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Freemium Services Agreement

Date: August 2, 2023

BY ACCESSING OR USING THE SERVICES (AS DEFINED BELOW), 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”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU FIRST ACCESS OR USE THE SERVICES (THE “EFFECTIVE DATE”). YOUR USE OF THE SERVICES SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO 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 version of the Services on the terms and conditions contained in this Agreement.

  1. Definitions.
      1. 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/.
      2. Freemium Services” or “Services” shall mean the free version of ActivTrak’s Software provided to the Customer on a SaaS basis, subject to the terms and conditions of this Agreement.
      3. Software” means each ActivTrak software, including cloud hosting portions 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 (or any successor links), and in the Documentation.
    1. Freemium Services License.

      ActivTrak hereby grants to Customer a non-exclusive, non-transferable, restricted, and revocable license to access the Freemium Services during the term of this Agreement for the sole purpose of using the Freemium Services for its internal business purposes, and strictly prohibits any other use thereof for Customer or third parties. No other entity of the Customer shall be allowed access or use of the Freemium Services. Customer shall use Freemium Services in compliance with all applicable laws, its own privacy policies, and ActivTrak’s Privacy Statement and Acceptable Use Policy. For the avoidance of doubt, Customer is strictly prohibited from using the Freemium Services for collecting Customer Data (as defined below) through the Software on greater than three devices and shall not register more than one freemium account on a single domain. If Customer is a direct competitor of ActivTrak, Customer is prohibited from accessing the Freemium Services, except with ActivTrak’s prior written consent. Furthermore, the Freemium Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. Freemium Services are subject to usage limits and other limitations that are specified in the Documentation. If Customer exceeds a contractual usage limit, Customer, at ActivTrack’s sole discretion, will be required to upgrade to a paid plan or terminate use of the Freemium Services.

    2. Account Creation.

      Customer must create accounts in order to use the Freemium Services. Customer will ensure that Customer (a) does not share its account credentials, (b) provides accurate account information and promptly updates this information if it changes, and (c) uses a strong password for its account that is unique to ActivTrack’s Freemium Services and not used by Customer in any other website or online service. Customer will maintain the security of any accounts it creates. If Customer discovers or suspects that someone has accessed its account without your permission, Customer will promptly notify us. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.

    3. 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 access use, cache, copy, publicly display, 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 the 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: (a) anonymized and not identifiable to any person or entity; (b) combined with the data of other customers or additional data sources; and (c) 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 Services; 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.

    4. Feedback.

      If Customer provides Feedback, Customer hereby grants to ActivTrak a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, and transferable license to use the Feedback in the Services and any intellectual property ActivTrak develops and for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in ActivTrak’s sole discretion. ActivTrak will exclusively own all improvements to, or new, ActivTrak products, services, or Services based on any Feedback. Customer understands that ActivTrak may treat Feedback as nonconfidential. “Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Services or any services or products provided by ActivTrak.

    5. 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 the earliest occurrence of any of the following:

      1. Purchase by Customer of one of ActivTrak’s paid services and acceptance of ActivTrak’s Master Subscription Agreement; or.
      2. 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.

    6. Ownership.

      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.

    7. Indemnification.

      To the fullest extent permitted by applicable law, Customer will indemnify, defend, and hold harmless ActivTrack and our officers, directors, agents, partners, and employees (individually and collectively, the “ActivTrack Parties”) from and against any actions, losses, liabilities, claims, demands, damages, expenses, or costs (“Actions”) arising out of or related to (a) your access to or use of the Services; (b) your or Feedback; (c) your violation of this Agreement; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services.  You will promptly notify ActivTrack Parties of any third-party Actions, cooperate with ActivTrack Parties in defending such Actions, and pay all fees, costs, and expenses associated with defending such Actions (including attorneys’ fees). The ActivTrack Parties will have control of the defense or settlement, at ActivTrack ‘s sole option, of any third-party Actions. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and ActivTrack or the other ActivTrack Parties.

    8. Disclaimers and Limitations.

      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 (A) ANY LOSS ARISING FROM USE OF THE SERVICES OR DOCUMENTATION OR (B) 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.

    9. Miscellaneous.

      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 4, 5, 6, 7, 8, 9 and 10 shall survive expiration or termination of this Agreement for any reason. ActivTrak is authorized to use Customer’s 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, such notice may be provided by sending an email, providing a notice through our Services, or updating the date at the top of this Agreement. Unless we say otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Agreement, you must immediately stop using our Services.

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