Free Trial Version
If you register for a free Trial offered by Dokimes, Dokimes will make the Service or Licensed Software available to you on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered (the “Trial Period”). The Trial Version may be used only by you to review, evaluate and demonstrate the Service or Licensed Software internally. The Trial Version may have limited features. The Trial Version may cease operating after the end of the Trial Period ends or when your use has exceeded the number of uses provided by Dokimes based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, you must stop use of the Service or Licensed Software, as the case may be, at the end of the Trial Period or when the number of specified uses have exceeded their limit.
Restrictions
2.1 General Restrictions. You shall not: (a) use the Trial Version of the Service or the Licensed Software for any commercial purposes whatsoever, including but not limited to training, application deployment or production purposes; (b) disclose the results of performance benchmarks obtained using the Trial Version of the Service or the License Software to any third party without Dokimes prior written consent; (c) use the Trial Version other than for the sole purpose of determining whether to purchase access to the Service or a license to the Licensed Software; or (d) access or use the Trial Version of the Service, or download the Trial Version of the Licensed Software, under more than one username.
2.2 Licensed Software Restrictions. If you are using the Trial Version of the Licensed Software, in addition to the restrictions set forth in Section 2.1 above, you shall not (a) alter the contents of a hard drive or computer system to enable the use of the Trial Version for an aggregate period in excess of the Trial Period; or (b) use the Trial Version to update Licensed Software that is no longer eligible for maintenance and support services.
Warranty
The trial is provided to you on an “as is” and “as available” basis, and dokimes hereby disclaims all express or implied representations, warranties, guarantees, and conditions with regard to (a) the service, including but not limited to software, hardware, systems, networks or environments; (b) the licensed software; and (c) merchantability, satisfactory quality, noninfringement, and fitness for a particular purpose. Dokimes does not guarantee that (a) the service or the licensed software will be error-free or uninterrupted, or that smartbear will correct all errors in the service or the licensed software; (b) the service or the licensed software will operate in combination with your data, or with any other software, hardware, systems, or data; (c) your data will be secure or not otherwise lost or damaged; and (d) the service or the licensed software, including any products, information or other material you obtain from dokimes under these trial terms, will meet your requirements or expectations. You acknowledge that dokimes does not control the transfer of data over communications facilities, including the internet, and that the service or the licensed software may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Dokimes is not responsible for any delays, delivery failures, or other damage resulting from such problems. Dokimes is not responsible for the security of any data that you use or create as part of the trial. Dokimes reserves the right to make changes or updates to the service or the licensed software, or any trial version thereof, at any time without notice.
Limitation of liability
In no event will dokimes be liable under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (e) cost of replacement goods or services, in each case regardless of whether dokimes was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will dokimes aggregate liability arising out of or related to any trial or these trial terms under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise exceed one hundred us dollars ($100.00).
Privacy
Personal Information collected during a Trial will be handled in accordance with Dokimes Privacy Policy.
Governing Law and Jurisdiction
These Trial Terms are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to these Trial Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Conduct and Information Restrictions
- Violating any law of, or committing conduct that is tortuous or unlawful in, any applicable jurisdiction;
- Displaying, performing, sending, receiving or storing any content that is obscene, pornographic, lewd, lascivious, or excessively violent, regardless of whether the material or its dissemination is unlawful;
- Advocating or encouraging violence against any government, organization, group, individual or property, or providing instruction, information, or assistance in causing or carrying out such violence, regardless of whether such activity is unlawful;
- Uploading, posting, publishing, transmitting, reproducing, creating derivative works of, or distributing in any way information, software or other material obtained through the saas or otherwise that is protected by copyright, trade secret or other intellectual property right, without obtaining any required permission of the owner;
- Deleting or altering author attributions, copyright notices, or trademark notices, unless expressly permitted in writing by the owner;
- Transmitting sensitive personal information of an individual in a manner that can be associated with such individual, including without limitation social security number, government-issued identification number, health or medical information (including protected health information as defined by the health insurance portability and accountability act of 1996, as amended), credit card or debit card number, financial account information, access codes and pins, date of birth, or user account credentials.
- Obtaining unauthorized access to any system, network, service, or account;
- Interfering with service to any user, site, account, system, or network by use of any program, script, command, or otherwise;
- Evading spam filters, or sending or posting a message or email with deceptive, absent, or forged header or sender identification information;
- Transmitting unsolicited bulk or commercial messages commonly known as “spam;”
- Sending large numbers of copies of the same or substantially similar messages, empty messages, or messages which contain no substantive content, or large messages or files that disrupts a server, account, blog, newsgroup, chat, or similar service;
- Participating in the collection of large numbers of email addresses, screen names, or other identifiers of others (without their prior consent), a practice sometimes known as spidering or harvesting, or participate in the use of software (including “spyware”) designed to facilitate this activity;
- Falsifying, altering, or removing message headers;
- Using the services to record or monitor a phone call or other communication without securing consent from the participants, as required under applicable law; or
- Impersonating any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity (for example, “phishing”).
Technical Restrictions
- Accessing any third party computer or computer system, network, software, or data without their knowledge and consent; breaching the security of another user or system; or attempting to circumvent the user authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for you, logging into or making use of a server or account you are not expressly authorized to access, or probing the security of other hosts, networks, or accounts without express permission to do so;
- using or distributing tools or devices, material or other information, designed or used for compromising security or whose use is otherwise unauthorized, such as password guessing programs, decoders, password gatherers, keystroke loggers, analyzers, cracking tools, packet sniffers, encryption circumvention devices, viruses, ransomware, or Trojan horse programs;
- copying, distributing, or sub licensing any proprietary software provided in connection with the SaaS by Dokimes;
- distributing programs that make unauthorized changes to software;
- attempting to bypass or break any security mechanism on any of the Services, or using the SaaS in any other manner that poses a material security or service risk to Dokimes or any of its other customers;
- launching or facilitating, whether intentionally or unintentionally, any denial of service attack on any of the Services, or any other conduct that adversely impacts the availability, reliability, or stability of the Services; or altering, modifying, or tampering with the SaaS or permitting any other person to do the same who is not authorized by Dokimes
Network and Usage Restrictions
- restricting, inhibiting, or otherwise interfering with the ability of any other entity, to use or enjoy the SaaS, including posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
- restricting, inhibiting, interfering with, or otherwise disrupting or cause a performance degradation to the SaaS or any Dokimes host, server, backbone network, node or service, or otherwise cause a performance degradation to any Dokimes facilities used to deliver the SaaS; or
- interfering with computer networking or telecommunications service to any user, host or network, including, without limitation, denial of service attacks, flooding of a network, overloading a service, improper seizing and abusing operator privileges, and attempts to “crash” a host.
- This Policy is in addition to any other terms and conditions under which Dokimes provides the SaaS to you. In the event of a conflict between the terms of this Policy and any other terms and conditions applicable to you, the terms of this Policy shall prevail.
Dokimes reserves the right to notify its customers of any information that affects the security of the SAAS.
Purpose
This Data Processing Addendum (this “Addendum”) forms a part of, and is incorporated by reference into, the Dokimes Terms of Use (the “Agreement”) entered into between Dokimes Software Inc. and its subsidiaries and affiliates (collectively, “DOKIMES”) and you or the entity that you represent (the “Customer”) (together the “Parties”) . Notwithstanding anything to the contrary in the Agreement, if there is a conflict between this Addendum and the Agreement, this Addendum will control.
Definitions
- Capitalized terms used but not defined have the meaning given in the Agreement. Other terms in this Addendum, which are not defined in the Agreement or this Addendum, shall have meanings consistent with any corresponding terms in Data Protection Law.
California Consumer Privacy Act (Cal. Civ. Code § 1798.100 et. seq.) (“CCPA”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
- “Personal Data” means any information relating to, that describes, is reasonably capable of being associated with, or could reasonably be linked to an identified or identifiable natural person (“Data Subject”), and which is Processed by Dokimes on behalf of Customer pursuant to the Agreement. An identifiable natural person is one who can be identified, directly or indirectly, in particular by referencing an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
- “Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data.
- “Process”, “Processing” or “Processed” means any operation or set of operations which is performed upon Personal Data whether or not by automatic means, including collecting, recording, organizing, storing, adapting or altering, retrieving, consulting, using, disclosing, making available, aligning, combining, blocking, erasing and destroying Personal Data.
- “Services” means the provision of Dokimes products and services as set forth in the Agreement.
- “Subprocessor” means any third party which Processes Personal Data on behalf of Dokimes.
CCPA Compliance
To the extent applicable and pursuant to the CCPA, with respect to “personal information” as defined by the CCPA which Dokimes may Process in connection with its performance of the Services, Dokimes agrees and certifies that it will not:
- Sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means, such personal information to another business or a third party for monetary or other valuable consideration; or
- Retain, use, disclose, collect, sell, use, or otherwise process such personal information (i) for any purpose other than for the specific purpose of, and as necessary for, performing Services for Customer pursuant to the Agreement, or (ii) as otherwise permitted by the CCPA.
Dokimes further agrees to cooperate and assist Customer in fulfilling and complying with any consumer rights request pursuant to the CCPA.
Legal Requests
Unless prohibited by applicable law, in the event that Dokimes is required by law, court order, warrant, subpoena, or other legal judicial process (“Legal Request”) to disclose any Personal Data to any person or entity other than Customer (including, without limitation, pursuant to any US government surveillance order of which Dokimes is aware), Dokimes shall notify Customer promptly and shall provide all reasonable assistance to Customer, at Customer’s cost, to enable Customer to respond or object to, or challenge, any such Legal Requests. Dokimes shall not disclose Personal Data pursuant to a Legal Request unless it is required to do so under applicable law and has otherwise complied with the obligations in this Section.
Miscellaneous
The Parties acknowledge and agree that the limitations and exclusions of liability set forth in the Agreement shall also apply with respect to this Addendum.
Upon termination of the Agreement, Dokimes relevant obligations under this Addendum shall survive to the extent Dokimes continues to Process Personal Data. To the extent a conflict exists between this Addendum and the Agreement, the terms of this Addendum shall prevail.
Access to SaaS
Single (Named) Access: All SaaS access under this access type is single access, meaning it can be accessed by only one Authorized User, with a unique username and password. Access to the SaaS may not be reassigned other than for the permanent transfer of access to the SaaS to another Authorized User if the eligible Authorized User is no longer employed by Customer upon written notice to Dokimes. An eligible Authorized User may access the SaaS with a unique username and password on only one device at a time.
Floating (Concurrent) Access: all SaaS access under this access type can be accessed for different users and machine combinations, but only one at a time and has a floating access key. The number of running instances of the SaaS or the number of individuals simultaneously having access to the access may not exceed at any one time the number of floating seats. One computer or computing device shall be designated as the “access server”, where the SaaS is accessed, and all other devices will require access to the access server to run the SaaS.
Usage-Based Access: access to the SaaS under this access type is (i) on a time-based or unit-based basis during the Subscription Term as set forth in an Order and (ii) restricted to one computer or computing device.
Freeware or Free Version Access (“Free Trial”): all SaaS access under this access type are limited to the Authorized User who is specifically named in the SaaS registration and may only be used on one computer or computing device at a time. This access is not eligible for Maintenance and Support Services other than the materials and discussion groups that may be accessed generally via the Dokimes online community at [email protected]