Terms & Conditions
This Trial Agreement (“Agreement”) is entered into between the company the individual clicking “I AGREE” below is acting on behalf of (“Organization”) and Opinr, Inc. (doing business as Certa), a Delaware corporation with a place of business at 24A Trolley Square #1635 Wilmington DE 19806-3334 (“Certa”).
The term of this Agreement shall be for 30 days (“Term”).
1. TRIAL OF SOFTWARE
1.1 Trial. Subject to the terms of this Agreement, Company grants Organization a non-exclusive, non-transferable, and non-sublicenseable license to use Company’s software-as-a-service and associated documentation and data (collectively, “Software”) for Organization’s internal business purposes during the Term for trial purposes only.
1.2 User Accounts. As part of the registration process, Organization will identify an administrative user name and password for Organization’s Software account. Company reserves the right to refuse to register or cancel passwords that are unreasonably inappropriate.
1.3 No Support. As this is a trial arrangement only offered at no charge to Organization, Company will not provide any support or maintenance for the Software or otherwise. Software may be unavailable from time to time for internal maintenance, due to Third Party Service providers, or for other reasons.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Restrictions. Organization will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software; modify, translate, or create derivative works based on the Software (except to the extent expressly authorized within the Software); use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Exports and Government Acquisition Regulations. Organization may not remove or export from the United States or allow the export or re-export of the Software, or in connection therewith otherwise violate any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If Organization is a branch or agency of the United States Government, Organization acknowledges and agrees that the Software (defined in this provision to include related documentation and services) consists of “commercial computer software” and “commercial computer software documentation” as those terms are used in 48 C.F.R. §12.212 and DFARS 252.227-7014(a)(1) and (5), and qualifies as “commercial items” as defined in 48 C.F.R. §2.101. Consistent with DFARS section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement
2.3 Organization Equipment. Organization shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Organization shall also be responsible for maintaining the security of the Equipment, Organization’s account, passwords (including administrative and user passwords) and files, and for all uses of the Organization account or the Equipment.
2.4 Third Party Services. Certain third party services may be enabled for use with the Software (each, a “Third Party Service”). Any subscription and use by Organization or its users of a Third Party Service is solely the responsibility of Organization and the applicable Third Party Service provider. Organization acknowledges that all Third Party Service providers may have access to Organization Data (as defined below) in connection with the interoperation and support of such Third Party Services with the Software. To the extent Organization authorizes the access or transmission of Organization Data through a Third Party Service, the Third Party Service provider’s agreement with the Organization will govern the provision of the Third Party Service, and Certa shall not be responsible for, any use, disclosure, modification or deletion of such Organization Data, or for any act or omission on the part of such Third Party Service provider. For instance, when the Software calls a Third Party Service application protocol interface (API) to return a match, Certa is not responsible for, nor guarantees, that the returned data will be correct or accurate (e.g., matching the correct entity), as this is within the purview of the Third Party Service provider and is beyond Certa’s control. Organization is entirely responsible for compliance with the applicable Third Party Service provider agreement.
3. CONFIDENTIALITY
3.1 Confidential Information and Organization Data. Each party shall treat all information received from the other party as confidential – to the extent such information is designated as confidential or the receiving party reasonably should have understood the confidential nature of such information – per a reasonable standard of care and shall not disclose such information to third parties except as expressly contemplated herein (“Confidential Information”). The Software constitutes Company’s Confidential Information. A party may disclose the disclosing party’s Confidential Information to its contractors under a materially similar contractual duty of confidentiality. To the extent a party is required, by a government authority via subpoena or other means, to disclose Confidential Information of the other party, or must do so to pursue a claim, the party will give the other party reasonable advance notice and reasonably cooperate with any reasonable attempt by the other party to restrict such disclosure. The receiving party shall return or destroy (and not retain any copies of) the disclosing party’s Confidential Information reasonably promptly upon request. Information shall not be considered confidential to the extent it: was already known by the receiving party free of restrictions; or was subsequently learned from an independent third party free of restrictions and without breach of this Agreement; or was independently developed by the receiving party without reference to the disclosing party’s Confidential Information. Confidential Information of Organization includes non-public data inserted by Organization into the Software (“Organization Data”). Organization Data does not include Third Party Service data or data regarding Organization’s third parties that such third parties submit into the Software, such as W-9s, information security certifications, and other such diligence (referred to herein as “3rd Party Data”). Company is fully responsible for compliance with all applicable laws, regulations and government-issued rules, guidance, guidelines and orders (“Applicable Law”) as to Company’s usage of 3rd Party Data.
3.2 Organization Data Ownership. Organization shall own all right, title and interest in and to the Organization Data. Company shall own and retain all right, title and interest in and to (a) the Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Software or related services, and (c) all intellectual property and proprietary rights related to any of the foregoing. If Organization does not enter into a definitive paid agreement with Company following the Term, then Organization acknowledges and agrees that Company has no responsibility to maintain or deliver the Organization Data after the Term and may delete it any time.
3.3 Data Usage by Company. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including information concerning Organization Data and data derived therefrom), and Company will be free, during and after the Term (as defined below) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software as well as other Company offerings (such as 3rd Party Data that does not include any Organization Data or any of Organization’s Confidential Information), and (ii) disclose all such data solely in aggregate or de-identified form that does not refer to Organization in connection with Company’s business. No rights or licenses are granted except as expressly set forth herein.
3.4 Company Subprocessors. To the extent that Company discloses Organization Data to any of its contractors or vendors, it will do so in accordance with Applicable Law and subject to an obligation of confidentiality. If required under Applicable Law, Company and Organization will enter into a data processing agreement consistent with such legal requirements. When engaging subprocessors of Organization Data, Company will ensure via a written contract that the subprocessor only accesses and uses Organization Data to the extent required to perform the subcontracted obligations and only in accordance with Applicable Law.
4. TERM AND TERMINATION
4.1 Term. The Term of this Agreement is for the period of time stated above.
4.2 Termination for Convenience, Survival. Either party may terminate this Agreement for convenience, for any reason or no reason, at any time, via written notice to the other party.
4.3 Survival. All provisions of this Agreement which by their nature should survive termination will survive, including, accrued rights to payment, definitions for interpretation purposes, and the provisions entitled “Confidentiality”, “Survival”, “Disclaimer”, “Limitation of Liability”, “Indemnity” and “General”.
5. NO FEES. There shall be no fees incurred by Organization under this Agreement.
6. WARRANTIES AND DISCLAIMER
6.1 Warranties. Both parties represent, warrant and covenant that they have the requisite corporate power and authority to enter into this Agreement and shall comply with all Applicable Laws.
6.2 Disclaimer. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITYTHIS LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT, NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT SHALL COMPANY, ITS DIRECT OR INDIRECT SUBSIDIARIES, CONTROLLED AFFILIATES, AGENTS, EMPLOYEES OR REPRESENTATIVES (“RELATED PARTIES”), BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL COMPANY OR ITS RELATED PARTIES BE LIABLE FOR ANY DAMAGES IN EXCESS OF $1000 U.S. DOLLARS. THIS LIMITATION OF LIABILITY PROVISION DOES NOT LIMIT A COMPANY’S LIABILITY FOR FRAUD.
8. INDEMNITY
8.1 Mutual Indemnification. Each party will indemnify, defend, and hold harmless the other party and its Related Parties (the "Indemnitees") from and against any third party claims (“Claims”) and associated liabilities, losses, damages and costs (including reasonable attorneys' fees and associated defense costs) (“Costs”) to the extent caused by the indemnifying party’s: (a) breach of this Agreement or violation of Applicable Law, (b) acts or omissions causing death, injury, disability or illness, or (c) intentional misconduct or fraud. The parties shall agree on choice of counsel, such choice not to be unreasonably withheld, and the indemnified party may additionally fully participate in all settlement negotiations as well as the defense with counsel of its choosing at its own expense. Without the indemnified party’s counsel’s prior written consent, any settlements must be for the payment of money by the indemnifying party only and not obligate the indemnified party in any way. The indemnifying party will not be responsible for any settlement it does not approve in writing. The indemnified party shall promptly notify the indemnifying party of any indemnifiable claims and shall provide the indemnifying party with reasonable assistance thereto. Failure to provide such notice shall not alter the indemnifying party’s duties under this provision unless such failure materially prejudices the defense.
8.2 Indemnification Restrictions. Company’s duties per the “Mutual Indemnification” provision above do not apply with respect to Claims and Losses to the extent caused by: (i) Third Party Services, (ii) Software configured in accordance with Organization specifications or modified by Company at its direction, (iii) Software combined by Organization with other products, processes or materials to the extent the Claims and Losses were caused by such combination, (iv) Organization continuing Claimed infringing/violative activity after being notified thereof or after being informed of modifications that would have avoided such Claim, or (v) Organization’s use of the Software not in accordance with the Agreement and Company’s reasonable documentation.
8.3 Infringement Remedies. If a Claim occurs alleging that the Software violates Applicable law regarding intellectual property or proprietary rights, and a court of competent jurisdiction rules as such, or the Company reasonably determines such Claim may be valid, then Company may (at its option and expense): (a) replace or modify the Software to be non-infringing, (b) obtain a license to continue using the Software, or (c) terminate this Agreement.
9. FORCE MAJEURE
Any failure or delay by Company in the performance of its obligations pursuant to this Agreement shall not be deemed a default or breach of the Agreement or a ground for termination hereunder to the extent such failure or delay is due to elements of nature or acts of God, pandemics, acts of war, terrorism, riots, revolutions, or strikes or other factor beyond the reasonable control of Company (each, a “Force Majeure Event”).
10. GENERAL
Entire Agreement. This Agreement is the parties' entire understanding relating to its subject matter and supersedes any previous oral or written agreement between the parties concerning such subject matter. Any Organization purchase order terms are similarly specifically rejected by Company. Amendments. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. Waivers, Cumulative Remedies. The failure of a party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. All remedies hereunder, at law and in equity are cumulative and nonexclusive. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts or choice of laws provisions thereof. Any suit arising out of this Agreement will be brought in a state or federal court located in Wilmington, Delaware, and the parties irrevocably submit to such venue and jurisdiction, except when Company is seeking temporary injunctive relief. Severability. If any Agreement provision or part is held invalid by a court of competent jurisdiction, the remainder of this Agreement will continue in full force and effect. Independent Contractors, No Third Party Beneficiaries. The parties are independent contractors. This Agreement is for the sole benefit of the parties hereto and there are no third party beneficiaries. This Agreement does not create any joint venture, partnership, or any other similar relationship. Assignments. Organization may not assign, transfer, delegate or sublicense any of its rights or duties under this Agreement, and any attempt to do so without Company consent is invalid. Interpretation. Unless the context requires otherwise, “including” (and any of its derivative forms) means “including, but not limited to”. Notices. All notices to Company shall be in writing and any communication to Company intended to have legal effect under this Agreement shall be sent to: care@getcerta.com, jag@getcerta.com, dudley@getcerta.com and jason@getcerta.com.
