This Free-Trial Subscription Agreement (this “Agreement”) contains terms and conditions that govern your acquisition of subscriptions to, and use of, the Free-Trial Services (as defined below), and is a contract between WATCHMYDC ANALYTICS OY., a Tampere, Finland corporation (“WatchMyDC”), and you or the entity or organization that you represent.
If you are an individual using the Free-Trial Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Free-Trial Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside and that you have the right, power, and authority to enter into this Agreement on behalf of Customer.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Free-Trial Services, (2) when you click on “I Accept,” “Sign up” or similar button or check box referencing this Agreement, or (3) when you enter into a Free-Trial Order (as defined below) with WatchMyDC.
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section ‘Definitions’. WatchMyDC may modify this Agreement from time to time, subject to the terms in Section ‘Changes to this Agreement’ below.
This Agreement sets forth the terms pursuant to which Customer may access and use the Free-Trial Services in connection with one or more Free-Trial Orders. Subject to the terms of a Free-Trial Order, the Free-Trial Services will support Customer’s collection, monitoring, management and analysis of data generated by systems, platforms, services, software, devices, sites and/or networks that Customer uses in its own internal business operations (collectively, but exclusive of all Free-Trial Services and Paid Services, “Customer’s Environment”).
Subject to this Agreement, WatchMyDC may, at its option, make Support available to Authorized Users through the Services and by email.
WatchMyDC will make the Free-Trial Services available to Customer until the earliest of: (a) the end of the period specified in the applicable Free-Trial Order; (b) the start date of any Paid Order for the applicable Services; (c) termination by WatchMyDC, at any time, in its sole discretion; or (d) termination by Customer pursuant to Section ‘Changes to this Agreement’. Additional terms and conditions, including Supplemental Terms, may apply to Free-Trial Services and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
One or more APIs will be available to Customer to assist with Customer’s implementation of Connections, and WatchMyDC makes client libraries available to facilitate Customer’s coding against the API(s). In addition, Authorized Users may install a WatchMyDC-produced software agent on certain Customer Components to support Customer’s collection of Customer Data. The code for these libraries and agents (collectively, “Ancillary Tools”) are available in public repositories at https://github.com/watchmydc and are subject to the applicable open source licenses referenced in those repositories. Customer determines and controls what APIs and Ancillary Tools (if any) to use in connection with the Free-Trial Services. By using an API or Ancillary Tool in connection with the Free-Trial Services, Customer hereby agrees to do so in accordance with the Documentation and, in the case of the Ancillary Tool, with the applicable open source licenses (provided that if an applicable open source license for an Ancillary Tool contradicts rights or restrictions in the Documentation, the license will take precedence). The Ancillary Tools are not “Free-Trial Services” or “Support” for purposes of this Agreement.
WatchMyDC uses third-party hosting providers, other service providers and WatchMyDC Affiliates to support the provision of the Free-Trial Services and Support in the ordinary course of its business, i.e., not specifically for Customer (collectively, “Ordinary Course Providers”). WatchMyDC reserves the right to engage and substitute Ordinary Course Providers as it deems appropriate, but shall: (a) remain responsible to Customer for the provision of the Free-Trial Services and Support and (b) be liable for the actions and omissions of its Ordinary Course Providers undertaken in connection with WatchMyDC’s performance of this Agreement to the same extent WatchMyDC would be liable if performing the Free-Trial Services or Support directly. In no event shall providers of Customer Components be deemed Ordinary Course Providers for any purpose under this Agreement.
Customer agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing –
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) WatchMyDC owns all right, title and interest in and to the Paid Services, Free-Trial Services, Documentation, and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.
Customer agrees to defend, indemnify and hold harmless WatchMyDC, its Affiliates and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to any legal claim, suit, action or proceeding by a third party arising out of or relating to any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s Environment, including Connections to Customer Components, whether enabled through APIs, Ancillary Tools or otherwise; (ii) Account Data, Customer Data or Customer Credentials (including activities conducted with Customer Credentials), subject to WatchMyDC’s Processing obligations under this Agreement; or (iii) use of the Free-Trial Services by Customer or an Authorized User in a manner that breaches a Free-Trial Order, Service Plan or this Agreement.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION ‘LIMITATIONS OF LIABILITY’: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION ‘INDEMNIFICATION’ OR BREACH OF SECTION ‘CUSTOMER RESPONSIBILITIES AND RESTRICTIONS’. THE PROVISIONS OF THIS SECTION ‘LIMITATIONS OF LIABILITY’ ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT.
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that WatchMyDC may (subject its obligations of non-attribution under Section ‘Security and Privacy’) include Customer’s name and logo in its lists of WatchMyDC customers, its public website and other promotional material. WatchMyDC agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to firstname.lastname@example.org.
Subject to change pursuant to this Section: (a) WatchMyDC’s physical address for notices is that of its Tampere, Finland headquarters provided at https://www.watchmydc.com/company, Attn: Legal Notice, and its email address for notices is email@example.com and (b) Customer’s physical and email addresses for notices are those associated with its Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address. Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without WatchMyDC’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
WatchMyDC shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency.
Except to the extent, the issue arising under this Agreement is governed by Finnish federal law, this Agreement shall be governed by and construed and enforced in accordance with the laws of the state of Tampere, without giving effect to the choice of law rules of that state. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Tampere, Tampere, Finland, and the Parties expressly consent to personal jurisdiction and venue in those courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.
This Agreement, together with all Free-Trial Orders, the AUP and, as and if applicable, Supplemental Terms and any other additional terms and conditions as referenced in Section ‘Support’, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Free-Trial Services or otherwise with respect to the Free-Trial Services. Except as otherwise provided in Section ‘Changes to this Agreement’, this Agreement may be modified only by a written instrument duly executed by authorized representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section ‘Definitions’.
“Account Data” means information about Customer that Customer provides to WatchMyDC in connection with the creation or administration of its WatchMyDC account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Free-Trial Term, and shall in no event include Sensitive Information in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“API” means an application programming interface referenced in the Documentation that WatchMyDC maintains and makes available to Customer in connection with the Free-Trial Services.
“Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“Authorized User” means an individual employee, agent or contractor of Customer for whom subscriptions to Free-Trial Services have been acquired pursuant to the terms of the applicable Free-Trial Order and this Agreement, and who has been supplied user credentials for the Free-Trial Services by Customer (or by WatchMyDC at Customer’s request).
“Documentation” means WatchMyDC’s standard user documentation for the Services, together with any applicable supplemental documentation for Free-Trial Services.
“Feedback” means bug reports, suggestions or other feedback with respect to the Free-Trial Services, Paid Services or Documentation provided by Customer to WatchMyDC, exclusive of any Customer Confidential Information therein.
“Free-Trial Order” means an order for Free-Trial Services pursuant to this Agreement completed and submitted by Customer online at the WatchMyDC site and accepted by WatchMyDC, including any Customer registration for Free-Trial Services, or executed by WatchMyDC and Customer.
“Free-Trial Services” means (a) any Services made available by WatchMyDC to Customer free of charge under a Free-Trial Order and (b) any alpha, beta or other pre-commercial releases of a WatchMyDC product or service (or feature of functionality of a product or service) made available by WatchMyDC to Customer free of charge under a Free-Trial Order.
“Free-Trial Term” means, with respect to each Free-Trial Order, the period from the effective date of the Free-Trial Order through termination pursuant to Section ‘Support’.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Paid Order” means an order for Services submitted by Customer online at the WatchMyDC site and accepted by WatchMyDC, or executed by WatchMyDC and Customer, under which Customer commits to pay for the Services. If Customer enters into a Paid Order, Customer’s access and use of the applicable Services will be subject to the Master Subscription Agreement, unless WatchMyDC and Customer have separately executed a written agreement for the applicable Services, in which case that agreement will govern.
“Paid Services” means the Services to which Customer subscribes through, or otherwise uses following, a Paid Order.
“Party” means each of WatchMyDC and Customer.
“Personal Information” means information relating to an identified or identifiable natural person that is protected by Applicable Laws with respect to privacy where the individual resides.
“Pricing Page” means the publicly available web page(s) where WatchMyDC publishes its list prices for Services, currently available at https://www.watchmydc.com/pricing/.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Sensitive Information” means the following categories of Personal Information: (a) government-issued identification numbers, including Social Security numbers; (b) financial account data; (c) biometric, genetic, health or insurance data; (d) financial information; (e) data revealing race, ethnicity, political opinions, religion, philosophical beliefs or trade union membership; (f) data concerning sex life or sexual orientation; and (g) data relating criminal convictions and offenses. Without limiting the foregoing, the term “Sensitive Information” includes Personal Information that is subject to specific or heightened requirements under Applicable Law or industry standards, such as Social Security numbers in the United States, protected health information under the U.S. Health Insurance Portability and Accountability Act, nonpublic personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard, and special categories of personal data under the GDPR.
“Service Plan” means the packaged plan and associated features, as detailed at the Pricing Page, for the Services.
“Services” means the hosted services that are made available by WatchMyDC online via the applicable login page and other web pages designated by WatchMyDC. WatchMyDC may make such changes to the Services as WatchMyDC deems appropriate from time to time.
“Supplemental Terms” means additional terms that apply to certain Customer Data, Services, Service Plans and/or customers, including any applicable Service-Specific Terms, currently available at https://www.watchmydc.com/legal/service-terms/.
“Support” means WatchMyDC’s standard customer support for the Services, currently described at https://www.watchmydc.com/support/.
Any written Free-Trial Order may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. Delivery of an executed counterpart of a signature page to a Free-Trial Order by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original executed counterpart of the relevant Free-Trial Order.
WatchMyDC may modify this Agreement at any time by posting a revised version at https://www.watchmydc.com/free-trial-agreement/, which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the Free-Trial Services and terminate all Free-Trial Orders and this Agreement upon written notice to WatchMyDC. For the avoidance of doubt, any Free-Trial Order is subject to the version of the Agreement in effect at the time of the Free-Trial Order.
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