EVALUATION AGREEMENT
(08-2022)
IMPORTANT: DO NOT USE THE SERVICE OR SOFTWARE UNTIL YOU HAVE READ AND AGREED TO THESE TERMS.
Note: If Your use of the Service is on a paid subscription basis, the terms of the separate Subscription Agreement (“Subscription Agreement”) apply.
BY (A) SIGNING A DOCUMENT THAT REFERENCES THIS AGREEMENT, OR (B) ISSUING A PURCHASE ORDER AGAINST A QUOTATION THAT REFERENCES THIS AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICE, SOFTWARE OR CONSULTING SERVICES THE ORDER OF WHICH REFERENCED THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS LEGALLY ENFORCEABLE.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR OTHER ENTITY, THEN YOU MUST BE AUTHORIZED TO BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, do not place an Order and/or terminate your access to the Service (or in connection with an installation process do not click “I accept” and terminate the installation process).
Modifications to this Agreement: The terms of this Agreement may not be modified with respect to the Order to which they apply except in writing and signed by both parties. Unless otherwise specified by Precisely, changes to this Agreement become effective upon any extension of the then-current Evaluation Period or upon the Commencement Date of a new Order after the effective date of the updated version of this Agreement. Continued use of any Service after the updated version of this Agreement goes into effect as noted above will constitute Customer’s acceptance of such updated version.
This is an agreement between Customer and Precisely.
The terms of this Agreement apply when a Service is designated by Precisely in the Order as a being made available by Precisely for a limited duration, on a trial, evaluation, or proof of concept only basis for the fees, if any, described in the Order (an “Evaluation” of a Service and/or Software). Customer’s use of a Service and/or Software for Evaluation is subject to all of the same general terms and conditions as a purchased subscription to a Service and except as provided in Section 3 below, such terms and conditions of the Subscription Agreement are incorporated by reference into this Agreement. References to “Agreement” in the Subscription Agreement shall be deemed to be references to this Evaluation Agreement, references to use of a “Service” shall be deemed to be references to the Evaluation of a Service, and references to use of Software shall be deemed to be references to the Evaluation of Software.
In the event of any conflict or ambiguity between the provisions of this Agreement, any Order and any document referred to in this Agreement, the conflict or ambiguity shall be resolved in the following descending order of precedence: the Data Protection Addendum; the Security Addendum; Orders (with the most recent taking precedence); the Service Description; the terms of this Agreement; and the Subscription Agreement.
1. DEFINITIONS
1.1 For the purposes of this Agreement, capitalized terms defined in the Subscription Agreement shall have the same meaning in this Agreement unless otherwise noted.
“Agreement” means exclusively this Evaluation Agreement document, the portions of the Subscription Agreement incorporated herein, any applicable Data Protection Addendum and/or Security Addendum, the Support Terms, and the Service Description applicable to the Evaluation of a Service to which Customer has a subscription.
“Evaluation Order” means an Order for Evaluation of a Service and/or Software.
“Evaluation Period” means the period of 30 days from the Commencement Date or such other period as specified in an Evaluation Order.
2. SUBSCRIPTION AND LICENCES
2.1 Where Customer has entered into an Evaluation Order, Precisely hereby grants to Customer and Customer’s Users during the applicable Evaluation Period a temporary, limited, non-exclusive, non-sublicensable, non-transferable subscription license to access and use such Service and/or Software for Customer’s internal business operations, subject to the terms of this Agreement.
2.2 Customer will access and use the Service and/or Software solely for Evaluation and will not use the Service and/or Software for production, development, or any other purpose and only to perform the number of Transactions set out in the Evaluation Order. Precisely reserves all rights to the Service and Software not expressly granted by this Agreement. No deployment or production of Service-based applications is permitted under any license granted in this Agreement. Customer shall not use the Service or Software to process personal data (other than as part of the registration process).
3. EVALUATION SERVICE TERMS
3.1 This Agreement will commence on the Commencement Date of the Evaluation and will continue for the Evaluation Period. Either party may terminate this Agreement and the Evaluation Order for any reason upon at least ten (10) calendar days prior written notice to the other party. Upon termination of this Agreement and the Evaluation Order for any reason, Client’s access to the Service and Software being Evaluated will terminate in accordance with Section 18.3 of the Subscription Agreement terms.
3.2 Evaluation of a Service and/or Software is subject to the applicable Service Description. Customer acknowledges that the Service and/or Software made available during the Evaluation Period may not include all of the functionality and features that are available in the purchased subscription version of the Service or Software.
3.3 Customer agrees not to disclose to any third party the results of any comparisons made between the Service and/or Software and any competitive offerings.
3.4 WITH RESPECT TO THE EVALUATION PERIOD, THE SERVICE AND SOFTWARE ARE PROVIDED “AS IS.” PRECISELY AND ITS THIRD-PARTY SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, (A) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMNET, ACCURACY, OR RELIABILITY, AND (B) ANY WARRANTIES ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. PRECISELY DOES NOT WARRANT THAT THE USE OF ANY SERVICE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
3.5 For Evaluation Orders in which there is no charge to Customer for use of the Service or Software for the Evaluation Period, Section 14.2 of the Subscription Agreement terms is modified to limit Precisely’s liability in connection with Customer’s Evaluation of the Service and Software to USD $50,000 (or equivalent in local currency).
3.6 ANY CUSTOMER DATA ENTERED INTO THE SERVICE BY CUSTOMER DURING THE EVALUATION PERIOD WILL BE PERMANENTLY LOST AT THE END OF THE EVALUATION PERIOD UNLESS CUSTOMER (A) PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE EVALUATION OR (B) EXPORTS SUCH CUSTOMER DATA, BEFORE THE END OF THE EVALUATION PERIOD.
3.7 PRECISELY AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT CUSTOMER’S USE OF THE SERVICES OR SOFTWARE DURING THE EVALUATION PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
3.8 CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE EVALUATION PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICE BEFORE MAKING A PURCHASE.
3.9 The following sections of the Subscription Agreement shall not be incorporated into this Evaluation Agreement: Sections 2.1 (Subscription and Licenses), Section 4.1 (Support and SLA), 7 (Warranties), 13.1-13.3 (Indemnification), 15.2 (Term), 17 (No Cancellation by Customer), 18.4 (Customer Data Removal), 18.5 (Surviving Sections), and 24 (Verification).
4. GENERAL
4.1 This Agreement constitutes the entire agreement between the parties with regard to the subject matter, may not be modified or amended except by a writing signed by both parties hereto except as otherwise indicated herein, and supersedes all proposals, understandings, representations, prior agreements or communications relating to Customer’s Evaluation of a Service and/or Software. All documents referenced in this Agreement by hyperlink are incorporated into the Agreement in its entirety. This Agreement also supersedes any preprinted terms contained on a purchase order or similar document issued by Customer and any such terms will have no force or effect. Customer has not been induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement will not be construed against the party that prepared it, but instead will be construed as if both parties prepared it.
4.2 If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
4.3 Precisely may update the Data Protection Addendum, Security Addendum, Support Terms and SLA from time to time.