This Trial Agreement (“Agreement”) is between TrackVia, Inc. (“TrackVia”) and the individual, organization, or entity entering into this Agreement with TrackVia (“You” or “Your”). This Agreement sets forth the terms and conditions under which TrackVia will provide You with limited access to review and evaluate TrackVia’s low-code application building platform (the “Platform”). You receive only the limited rights to access the Platform as expressly specified herein.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS AGREEMENT, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, BY USING THE PLATFORM, OR CLICKING “I AGREE”, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE PLATFORM AND DO NOT CLICK “I AGREE”.
1. ACCESS AND USE.
1.1 Access. Subject to Your compliance with this Agreement, during the Term of this Agreement, TrackVia will provide You with a limited, non-exclusive, non-transferable, non-sublicensable right to access and use those portions of the Platform that TrackVia provides in connection with Your trial of the Platform under this Agreement, including information, data, and other content made available to You on the Platform (collectively “Content”), solely for Your non-production, non-commercial review and evaluation of the Platform. Your right to access and use the Platform and Content will terminate upon the expiration or termination of this Agreement.
1.2 Accounts. During the Term, You may access the Platform solely through the account You establish on the Platform (“Account”). You may provide Your employees, and only your employees, access to the Platform through Your Account during the Term. You and the employees You provide access to the Platform are collectively the “Users” of the Platform. You are solely responsible for all Users’ access to and use of the Platform.
1.3 Applications. Your right to access and use the Platform may include the right to develop Applications on the Platform using Objects. You may only develop Applications in connection with Your review and evaluation of the Platform and You may not use any Applications or other Platform functionality for production or commercial purposes. “Objects” are programming routines that are part of the Platform and that You may incorporate into Your Applications without writing computer software code. “Application” means a software application that You develop using Objects, other Platform functionality, and Your own Application IP, as defined below.
1.4 Restrictions. The Platform, Content, and the databases, software, hardware and other technology used by or on behalf of TrackVia to operate the Platform (including all Objects and other functionality that are available on the Platform to create Applications), and the structure, organization, and underlying data, information and software code thereof (collectively, the “Platform Technology”), constitute valuable trade secrets of TrackVia. You will not, and will not authorize others to: (a) decompile, disassemble, reverse engineer, re-engineer, modify, or create derivative works or improvements based upon the Platform Technology; (b) sell, rent, encumber, transfer, assign, license, lease, sublicense, pledge, or encumber any of your rights, or any part thereof, under this Agreement or to the Platform Technology; (c) use the Platform Technology or Your Applications for any commercial purposes, including in any time-sharing or service bureau arrangement or to process data of any third party for a fee or any other consideration; (d) assign, distribute, transfer, furnish or otherwise disclose or make available the Platform Technology or Your Applications, or any part thereof, to any third party; (e) remove or alter any identification, trademark, copyright, patent, confidentiality, proprietary or other notice affixed to or embodied within the Platform Technology; or (f) use the Platform Technology for any purpose or in any manner inconsistent with this Agreement.
1.5 Prohibited Activities. You will not and will ensure Your Users do not engage in the following activities: (a) use the Platform Technology in any way that violates applicable state, federal, or international laws, regulations, or other government requirements; (b) attempt to gain access to a copy of any software that operates the Platform; (c) transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation; (d) use the Platform Technology for any unlawful purpose or in any way that might harm, damage, or disparage any other person or entity; (e) threaten, harass, abuse, slander, defraud, defame, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (f) publish, distribute, or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, false, unlawful, immoral, or otherwise objectionable material or information, including the use of the Platform Technology to promote or facilitate sex trafficking or prostitution; (g) create a false identity or impersonate another for the purpose of misleading others as to the identity of the sender or the origin of a message, including providing misleading information to any feedback system employed through the Platform Technology; (h) knowingly transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious software programs; (i) interfere with or disrupt the Platform Technology, any other person or entity’s use of the Platform Technology, or networks or servers connected to the Platform Technology or violate the regulations, policies or procedures of such networks or servers; (j) attempt to gain unauthorized access to the Platform, logins and passwords of others, or computer systems and networks connected to the Platform Technology; (k) upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (commercial or otherwise); or (l) upload or otherwise transmit any information or content that is copyrighted, protected by trade secret or otherwise subject to or infringes any Intellectual Property Rights or other proprietary rights, including privacy and publicity rights, without permission of the owner of such rights. “Intellectual Property Rights” means any and all ownership rights in intangible intellectual property existing from time to time in any jurisdiction, including rights under copyright law, patent law, trade secret law, confidential information law, trademark law, unfair competition law, or other similar rights. Without limiting any other rights of TrackVia under Section 3, TrackVia reserves the right to suspend any or all User’s access to or use of the Platform if You or Your Users engage in any of the activities listed above or otherwise breach the terms of this Agreement.
1.6 No Support. TrackVia is under no obligation to provide You with any support, maintenance, training, or other services relating to the Platform.
2. FEES. The parties agree that the rights and obligations of each party under this Agreement comprises the full and complete consideration under this Agreement and that no other consideration is due or payable hereunder. Each party shall bear all expenses that it may incur in connection with this Agreement.
3. TERM AND TERMINATION. This Agreement is entered into as of the earlier of the date You first access or use Platform or click that you agree to the terms of this Agreement and will continue for 30 days thereafter, unless (1) TrackVia (in its sole discretion) extends Your access to review and evaluate the Platform, in which case this Agreement will continue for so long as you have access to review and evaluate the Platform or (2) either party terminates this Agreement upon notice to the other party. Upon any termination or expiration of this Agreement, (a) all rights and licenses granted to You hereunder will immediately terminate and You will immediately and at Your expense cease all access to and use of the Platform and at the option of TrackVia, return to TrackVia or destroy, all Confidential Information, and (b) TrackVia is not obligated to store, maintain or provide a copy of Your Data. The relevant portions of Sections 3, 5, 6, 7, 8, 9, 10, and 11 will survive any termination or expiration of this Agreement.
4. YOUR DATA. You are solely responsible for the nature of all information, data, and other content that You or Your Users provide, upload, or transfer to the Platform or generate through Your Account (“Your Data”). TrackVia will only use Your Data to (1) provide the Platform, (2) aggregate information relating to transactions for statistical analysis and business measures of the performance of the Platform, to improve TrackVia’s products and services, to create new TrackVia products and services, and to manage TrackVia’s systems, including the Platform, (3) monitor Your use of the Platform for security and technical support purposes, and to determine Your compliance with the terms of this Agreement, (4) enforce this Agreement, and (5) comply with applicable law. You represent, warrant and covenant that you have and will obtain all necessary rights, title, interest, authorizations, and consents necessary to obtain, process, store, transmit, disclose, and otherwise use Your Data in connection with the Platform and as otherwise provided in this Agreement. You will comply with all applicable laws in connection with the use of Your Data in connection with the Platform. Your Data may not include any PII, and You will not upload, provide, store, or process any PII to or through the Platform during the Term. “PII” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a natural person or any sensitive data as defined by data privacy laws.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Your Ownership. As between You and TrackVia, You and Your licensors Own all Your Data. You hereby grant TrackVia the right and license to obtain, process, store, transmit, disclose, and otherwise use Your Data solely for the purposes of providing the Platform to You during the Term as set forth herein and as otherwise permitted herein. As used in this Agreement, to “Own” or have “Ownership” of tangible or intangible property means to own all right, title, and interest, including all Intellectual Property Rights, in and to the property.
5.2 TrackVia Ownership. As between You and TrackVia, TrackVia and its licensors Own the Platform Technology (including all Objects), all Applications (other than the Application IP, which is addressed below), the results of all services TrackVia chooses to provide in connection with Your review and evaluation of the Platform, and all Content entered into or available through the Platform other than Your Data (collectively, together the “TrackVia IP”).
5.3 Application Development. As between You and TrackVia, You Own those elements of Applications that are created solely by or on Your behalf (other than those Applications, or parts thereof, that are developed by TrackVia for You), subject to TrackVia’s underlying rights in and to TrackVia IP (the elements of such Applications that are Owned by You as described this Section are collectively referred to as “Application IP”). You hereby grant TrackVia the right and license to use Your Application IP solely for the purposes of providing the Platform to You during the Term
5.4 Feedback. Any suggestions or proposed modifications or enhancements to any Platform Technology or otherwise provided by You to TrackVia may be freely used by TrackVia without limitation, and any modifications or enhancements to the Platform Technology, new products or services, or otherwise resulting from such suggestions or proposed modifications will be exclusively Owned by TrackVia.
6. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means the Platform Technology, including all Content, and all other information, data, documentation, and materials, regardless of the form thereof, disclosed or made available to You by TrackVia, including all copies and extracts thereof. You will: (1) maintain the Confidential Information in strict confidence and not disclose the Confidential Information to any third party without TrackVia’s prior written consent; (2) treat all Confidential Information with the same degree of care as You treats Your own most confidential information, but in no event less than reasonable care; (3) disclose the Confidential Information only to those of Your employees who have a need to know the Confidential Information for purposes of reviewing and evaluating the Platform under this Agreement and who are bound by an enforceable obligation of confidentiality at least as protective of the Confidential Information as this Agreement; and (4) not utilize the Confidential Information other than as expressly permitted in this Agreement.
7. EXCLUSION OF LIABILITIES.
7.1 GENERAL DISCLAIMER. YOU ACKNOWLEDGE THAT THE PLATFORM AND CONTENT ARE PROVIDED BY TRACKVIA AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. TRACKVIA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND THE PLATFORM OR CONTENT, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRACKVIA OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY TRACKVIA AS AN AMENDMENT TO THIS AGREEMENT.
7.2 Limited Remedies. TRACKVIA SHALL NOT BE LIABLE FOR LOST PROFITS OR LOSS OF DATA OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, CONTENT, OR THIS AGREEMENT, WHICH MAY BE INCURRED BY YOU. YOUR SOLE REMEDY FOR ANY DISPUTE OR DISAGREEMENT ARISING FROM OR RELATED TO THE PLATFORM, CONTENT, OR THIS AGREEMENT IS TO TERMINATE THIS AGREEMENT AND CEASE USING THE PLATFORM AND CONTENT.
7.3 Limitation of Liability. TRACKVIA’S CUMULATIVE LIABILITY FOR ANY OTHER DAMAGES ASSERTED BY YOU ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED $50.
8. INDEMNIFICATION. You agree to hold harmless and indemnify TrackVia, its affiliates and subsidiaries, officers, directors, agents, and employees from and against any claim arising from or in any way related to (1) Your breach of this Agreement, (2) Your use of the Platform or Content, (3) Your violation of applicable laws, rules or regulations in connection with the Platform or Content, or (4) Your Data, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, TrackVia will provide you with written notice of such claim, suit or action.
9. NOTICE. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to TrackVia by postal mail to the address for TrackVia listed on the Platform and TrackVia’s website. TrackVia may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to TrackVia in connection with Your Account, provided that in the case of any notice applicable both to You and other users of Platform, TrackVia may instead provide such notice by posting on Platform. Notices provided to TrackVia will be deemed given when actually received by TrackVia. Notice provided to You will be deemed given 24 hours after posting to Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
10. GOVERNING LAW AND VENUE. This Agreement will be governed by and construed in accordance with the laws in effect in the State of Colorado, without regard to any applicable principles of conflicts of laws. Any legal action, suit or proceeding arising out of or relating to this Agreement or the breach thereof may be instituted by either party solely in the federal or state courts located in Denver, Colorado. Each party hereby submits to the personal jurisdiction of such court and waives any right each might otherwise have to claim lack of personal jurisdiction or forum non conveniens.
11. GENERAL. This Agreement constitutes the entire agreement between the parties regarding Your access to and use of the Platform and Content and supersedes all prior agreements, understandings, or communications, whether written or oral, among the parties with respect to the subject matter hereof. This Agreement may be changed only by a writing signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provision will remain in full force and effect. In any dispute relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and expenses from the other party. You may not assign or otherwise transfer any of Your rights or obligations under this Agreement, whether by operation of law or otherwise, without obtaining prior written consent of TrackVia. Any attempted assignment or transfer in violation of this Agreement will be void and of no effect. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable law. This Agreement is in the English language only, which language will be controlling in all respects. The words “include,” “includes” and “including” will mean, in each case, “without limitation.”