NSE, INC.  - eSENSE BI Free Trial Subscription Services Agreement

This eSENSE BI Free Trial Subscription Services Agreement (the "Agreement") governs your acquisition and use of any eSENSE BI free trial service made available by NSE Inc. (“NSE”). By checking the box indicating your acceptance of this Agreement or otherwise using the free trial service, you agree to the terms of 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 its affiliates to these terms and conditions and the terms “You” or “Your” shall refer to such entity and affiliates. This Agreement is effective between You and NSE as of the date You accept.
1. Definitions.
1.1 "Free Trial Service" means the eSENSE BI application(s) and/or technology provided under this Agreement to You that NSE has either: (i) not made generally available to its customers, and has been designated by NSE as beta, developer preview, development or test bed environments; or by descriptions of similar import, such as, but not limited to, “Free Trial.” Free Trial Service excludes Content and Non-NSE Applications.
1.2 “Content” means information obtained by NSE from content licensors or publicly available sources and which may be made available to You through the Free Trial Service, as may be more fully described in the Documentation.
1.3 “Documentation” means NSE’s online user guides, documentation, help and training materials, as updated from time to time, and which may be accessible with the Free Trial Service. Your use of the Free Trial Service shall be subject to any notice and licensing information in the Documentation as may be applicable to the infrastructure from which it operates and/or the Free Trial Service itself.
1.4 "GA Service" means any successor version of the applicable Free Trial Service that NSE may make generally available.
1.5 “Marketplace” means an online directory or catalog of applications that may interoperate with the Free Trial Service.
1.6 “Non-NSE Application” means an online or offline service that is provided by You or a third party and which may interoperate with the Free Trial Service, including an application that is developed by or for You, is listed on a Marketplace or is identified by NSE as requirement for the Free Trial Service.
1.7 "Users" means individuals who are authorized by You to use the Free Trial Service and have been supplied user identifications and passwords by You (or by NSE at Your request). Users may include but are not limited to employees, consultants, contractors and agents of You or Your affiliates.
2. Use of Free Trial Service. NSE shall make the Free Trial Service and Content available to You subject to the terms of this Agreement and the applicable Documentation. You shall only allow Users to access the Free Trial Service, and only for the purpose(s) described by NSE. The Free Trial Service is for evaluation purposes only, is not supported and may be subject to additional terms as communicated to You.
3. Acquisition of Non-NSE Products and Services. The Free Trial Service may contain features designed to interoperate with Non-NSE Applications. To use such features, You may be required to obtain access to Non-NSE Applications from their providers, and may be required to grant NSE access to Your account(s) on the Non-NSE Applications. Any acquisition by You of such Non-NSE products or services, and any exchange of data between You and any non-NSE provider, is solely between You and the applicable non-NSE provider. If You install or enable a Non-NSE Application for use with the Free Trial Service, You grant NSE permission to allow the provider of that Non-NSE Application to access any data submitted to or collected through the Free Trial Service as required for the interoperation of that Non-NSE Application with the Free Trial Service. NSE is not responsible for any disclosure, modification or deletion of such data resulting from access by the provider of such Non-NSE Application.
4. Removal of Content and Non-NSE Applications. If NSE is required by a licensor or any third-party rights holder to remove Content or receives information that Content provided to You may violate applicable law or third-party rights, NSE may discontinue Your access to such Content through the Free Trial Service. In addition, NSE may, upon notice to You, require You to discontinue all use of such Content and, to the extent not prohibited by law, promptly remove such Content from its systems. If NSE receives information that a Non-NSE Application hosted on a Service by You may violate Our External-Facing Service Policy or applicable law or third party
rights, NSE may so notify You and in such event You will promptly disable such Non-NSE Application or modify the Non-NSE Application to resolve the potential violation. If You do not take required action in accordance with the above, NSE may disable the applicable Content, Free Trial Service and/or Non-NSE Application until the potential violation is resolved. If requested by NSE, You shall certify such deletion and discontinuance of use in writing and NSE shall be authorized to provide a copy of such certification to any such third party claimant or governmental authority, as applicable.
5. Feedback & Aggregated Data. If reasonably requested by NSE, You agree to provide feedback to NSE regarding the Free Trial Service, and NSE may use such feedback as set forth in section 11 of this Agreement. NSE may use the data generated in connection with Your use of the Free Trial Service provided, however, in the event NSE provides such data to third parties, it shall be anonymous and presented in the aggregate so that it cannot be linked specifically to You or any User.
6. Confidentiality. Information that is disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with this Agreement that is identified as confidential or that would reasonably be understood to be confidential based on the nature of the information or the circumstances surrounding its disclosure, is Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Free Trial Service and all information provided or disclosed to You relating to the Free Trial Service is NSE’s Confidential Information. The Receiving Party shall use the same degree of care to protect such Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. Term and Termination. This Agreement shall commence upon Your acceptance and shall remain in effect with respect to a Free Trial Service until the earlier of either (1) the generally availability of the applicable Free Trial Service, or (2) NSE ceasing to make the applicable Free Trial Service available to You.
8. Your Responsibilities. You are responsible for all activities that occur in User accounts and for Users' compliance with this Agreement. You shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Free Trial Service or Content nor make the Free Trial Service or Content available to any third party, other than as expressly permitted by this Agreement; (b) use the Free Trial Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) use the Free Trial Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (d) use the Free Trial Service to send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs; (e) interfere with or disrupt the integrity or performance of the Free Trial Service or the data contained therein; (f) attempt to gain unauthorized access to the Content, the Free Trial Service or its related systems or networks, or permit direct or indirect access to or use of the Free Trial Service or Content in a way that circumvents a contractual usage limit; (g) modify, copy or create derivative works based on the Free Trial Service; (h) modify, copy or create derivative works based on Content except as expressly permitted under this Agreement or the Documentation; (h) frame or mirror any part of the Free Trial Service or Content, other than framing on Your own intranets or otherwise for its
own internal business purposes; (i) reverse engineer the Free Trial Service (to the extent such restriction is permitted by law); (j) access the Free Trial Service in order to build a competitive product or service; (k) access the Free Trial Service or Content in order to copy any ideas, features, functions or graphics of the Free Trial Service or Content; (l) send or store any data subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; or (m) otherwise use the Free Trial Service in manner that violates applicable laws. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information and material submitted to the Free Trial Service by You or by Users or on their behalf, the means by which You acquired such information and material, and the use of such content and data; (ii) to the extent any Documentation imposes restrictions on submission of data to services which operate on the same infrastructure as the Free Trial Service, You shall abide by such restrictions in Your submission of data to the Free Trial Service; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Free Trial Service and Content, and notify NSE promptly of any such unauthorized access or use; and (iv) comply with the Documentation (if applicable) and all applicable local, state, federal and foreign laws, and written or electronically provided instructions from NSE in using the Free Trial Service and Content; (v) comply with terms of service of Non-NSE Applications with which You use the Free Trial Service or Content.
9. No Warranty. THE FREE TRIAL SERVICE IS PROVIDED "AS-IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NSE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Free Trial Service may contain bugs or errors. Any production use of the Free Trial Service is at Your sole risk. You acknowledge that NSE may discontinue making the Free Trial Service available to You at any time in its sole discretion.
10. No Damages. IN NO EVENT SHALL NSE HAVE ANY LIABILITY HEREUNDER TO YOU FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Proprietary Rights. Subject to the limited rights expressly granted hereunder, NSE reserves all rights, title and interest in and to the Free Trial Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. NSE shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Free Trial Service and/or any GA Service any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Free Trial Service.
12. Relationship to Other Agreements. You may be or become entitled to receive access to other NSE online services or a generally available version of the GA Service under a separate agreement with NSE, including but not limited to the eSENSE BI Master Subscription Service Agreement. In such case, that separate agreement will govern Your access to NSE’s other online services or generally available version of the GA Service, but will not govern Your access to the Free Trial Service, and this Agreement will govern Your access to the Free Trial Service but not Your access to NSE’s other online services or any generally available versions of the GA Service. If during the Term of this Agreement NSE makes a GA Service generally available, then following such general availability, the use of such GA Service shall thereafter be governed by the terms and conditions of the eSENSE BI Master Subscription Service Agreement (and not this Agreement) unless NSE gives You notice of the applicability of different terms and conditions for such GA Service. The use of a GA Service may require Your payment of subscription or other usage fees as applicable to NSE’s customers generally for use of such GA Service.
13. Communications. By registering for the Free Trial Service, You consent to receiving information about NSE’s products and services in accordance with the terms of its privacy policy.
14. General Provisions. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without NSE’s prior written consent. This Agreement shall be governed exclusively by the laws of the State of Georgia, without regard to its conflicts of laws rules