EVALUATION AGREEMENT
(Version 1.5: 10Aug2023)
IMPORTANT: DO NOT USE THE SERVICE OR SOFTWARE UNTIL YOU HAVE READ AND AGREED TO THESE TERMS.
Note: If Your use of the Licensed Product 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, (B) ISSUING A PURCHASE ORDER AGAINST A QUOTATION THAT REFERENCES THIS AGREEMENT, OR (C) ACCEPTING THESE TERMS IN ANY MANNER, 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 LICENSED PRODUCT OR PROFESSIONAL SERVICES THE PURCHASE OF WHICH REFERENCED THIS AGREEMENT.
IF YOU ARE USING ANY LICENSED PRODUCT 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 LICENSED PRODUCT (OR IN CONNECTION WITH AN INSTALLATION PROCESS DO NOT CLICK “I ACCEPT” AND TERMINATE THE INSTALLATION PROCESS). BY USING LICENSED PRODUCTS OR SERVICES THE PURCHASE OF WHICH IS GOVERNED BY THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS LEGALLY ENFORCEABLE.
Modifications to this Agreement:
- Orders for Licensed Products are governed by the version of this Agreement applicable on the Effective Date of the Order as indicated by the version date above.
- The terms of this Agreement may not be modified with respect to the Order to which they apply except by mutual agreement.
- New versions of this Agreement will only apply to subsequent Orders.
This is an agreement between Customer and Precisely. Each of Precisely and Customer may be referred to as “party” or collectively as the “parties” to this Agreement.
The terms of this Agreement apply when a Licensed Product 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 Licensed Product). Customer’s use of a Licensed Product for Evaluation is subject to all of the same general terms and conditions as a purchased subscription to a Licensed Product 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 “Licensed Product” shall be deemed to be references to the Evaluation of a Licensed Product, 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: any Addenda (with the most recent taking precedence); Orders (with the most recent taking precedence); the Documentation; 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 Documentation applicable to the Evaluation of a Licensed Product to which Customer has a subscription.
“Evaluation Order” means an Order for Evaluation of a Licensed Product.
“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 Licensed Product(s) for Customer’s internal business operations, subject to the terms of this Agreement.
2.2 Customer will access and use Licensed Products solely for Evaluation and will not use the Licensed Products 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 Licensed Products not expressly granted by this Agreement. No deployment or production of Licensed Product-based applications is permitted under any license granted in this Agreement. Customer shall not use the Licensed Products to process Personal Data (other than as part of the registration process).
3. EVALUATION 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, Customer’s access to the Licensed Products being Evaluated will terminate in accordance with Section 17.5 of the Subscription Agreement terms.
3.2 Evaluation of Licensed Products is subject to the applicable Documentation. Customer acknowledges that the Licensed Products 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 Licensed Products.
3.3 Customer agrees not to disclose to any third party the results of any comparisons made between the Licensed Products and any competitive offerings.
3.4 WITH RESPECT TO THE EVALUATION PERIOD, THE LICENSED PRODUCTS ARE PROVIDED “AS IS.” PRECISELY AND ITS THIRD-PARTY SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LICENSED PRODUCTS, 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 LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.
3.5 For Evaluation Orders in which there is no charge to Customer for use of the Licensed Products 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 Licensed Products to USD $50,000 (or equivalent in local currency).
3.6 ANY CUSTOMER DATA ENTERED INTO THE LICENSED PRODUCTS 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 LICENSED PRODUCTS 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 LICENSED PRODUCTS DURING THE EVALUATION PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
3.8 CUSTOMER SHALL REVIEW THE APPLICABLE DOCUMENTATION DURING THE EVALUATION PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE LICENSED PRODUCT BEFORE MAKING A PURCHASE.
3.9 The following sections of the Subscription Agreement shall not be incorporated into this Evaluation Agreement: Sections 2 (Subscription and Licenses), 4.2 (SLA), 7 (Warranties), 13 (Indemnification), 16 (No Cancellation by Customer), 17.2 (Term), 17.7 (Surviving Sections), and 18.6 (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 Licensed Products. 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.