READ THIS TRIAL AGREEMENT (“AGREEMENT”) BEFORE AGREEING TO USE THE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT WITH PICKAXE, INC (“PICKAXE”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT, DO NOT CLICK THE “I AGREE TO THE TRIAL AGREEMENT” BUTTON AND YOU WILL NOT BE ABLE TO USE THE SERVICES OR THE PRODUCT. BY INDICATING YOUR AGREEMENT TO THE TRIAL AGREEMENT, CLICKING THE “SIGN UP NOW” BUTTON, OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. THE DATE THAT YOU AGREE TO THIS TRIAL AGREEMENT IS THE “EFFECTIVE DATE.”
1.1 “Data” means the information or other data made available by Pickaxe to You through the Services, including, without limitation, the contact information and/or records of individuals and their company affiliation that are contained on Pickaxe’s database and made available to You through the Services.
1.2 “Trial Period” means the period commencing on the Effective Date and ending on the date that is fourteen (14) days thereafter.
1.3 “Product” means the Services and all associated documentation (if any) (“Documentation”), collectively.
1.4 “Services” means Pickaxe’s proprietary, hosted service database product.
3. License Grant. Subject to the terms and conditions of this Agreement, Pickaxe grants You a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the Trial Period, to (i) access and use the Product solely for internal evaluation purposes as necessary to determine the feasibility of using the Services; (ii) use all associated Documentation in connection with such authorized use of the Services; and (iii) make one copy of the Documentation solely for archival and backup purposes.
4. Restrictions. Except as expressly permitted in this Agreement, You shall not, and shall not permit any third party to: (i) copy, reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Product; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; or (v) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing services development activities, without the prior written permission of Pickaxe.
5. Data Provisions. Except as expressly permitted in this Agreement, You shall not, and shall not permit any third party to: (i) print, download, export, or make copies of Data that is made available to you through the Services; or (ii) use the Product, Services, or Data, in whole or in part, to advertise, sell, or exchange any products or services related to illegal or illicit activities, including, without limitation, payday loan services, sex products or services, drug products or services, pornographic materials, weapons, or involving credit repair services. The Data is seeded to detect any unauthorized use or duplication thereof, and You agree not to remove any seeds from the Data. Upon the expiration or earlier termination of this Agreement, Your rights to the Data shall terminate, You shall cease use of the Data, and You shall, within seven (7) days of the date of expiration or earlier termination, destroy all Data that is stored on your information technology systems or that is otherwise within Your possession or control and will confirm in writing that You have complied with these obligations.
6. Disclaimer of Warranty. The Product is meant for trial and internal evaluation purposes only. The Product should not be used in a commercial operating environment or with important data. Before using the Product, You should back up all of Your data and regularly back up data while using the Product. YOU AGREE THAT PICKAXE AND ITS LICENSORS PROVIDE THE PRODUCTS ON AN “AS IS” AND “WHERE-AS” BASIS. PICKAXE DOES NOT MAKE ANY WARRANTIES THAT THE DATA IS ACCURATE OR WITHOUT ERRORS. NEITHER PICKAXE NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF, OR RESULTS YOU MAY OBTAIN FROM USE OF, THE PRODUCT, SERVICES, OR DATA, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND PICKAXE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Intellectual Property Rights and Feedback. All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Pickaxe or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in this Agreement. Pickaxe reserves all rights not expressly granted herein. You agree to make reasonable efforts to provide Pickaxe with oral feedback and/or written feedback related to Your use of the Product, including, but not limited to, a report of any errors which You discover in the Services or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Pickaxe concerning the Product and any information reported automatically through the Product to Pickaxe (“Feedback”) will be the property of Pickaxe. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Pickaxe and agree to assist Pickaxe, at Pickaxe’s expense, in perfecting and enforcing such rights.
8.Limitation of Liability; Allocation of Risk.
8.1 Limitation of Liability. NEITHER PICKAXE NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF PICKAXE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PICKAXE’S DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00).ADDITIONALLY, IN NO EVENT SHALL PICKAXE’S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.
8.2 Allocation of Risk. You and Pickaxe agree that the foregoing Section 8.1 on limitation of liability and the Section 6 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and Pickaxe further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 8 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.
9.1 Definition of Confidential Information. “Confidential Information” of a party shall mean (i) any technical and non technical information related to such party’s business and current, future and proposed products and services, including for example and without limitation, information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information, marketing plans and business plans, logs and other debugging artifacts, benchmark or comparison tests, bug tracking and quality measurements, information exchanged in the course of providing or receiving support, and encrypted or obfuscated information, whether or not decrypted; and (ii) any information that may be made known to the receiving party and which the disclosing party has received from others that the disclosing party is obligated to treat as confidential or proprietary, in each case, which information shall be marked as confidential. The Products and Data are the Confidential Information of Pickaxe and You agree that You will not disclose any information about the Products or the Data to any third party without Pickaxe’s express written consent.
9.2 Nondisclosure of Confidential Information and Confidentiality Obligations. Neither party will use, disseminate or in any way disclose any Confidential Information of the other party to any person, firm or business. Each party shall treat all Confidential Information with the same degree of care as such party accords to its own confidential information but not less than reasonable care. Each party shall disclose Confidential Information only to its employees or representatives who have a need to know such information. Each party certifies that each such employee or representative will have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to such party under this Agreement. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of the other party’s Confidential Information. Each party shall assist the other party in remedying any such unauthorized use or disclosure of the other party’s Confidential Information.
9.3 Exceptions. Confidential Information shall not include any information that (i) was in the public domain at or subsequent to the time such information was communicated to the receiving party by the disclosing party through no fault of the receiving party; (ii) was rightfully in the receiving party’s possession free of any obligation of confidence at or subsequent to the time such information was communicated to the receiving party by the disclosing party; or (iii) is or was developed by the receiving party’s employees, contractors or agents independently of and without reference to any Confidential Information of the disclosing party. A disclosure of any Confidential Information by the receiving party (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that the receiving party shall provide prompt prior written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent such disclosure.
9.4 Ownership of Materials. All Confidential Information shall be the property of the disclosing party and no license or other rights to Confidential Information is granted or implied hereby. Within five (5) days after any request by the disclosing party, the receiving party shall destroy or deliver to the disclosing party, at the disclosing party’s option, all Confidential Information of the disclosing party in the possession of the receiving party. The receiving party will provide the disclosing party, upon request, a written certification of such party’s compliance with the obligations under this Section.
10. Automatic Renewal and Termination.
10.1 Termination. This Agreement will terminate fourteen (14) days after the Effective Date, after which your access to the product will be terminated. Except for Section 3 (“License Grant”) or as otherwise set forth elsewhere in this Agreement, all Sections of this Agreement shall survive termination for a period of three (3) years from the date hereof. On termination of this Agreement, if you have not entered into the subsequent Terms and Conditions for the Paid Product, Pickaxe may destroy all of Your Data that You submit through the Services.
11. Government End Users. The Product provided under this Agreement is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification, reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
12. No Export. You agree and certify that neither the Product nor any other technical data received from Pickaxe, nor the direct product thereof, will be exported outside the United States or re-exported except as authorized and as permitted by the laws and regulations of the United States and/or the laws and regulations of the jurisdiction, (if other than the United States) in which You rightfully obtained the Product.
13. Compliance with Laws; Indemnification by You. You must comply with all applicable federal, state and local laws, rules, regulations, and ordinances relating to telemarketing, data privacy, consumer protection, and any others laws that may relate to Your use of the Services, Product, and Data, including, without limitation, the CAN-SPAM Act, the Telephone Consumer Protection Act, the General Data Protection Regulation of the European Union, and the California Consumer Privacy Act. You shall not, and shall not permit any third party to, license, sell, rent, lease, transfer, assign, distribute, or commercially exploit the Data, in whole or in part, or use the Data in connection with credit granting, credit monitoring, account review, collections, insurance underwriting, employment or any other purpose covered by the Fair Credit Reporting Act (“FCRA”), interpretations of the FCRA by the Federal Trade Commission, or by similar federal and state statutes. You agree that you will indemnify, defend and hold Pickaxe harmless against any losses resulting from any third party claim against Pickaxe arising out of or in connection with any violation of any applicable law by You.
15. Dispute Resolution.
15.1 Federal Arbitration Act. Certain portions of this Section 15 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act (“FAA”). You and Pickaxe expressly agree and intend that this Section satisfies the “writing” requirement of the FAA. This Section can only be amended by mutual agreement.
15.2 Binding Arbitration. YOU AND PICKAXE AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, PRODUCT, AND/OR DATA UNDER THIS AGREEMENT SHALL BE RESOLVED ONLY BY FINAL AND BINDING ARBITRATION, except that (1) You may assert claims in small claims court within the scope of that court’s jurisdiction; and (2) this agreement to arbitrate does not limit Your or Pickaxe’s right to seek injunctive or other equitable relief in state or federal court in King County, Washington to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Pickaxe at 4035 49th Ave SW, Seattle, WA, USA 98116. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS’ rules. You can obtain JAMS’ procedures, rules, and fee information as follows: JAMS: 800.352.5267 and http://www.jamsadr.com. The arbitration will be conducted in the English language; the location of such arbitration shall be in King County, WA. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction.
15.3 Class Action Waiver. YOU AND PICKAXE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and Pickaxe each agree that such proceeding shall take solely by means of judicial reference pursuant to California Code of Civil Procedure Section 638.
16. General Provisions. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the State of Washington, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party’s prior written consent except that either party may assign this Agreement without the other party’s consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties’ entire understanding regarding the Product and the Data for the duration of the Trial Period, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.