Trial Subscription Agreement
Last Updated: Dec 8, 2023
BY INSTALLING, COPYING, ACCESSING, OR USING THURGOOD (THE “SERVICE”), YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND USERS TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER" SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND ANY OF ITS USERS OR ANY PERSON ON THEIR BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
By accessing or using Thurgood (the “Service”) requested by and provided to you by Thurgood, Inc. (“Thurgood”), you acknowledge that you have read and understand this trial agreement (the “Agreement”), accept this Agreement, and agree that this Agreement constitutes a legally binding agreement between you and Thurgood, and represent and warrant that you have the right, power, and authority to agree to this Agreement, and that, if you are entering into this Agreement on behalf of a company or other legal entity, you have the legal authority to bind that legal entity and the Users (as defined below) to this Agreement, and “you” or “Customer” shall mean such entity and Users accessing and using the Service. If you do not accept or have the authority to accept this Agreement, you may not access or use the Service.
1. Trial Period
Subject to the terms of this Agreement and during the Trial Period specified in an applicable Order Form, Thurgood will use commercially reasonable efforts to provide Customer the Service in accordance with this Agreement. If Customer does not enter into a paid subscription, this Agreement and Customer’s right to access and use the Service will terminate at the end of the Trial Period.
2. Access
Subject to this Agreement and solely during the Trial Period, Thurgood hereby grants to you and your Users a non-exclusive, non-transferable, non-sublicensable, limited, and revocable license to access and use the Service and the user guides, technical manuals, and other end-user documentation for the Service (the “Documentation”). In this Agreement, “Users” shall mean you and your employees, consultants, and agents who are authorized by you to access and use the Service under the rights granted to you under this Agreement. You shall remain responsible and liable for your Users’ compliance with this Agreement. Thurgood shall provide you and/or your Users with the necessary passwords and access credentials to allow you to access the Service. You and your Users are responsible for keeping your passwords and access credentials associated with the Service confidential and you will not sell or transfer them to any other person or entity. You will promptly notify us of any unauthorized access to your passwords or access credentials.
3. Use Restrictions
Neither you nor your Users will take any action or inaction that actually or attempts to: (a) interfere with, disrupt, diminish the quality of, or impair the performance or functionality of the Service; (b) circumvent, disable, or interfere with security-related features of the Service or features that prevent or restrict use, access to, or copying of any data, (c) monitor or sample the performance or security response of the Service or stress tests APIs; or (d) violate Thurgood’s Terms of Service, located at www.askthurgood.com/thurgood-library/post/terms-of-service and incorporated herein by reference (“Terms of Service”). You agree not to, and shall ensure your Users do not, directly or indirectly, in whole or in part: (e) copy, distribute, modify, translate, create derivative works of, reverse engineer, decrypt, decompile, disassemble, or in any way attempt to derive the source code of any software related to the Service or underlying ideas, techniques, or algorithms, including the review of data structures or similar materials produced by the Service, (f) sub-license, lease, rent, loan, sell, distribute, transfer, commercially share or otherwise permit use of the Service in connection with a service bureau or other configuration whereby any third party may use the Service; (g) use versions of third party products embedded in the Service, if any, for any use other than the intended use of the Service; (h) combine any software related to the Service with other software that, under the license applicable to such software, requires as a condition of use, modification, or distribution that such combined software is required to be: (i) disclosed or distributed in source code form, (ii) freely licensed for the purpose of making derivative works, or (iii) redistributable at no charge; (i) use the Service in any ultra-hazardous activity; or (j) release the results of benchmark testing using the Service. You and your Users will comply with all laws, statutes, rules, or regulations that apply to your use of the Service. Neither you nor your Users shall use the Service in any manner or for any purpose other than as expressly permitted by this Agreement.
4. Privacy Policy
Thurgood complies with its privacy policy available at www.askthurgood.com/thurgood-library/post/privacy-security (“Privacy Policy”) and incorporated herein by reference. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Service, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy. You also hereby agree to comply with any and all applicable data privacy laws in your use of the Service, and will not enter, transmit, or use the Service to process personal data in violation of any such laws.
5. Aggregated Statistics
Notwithstanding anything to the contrary in this Agreement, Thurgood may monitor your use of the Service and collect and compile data and information related to your and your Users' use of the Service to be used by Thurgood in an aggregated and anonymized manner (“Aggregated Statistics”). As between Thurgood and Customer, all rights, titles, and interests in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Thurgood. You acknowledge that Thurgood may compile Aggregated Statistics based on Customer Data input into the Service.
6. Customer Data
“Customer Data” means, other than Aggregated Statistics, information, data, and other content that is submitted, posted, or otherwise uploaded by you or on your behalf through the Service. You hereby grant to Thurgood a non-exclusive, royalty-free, worldwide license to use, display, reproduce, and perform all acts with respect to the Customer Data as may be necessary for Thurgood to provide the Service to you. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
7. Reservation of Rights
Thurgood reserves all rights not expressly granted to you hereunder. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, you or any third party any intellectual property rights or other rights, titles, or interests in or to Thurgood intellectual property.
8. Functionality & Support
You agree that: (i) the Service may have limited functionality and reduced or altered features; (ii) the proper functionality of the Service may be interrupted for Trial, review, and maintenance purposes; and (iii) Thurgood may introduce new or remove existing features or functionality to or from the Service, in each case in its sole discretion. This Agreement does not entitle you to any guaranteed service level availability, support, maintenance, upgrades, or modifications for the Service, and Thurgood may provide limited technical support in its sole discretion.
9. Confidential Information
From time to time during the Trial Period, Thurgood and Customer may disclose or make available to the other party information about its business affairs, products, intellectual property, trade secrets, and other sensitive or proprietary information, whether orally or in written, electronic, or other form (“Confidential Information”). Confidential Information does not include information that, at the time of disclosure, is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required to comply with any court order or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure, if permitted and practicable under applicable, shall first have given written notice to the other party. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law
10. Intellectual Property Ownership & Feedback
As between you and us, we own all rights, titles, and interests, including all intellectual property rights, in and to the Service. As between you and us, you own all rights, titles, and interests, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents suggests or recommends changes to the Service, including without limitation new features or functionality, or provides any comments, questions, suggestions, or the like relating thereto (“Feedback”), we are free to use such Feedback, and you hereby assign to us, and shall cause your employees, contractors, and agents to assign, all rights, titles, and interests therein, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in or developed using the Feedback, for any purpose whatsoever. All Feedback is and will be treated as non-confidential.
11. Disclaimer of Warranties
THE SERVICE IS PROVIDED "AS IS" AND “AS AVAILABLE”, AND THURGOOD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THURGOOD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THURGOOD MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12. Limitations of Liability
IN NO EVENT WILL THURGOOD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT 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; (e) COST OF REPLACEMENT GOODS OR SERVICES; OR (f) DIRECT DAMAGES IN EXCESS OF $1.00; IN EACH CASE REGARDLESS OF WHETHER THURGOOD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
13. Term and Termination
This Agreement is effective as of the date you are granted access to the Service and will continue in effect until the expiration of the trial period (“Trial Period”), unless either party otherwise provides written notice of its earlier termination of this Agreement with five (21) days written notice. Notwithstanding the foregoing, Thurgood may terminate this Agreement and your license to access and use the Service with immediate effect upon any breach of this Agreement by you or your Users. Upon expiration or earlier termination of this Agreement, you and the Users shall immediately discontinue use of the Service, and you and the Users shall delete, destroy, or return all copies of the Documentation and Confidential Information provided hereunder and certify same in writing. This Section 11 and Sections 6, 8-10, and 12-15 shall survive any termination or expiration of this Agreement.
14. US Government Rights
Each of the software components that constitute the Service and the Documentation is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such Agreement are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Service and Documentation as are granted to all other end users.
15. Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted exclusively in the federal or state courts located in the State of Delaware.
16. Miscellaneous
This Agreement constitutes the entire agreement and understanding between the parties hereto, with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement and the rights granted hereunder may not be assigned or transferred, in whole or in part, without our prior written consent, and any action or conduct in violation of the foregoing will be void and without effect.