QASYMPHONY FREE TRIAL TERMS OF USE

PLEASE READ ALL OF THE FOLLOWING TERMS OF USE CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND QASYMPHONY, INC. STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE QASYMPHONY PRODUCT FREE TRIAL. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CUSTOMER” “YOU” AND “YOUR” SHALL REFER TO SUCH ENTITY. BY CLICKING “I ACCEPT” OR BY USING THE QASYMPHONY PRODUCT FREE TRIAL, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS STATED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT,” AND DO NOT USE THE QASYMPHONY PRODUCT FREE TRIAL.

QASYMPHONY AGREES TO PROVIDE THE PRODUCTS TO CUSTOMER ON A TRIAL BASIS ONLY IN ACCORDANCE WITH THE FOLLOWING TERMS OF USE.

  1. DEFINITIONS.

“Confidential Information” means all confidential information disclosed by a party to the other party, whether orally or in writing that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to all code, inventions, know-how, business, technical and financial information disclosed to such party.

“Customer” means the customer identified on the Free Trial Form.

“Customer Data” means any data, content, code, video, images or other materials of any type that Customer uploads, submits or otherwise transmits to or through the Services.

“Free Trial Form” means the QASymphony online form for creating a free trial for the applicable QASymphony Products.

“Products” means the QASymphony products identified on the Free Trial Form which are made available to Customer as a Service or as Software.

“QASymphony” means QASymphony, Inc., a Delaware corporation.

“QASymphony Technology” means the Products, their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for QASymphony.

“Services” means QASymphony products that are provided to Customer as a cloud based software as a service.

“Software” means QASymphony products that are provided to Customer as commercially available on-premise or downloadable software applications, software development kits (SDKs), and/or application programming interfaces (APIs).

“Limited Term” means the term during which QASymphony permits Customer to use the Products on a free trial basis as set forth in the Free Trial Form.

“Users” means the individuals who are authorized by Customer to use the Products on a free trial basis pursuant to the Free Trial Form, and who have registered for user identifications and passwords. Users may include but are not limited to Customer’s employees, consultants, contractors and agents of Customer.

  1. FREE TRIAL GRANT

2.1 Access. Subject to the terms and conditions of these Terms of Use, QASymphony grants Customer a non-exclusive right to access and use the Products during the Limited Term in accordance with the scope of use set forth on the Free Trial Form, these Terms of Use, and the Product documentation. If QASymphony provides Customer with Software for any Product or Services, QASymphony grants Customer a limited, non-exclusive, non-sublicensable, non-assignable and non-transferable license to install and use the Software during the Limited Term solely for the purpose of using the Product or Services and solely in accordance with the scope of permitted use set forth in these Terms of Use. The Software requires a license key in order to operate, which will be delivered as described in Section 2.2 below. Customer may install one trial instance of the Software on its internal system or a system hosted by a third-party service provider on Customer’s behalf.

2.2 Delivery. QASymphony shall deliver the applicable license keys (in the case of Software) or login instructions (in the case of Services) to the email addresses specified in the Free Trial Form. All deliveries will be electronic. Customer is responsible for installation of any downloadable Software.

2.3 No Support. QASymphony has no obligation to provide support for the Products, Services or Software during the Limited Term. Customer has no rights to any updates, upgrades or extensions or enhancements to the Products, Services, or Software during the Limited Term.

  1. USE OF THE PRODUCTS.

3.1 Users. Only Customer and its Users may access and use the Products. Customer is responsible for all Users’ compliance with these Terms of Use.

3.2 Limits on Use. Customer and its Users may use the Products solely for its internal evaluation purposes and within the limits set forth in the Free Trial Form, which may include limits on the number and or types of Users or licenses, limits on storage capacity, or other restrictions on the scope of use.

3.3 Restrictions. Except as otherwise expressly permitted in these Terms of Use, Customer shall not, and shall be responsible for ensuring that its Users do not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service provided to third parties, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit the scope of use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products. Customer shall comply with all laws applicable to its use of the Products. Any use of the Services in breach of these Terms of Use may result in immediate termination of Customer’s access to the Services and use of the Products.

3.4 Credentials. Customer shall ensure that all Users keep their user IDs and passwords for the Products strictly confidential and not share such information with any unauthorized persons. User IDs are granted to individual, named persons by QASymphony and may not be shared. Customer is responsible for any and all actions taken through use of Customer accounts and passwords. Customer agrees to notify QASymphony immediately if Customer becomes aware of any unauthorized use of the Products.

3.5 Customer Data. Customer retains all right, title and interest in and to Customer Data in the form provided to QASymphony. Subject to the terms of these Terms of Use, Customer grants to QASymphony a non-exclusive, worldwide, royalty-free right to use, copy, store and transmit Customer Data to the extent necessary to provide the Services to Customer. FURTHER, CUSTOMER AGREES AND EXPRESSLY CONSENTS TO QASYMPHONY’S COPYING, DISCLOSING AND SHARING CUSTOMER DATA WITH QASYMPHONY AUTHORIZED THIRD PARTY BUSINESS PARTNERS AS NECESSARY FOR THE PURPOSE OF CONTACTING / FOLLOWING UP WITH CUSTOMER ABOUT CUSTOMER’S INTEREST IN QASYMPHONY’S PRODUCTS AND SERVICES. QASymphony may also access Customer’s account or instance in order to respond to Customer’s questions. Customer shall ensure that its use of the Services and all Customer Data are at all times compliant with applicable local, state, federal and international laws and regulations. Customer shall not submit to the Services (a) any personally identifiable information except as necessary to establish a User free trial account, (b) information that is subject to regulation or protection under specific privacy laws and the related rules and regulations, including but not limited to the Health Insurance Portability and Accountability Act or the Graham-Leach-Bliley Act, or (c) any of Customer’s Confidential Information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Customer Data. Customer represents and warrants that the Customer Data does not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of QASymphony Products, Software, and/or Services.

3.6 Use Verification. Customer shall ensure that its use of the Products does not exceed the permitted scope of use set forth in these Terms of Use. Upon QASymphony’s written request Customer shall provide to QASymphony reasonable assistance and access to relevant documentation to verify Customer’s compliance. If QASymphony determines that Customer has exceeded its permitted scope of use, QASymphony will notify Customer of its determination and may require Customer to immediately discontinue the unpermitted use or terminate Customer’s access to the Service and use of the Products.

3.7 Fees and Taxes. The free trial Products, Software and Services under these Terms of Use are provided to Customer free of charge during the Limited Term.

  1. OWNERSHIP. The Products are made available on a limited “free trial” license or access basis, and no ownership right is conveyed to Customer. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in these Terms of Use, QASymphony and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products, the Software, the Services, and all QASymphony Technology.
  2. FEEDBACK. Customer grants to QASymphony a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Product any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the Product.
  3. CONFIDENTIALITY. Except as otherwise set forth in these Terms of Use, each party agrees that all Confidential Information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitutes the confidential property of the Disclosing Party. Any QASymphony Technology and any performance information relating to the Products shall be deemed Confidential Information of QASymphony without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, if lawfully permitted, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
  4. SECURITY.

7.1 Security. Customer acknowledges that use of the Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by QASymphony, and QASymphony is not responsible for any Customer Data lost, altered, intercepted or stored across such networks. QASymphony cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat QASymphony security measures or those of QASymphony’s third-party hosting providers. QASymphony assumes no responsibility or liability for Customer Data. Customer is solely responsible for maintaining the security of its network and computer systems.

7.2 No Backup. QASymphony does not back up any Customer Data as part of the free trial.

  1. TERM AND TERMINATION.

8.1 Term. These Terms of Use shall remain in effect for the Limited Term, unless sooner terminated as permitted herein.

8.2 Suspension. QASymphony may suspend Services without liability at any time at its sole discretion, and may do so at any time. QASymphony may provide Customer with prior notification of any such suspension, but Customer acknowledges that QASymphony is not required to do so. QASymphony may suspend and/or terminate Customer’s use of the Services immediately if Customer violates any terms of this Terms of Use.

8.3 End of Trial Period. Upon expiration of the Limited Term or earlier termination of Customer’s use of the Products, Customer and its Users shall no longer have any right to use or access any Products, Software, or Services, or any information or materials provided by QASymphony in connection with the Products, including QASymphony Confidential Information.

8.4 Conversion to Paid Subscription. If Customer would like to use the Product, Software, or Service after the Limited Term, provided that QASymphony has made the Product, Software, or Service commercially available, Customer must purchase such Product, Software, or Service from QASymphony under a separate contract. QASymphony does not promise that Customers’ use of purchased Products, Services, or Software will be the same or perform the same as was experienced during a free trial of Products, Services, or Software.

8.5 Deletion at End of Limited Term. QASymphony may delete Customer Data from QASymphony’s system sixty (60) days after the termination of the Limited Term.

8.6 Survival. The following provisions will survive any termination or expiration of these Terms of Use: Sections 3.3, 3.5, 4, 5, 6, 8.6, 9, 10, 11, 12, 14, and 15.

  1. NO WARRANTIES.
    QASYMPHONY PROVIDES THE PRODUCTS, SERVICES, AND SOFTWARE IN THE FREE TRIAL ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE PRODUCTS, SERVICES, AND SOFTWARE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, QASYMPHONY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, QASYMPHONY DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT QASYMPHONY WILL CORRECT ALL ERRORS IN THE SERVICES; (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) YOUR CONTENT AND YOUR APPLICATIONS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (D) THE SERVICES, INCLUDING ANY PRODUCTS, INFORMATION OR OTHER MATERIAL YOU OBTAIN FROM QASYMPHONY UNDER THIS AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
  2. LIMITATION OF LIABILITY.
    NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 10 SHALL NOT APPLY TO (A) CUSTOMER’S INDEMNIFICATION OBLIGATIONS IN THESE TERMS OF USE, (B) CUSTOMER’S BREACH OF SECTION 3, OR (C) CUSTOMER’S BREACH OF SECTION 6.Notwithstanding anything in these Terms of Use to the contrary, the maximum aggregate monetary liability of QASymphony and any of its employees, agents, suppliers, or affiliates in connection with the Product, Services, or Software, these Terms of Use, and any act or omission related to the Product, Services, or Software or these Terms of Use, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed Twenty-Five Dollars ($25.00).
  3. INDEMNIFICATION BY CUSTOMER.
    Customer agrees to defend, indemnify and hold harmless QASymphony from and against any loss, claim, demand, cost, liability, damage, judgement or settlement, including attorneys’ fees, arising from or relating to (i) any Customer Data, (ii) any claim brought by a third party alleging that Customer Data, or the use of the Products in breach of these Terms of Use, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, (iii) any breach of these Terms of Use by Customer, or (iv) Customer’s providing QASymphony with or access to personal information of any individual without first obtaining the individual’s consent to provide the information to QASymphony. Customer’s indemnification obligation with regard to third party claims is subject to Customer receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Customer’s obligations except to the extent Customer is materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) QASymphony’s reasonable cooperation. Customer’s obligations under this subsection include claims arising out of the acts or omissions of its employees or agents, any other person to whom Customer has given access to the Services, and any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
  4. GOVERNING LAW; JURISDICTION.
    These Terms of Use will be governed by and construed in accordance with the applicable laws of the State of Georgia, without giving effect to the principles of that State relating to conflicts of laws. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each party irrevocably agrees that any legal action, suit or proceeding must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the state or federal courts in Atlanta, Georgia, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Atlanta, Georgia. Notwithstanding the foregoing, QASymphony may bring a claim for equitable relief in any court with proper jurisdiction. Except for actions for breach of QASymphony’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than two years after the cause of action has accrued.
  5. EXPORT RESTRICTIONS.
    Customer agrees to comply with any applicable export and import laws and regulations that apply to its use of the Products. Customer shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Order Forms or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.Customer represents and warrants to QASymphony that (a) neither Customer nor any User is located in or will access the Products from any country that is subject to a U.S. trade embargo, and (b) neither Customer nor any User is on any restricted party list maintained by the U.S. government (e.g. the Specially Designated Nationals list, the Unverified List) and Customer agrees to notify QASymphony promptly if Customer or any User appears on any such restricted party list during the Limited Term.
  6. CHANGES TO THE AGREEMENT.
    QASymphony reserves the right to change the terms of these Terms of Use at any time in our sole discretion. Any change or modification to these Terms of Use will be effective immediately upon posting by QASymphony.
  7. GENERAL PROVISIONS.
    Any notice under these Terms of Use must be given in writing. Notice may be given to Customer via email or through Customer’s free trial account. Notices will be deemed given upon the first business day after the notice is sent. Customer may provide notice to QASymphony, Inc., at: 550 Pharr Road NE, Suite 400, Atlanta, GA 30305, Attn: Legal. Customer notices sent to QASymphony will be deemed given upon receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms of Use if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. Neither party may assign these Terms of Use to a third party without the other party’s prior written consent, which consent will not be unreasonably withheld. Either party may assign these Terms of Use to a third party which acquires substantially all of its assets or with which it merges without the other party’s consent. The assigning party must also ensure that the assignee agrees to be bound by the terms and conditions of these Terms of Use. These Terms of Use is the entire agreement between QASymphony and Customer relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by these Terms of Use. If any portion of these Terms of Use is found to be void or unenforceable, the remaining provisions of these Terms of Use shall remain in full force and effect. No failure or delay by the injured party to these Terms of Use in exercising any rights under these Terms of Use shall operate as a waiver of such rights, nor shall any single or partial exercise of such rights preclude any other or further exercise of such rights or the exercise of any right under these Terms of Use at law or equity. The parties are independent contractors.