Episerver Digital Experience Cloud (DXC) Services – Trial Agreement for Microsoft Azure Marketplace
EPISERVER DXC SERVICES – TRIAL END-USER SERVICES AGREEMENT
YOU AND/OR CUSTOMER ARE RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS TRIAL AGREEMENT BEFORE CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR USING ANY EPISERVER SERVICES. BY CLICKING “SUBMIT” OR “ACCEPT” AND/OR ACCESSING OR OTHERWISE USING SUCH SERVICES, YOU AND/OR CUSTOMER CONFIRMS THAT CUSTOMER HAS READ, ACCEPTS AND SHALL BE BOUND BY THIS AGREEMENT. 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 AND ANY OF ITS USERS.

IN ADDITION, BY REGISTERING FOR THE TRIAL, CUSTOMER GRANTS TO EPISERVER PERMISSION TO BE CONTACTED WITH TRIAL INFORMATION AND TO RECEIVE PROMOTIONAL, SALES AND MARKETING EMAILS FROM EPISERVER DURING THE TRIAL PERIOD. CUSTOMER WILL HAVE THE OPTION TO UNSUBSCRIBE TO THESE EMAILS AT ANYTIME, BY FOLLOWING UNSUBSCRIBE PROCEDURES AND/OR PROVIDING WRITTEN EMAIL NOTICE TO EPISERVER AT MARKETING@EPISERVER.COM.

 

1. Definitions
As used in this Agreement and/or in any Trial Services materials associated herewith:

1.1   “Content” means the audio and visual information, documents, software, products and services contained in or made available via the Trial Services, other than Customer Data; 

1.2   “Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Episerver or the Trial Services in the course of using the Trial Services;

1.3   “Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Episerver (either alone or jointly with Customer or others) that result from professional services (if any) provided in connection with the Trial Services.

1.4   “Episerver Technology” means all of Episerver’s proprietary technology (including Sample Data, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Episerver in providing the Trial Services;

1.5   “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; 

1.6   “Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties; 

1.7   “Service(s)” means Episerver’s online digital content, eCommerce, marketing, or other digital experiences services to which Customer is being granted access to on a trial basis under this Agreement, including the Episerver Technology, the Content and any product, service or license belonging to any third party that is part of the Trial Services; 

1.8   “Sample Data” means any pre-populated data provided in the Trial Services to enable Customer to use the Trial Services without entering its own Customer Data; 

1.9   “Trial Services” means access to a designated sub-set of Services and functionality for the purpose of enabling Customer to evaluate the Services during the Trial Period;

1.10 “Trial Period” means the duration of the Trial Period, starting on the Trial Service Activation Date, and ending thirty (30) days from the Trial Service Activation Date or such other period as mutually agreed by the parties;

1.11 “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Trial Services and have been supplied temporary user identifications and passwords by Customer (or by Episerver at Customer’s request), to which Customer accepts full joint and several liabilities for any and all actions thereof.

 

2. License Grant/Limitations/Restrictions
This Trial Agreement (“Agreement”) is made and entered into on the first day that the Trial Services are activated for Customer’s use (“Trial Service Activation Date”), and will remain in effect for the duration of the Trial Period as specified below.   The individual who has registered and signed up for the Trial Services represents and warrants that he or she has the legal power and authority to enter into this Agreement and to legally bind you and/or Customer (collectively “You” or “Customer”) to the terms of this Trial Agreement.  The terms and conditions of this Agreement shall govern the Trial Services to be provided by Episerver during the Trial Period.  The term “Episerver” shall include Episerver AB, and any third parties which are providing third party services or products, on behalf of Episerver, as part of the Trial Services.  

Subject to the terms and conditions of this Agreement, Episerver hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited right to use the Trial Services during the Trial Period solely for Customer’s own business purposes, strictly for purposes of its own internal evaluation of Episerver Services and not for any commercial or competitive purpose.  The Trial Service right to use is limited to a single limited production tenant of Customer.  In addition, and to the extent the Trial Services include use of any materials that work with third-parties, Customer agrees that such use shall also be governed by the terms found at http://www.episerver.com/implemented_software.  All rights not expressly granted to Customer are reserved by Episerver and its licensors. Episerver reserves the right to make changes, modifications, reduction in functionality and enhancements to the Trial Services, at any time, and from time to time without prior notice.

 

3. Limitations on Use
Customer may not release to any third party the results of any evaluation of the Trial Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Episerver. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Trial Services, Content or Episerver Services in any way; (ii) modify or make derivative works based upon the Trial Services or the Content; (iii) reverse engineer the Trial Services or Episerver Services; or (iv) access the Trial Services or Episerver Services in order to build a competitive product or service.

Additionally, Customer shall not use the Trial Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violates third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks. (vi) cause or permit any distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including Customer’s end user customers, of the Services; (vii) merging of the Services into another product or program; (viii) use or export the Services in any manner or for any purpose that violates this Agreement, or any other applicable agreements, including without limitation the Episerver fair use policies, or violates any law or regulation. (ix) use of the Services for any purpose that may menace or harass any person or cause damage or injury to any person or property, (x) involve the publication of any material that is false, defamatory, harassing or obscene; (xi) violate privacy rights or promote bigotry, racism, hatred or harm; (xii) constitute an infringement of intellectual property or other proprietary rights, or (xiii) share the rights of any User permitted to use the Services with more than one individual.

In addition to any other rights afforded to Episerver under the Agreement, Episerver reserves the right to remove or disable access to any material that violates the foregoing restrictions. Episerver shall have no liability to Customer in the event that Episerver takes such action. Customer agrees to defend and indemnify Episerver against any claim arising out of a violation of obligations under this Section.

 

4. Trial Period and Requirements to Convert to a full Subscription License
The Trial Period for the Trial Services will be for thirty (30) days from the Trial Service Activation Date, unless: a) such Trial Period is for a longer term as specified solely by Episerver in writing; or b) is extended by mutual Agreement of the parties.  Customer acknowledges and agrees that, at the end of the Trial Period, Customer’s access to the Trial Services will be AUTOMATICALLY terminated, with or without notice, unless Customer elects to license the Services on a paid subscription basis.  Customer must contact Episerver at least two (2) business days prior to the end of the Trial Period if Customer wishes to continue using the Services beyond the Trial Period.  In the event Customer wishes to enter into a full production subscription in order to use Episerver Services, Customer will be required to (a) agree to a separate Master Subscription Services Agreement provided by Episerver (“Post Trial Agreement”), and (b) execute an Order Form, detailing the Services, duration and pricing applicable to the use of the Services.

 

5. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s designated User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Trial Services, including but not limited to those related to data privacy, data protection, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify Episerver immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to Episerver immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Episerver Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Episerver user or provide false identity information to gain access to or use the Services. In performing its obligations under this Agreement, in the event that Customer processes credit cards using the Services, Customer acknowledges its responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”) and agrees to: a) implement and maintain reasonable security measures to protect cardholder data in its possession and b) not take any action when using the Services to place Episerver in non-compliance with PCI DSS (e.g. storing any cardholder data (even if encrypted) in any Services custom fields).  Further, under no condition shall Episerver, under any applicable laws, regulations or legislation be deemed a data controller or data processor, or like-terms.

Customer shall indemnify and hold Episerver, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection (a) a breach by Customer of any of the terms or provisions of this Agreement, (b) unauthorized use of the Services by Customer, or (c) with a claim alleging that use of the Customer Data, use of third-party products and/or services, or customizations, edits, changes, implementation, or development of any kind to the Trial Services infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party provided in any such case that Episerver (i) promptly gives notice of the claim to Customer; (ii) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Episerver of all liability and does not adversely affect Episerver’s business or Service).

 

6. Customer Data
The Trial Services may be populated with Sample Data, and may allow for Customer to enter a limited amount of Customer Data.  To the extent Customer enters any Customer Data into the Services, Customer, not Episerver, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Episerver shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of such Customer Data.  Episerver’s use of Customer Data shall be limited to the purpose of providing the Trial Services to the Customer.  To the extent Customer enters Customer Data into the Services, Customer agrees and acknowledges that Episerver is not obligated to retain any Customer Data after termination or expiration of the Trial Period, and (ii) Episerver may delete Customer Data after the end of the Trial Period, without further obligation or liability to the Customer.

 

7. Intellectual Property and Ownership
Episerver alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Episerver Technology, the Content and the Services and Deliverables (if any), including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, to any Deliverable, Episerver Technology or the Intellectual Property Rights owned by Episerver. The Episerver name, the Episerver logo, and the product names associated with the Services are trademarks of Episerver or third parties, and no right or license is granted to use them.

Services may be protected by certain intellectual property rights, other proprietary rights, international treaties and laws of the United States, Sweden and other jurisdictions. Episerver retains all title, ownership, interests and intellectual property rights in and to the Services and deems the Services to be Confidential Information. To the extent the Services contains any materials licensed from third parties, third party suppliers may own such licensed materials. Episerver retains all rights not expressly granted to Customer in this Agreement. Customer agrees to protect and maintain the confidentiality of the Services, and not to disclose the Services to any third parties except as expressly permitted in this Agreement. Customer acknowledges that its breach of confidentiality shall cause Episerver irreparable injury and entitle Episerver to obtain equitable relief, in addition to all other remedies available to it. Customer further acknowledges that Customer is acquiring only a limited permit to use the Services and not any title to or ownership of the Services or any part thereof and that the Services are proprietary to and copyrighted by Episerver.

 

8. Suspension and Termination
Episerver reserves the right to suspend or terminate this Agreement and the Trial Services, with or without cause, at any time, with or without notice. Customer may terminate the Trial Services, with or without cause, at any time, by providing a written notice to Episerver at sales@episerver.com.  At the termination of this Agreement, all rights to access or use the Trial Services, including any access to Trial Services shall end immediately.

 

9. Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS” AND EPISERVER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EPISERVER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  EPISERVER DOES NOT WARRANT THAT THE SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF EPISERVER TO ANY THIRD PARTY.  EPISERVER’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EPISERVER IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY EPISERVER.

 

10. Limitation of Liability
IN NO EVENT SHALL EPISERVER’S AND ITS LICENSORS BE LIABLE FOR ANY DAMAGES, OF WHATEVER NATURE, AS A RESULT OF THIS AGREEMENT OR THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF EPISERVER OR EPISERVER’S  LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN ANY CASE, EPISERVER’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (A) THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE TRIAL SERVICES DURING THE ONE (1) MONTH PERIOD PRECEDING SUCH CLAIM OR (B) $100.00 USD. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS AGREEMENT MAY NOT APPLY TO CUSTOMER. IN ADDITION, EPISERVER, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS, RESELLERS AND DISTRIBUTORS DISCLAIM ALL LIABILITY OF ANY KIND.

Third Party Components. Some aspects of the Services provided under this Agreement may be include certain freeware, open source or other third party components (“Open Source Services”) which, if included, are provided pursuant to the terms of the applicable third party license agreement governing its use. EPISERVER THEREFORE PROVIDES SUCH OPEN SOURCE SERVICES ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY OPEN SOURCE SERVICES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (B) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

11. Assignment
Customer may not assign this Agreement to any third party except upon Episerver’s prior written consent, which consent may be withheld for any reason. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

 

12. Confidentiality
Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement or the Post Trial Agreement.  For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement.  As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans.  If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content.  Notwithstanding the above, Episerver Confidential Information shall include the Episerver Technology and all pricing terms offered to Customer under any Order Form, and Customer Confidential Information shall include Customer Data. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party.  The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement or, if applicable, the Post Trial Agreement, and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein.  Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and Post Trial Agreement and for a period of three (3) years after the termination or expiration of this Agreement and, if applicable, the Post Trial Agreement.

 

13. General/Notices
GOVERNING LAW. This Agreement shall be governed by Swedish law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Trial Services shall be subject to the exclusive jurisdiction and the exclusive venue of the courts of Sweden.  The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this Agreement.

SEVERABILITY. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

Relationship between the parties. No joint venture, partnership, employment, or agency relationship exists between Customer and Episerver as a result of this Agreement or use of the Trial Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

Compliance with Laws. Customer agrees to comply with all U.S., Swedish and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. Customer expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer the Services or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.

U.S. Government Restricted Rights. The Services and the related documentation provided are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer services” and “commercial computer services documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 through 227.7202¬4 (June 1995), all U.S. Government End Users acquire the Services and the related documentation with only those rights set forth in this Agreement.

Subpoena. Episerver is authorized to comply with any subpoena or similar order related to the data in its possession, provided that Episerver notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law.  Customer shall pay Episerver’s applicable charges on a time and materials basis at Episerver’s then-current fees for such compliance.  Episerver will cooperate with Customer’s efforts to quash or limit any subpoena, at Customer’s expense.

Survival. Upon termination of this Agreement those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue and payment.

ENTIRE AGREEMENT. This Agreement, (including any other documents referenced therein), comprises the entire agreement between Customer and Episerver regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. All notices from Customer to Episerver may be made by emailing legal@episerver.com and Episerver may give notice by emailing Customer’s contact as specified on the registration form.  Customer agrees that “Powered by Episerver DXC” or similar marks may appear in forms, web pages and other outputs of the Trial Services.