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Trial Evaluation Agreement for Cloud fax and Notifications Developer Plans

Ramv_OT
Ramv_OT ModeratorE mod
edited February 18, 2022 in Articles #1

Trial Evaluation Agreement

The terms and conditions governing this Agreement are as follows:

 1.        Cloud fax and/or Notifications Services. Open Text will provide Fax2Mail and/or Notifications services (the “Services”) to Developer, as set forth in Exhibit A attached hereto, during the trial evaluation period set forth in Section 2 below. The features and functionality of the Services are described at https://www.opentext.com/products-and-solutions/products/digital-experience. The Services will be available to Developer 24 x 7 during the trial evaluation period. Developer may access and use the Services using our REST APIs for Fax, Email or SMS and Developer is not required to install any software locally during this trial evaluation in order to access and use the Services, which are hosted on the Open Text network platform. Open Text will provide its customary customer support and assistance by telephone and email during this trial evaluation period.

 2.        Trial Evaluation Period. Open Text shall provide the Services for a period of ninety (90) days from the Effective Date (the “Trial Period”), unless such period is extended by the mutual written agreement of each party.

 3.        Charges. Open Text offers this trial evaluation and the Services at no charge to Developer, provided however that during the Trial Period, Developer will be allowed a maximum number of 1,000 messages (fax, email, or SMS in any combination) at no charge.  In the event Developer exceeds the number of total messages, Open Text reserves the right to disable the trial account.

 4.       Confidential Information.

 4.1      Developer acknowledges and agree that in the process of providing access to and use of the Services, Open Text may disclose to Developer certain confidential, proprietary trade secret information of Open Text (the "Confidential Information"). Confidential Information may include, but is not limited to, the Services, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, survey information and/or business plans. Confidential Information shall also include any feedback and any results provided by Developer, as well as the reporting, surveying, testing and evaluating carried out by Developer and Open Text in relation to this Agreement.

 4.2      Confidential Information shall be the sole property of Open Text, and Developer agrees to not, without the express prior written consent of Open Text, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through no fault of Developer; (b) is rightfully received by Developer from a third party (who had all rights necessary to provide the Confidential Information) without limitation as to its use; (c) is independently developed by Developer, or (d) is disclosed pursuant to any judicial or governmental request or order.

 5.        Developer Responsibilities. 

 5.1      Developer is responsible for: (i) obtaining, installing, and maintaining the equipment, communication lines and support services necessary to access the Services; and (ii) ensuring that its Internet or telecommunications connections (if applicable), hardware, devices and software are secure and compatible with the Services.

 5.2      Use of the Services may require Developer to create an administrator account for a Developer administrator. The Services may enable the Developer administrator to provision and register Developer’s authorized users to access and use the Services. In addition, authorized users may need to individually register with Open Text to use the Services. Developer is responsible for keeping authorized user registration information accurate, complete and up to date.

 5.3      Developer shall be responsible for: (i) acts or omissions by its authorized users; (ii) maintaining the confidentiality of access credentials (including usernames, passwords, and keys) used by Developer or its authorized users; (iii) ensuring compliance with this Agreement by each authorized user, including compliance with Open Text’s Cloud Services Acceptable Use Policy available at: https://www.opentext.com/file_source/OpenText/en_US/PDF/opentext-acceptable-use-policy.PDF; and (iv) ensuring compliance with applicable local, state and national laws and regulations in connection with the use of the Services, including those related to laws and regulations pertaining to telemarketing, facsimile advertising, commercial e-mail, spam, export compliance, data privacy, international communications, and the transmission of data.

 5.4      Open Text may suspend the Services without liability to Open Text in order to comply with applicable law, or to prevent damage to Open Text or its other customers. Upon written notice to Developer, Open Text may require Developer’s assistance in verifying usage of the Services in compliance with the terms of this Agreement.

 6.                  Restrictions On Use. 

 6.1      Developer will only use the Services for Developer’s internal business purposes. Only Developer’s authorized users may access and use the Services.

 6.2      Developer shall not: (i) resell the Services to third parties; (ii) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of the Services done by or on behalf of Developer; or (iii) modify, reverse engineer, decompile or otherwise attempt to discover the source code of any of Open Text’s or its third-party vendor’s software that are included in the Services.

 7.                  Intellectual Property

Open Text alone owns all right, title and interest, including all related intellectual property rights, in and to (i) the Services, (ii) the Documentation, and (iii) any suggestions, ideas, requests, feedback, recommendations or other information provided by Developer or any other party relating to the foregoing, and Open Text reserves all rights to use, modify and allow others to use such materials. Developer may not remove Open Text’s copyright or other proprietary notices from the Documentation or any part of the Services.

 8.                  Data Privacy

Open Text will provide the Services in accordance with legal requirements, including privacy and data protection laws, to the extent applicable to Open Text. Open Text’s Privacy Policy is available at: https://www.opentext.com/about/copyright-information/site-privacy.

 9.                  Warranties

ACCESS TO AND USE OF THE SERVICES IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS" "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMITTED BY LAW, OPEN TEXT, ITS AFFILIATES, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON- INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, OPEN TEXT DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR ACCESS TO THE SERVICES WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT OPEN TEXT'S SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT OPEN TEXT'S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRD PARTIES.

 10.              Limitation of Liability

 10.1    OPEN TEXT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE THE SERVICES OR ACCESS DATA, INFORMATION OR CONTENT, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTORY, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), INDEMNITY, SERVICES LIABILITY OR OTHERWISE, EVEN IF OPEN TEXT OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 10.2    OPEN TEXT’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO ONE UNITED STATES DOLLAR ($1). YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

 10.3    THE LIMITATIONS ON LIABILITY IN THIS SECTION 10 (LIMITATION OF LIABILITY) ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. NOTHING CONTAINED IN THIS AGREEMENT LIMITS OPEN TEXT'S LIABILITY TO YOU IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM OPEN TEXT'S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

 11.              Miscellaneous.

 11.1    Amendment, waiver. Any amendment of this Agreement must be in writing and signed by both parties. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver constitutes a waiver of any prior or subsequent breach.

 11.2    Governing law; time limit. This Agreement is governed by the laws of the State of New York, without reference to its choice or conflicts of law rules. The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the city of New York for any claim relating to this Agreement. No action, regardless of form, arising from this Agreement or any Services provided or to be provided hereunder may be brought by either party more than two (2) years after the cause of action has accrued, except that an action for non-payment may be brought at any time.

 11.3    Export laws. The Services and Documentation may be subject to export control laws of the United States or other countries. Developer agrees to comply strictly with all applicable export regulations, including, but not limited to (i) the Export Administration Regulations maintained by the U.S. Department of Commerce, and (ii) the trade and economic sanctions maintained by the U.S. Department of Treasury Office of Foreign Assets Control and will not allow use of the Services in a manner that breaches or facilitates the breach of such regulations. Developer has the responsibility to obtain any licenses required to export, re-export, or import the Services, including deemed exports. The Services shall not be used by anyone: (a) located in U.S. embargoed countries or by any Foreign National of a U.S. embargoed country; or (b) included on the U.S. Treasury Department’s list of Specially Designated Nationals; or (c) the U.S. Department of Commerce’s Denied Persons or Entity List. By using the Services, Developer represents and warrants that neither Developer nor any person provided access to the Service by Developer is located in any such country or on any such list.

 11.4    Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

 11.5    Survival. Each party’s obligations under this Agreement shall survive the expiration or termination of this Agreement.

 11.6    Entire Agreement. This Agreement constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or agreements among the parties in connection with the subject matter hereof except as set forth in this Agreement.

Exhibit A

Cloud Fax service includes the following components that will be utilized as part of this trial evaluation:

-      Open Text Fax REST API for message submission for outbound faxes and message status

-      Any and all customization requirements will be managed through an Open Text account manager

Notifications includes the following components that will be utilized as part of this trial evaluation:

-         Open Text Notifications SMS REST API for message submission and message status

-         Open Text Notifications Email REST API for message submission and message status

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