Free-Trial Subscription Agreement


This Free-Trial Subscription Agreement (this “Agreement”) contains terms and conditions that govern your acquisition of subscriptions to, and use of, the Free-Trial Services (as defined below), and is a contract between Zen3C, product of KeplerWorx LLC, an advanced AWS Partner (Zen3C), and you or the entity or organization that you represent.

If you are an individual using the Free-Trial Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.

If you are using the Free-Trial Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer.

This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Free-Trial Services, (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you enter into a Free-Trial Order (as defined below) with Zen3C.

1.     Free-Trial Orders.

This Agreement sets forth the terms pursuant to which Customer may access and use the Free-Trial Services in connection with one or more Free-Trial Orders. Subject to the terms of a Free-Trial Order, the Free-Trial Services will support Customer’s collection, monitoring, management and analysis of data generated by systems, platforms, services, software, devices, sites and/or networks that Customer uses in its own internal business operations (collectively, but exclusive of all Free-Trial Services and Paid Services, “Customer’s Environment”).

2.     Access and Use.

2.1. Subject to the applicable Free-Trial Order and this Agreement, Zen3C hereby grants to Customer the right to access and use the Free-Trial Services in accordance with the Documentation during the Free-Trial Term for Customer’s Environment.

2.2. As between the Parties, Customer controls Customer’s Environment and its individual components (each, a “Customer Component”), whether owned, leased or licensed by Customer, located on Customer’s premises or cloud-based, used by Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Free-Trial Services by establishing integrations or other connections to one or more Customer Components (each, a “Connection”). By implementing a Connection to a Customer Component, Customer hereby grants to Zen3C the right, and is expressly instructing Zen3C, to access and interoperate with that Customer Component during the Free-Trial Term in order to provide and support the Free-Trial Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Components and associated data (collectively, “Third-Party Terms”).

2.3. Through Customer’s configuration and use of Connections and Free-Trial Services, Customer has control over the types and amounts of data from Customer’s Environment that are submitted for Processing by the Services (collectively, “Customer Data”). By submitting Customer Data to the Free-Trial Services, Customer hereby grants to Zen3C the right, and is expressly instructing Zen3C, to Process Customer Data during the Free-Trial Term in order to provide and support the Free-Trial Services and as otherwise provided in this Agreement.

2.4. All rights granted by each Party to the other under this Section 2 are limited, nonexclusive and, except as otherwise provided in this Agreement, non-transferable.

3.     Support.

Subject to this Agreement, Zen3C may, at its option, make Support to Authorized Users through the Services and by email.

4.     Free-Trial Subscription.

Zen3C will make the Free-Trial Services available to Customer until the earliest of: (a) the end of the period specified in the applicable Free-Trial Order; (b) the start date of any Paid Order for the applicable Services; (c) termination by Zen3C, at any time, in its sole discretion; or (d) Customer may choose to stop using the Free-Trial Services and terminate all Free-Trial Orders and this Agreement upon written notice to Zen3C. Additional terms and conditions, including Supplemental Terms, may apply to Free-Trial Services and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference.

 

5.     Security and Privacy.

7.1. Each Party has obligations with respect to the security of the Free-Trial Services and Customer Data. Taking into account the nature and types of Customer Data, Zen3C will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Free-Trial Services and prevent the accidental loss or unauthorized access, use, alteration or disclosure of Customer Data under its control during each Free-Trial Term.

7.2. Customer is responsible for properly configuring the Free-Trial Services, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Free-Trial Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Free-Trial Services and to promptly notify Zen3C if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Free-Trial Services or Customer Data.

7.3. Except for limited Personal Information in Account Data, Zen3C does not require Personal Information for Customer’s access and use of the Free-Trial Services. Customer shall limit Personal Information in Account Data to only that necessary for the creation and administration of its Zen3C accounts. With regard to Customer Data, Customer shall not use the Free-Trial Services to Process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Information in Customer Data.

7.4. Zen3C may Process information about Customer’s configuration and use of the Free-Trial Services (“Usage Data”), Customer Data and Account Data: (a) to manage Customer’s account; (b) to provide and improve the Free-Trial Services and Support, including to address requests for Support and troubleshoot other issues; and (c) to provide Customer and Authorized Users insights, service and feature announcements and other reporting.

6.     Customer Responsibilities and Restrictions.

Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Users’ access and use of the Free-Trial Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to Zen3C’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users and persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials; and (d) ensuring use of the Free-Trial Services is only for Customer’s Environment and in accordance with the AUP, Documentation and applicable Third-Party Terms.

7.     Ownership.

As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) Zen3C owns all right, title and interest in and to the Paid Services, Free-Trial Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.

8.     Confidentiality.

11.1. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Free-Trial and Paid Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.

11.2. The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.

9.     Disclaimers.

12.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL FREE-TRIAL SERVICES, SUPPORT (IF ANY) AND ANY OTHER MATERIAL ARE PROVIDED BY Zen3C ON AN “AS IS” AND “AS AVAILABLE” BASIS. Zen3C MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT.