ACCEPTANCE OF TERMS
Evaluation: internal evaluation of the Service by Customer for use in Customer’s business.
Documentation: Documentation owned by Trubrics shared with Customer relating to the Service.
Mutual NDA: the NDA signed by Trubrics and Customer prior to the date of this licence.
Service: provision of the Software as a service.
Software: the Trubrics software described in the Documentation.
Trial Period: an evaluation period of 6 weeks, commencing on the date of first sign in.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability.
2.1 Trubrics agrees to provide the Service during the Trial Period solely for the purposes of Evaluation. Customer acknowledges and agrees that the Service will, or may, automatically cease to be available to the Customer at the end of the Trial Period if Customer has not at that time contracted to receive a full service in respect of the Software.
2.2 Customer shall:
(a) not introduce, or permit the introduction of, any Virus or Vulnerability into Trubrics’ network and information systems;
(b) obtain and shall maintain all necessary licences, consents, and permissions necessary for Trubrics, its contractors and agents to perform their obligations under this agreement, including without limitation the Service;
(c) ensure that its network and systems comply with the relevant specifications provided by Trubrics from time to time; and
(d) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Trubrics’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
2.3 Customer expressly acknowledges that:
(a) the Service is to be used for Evaluation purposes in a test environment only and expressly warrants that the Service will not be used in relation to a live system; and
(b) it is not entitled to input (and agrees that it shall refrain from inputting) personal data (as defined in the Data Protection Act 2018) using the Service.
3. AUTHORISED USE
3.1 Customer shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement, attempt to: (i) use, copy, modify, duplicate, adapt, vary or create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Service in order to build a product or service which competes with the Software and/or the Service; or (c) use the Service to provide services to third parties; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service or the Software available to any third party.
4. TERM AND TERMINATION
4.1 During the Trial Period this agreement may be terminated immediately by Trubrics giving written notice if Customer is in breach of any of its obligations under this agreement. This agreement may be terminated by either party during the Trial Period upon seven days’ written notice and shall terminate automatically upon the Customer contracting to receive a full service in respect of the Software.
5.1 Trubrics shall provide technical support in accordance with the Trubrics Standard SLA from time to time in force.
6. NO WARRANTY
6.1 The Service is provided “as is” and (save to the extent that it may not be excluded or limited by law) Trubrics gives no condition, warranty or other term whatsoever, either express or implied including, without limitation, any condition, warranty or other term as to the condition of any code, as to the availability of the Service or as to merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or use of reasonable care and skill.
6.2 Trubrics: (a) does not warrant that Customer’s use of the Service will be uninterrupted, error-free or completely secure; (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.1 Save for death and personal injury caused by Trubrics’ negligence, Trubrics shall have no liability of any kind in any circumstances whatever to Customer in respect of the Service or Documentation. In particular, Trubrics shall have no liability in any circumstances whatever for any data loss or corruption and Customer agrees that it has sole responsibility for protecting its data and systems during evaluation of the Service.
7.2 Customer shall defend, indemnify and hold harmless Trubrics, its partners from time to time, its employees and agents from and against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Customer’s and its users’ use or misuse of the Service and/or Documentation.
8.1 The terms of the Mutual NDA (if any) are incorporated herein by reference. In the event of conflict between the terms of the Mutual NDA and the terms of this clause 8, the terms of the Mutual NDA shall prevail.
8.2 Customer shall keep the Service, Software and Documentation confidential and shall not without the prior written consent of Trubrics: (a) communicate or otherwise make available the Service, Software or Documentation to any third party; or (b) use the Service and/or Documentation itself for any purpose other than Evaluation or (c) copy, adapt, or otherwise reproduce the Service, Software and/or Documentation save as strictly necessary for the purposes of Evaluation.
8.3 Customer may disclose the Service and Documentation or any part thereof, with the prior consent of Trubrics, to any employee of Customer who needs access to the Service and the Documentation in connection with Evaluation. In such an event Customer agrees to ensure, before such disclosure, that the employee in question is made aware of the confidential nature of the Service, Software and Documentation and understands that he/she is bound by conditions of secrecy no less strict than those set out here. Customer agrees to monitor the use of the Service and Documentation by these employees and to enforce their obligations of confidence at the request of Trubrics.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Trubrics owns the Service, Software, Documentation, all related documentation and the results of any performance tests. Customer acknowledges that any disclosure pursuant to this agreement shall not confer on Customer any intellectual property or other rights in relation to the Service, Software or the Documentation other than its right to use under clause 2.1. Customer owns the data entered by the Customer and outputs obtained by the Customer, in each case as a result of using the Service.
9.2 If a third party notifies Customer of any claim that the use of the Service infringes any right of a third party, Customer agrees to immediately notify Trubrics. If any such claim is made to Customer or Trubrics, Customer shall, at Trubrics’ request, immediately cease use of the Service. If Trubrics is unable to allow Customer to continue evaluation of the Service, this agreement shall terminate.
9.3 Except for the rights and licence granted under this agreement, nothing contained in this agreement shall be construed to grant to Customer any right, title or interest in or to the Service, Software and Documentation. Trubrics expressly reserves all right, title and interest in and to the Service, Software and Documentation which are not specifically granted to Customer under this agreement.
10.1 The person signing this agreement on behalf of Customer confirms that he/she is authorised to enter into this agreement on Customer’s behalf, and to bind Customer to its terms and conditions.
10.2 No variation or assignment of this agreement shall be effective unless it is in writing and signed by or on behalf of both parties.
10.3 Neither party shall issue or make any public announcement or disclose any information regarding this agreement unless prior written consent has been obtained from the other party.
10.4 This agreement and (if applicable) the Mutual NDA is the entire agreement between Customer and Trubrics with respect to the subject matter of this agreement and this agreement supersedes all prior agreements and understandings, oral or written, between Trubrics and Customer relating to the subject matter hereof.
10.5 If any provision of this agreement is or becomes prohibited by law or is judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of the remainder of this agreement.
10.6 Unless a party expressly waives its rights in writing no delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this agreement. No right, power or remedy in this agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.
10.7 This agreement may be executed in any number of counterparts, each of which shall be an original, and such counterparts shall together constitute one and the same agreement.
10.8 The parties confirm their intent not to confer any rights on any third parties by virtue of this Agreement and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.
10.9 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales. However, Trubrics may enforce Customer’s obligation of confidence and any judgement of the courts of England and Wales in the courts of any jurisdiction.