THIS TRIAL AGREEMENT (“AGREEMENT”) IS BETWEEN DATAVISOR, INC., A DELAWARE CORPORATION WITH A BUSINESS ADDRESS AT 967 N. SHORELINE BLVD., MOUNTAIN VIEW, CA 94043, USA (“DATAVISOR”) AND YOU (“YOU” OR “CUSTOMER”). PLEASE CAREFULLY READ THIS AGREEMENT BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING THE ONLINE DATAVISOR FRAUD DETECTION SERVICES (“DATAVISOR SERVICES”) FROM THE WEBSITE OF DATAVISOR,
BY CLICKING ON THE “ACCEPT” BUTTON, AND/OR DOWNLOADING OR USING THE DATAVISOR SERVICES, YOU, AS THE CUSTOMER (REFERRED TO HEREIN AS “YOU” OR “CUSTOMER”) ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND/OR DO NOT ACCESS, DOWNLOAD OR USE THE DATAVISOR SERVICES.
IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE LICENSE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS AGREEMENT.
ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND USE OF THE DATAVISOR SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST NOT USE OR ACCESS THE DATAVISOR SERVICES.
IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND DATAVISOR HEREBY AGREE AS FOLLOWS:
Subject to the terms and conditions of this Agreement, DataVisor and Customer will conduct a trial (the “Trial”) of DataVisor’s Services. The DataVisor Services will be hosted and operated on computer servers maintained by DataVisor or by a third party on behalf of DataVisor or provided to Customer for on-prem use. The DataVisor Services are for use for the Trial only by Customer and only for Customer’s internal business purposes during the Trial Period (as defined in Section 8 below), and are not to be used for the benefit of any third party or for any production purposes.
As between the parties, DataVisor owns all intellectual property rights in the DataVisor Services and all underlying software, architecture, algorithms, inventions, technology, processes, and related documentation, as well as all improvements and modifications made to any of the foregoing in connection with the performance of the Agreement. Customer agrees not to reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from any software or sublicense, transfer, assign, disclose, lease, distribute or sell the DataVisor Services. No license is granted, by implication, estoppel or otherwise, under any such intellectual property rights except for the right to access and use the DataVisor Services for the Trial as set forth herein.
To use the DataVisor Services, Customer may provide to DataVisor certain data regarding the Customer product end user accounts, which may include but not be limited to telephone number, IP address, user ID, device location and use, and other information that end users provide to Customer when signing up for use of or that is collected based on end user’s utilization of the Customer product (collectively “Customer Data”). As between the parties, Customer shall own all right, title, and interest in and to the Customer Data. In addition, for hosted DataVisor Services, Customer understands and agrees that DataVisor may collect certain metadata in relation to the use of DataVisor Services by Customer (“MetaData”). Customer agrees to grant and hereby grants to DataVisor a perpetual, non-exclusive license to use such Customer Data and MetaData (a) in order to provide the DataVisor Services to Customer; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to maintain and improve the DataVisor Services. Customer represents and warrants that it implements and maintains a data collection and privacy policy that complies with all applicable data protection and privacy laws and regulations (“Data Protection Laws”), and that its provision of the Customer Data to DataVisor complies with Data Protection Laws and all other applicable laws and regulations and will not violate any privacy or other rights of any third party.
4.1. Fees and Payment Terms. Unless otherwise agreed by the parties in writing, no fees are payable by Customer to DataVisor for the Trial.
5.1. Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Each party will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and will take reasonable precautions to protect the confidentiality of such information.
5.2. Exceptions. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
DATAVISOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DATAVISOR DOES NOT WARRANT THAT THE DATAVISOR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR WILL DETECT ALL UNWANTED OR FRAUDULENT ACCOUNTS, OR WILL NOT DETECT ACCOUNTS THAT ARE NOT UNWANTED OR FRAUDULENT.
7.1. Exclusions. DATAVISOR WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF DATAVISOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
7.2 Maximum Liability. DATAVISOR’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO US$ 1,000.
8.1. Term and Termination. The term of this Agreement and the Trial shall be thirty (30) days from the Effective Date of the applicable Order Form or date mutually agreed by the parties (“Trial Period”), unless extended by the parties’ mutual written approval. Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same.
8.2 Purchase of Subscription upon Expiry of Trial Period. Upon expiry of the Trial Period, Customer may purchase a subscription to the DataVisor Services. Such purchase shall be governed by the DataVisor Order Form entered into by DataVisor and Customer and DataVisor’s standard Subscription Agreement.
8.3. Effect of Expiry or Termination. Within ten (10) days after expiration or termination of the Trial, each party will return or destroy all Confidential Information of the other party in its possession at the time of expiration or termination and will not retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement, or as permitted under Section 3.
8.4. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 2, 3, 5, 6, 7, 8.2, 8.3, 8.4 and 9.
This Agreement and any disputes arising hereunder will be governed by the laws of the State of California, without reference to conflicts of laws principles, and will be subject to the exclusive jurisdiction of the federal and state courts located in Santa Clara County, California. Notwithstanding the foregoing, DataVisor will have the right and may apply to any court of competent jurisdiction for injunctive relief. This Agreement may not be assigned by Customer without DataVisor’s prior written consent. DataVisor may assign this Agreement to an entity that succeeds to all or substantially all of its business or assets. DataVisor and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between DataVisor and Customer. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party first written above, or at such other address as may hereafter be furnished in writing by either party hereto to the other. This Agreement sets forth the entire agreement with respect to the subject matter hereof and may only be modified in writing. This Agreement may be executed in two or more counterparts, and in scanned, electronic or hard copy format, each of which will be deemed an original, but all of which together will constitute one and the same instrument. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
This trial terms was last modified on May 11th, 2021.