Free Trial Agreement
Zenoss Online Trial Agreement for Zenoss Monitoring Services
1. Agreement Definitions
“Zenoss” refers to Zenoss, Inc. “You” and “Your” refers to the individual or entity that has ordered the Zenoss Monitoring Services Online Trial by having clicked “I ACCEPT” during the order process or otherwise having used the Zenoss Cloud Services Online Trial.
“Zenoss Online Trial,” the “Trial,” and the “Services,” mean the service offerings that Zenoss makes available through this webportal, including any software (including Zenoss programs), technology platform and other materials that Zenoss makes available as part of the services for your access and use with the Trial environment. The Zenoss Cloud Services Online Trial may be used for trial, non-production purposes only.
“Zenoss programs” refers to the software products owned or distributed by Zenoss to which Zenoss grants you access as part of the services, including user guides, and any program updates provided as part of the services.
“Users” means those individuals authorized by you or on your behalf to use the services.
“your applications” means all software programs that you or any user create using the Services, including any source code for such programs.
“your content” means all software (other than your applications), data, and data files provided by you or any user and that reside on, or run on or through, your Trial environment. You agree not to include any production data in your content.
2. Trial Period
This agreement is effective upon your acceptance of this agreement (the “effective date”), and will terminate upon fourteen (14) days from the effective date unless ended earlier in accordance with this agreement (the “Trial Period”).
If you would like to use the services after the Trial Period or for production purposes, provided that Zenoss has made the services commercially available, you must purchase such services from Zenoss under a separate contract.
3. Rights Granted
For the duration of the Trial Period, you have the nonexclusive, nontransferable, non-assignable, temporary, limited right to use the services, subject to the terms of this agreement, and solely for your internal business purposes to evaluate Zenoss Monitoring Services offering and not for any production or commercial purposes. You may allow your users to use the services for this purpose and you are responsible for your users’ compliance with this agreement.
As between the Parties, You control Your environment and its individual components (each, a “Component”), whether owned, leased or licensed by You, located on Your premises or cloud-based, used by You on a software-as-a-service basis or otherwise. You will be able to use the Free-Trial Services by establishing integrations or other connections to one or more of Your Components (each, a “Connector”). By implementing a Connector to Your Component, You hereby grant to Zenoss the right, and is expressly instructing Zenoss, to access and interoperate with that Component during the Free-Trial Term in order to provide and support the Free-Trial Services. You are responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Your Components and associated data (collectively, “Third-Party Terms”). Furthermore, Your configuration and use of Connectors and Services, You have control over the types and amounts of data from Your environment that are submitted for processing by the Services (collectively, “Customer Data”). By submitting Customer Data to the Services, You hereby grant to Zenoss the right, and is expressly instructing Zenoss, to process Customer Data during the Trial Term in order to provide Services and as otherwise provided in this Agreement.
You acknowledge that Zenoss has no delivery obligation and will not ship copies of any Zenoss programs to you as part of the services. Your right to use such third-party technology is governed by the terms of any third-party technology license agreement specified by Zenoss and not under this agreement.
You do not acquire any license to use the services, including any Zenoss programs to which Zenoss provides you with access as part of the services, in excess of the scope and/or duration of the services defined in this agreement. Upon the end of this agreement or the services hereunder, your right to access or use the Services and Zenoss programs shall terminate.
4. Ownership and Restrictions
You retain all ownership and intellectual property rights in and to your content and your applications. Zenoss or its licensors retain all ownership and intellectual property rights to the Services and Zenoss programs, including derivative works thereof, and anything developed and delivered by Zenoss under this agreement.
You may not, and may not cause or permit others to:
- remove or modify any program or services markings or any notice of Zenoss’s or its licensors’ proprietary rights;
- make the Services, including any Zenoss programs or materials to which you are provided access, available in any manner to any third-party;
- modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the services (the foregoing prohibitions include but are not limited to review of data structures or similar materials produced by Zenoss programs), or access or use the Services in order to build or support, and/or assist a third-party in building or supporting, products or services competitive to Zenoss;
- disclose results of any benchmark tests or performance tests of the Services or Zenoss programs without Zenoss’s prior written consent;
- perform or disclose any of the following security testing of the Services Environment or associated infrastructure: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Zenoss programs or materials available, to any third party.
5. Disclaimers and Exclusion of Warranties
THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ZENOSS HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTEES, AND CONDITIONS WITH REGARD TO (A) THE SERVICES, INCLUDING BUT NOT LIMITED TO SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS AND (B) MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
ZENOSS DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT ZENOSS WILL CORRECT ALL ERRORS IN THE SERVICES; (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; (C) YOUR CONTENT AND YOUR APPLICATIONS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (D) THE SERVICES, INCLUDING ANY PRODUCTS, INFORMATION OR OTHER MATERIAL YOU OBTAIN OR PURCHASE FROM ZENOSS UNDER THIS AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT ZENOSS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ZENOSS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
YOU ARE SOLELY RESPONSIBLE FOR ANY CONTENT, OR NON-ZENOSS SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE TRIAL ENVIRONMENT, AND AGREE, AT YOUR SOLE COST AND EXPENSE, TO DEFEND ZENOSS AGAINST ANY CLAIM AND INDEMNIFY ZENOSS FROM ANY DAMAGES, LIABILITIES, COSTS AND EXPENSES OR THE SETTLEMENT AGREED TO BY YOU, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH CONTENT, OR NON-ZENOSS SOFTWARE. ZENOSS IS NOT RESPONSIBLE FOR THE SECURITY OF ANY CONTENT, APPLICATION OR SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE TRIAL ENVIRONMENT. ZENOSS RESERVES THE RIGHT TO MAKE CHANGES OR UPDATES TO THE SERVICES, ZENOSS PROGRAMS AND TRIAL AT ANY TIME WITHOUT NOTICE.
You agree to defend, indemnify and hold harmless Zenoss, 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, “Your Controlled Matters”): (i) Your Environment, including Connectors to Your Components, whether enabled through APIs, tools or otherwise; (ii) Customer Data, subject to Zenoss’ obligations under this Agreement; (iii) use of the Trial Services by You in a manner that breaches an Order, Service offerings or this Agreement; or (iv) violations of an User authorized by You that breaches an Order, Service offerings or this Agreement.
7. User Accounts - Cloud Access Security
The evaluation is using the Cloud environment and the Cloud Trial site is designed and intended to provide users with personal, password-controlled access to the customer content. Access to and use of password protected or secure areas of the Cloud Trial site is restricted to authorized users only. Thus, without limiting the generality of any of the other conditions or restrictions set forth in this Agreement, neither You nor any user may directly or indirectly: (a) permit third party access, or take actions which result in access, or attempts to access, the Cloud user account from more than one computer at any one time per user; (b) distribute or share any password with anyone; (c) permit anyone other than an authorized user to access the customer content; or (d) lease, license or otherwise charge others for use or access to the Cloud Trial site or user account or content. You are responsible for identifying and authenticating all users, for approving access by such users to the services, for controlling against unauthorized access by users, and for maintaining the confidentiality of usernames, passwords and account information. Zenoss may use automated procedures and other means to detect violations of this Agreement, and may immediately disable and/or terminate offending user accounts and/or users. Zenoss is not responsible for interruptions that may result from any such disabling or termination. You may not share your password(s), account information, or access to the Trial site. Zenoss is not liable for any harm caused by users, including individuals who were not authorized to have access to the services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in your local identity management infrastructure or your local computers. You are responsible for all activities that occur under your and your users’ passwords or accounts or as a result of your or your users’ access to the Trial site, and agree to notify Zenoss immediately of any unauthorized use.
8. Support Services
The Zenoss Monitoring Services trial provides an opportunity for current and potential Zenoss customers to experience Zenoss Monitoring Services offering before purchasing the Service. The Trial is provided as a convenience and you agree that Zenoss is not obligated to provide any technical support, phone support, or updates for the services or for any Zenoss programs accessed or used within the Trial site. As a Trial user, you agree not to open Zenoss Support Requests or Channels, or otherwise contact Zenoss to request assistance with questions or problems experienced during the use of the Trial. However, Zenoss may, at its option, make support to authorized users through services or email.
9. End of Agreement
Services provided under this agreement shall be provided for the Trial Period defined above unless earlier terminated in accordance with this agreement. At the end of the Trial Period, all rights to access or use the Services, including any Zenoss programs that are part of the Services, shall end.
You may discontinue your use of the Services at any time. Zenoss may terminate your password, account, and access to or use of the Services at any time for any reason. You acknowledge and agree that Zenoss has no obligation to retain your content and your applications, and that your content and applications will be irretrievably deleted, following the termination of the Services.
Provisions that survive termination or expiration of this agreement are those which by their nature are intended to survive.
10. Fees and Taxes
The services under this agreement are provided to You free of charge during the Trial Period.
Both parties acknowledge that in the course of using the Services and Zenoss Programs in this Agreement, each party may obtain information from the other that is considered to be confidential. Each party agrees that it will handle the confidential information it receives from the other party in the same manner as it handles its own confidential information of a similar nature, provided, however, that in no event will it use less than reasonable care to prevent the unauthorized use or disclosure of the other party’s confidential information. You acknowledge and agree that the Services and Zenoss Programs (both source code and object code) and the contents of this Agreement are confidential information subject to this paragraph. Neither party shall be bound by any obligations restricting disclosure and use set forth in this Agreement with respect to confidential information, or any part thereof, that: (i) was known to the party prior to disclosure, without any obligation of confidentiality; (ii) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (iii) was disclosed to the party by a third party, provided that such third party is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently developed by the party.
12. Entire Agreement
You agree that this agreement including the information which is incorporated into this agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that this agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this agreement. It is expressly agreed that the terms of this agreement shall supersede the terms in any purchase order or other non-Zenoss document and no terms included in any such purchase order or other non-Zenoss document shall apply to the services ordered. This agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Zenoss Store by authorized representatives of you and of Zenoss. Notwithstanding the foregoing, Zenoss may make changes to the Services and this agreement, and you agree that your continued use of the Services constitutes your acceptance of, and agreement to, such changes.
13. Limitation of Liability
IN NO EVENT SHALL ZENOSS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA, OR DATA USE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EVEN IF ZENOSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZENOSS’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE HUNDRED UNITED STATES DOLLARS ($100.00).
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree to comply fully with export laws and regulations of the United States and any other applicable export laws ("Export Laws") to assure that none of the services (including technical data), any services deliverables provided under this agreement, or any direct products thereof, are: (1) exported, directly or indirectly, in violation of this agreement or Export Laws; or (2) used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
- Zenoss is an independent contractor and we each agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance. Zenoss reserves the right to provide the services from locations, and/or through use of affiliates and subcontractors, worldwide.
- You are responsible for obtaining at your sole expense any rights and consents from third parties necessary for your content, your applications, and other vendors’ products provided by you and used with the Trial environment, including all rights and consents to such content, applications and products necessary for Zenoss to provide the services.
- This agreement is governed by the substantive and procedural laws of the State of Texas and you and Zenoss agree to submit to the exclusive jurisdiction of, and venue in, the courts in Travis county in Texas in any dispute arising out of or relating to this agreement.
- Zenoss may give notice applicable by means of a general notice on the Zenoss portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in Zenoss’s account information or by written communication sent by first class mail or pre-paid post to your address on record in Zenoss’s account information.
- You may not assign this agreement or give or transfer the Services or an interest in them to another individual or entity.
- Except for actions for breach of Zenoss’s proprietary rights, no action, regardless of form, arising out of or relating to this agreement may be brought by either party more than one year after the cause of action has accrued.
- Zenoss may use software tools to audit and otherwise request information from You regarding Your use of the Services. You agree to cooperate with Zenoss’s audit and provide reasonable assistance and access to information.
- The Uniform Computer Information Transactions Act does not apply to this agreement or orders placed under it. You understand that Zenoss’s business partners, including any third-party firms retained by you to provide computer consulting services, are independent of Zenoss and are not Zenoss’s agents. Zenoss is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an Zenoss subcontractor on an engagement ordered under this agreement.
16. Force Majeure
Neither of us shall be responsible for events outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event.
17. Your Content
Zenoss makes no assurances that any of your content or your applications loaded into the Trial environment will be secured or that such data will remain confidential. You acknowledge that the Zenoss Cloud Services Online Trial is not designed for use with production data (including business content and personal information) and accordingly, you shall not include any production data in your content or use the services for any commercial purpose. YOU SHOULD FREQUENTLY BACK UP ANY CONTENT, APPLICATION OR SOFTWARE THAT YOU LOAD INTO, OR CREATE WITHIN, THE TRIAL ENVIRONMENT. ZENOSS RESERVES THE RIGHT AT ITS SOLE DISCRETION TO DELETE, AT ANY TIME AND FOR ANY REASON, ANY CONTENT, APPLICATION OR SOFTWARE IN THE TRIAL ENVIRONMENT, AND ANY SUCH CONTENT, APPLICATION OR SOFTWARE MAY BECOME PERMANENTLY LOST IF SO DELETED.
Zenoss has no obligation to monitor your content and your applications, but at its sole discretion, may access, monitor, and/or review your activity, content and applications in the environment. You agree to provide any notices and obtain any consents related to your use of the services and Zenoss’s provision of the services, and you shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your content and your applications. You warrant and represent that your content and your applications do not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of a computer including Zenoss’s Cloud services.
You shall not upload, email, post, publish, distribute or otherwise transmit any of your content containing a solicitation of funds, promotion, advertising, solicitation for goods or services, or other commercial matter. You agree not to solicit other users of the Zenoss Monitoring Services offering to use or join or become members of any commercial online or offline service or other organization. Except where expressly authorized by Zenoss, you agree not to collect or store personal data about other users. You agree that Zenoss has no obligation to retain or archive any content or applications posted on the Trial site. At the end of the Trial Period, Zenoss will disable the Trial accounts and remove any associated content and your applications.
Your content, including text and images, may be disclosed as required by law without your prior consent. Zenoss will use diligent efforts to inform you, to the extent permitted by law, of any request for such disclosure promptly upon receipt of such request.
You remain solely responsible for your regulatory compliance in connection with your use of the services.
18. Restrictions on Use of the Services
You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Zenoss under this agreement, Zenoss reserves the right to remove or disable access to any material that violates the foregoing restrictions. Zenoss shall have no liability to you in the event that Zenoss takes such action. You agree to defend and indemnify Zenoss against any claim arising out of a violation of your obligations under this section.
19. Third Party Web Sites, Content, Products and Services
The Services may enable you to add links to Web sites and access to material, products and services of third parties. Zenoss is not responsible for any third-party Web sites or third-party material provided on or through the services. You bear all risks associated with the access and use of such Web sites and third-party material, products and services.
“Feedback” shall mean any input regarding Zenoss’s products and/or Services (including the Zenoss Monitoring Services), including changes or suggested changes to Zenoss’s current or future products and/or services. Notwithstanding anything that you may note or state in connection with providing Feedback, all Feedback provided by you shall not be considered confidential information and shall be received and treated by Zenoss on a non-confidential and unrestricted basis. You agree that Zenoss or its licensors retain all ownership and intellectual property rights (including all derivatives or improvements thereof) in and to any Feedback provided by you or any other party, and acknowledge that Zenoss may use the Feedback for any purpose, including but not limited to incorporation or implementation of such Feedback into an Zenoss product or service, and to display, market, sublicense and distribute such Feedback as incorporated or embedded in any product or service distributed or offered by Zenoss.