Totango Free Trial and Community Edition
TOTANGO TRIAL AND COMMUNITY EDITION TERMS OF SERVICE (v2019.1)
IMPORTANT-READ CAREFULLY: You are being offered the opportunity to access the Totango hosted service (i) on a trial basis or (ii) in the form of Totango’s Community Edition Service (collectively, the “Service”). By using either of those Services, you agree to be bound by these terms of service between Company and Totango (“Terms of Service”), and Data Processing Agreement, which together constitute the “Agreement”. If you do not agree to these Terms of Service or to any other portion of the Agreement you must not use the Service. “You” means you individually or the entity that you represent (“Company”). If you are entering into the Agreement for an entity, you represent that you have the authority to bind that entity. “Totango”, “we”, or “us” means Totango, Inc., a Delaware corporation. Capitalized terms used in these Terms of Service are defined throughout these Terms of Service. Section references in this document are to the provisions of these Terms of Service.
1. Description of the Service. The Service enables Company to track, and provides Company with a global view of, the activities of customers that use Company’s web service or other software services offering. The Service is accessible through the Totango website (the “Site”) and may be available through Totango’s mobile device application (”App”) and includes (i) the Site; (ii) the App (if applicable); (iii) any software or API that is made available to Company by Totango and accessed by Company in connection with the Service; (iv) the products, services, and features made available or provided to Company by Totango in connection with the Service; and (v) the content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, trademarks, service marks and logos, contained in or made available through the Service.
2. Subscription to the Service.
2.1. Community Edition Service. During the Subscription Period, subject to Company’s compliance with this Agreement, Totango hereby grants Company and Company’s End Users a worldwide, non-exclusive, non-transferable, non-sublicensable, and fully revocable right to access and use the version of the Service known as the “Community Edition Service” during the Subscription Period (defined below) for Company’s internal business purposes only. Company’s subscription to the Community Edition Service is limited to five (5) End Users. “End Users” means employees and independent contractors that Company has authorized to access the Community Edition Service via Company’s employee Account interface.:
2.2. Trial Service. During the Trial Period, if Totango offers the Service on an evaluation or trial basis (“Trial Service”), You may only use the Trial Service (a) for internal testing and evaluation or trial purposes, and (b) for a period of 30 days (unless we specify otherwise) beginning on the date we provide you with Account login details for access to the Service (“Trial Period”). You may not use the Trial Service if you, or intend in the future to, directly or indirectly engage in any business that competes with Totango or offer a similar software solution or services to the Trial Service. You will not have access to the Trial Service or to any Data in the Trial Service after the Trial Period ends. Once the Trial Period has expired, Customer will have the option to continue use of the Service by purchasing a subscription to the Trial Service.
2.3. Your Use of the Service. During the Trial Period, or Subscription Period, as applicable:
(a) We will provide the Service: (a) free of charge; (b) without support (unless provided by us in our sole discretion); (c) “AS IS”; (d) without indemnification, warranty, or condition of any kind; (e) for up to the number of End Users specified. No service level commitment will apply to the Service;
(b) You must not put any Data regulated by law or regulation into the Service. If you put production Data into the Service, you do so at your own risk and we will not be responsible for the consequences of that use;
(c) Certain features or functionality of the Service may not be available. Providing any feature or functionality in the Service does not constitute our commitment to offer that feature or functionality on a generally available basis; and
(d) We may modify or terminate the Service at any time, and any modification or termination will not be deemed a material, detrimental change.
3. Restrictions on Use. Company must not, and shall not allow any permitted End User to: (i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (ii) allow any third party to use the Service; (iii) use the Service to process data on behalf of any third party; (iv) give, sell, rent, lease, timeshare, outsource, sublicense, disclose, publish, assign, market, resell, transfer or distribute any portion of the Service to any third party, including, but not limited to Company’s affiliates, or use the Service in any service bureau arrangement; (v) reverse engineer, decompile or disassemble the Service or any components thereof, except to the extent such acts are required to be permitted by applicable law; (vi) disclose or publish the results of any benchmark tests run on the Service; (vii) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (viii) take any action that imposes or may impose (at Totango’s sole discretion) an unreasonable or disproportionately large load on the Totango infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (x) modify, translate, patch, alter, change or create any derivative works of the Service, or any part thereof; (xi) disclose Company’s Account (defined below) user names or passwords to any third party; (xii) remove, deface, obscure, or alter Totango’s or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos with the Service differing from Totango’s own without Totango’s prior written approval; and/or (xiii) use the Service in any unlawful manner or in breach of this Agreement.
4. Account. In order to use the Service, Company has to create an account (“Account“). Company must not allow anyone other than an authorized End User to access and use the Account. Company acknowledges and agrees (i) not to exceed five (5) End Users for the Community Edition Service or the number of End Users permitted under the Trial Service; (ii) that the login details for each End User may only be used by that End User, and that multiple people may not share the same login details; (iii) to provide accurate and complete Account and login information; (iv) to keep, and ensure that End Users keep, all Account login details and passwords secure at all times; (v) that Company remains solely responsible and liable for the activity that occurs in connection with Company’s Account, and the activities of Company’s End Users on or relating to the Services, whether or not Company knows of such activity, and (vii) to promptly notify Totango in writing if Company becomes aware of any unauthorized access or use of Company’s Account or the Service. Totango may suspend or terminate any End User’s access to the Services upon notice to Company in the event that Totango reasonably determines that such End User has violated this Agreement or any other terms between Totango and such End User pursuant to which such End User is permitted to access and use the Service. Company will ensure that all End users comply with the terms and conditions of this Agreement. Company will be liable for any violation of the Terms of Service by any End User.
5. Customer Data.
5.1. Company and Company’s End Users may choose to provide, post, input, submit, or otherwise make accessible to Totango, data or information about Company, Company’s employees, customers, or any third party (“Data“), and Totango may store such Data on Company’s behalf, all in connection with Company’s use of the Service. Company hereby provides Totango a limited non-exclusive, non-transferable license to use, upload, display, copy, distribute copies of, perform and display publicly, and store Data solely in connection with providing the Service.
5.2. Company represents and warrants that (i) Company owns all Data or has all rights that are necessary to grant Totango the licensed rights in Data under this Agreement; (ii) Company’s collection of Data has and will be in compliance with all applicable laws and regulations, including without limitation those concerning data or information privacy; and (iii) neither the Data, nor the inclusion of Data in or use of Data in connection with the Service, will infringe, misappropriate or violate any Intellectual Property Rights, or violate the privacy rights, of any third party, or result in the violation of any applicable law or regulation, including without limitation those concerning data or information privacy. Totango reserves the right, but is not obligated, to remove or disable access to any Data, at any time and without notice. As between Company and Totango, Company retains exclusive ownership of the Data. Company acknowledges and agrees that Company remains solely responsible and liable for the Data. Company may download Company’s Data at any time during the Term, or as otherwise set forth herein, provided Company complies with this Agreement and Totango’s security requirements. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trademarks, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
6. Title. The Service (and all parts thereof), all reproductions, corrections, modifications, enhancements and improvements thereto, and all data related Company’s usage thereof, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Totango or its licensors. Any rights therein not explicitly granted to Company hereunder, are reserved to and shall remain solely and exclusively proprietary to Totango (or its third party licensors).
7. Subscription Period. The Service is provided for an indefinite period (“Subscription Period“). This Agreement shall become effective on the Effective Date, and shall continue until expiration of the Subscription Period, unless terminated earlier as provided in this Agreement. Customer acknowledges that the Service is provided for no charge, and Totango may terminate this Agreement without notice at any time, for any reason or no reason.
8. Termination for Cause. Either party may terminate this Agreement upon written notice in the event that the other party materially breaches this Agreement and, to the extent that the breach can be cured, fails to cure that breach within thirty (30) days of said notice.
9. Rights and Obligations upon Expiration or Termination; Survival.
9.1. Upon expiration or termination of this Agreement, (i) Company and Company’s End Users rights to access and use the Service will immediately terminate; (ii) Company and Company’s End Users will immediately cease all use of the Service; and (iii) each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. We reserve the right to permanently delete from our (or our third party service provider’s) servers any Data that may be contained in Company’s Account at any time following termination. We do not accept any liability for any deactivation of the Service or Data that is deleted in connection thereto.
9.2. This Section 9, and Sections 3, 8, 9, 10, 11.2, 12, 13, 15, 16, and 17 shall survive expiration or termination of this Agreement.
10.1. “Confidential Information” means any information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary.
Data is considered to be Company’s Confidential Information, the Services are Totango’s Confidential Information, and the terms of this Agreement constitute Confidential Information of both Company and Totango.
10.2. The use and nondisclosure obligations and restrictions set forth in Section 10.3 will not apply to any information that: (i) is or becomes generally known to the public through no breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
10.3. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section.
Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 10.3 will remain in effect during the term of this Agreement and for a period of three (3) years after the expiration or termination of this Agreement.
10.4. The provisions of this Section 10 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
11. Warranty and Disclaimer.
11.1. Company represents and warrants that: (a) it has full power to enter into this Agreement and to grant to the other party the rights granted to such other party under this Agreement; (b) it has obtained all necessary corporate approvals to enter into and execute this Agreement; and (c) its entering into this Agreement and performance of obligations under this Agreement will not in any way conflict or violate any duty that it may have to any other person or entity, or under any agreement and/or commitment on its part.
11.2. THE COMMUNITY EDITION SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. Company assumes all responsibility for the selection of the Service to achieve Company’s intended results. TOTANGO HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TOTANGO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TOTANGO DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY INFORMATION, RESULTS, OR ADVICE THAT COMPANY OBTAINS THROUGH THE SERVICE. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
12. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TOTANGO SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE SERVICE, EVEN IF TOTANGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TOTANGO FOR ANY DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICE EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES ACTUALLY PAID BY COMPANY AND COLLECTED BY TOTANGO FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM.
Company agrees to defend, indemnify and hold harmless Totango and our affiliates and our respective officers, directors, agents, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) Company’s access or use of the Service; and/or (ii) Company’s breach of this Agreement. Company’s obligations under this Section 13 are contingent upon: (a) Totango providing Company with prompt written notice of such claim; (b) Totango providing reasonable cooperation to Company, at Company’s expense, in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim.
14. Publicity. Company agrees that Totango may identify Company as a customer of the Services, and display Company’s name and/or logo (“Customer Marks“) on the Site, in press releases and in Totango’s published marketing materials, solely in connection with the Service and such identification. Totango will comply with any reasonable trademark usage guidelines Company provides to Totango in connection with Customer Marks. Company retains all title in and to Customer Marks, and all goodwill developed from such use shall be solely for Company’s benefit.
15. Compliance with laws. Company shall comply with all applicable laws relating in any way to its use of the Community Edition Service. Company agrees to comply fully with all applicable export laws and regulations in any jurisdiction to ensure that neither the Community Edition Service nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
16. Assignment. This Agreement, and any rights granted hereunder, may not be transferred or assigned by Company but may be assigned by Totango without restriction.
17. General. This Agreement represents the complete agreement concerning the Community Edition Service between Company and Totango and supersede all prior agreements and representations related to the subject matter hereof. This Agreement and each Order Form shall be governed by the laws of the State of California, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes hereunder shall be the state and federal courts located in San Francisco County, California, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from this Agreement. All proceedings shall be conducted in English. Notwithstanding the foregoing, Totango reserves the right to seek injunctive relief against Company to enforce this Agreement in any venue and court of competent jurisdiction. Section headings are provided for convenience only and have no substantive effect on construction. Except for Company’s obligation to pay Totango, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective one (1) day after being sent to either the designated fax, email, or postal address set forth in the Order Form or as displayed on the Site. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.