Date: January 24, 2023
BY ACCESSING THE SERVICES, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS FREEMIUM SERVICES AGREEMENT (“AGREEMENT”) WITH BIRCH GROVE SOFTWARE, INC. DBA ACTIVTRAK (“ACTIVTRAK”). CUSTOMER’S USE OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
ActivTrak agrees to provide Customer access to a current version of the Freemium Services on the terms and conditions contained in this Agreement.
- “Documentation” means the user manuals, knowledgebase, and any other materials in any form or medium made generally available by ActivTrak to Customer regarding the proper installation and use of the Software, as specifically set forth at https://support.activtrak.com/.
- “Freemium Services” shall mean the free version of ActivTrak’s Software provided to the Customer on SaaS service basis, subject to the terms and conditions of this Agreement.
- “Software” means each ActivTrak software, including cloud hosting portion and agents, together with any and all codes, logic, techniques, software tools, formats, designs, concepts, methods, processes, third-party data, and ideas associated with such computer programs and any and all updates provided by ActivTrak, as specifically provided at www.ActivTrak.com, and Documentation.
- Freemium Services License.
- Customer Data.
ActivTrak hereby acknowledges and agrees that all rights, title and interest in and to data provided by Customer (“Customer Data”) are and shall remain the property of Customer and all intellectual property rights in Customer Data are the property of Customer. Customer hereby grants to ActivTrak throughout the term of this Agreement, and after the term as necessary for any of ActivTrak’s post-termination obligations to Customer, the necessary rights or license to use, cache, and transmit Customer Data via the Freemium Services solely as necessary for the purposes of this Agreement. ActivTrak shall at all times maintain the confidentiality of all Customer Data, subject to the ability of ActivTrak to share Customer Data with its authorized third party contractors for performance of Freemium Services. ActivTrak shall use all Customer Data in accordance with ActivTrak’s Privacy Statement. In addition, ActivTrak agrees that it shall use all Customer Data solely in accordance with its Data Processing Addendum, which is incorporated herein by reference. ActivTrak may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by ActivTrak and may be used for any lawful business purpose without a duty of accounting to Customer. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity. In the event of termination of expiration of this Agreement for any reason, ActivTrak shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, be entitled to delete all Customer Data by deletion of Customer’s unique instance of the Service; provided that in all cases where it continues to maintain such Customer Data, ActivTrak will continue to protect the Customer Data in accordance with this Agreement.
If Customer provides Feedback, Customer grants to ActivTrak a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property ActivTrak develops. “Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Service or any services or products provided by ActivTrak.
- Term and Termination.
The term of this Agreement shall commence upon the Effective Date, and shall remain in effect until terminated by either party. Either party may terminate this Agreement for convenience upon written notice to the other party.
This Agreement shall automatically terminate upon earliest occurrence of any of the following:
- Purchase by Customer of one of ActivTrak’s paid services and acceptance of ActivTrak’s Master Subscription Agreement; or.
- Violation by Customer of any of the provisions of this Agreement.
Upon expiration or termination of this Agreement except under (a) above, the Customer shall cease all use of the Freemium Services.
ActivTrak shall own all right title and interest in and to the Freemium Services and Software and all intellectual property rights in the Software and Freemium Services are owned by ActivTrak and/or its licensors and protected by United States copyright laws, other applicable copyright laws, other applicable proprietary rights laws, including but not limited to trade secret laws, and other international treaty provisions. ActivTrak retains ownership of the Software and Freemium Services and no rights are granted to the Customer other than a license to use on terms expressly set forth in this Agreement.
CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS-IS”. ACTIVTRAK MAKES NO EXPRESS OR IMPLIED WARRANTIES AND HEREBY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES REGARDING LOSS OF DATA OR RESULTS TO BE OBTAINED FROM THE SERVICES OR SOFTWARE. NEITHER ACTIVTRAK NOR ITS OFFICERS, ACTIVTRAK’S, DIRECTORS OR EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE FOR (I) ANY LOSS ARISING FROM USE OF THE SERVICES OR DOCUMENTATION OR (II) ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE. IN NO EVENT SHALL ACTIVTRAK’S MAXIMUM AGGREGATE LIABILITY ARISING IN CONTRACT, TORT OR OTHERWISE EXCEED U.S. $100.
This Agreement shall be interpreted in all respects in accordance with the laws of the State of Texas, U.S.A and the parties consent to venue and jurisdiction to courts located in Travis County, Texas, notwithstanding any conflict of law rules. Sections 3, 4, 5, 6, 7 & 8 shall survive expiration or termination of this Agreement for any reason. ActivTrak is authorized to use Customer logo and trademark for promotional purposes, including as a customer reference and providing testimonials for the Service. This Agreement, including any referenced attachments and/ or incorporated documents, constitute the entire understanding of the parties relating to the subject matter hereof and any representation, promise, or condition not contained herein shall not be binding on either party. ActivTrak may amend this Agreement in its sole discretion at any time upon written notice to Customer.