Dploy Solutions Trial Agreement
TBM Consulting Group, Inc. (“we” or “us”) and the organization identified in the signature block at the end of this document (“you”) enter into this Trial Agreement (“Agreement”) as of the later of the two dates indicated in the signature block below (the “Effective Date”).
The parties agree as follows:
- Trial License. TBM Consulting Group, Inc. (“we” or “us”) hereby grants to you, and you accept, a limited, non-exclusive, non-transferable license to access and use our web-based Dploy Solutions application (the “Application”) during the term of this Agreement, only as made available by us to you and as authorized in this Agreement. Access to the Application will only be provided via the Internet, and you are responsible for obtaining and maintaining the necessary Internet access and web browser.
- Qualification for Free Trial. You represent and warrant to us that (a) all of the information you have provided to us about your organization is true, and (b) the individual signing below on your behalf has the right, power, and authority to enter into this Agreement on your behalf and to bind you to its terms.
- Use. You may only use the Application for your internal business purposes. You must comply with all applicable laws when using the Application. You are prohibited from transmitting via the Application any unlawful, threatening, libelous, defamatory, obscene, or pornographic material, or any material that would violate any law or the intellectual property or other proprietary rights of others. Use of the Application is void where prohibited.
- Restrictions. You agree that you will not (a) use the Application except as set forth in this Agreement, (b) copy the Application, in whole or in part, (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part of it, (d) use the Application to provide service bureau or other access or use of the Application to third parties, (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof, (f) store or place the Application on any web page or transmit the Application electronically via the Internet, (g) sell, distribute, loan, assign, sublicense, pledge, lease, rent, share or otherwise transfer the Application, or any portion or copy of the Application, or your rights and obligations under this Agreement, or (h) remove or alter any trademark, trade name, product name, logo, copyright, patent, or other proprietary notice, legend, symbol, or label in the Application.
- Intellectual Property. You acknowledge that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights to the Application other than the right to use the Application in accordance with the license granted under this Agreement, subject to all its terms, conditions, and restrictions. We and our licensors reserve and shall retain our entire right, title, and interest in and to the Application and all intellectual property rights arising out of or relating to the Application, subject to the license expressly granted to you in this Agreement. The Application contains trade secret and proprietary information owned by us or our licensors and is protected by copyright and other applicable laws. You shall safeguard the Application from infringement, misappropriation, theft, misuse, or unauthorized access.
- Suggestions. You agree that any information, ideas, suggestions, or materials that you or individuals acting on your behalf send to us, including feedback, data, questions, comments, product or service ideas, know-how, or suggestions (collectively, “Suggestions”), will not be considered confidential or proprietary. Further, you agree that we will have the unrestricted and perpetual right to use, reproduce and disclose such Suggestions, in any manner and for any purpose (including without limitation to improve the Application and to develop, market and offer other products or services that incorporate or otherwise embody the Suggestions), without providing any notice, compensation, or attribution to you.
- Technical Support. We may, but are not required to, make help documentation available to you online. Further technical support may be available for an additional charge at our then-current hourly rates.
- Term; Termination. This Agreement is effective upon the Effective Date and shall continue for a thirty (30) day period, and this Agreement shall automatically terminate at the end of that period. We may terminate this Agreement for any reason at any time. In addition, this Agreement shall be terminated automatically if you fail to comply with any of the terms and conditions of this Agreement. Upon any termination of this Agreement, you agree to cease all use of the Application immediately. Notwithstanding the foregoing, Sections 4, 5, 6, 8, 9, 10, 13, 15, 16, 17, 22, and 23 shall survive the termination of this Agreement.
- No Warranty. WE LICENSE THE APPLICATION “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DISCLAIM ALL IMPLIED AND EXPRESS WARRANTIES WITH REGARD TO THE APPLICATION, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE, OR ANY WARRANTY CONCERNING THE QUALITY, FUNCTIONALITY, AVAILABILITY, OPERABILITY, ACCURACY, EFFORT, USE, OR PERFORMANCE OF THE APPLICATION. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT YOU ASSUME THE ENTIRE RISK AS TO POTENTIAL LOSS OR DISCLOSURE OF DATA OR SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT. SHOULD THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. WE HAVE NO OBLIGATION UNDER THIS AGREEMENT TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE APPLICATION, RECOVER ANY LOST DATA, OR TO OTHERWISE SUPPORT OR MAINTAIN THE APPLICATION DURING THE TERM OF THIS AGREEMENT.
- Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT, CONTRACT, OR OTHERWISE, WILL WE BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THE APPLICATION OR YOUR USE OF THE APPLICATION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR ANY CLAIM YOU BRING AGAINST US MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION AROSE OR SHOULD HAVE BEEN DISCOVERED.
- Basis of the Bargain; Indemnity. The disclaimers and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and us. We would not be able to provide the Application as is without such limitations.
- Links. The Application may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (a) the availability or accuracy of such websites or resources; or (b) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by us of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
- Indemnification. You agree to defend, indemnify, and hold us and our affiliates harmless from and against any liability, loss, damage, claims, or actions (including attorney’s fees) arising from or related to your breach of this Agreement.
- Trademarks. “TBM Consulting Group,” “Dploy Solutions,” and other trademarks contained in the Application are our trademarks or service marks. This Agreement does not authorize you to use our name, trademarks or service marks.
- Account Information. You are responsible for maintaining the confidentiality of all user ids and passwords necessary for accessing the Application, and for restricting access to your employees only. You will not permit access to the software through a single identification or password code made available to multiple users on a network. You agree to accept responsibility for all activities that occur under your account or through the use of your user ids and passwords. We reserve the right to refuse service, terminate accounts, remove, or edit content in our sole discretion.
- Government; Export. If the Application is provided to the U.S. government, it is provided only with restricted and limited rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are the US government or any employee or contractor therefor, you shall receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US government licensees and their contractors. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
- Governing Law; Jurisdiction. This Agreement and any dispute or controversy arising out of or relating to it shall in all respects be governed by and construed in accordance with the laws of the State of North Carolina, excluding its conflicts of laws principles. You consent to the jurisdiction and venue of the federal and state courts in Wake County, North Carolina for resolution of any disputes arising out of this Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement.
- Notice. Any notice you are required or permitted to give us under the Agreement will be effective if sent by FedEx to the following address: TBM Consulting Group, Inc., 507 Airport Blvd., Ste. 105, Morrisville, NC 27560.
- Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without our prior written consent, which we may give or withhold in our sole discretion. Any purported assignment, delegation or transfer in violation of this section is void. We may freely assign or otherwise transfer all or any of our rights, or delegate or otherwise transfer all or any of our obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Audit Rights. We shall have the right to monitor and audit your use of the Application and compliance with this Agreement from time to time in our sole discretion. You agree to permit us to have access to your account for the purpose of conducting such audits.
- Force Majeure. We shall not be liable for any problems, delays or failure to perform any obligations due to causes beyond our control, including without limitation, acts of God or public enemy, fire, floods, storms, epidemic or quarantine restrictions, earthquakes, riots or civil commotion, strikes, war, and restraints of government. freight or other embargoes, weather conditions or any failures by our licensors, subcontractors or suppliers.
- Attorneys’ Fees. If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to receive reimbursement from the other party of all attorneys’ fees and costs incurred by the prevailing party.
- General. This Agreement is the entire agreement between you and us relating to the Application, and it supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Any modification of this Agreement requires a writing signed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. The parties are independent contractors. No waiver by us of any breach of any term or provision of this Agreement shall be construed to be a waiver of any preceding or succeeding breach of the same or any other term or provision hereof.