anyone under the age of 13. Recipient must ensure that all Authorized Users are over 13 years old. ABSTRACT DOES NOT MAKE ANY REPRESENTATIONS AS TO THE ADEQUACY OF THE TRIAL SERVICES TO PROCESS INFORMATION WHICH MAY BE SUBJECT TO DATA PRIVACY AND SECURITY LAWS INTENDED TO PROTECT SENSITIVE PERSONAL INFORMATION OR TO SATISFY ANY LEGAL OR COMPLIANCE REQUIREMENTS WHICH MAY APPLY TO RECIPIENT INFORMATION.
Recipient Representations and Warranties
Recipient hereby warrants, represents and covenants as follows: (i) Recipient will not violate any applicable laws or infringe the proprietary or privacy rights of any third party when using the Trial Services; (ii) the information and other data that Recipient transmits, processes and receives in connection with the use of the Trial Services provided hereunder complies and will at all times during the term of this Agreement, comply with all applicable laws and do not and will not infringe the proprietary rights or privacy rights of any third parties; and (iii) it does not currently provide services that compete with the Trial Services and will not at any time in the future use any of the Trial Services or any Abstract Confidential Information for the provision of any services that compete with the Trial Services.
Trial Services Warranty Disclaimer
Recipient acknowledges that the Trial Services are provided “AS IS” and understands that the Trial Services may have errors and may produce unexpected results. ABSTRACT DISCLAIMS ALL WARRANTIES RELATING TO THE TRIAL SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
ABSTRACT SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR (B) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, BUSINESS INTERRUPTION, OR SPECIAL DAMAGES OF ANY KIND, EVEN IF LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ABSTRACT SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. IN NO EVENT SHALL ABSTRACTS’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100).
Recipient will defend, indemnify and hold Abstract, and its affiliates and their respective officers, directors, licensors, suppliers, service providers, employees, contractors and agents harmless against any claims, liabilities or expenses incurred (including reasonable attorneys’ fees), as well as amounts finally awarded in a settlement or by a court arising from any (i) breach by Recipient of any of its representation, warranty, covenant or other obligation set forth in this Agreement, (ii) Recipient’s negligence or willful misconduct, or (iii) liability arising out of or relating to Recipient’s use of the Trial Services. Abstract will give Recipient: (a) prompt written notice of any such claim or allegation for indemnification, provided that any delay in provided such notice shall not impact Recipient’s obligations hereunder except to the extent that Recipient is materially prejudiced by such delay; (b) control of the defense and settlement thereof, provided that any settlement shall be subject to Abstract’s approval; and (c) reasonable assistance in such defense or settlement, for which Recipient shall reimburse Abstract for any costs and expenses.
Recipient may not assign this Agreement in whole or in part without the prior written consent of Abstract, and any such attempted assignment or transfer shall be void and without effect.
Governing Law and Venue
This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Notices under this Agreement will be provided as follows: (a) all notices regarding the Trial Services will be sent by email or through the Trial Services, (b) notices to Abstract must be sent to email@example.com, except for legal notices, which must be sent to firstname.lastname@example.org and (c) all legal notices to Recipient will be sent to the email provided through the Trial Services. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; (b) the same day, in the case of notices through the Services; and (c) three (3) days after being sent by prepaid certified or registered U.S. mail.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Recipient and Abstract as a result of this Agreement or use of the Trial Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, (including any other documents referenced therein), comprises the entire agreement between Recipient and Abstract regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter.