THINKDATA WORKS FREE TRIAL TERMS OF SERVICE

 

ThinkData Works Inc. ("ThinkData") provides use of its Services (as defined below) to the organization agreeing to these terms (“Client”) subject to the following Terms of Service. ThinkData and Client are each referred to as a “Party” and collectively as the “Parties.” When using the Services, Client shall be subject to any posted guidelines, policies, rules or terms applicable to such Services, which may be posted from time to time. All such guidelines, policies, rules or terms (including, without limitation, the ThinkData Works Privacy Policy) are hereby incorporated by reference. ThinkData may also offer other services that are governed by these or different terms of service. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.

 

THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN CLIENT AND THINKDATA AND GOVERNS CLIENT’S USE OF THE SERVICES, INCLUDING ANY SUCCESSOR SERVICES. BY USING THE SERVICES CLIENT IS INDICATING THAT CLIENT HAS READ AND AGREED TO THESE TERMS OF SERVICE AND THE THINKDATA PRIVACY POLICY ("PRIVACY POLICY") AND, IF APPLICABLE, MASTER SERVICES AGREEMENT, ORDER FORM, OR OTHER USE TERMS ("USER TERMS"), AND ANY OTHER RELATED TERMS AND CONDITIONS LOCATED ON THINKDATA’S WEBSITES OR IN THE SERVICES, ALL OF WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE. IF YOU DO NOT AGREE TO THE FOREGOING, DO NOT USE THE SERVICES. In the event any of the terms of these Terms of Service conflict with the Privacy Policy or applicable User Terms, the terms of the applicable User Terms or Privacy Policy shall govern as to the conflicting terms. If you have any questions regarding these terms and conditions, please contact support@thinkdataworks.com.

 

1. Definitions.
   1. “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are invited by Client or another Authorized User to access and use the Services under the rights granted to the Client pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder but specifically excludes affiliates (as that term is defined in the Business Corporations Act (Ontario)) of Client.
   2. “Client Data” means, other than Usage Data, information, data and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.
   3. “Documentation” means ThinkData’s user manuals, handbooks and guides related to the Services provided by ThinkData to Client either electronically or in hard copy form, and includes end user documentation relating to the Services.
   4. "Effective Date" means the date this Agreement is entered into by the Parties, either by acceptance online or by the signing of an Order Form.
   5. “Intellectual Property Rights” means all rights, title, and interest in and to any trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, rights of publicity, and any similar rights, including any applications, continuations, or registrations with respect to the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
   6. “Order Form” means (if applicable) an ordering document, specifying the Services (if applicable) to be provided hereunder that is entered into between ThinkData and Client, including any attachments, addenda, or exhibits thereto.
   7. “ThinkData IP” means the Platform, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with any of the foregoing or the delivery of the Services. For greater certainty, ThinkData IP includes Usage Data and any information, data or other content derived from ThinkData’s monitoring of Client’s access to or use of the Services, but does not include Client Data.
   8. “Sample Materials” means any technology and materials provided or made available by ThinkData to Client for use with the Services, including sample data, sample code, software libraries, command line tools, data integration code, templates, and configuration files. 
   9. “Services” means use of ThinkData’s platform and related software services (collectively, the “Platform”). 
   10. “Usage Data” means metrics, analytics, statistics, or other data related to Client’s use of the Services that is used by ThinkData in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
2. Provision of Services.
   1. Services Access. ThinkData shall make available the Services to Client during the applicable Term solely for use by Client and its Authorized Users in accordance with the terms and conditions of this Agreement and the Documentation for Client’s internal business purposes or as otherwise set forth in an Order Form, if applicable. 
   2. Sample Materials License. ThinkData may make available Sample Materials for use by Client during the Term. If applicable, ThinkData grants to Client during the applicable Term a non-exclusive, nontransferable, non-sublicenseable, limited license, to copy, modify, and use the Sample Materials solely to the extent necessary for Client’s use of the Services. 
   3. Usage Data. ThinkData may collect and use Usage Data  (a) to provide and secure the Services for the benefit of Client and (b) to analyze, maintain, support, and improve the Services (provided that in relation to (b) the data collected shall not include personal data or Client Data).
   4. Service Levels and Support. Subject to the terms and conditions of this Agreement, during the Term, ThinkData shall use commercially reasonable efforts to make the Services available.
3. Client Use of Services.
   1. Accounts. Client may provision accounts to access the Services (“Accounts”) for its Authorized Users. Client shall be responsible for (i) administering Accounts; (ii) using industry standard security measures to protect Accounts (including, without limitation, using multi-factor authentication); and (iii) any activity on Accounts. Client shall immediately de-activate any Account upon becoming aware of the compromise or unauthorized use thereof, or upon ThinkData’s reasonable request.
   2. Data Protection. Client shall be solely responsible for the accuracy, content, and legality of Client Data and shall ensure that any integration of Client Data into the Services complies with applicable laws and regulations, including but not limited to data localization requirements. 
   3. Third Party IP. Client’s use of the Services is limited to its internal use, except as otherwise set out herein. Subject to the limited rights expressly granted pursuant to this Agreement, ThinkData and its licensors reserve all rights not expressly granted to Client in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title or interest in or to the ThinkData IP. ThinkData expressly reserves all right, title and interest in and to the ThinkData IP, including all related intellectual property rights.
4. Proprietary Rights.
   1. Client Data Ownership. As between the Parties, Client owns all rights, title, and interest, including all Intellectual Property Rights, in and to Client Data and any modifications made thereto. Subject to the Agreement, Client grants to ThinkData a non-exclusive, worldwide, royalty-free right and license during the Term to process Client Data solely to provide the Services. Client further grants to ThinkData a worldwide, perpetual, irrevocable, royalty-free right and license to use, distribute, disclose, and make and incorporate into the ThinkData IP any suggestions, enhancement request, recommendation, or other feedback provided by Client or Authorized Users relating to the ThinkData IP.
   2. ThinkData Ownership. As between the Parties, ThinkData owns all rights, title, and interest, including all Intellectual Property Rights, in and to the ThinkData IP, and any other related documentation or materials provided by ThinkData and any derivative works, modifications, or improvements of any of the foregoing (including without limitation all Intellectual Property Rights embodied in any of the foregoing). Except for the express rights granted herein, ThinkData does not grant any other licenses or access, whether express or implied, or any ownership rights to any ThinkData IP, software, services, or Intellectual Property Rights.
   3. Restrictions. Client will not (and will not allow any third party to): (a) gain or attempt to gain unauthorized access to the Services or infrastructure, or any element thereof, or circumvent or interfere with any authentication or security measures of the Services; (b) interfere with or disrupt the integrity or performance of the Services; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Services; (d) decompile, disassemble, scan, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of any ThinkData IP (except to the extent that applicable law expressly prohibits such a reverse engineering restriction, and in such case only upon prior written notice to ThinkData); (e) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Services for the benefit of any third party (except as set forth in an Order Form); (f) list or otherwise display or copy any code of any ThinkData IP, except for Sample Materials to the extent necessary for Client’s use of the Services; (g) copy any ThinkData IP (or component thereof) or develop any improvement, modification, or derivative work thereof, except for Sample Materials to the extent necessary for Client’s use of the Services; (h) include any portion of any ThinkData IP in any other service, equipment, or item; (i) allow the transfer, transmission (including without limitation making available on-line, electronically transmitting, or otherwise communicating, to the public), export, or re-export of any ThinkData IP (or any portion thereof) or any ThinkData technical data; (j) perform penetration tests on the Services unless authorized by ThinkData; (k) use, evaluate, or view the ThinkData IP for the purpose of designing, modifying, or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure or any portion thereof, which performs functions similar to the functions of the ThinkData IP; or (l) remove, obscure, or alter, or otherwise violate the terms of any copyright notice, trademarks, logos, and trade names and any other notices (including third party open source or similar licenses) or identifications that appear on or in any ThinkData IP and any associated media.
5. Confidentiality. Each Party (the “Receiving Party”) shall keep strictly confidential all Confidential Information of the other Party (the “Disclosing Party”), and shall not use such Confidential Information except for the purposes of this Agreement, and shall not disclose such Confidential Information to any third party other than disclosure on a need-to-know basis to the Receiving Party’s directors, employees, agents, attorneys, accountants, subcontractors, or other representatives who are each subject to obligations of confidentiality at least as restrictive as those herein (“Authorized Representatives”). The Receiving Party shall use at least the same degree of care as it uses to prevent disclosure of its own confidential information, but in no event less than reasonable care. The Receiving Party may, without violating the obligations of the Agreement, disclose Confidential Information to the extent required by a valid court or government order, provided that the Receiving Party: (a) provides the Disclosing Party with reasonable prior written notice of such disclosure and (b) uses reasonable efforts to limit disclosure and to obtain, or to assist the Disclosing Party in obtaining, confidential treatment or a protective order preventing or limiting the disclosure, while allowing the Disclosing Party to participate in the proceeding. “Confidential Information” means (i) in the case of ThinkData, ThinkData IP (including any information relating thereto); (ii) in the case of Client, Client Data; and (iii) any other information which by the nature of the information disclosed or the manner of its disclosure would be understood by a reasonable person to be confidential, in each case, in any form (including without limitation electronic or oral) and whether furnished before, on, or after the Effective Date; provided, however, that Confidential Information shall not include any information that (1) is or becomes part of the public domain through no act or omission of the Receiving Party or its Authorized Representatives; (2) is known to the Receiving Party at the earlier of the Effective Date or the time of disclosure by the Disclosing Party (as evidenced by written records) without an obligation to keep it confidential; (3) was rightfully disclosed to the Receiving Party prior to the Effective Date from another source without any breach of confidentiality by the third party discloser and without restriction on disclosure or use; or (4) the Receiving Party can document by written evidence that such information was independently developed without any use of or reference to Confidential Information. The Receiving Party shall be liable for any breaches of this Section by any person or entity to which the Receiving Party is permitted to disclose Confidential Information pursuant to this Section. The Receiving Party’s obligations with respect to Confidential Information shall survive termination of this Agreement for five (5) years; provided, that the Receiving Party’s obligations hereunder shall survive termination and continue in perpetuity, or as long as permitted by applicable law, with respect to any Confidential Information that is a trade secret under applicable law.
6. Term and Termination. 
   1. Term. This Agreement is effective as of the Effective Date and shall continue in effect for fourteen (14) days (the “Term”), unless otherwise terminated as provided herein. In the event that the Client wishes to continue using the Services after the conclusion of the free trial Term, the Client shall be required to enter into a separate agreement with ThinkData. The Term may be extended with the mutual written consent of the Parties.
   2. Termination. ThinkData may terminate Client’s account or use of the Service at any time for any reason, including, without limitation, if Client is in breach of these Terms of Service or User Terms. ThinkData may change, discontinue, or otherwise suspend the Service at any time, for any reason, and without prior notice to you.
   3. Effect of Termination. Termination of the Services includes: (a) removal of access to all offerings within the Services, (b) deletion of Client Data, your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of the Services. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the ThinkData IP and, without limiting Client’s obligations under this Agreement, shall delete, destroy or return all copies of ThinkData IP required to be so deleted or returned and certify in writing to ThinkData that the ThinkData IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay any Fees that may have become due before such expiration or termination, or entitle Client to any refund. Sections 4, 5, 6, 7, 8, and 9 shall survive any termination or expiration of this Agreement.
7. Indemnification. Client shall, indemnify, hold harmless, and at ThinkData’s option, defend ThinkData, its affiliates and its and their directors, officers, employees and agents (the “ThinkData Indemnified Parties”) in any third party claim, suit, action or proceeding (a “Third Party Claim”) against any of the ThinkData Indemnified Parties alleging that the Client Data, any use of the Client Data, or Client use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Client Claims”) and shall indemnify and hold the ThinkData Indemnified Parties harmless from and against any settlement amounts agreed in writing by Client and/or any losses, damages, expenses or costs (including but not limited to reasonable legal fees) awarded to such third party against any of the ThinkData Indemnified Parties by a court or tribunal of competent jurisdiction in any such Client Claim. As conditions for such defense and indemnification by Client, (i) ThinkData shall notify Client promptly in writing upon becoming aware of all pending Client Claims; and (ii) ThinkData shall cooperate fully with Client in the defense or settlement of such Client Claims. Client shall not settle any Client Claim unless ThinkData consents to such settlement, and further provided that ThinkData shall have the right, at its option, to defend itself against any such Client Claim or to participate in the defence thereof by counsel of its own choice. 
8. Representations and Warranties. 
   1. Limited Warranty. ThinkData warrants that the Services will conform in all material respects to the Order Form when accessed and/or used in accordance with the Documentation and communications provided by ThinkData. ThinkData does not make any representations or guarantees regarding uptime or availability of the Services. 
   2. ThinkData Representations. During the Term, ThinkData represents and warrants that it shall comply with all applicable international, federal, state, national, provincial and local Laws, including without limitation, Laws relating in any way to the privacy, confidentiality, or security of personal information (collectively, “Privacy Laws”); 
   3. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION 8, THINKDATA IP IS PROVIDED ON AN ‘AS IS’ BASIS, AND THINKDATA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. THINKDATA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRIGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS SET OUT IN SECTION 8.1, THINKDATA MAKES NO WARRANTY OF ANY KIND THAT THE THINKDATA IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. CLIENT AGREES THAT THINKDATA SHALL NOT BE LIABLE FOR ANY LOSSES ARISING FROM CLIENT’S USE OF THE DATA, INCLUDING ANY DECISION, OUTCOMES, OR RESULTS OF CLIENT BASED ON THE DATA. THE WARRANTY IN THIS SECTION 9 DOES NOT APPLY, AND THINKDATA EXPRESSLY AND STRICTLY DISCLAIMS, ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. 
9. Limitation of Liability. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNITY OBLIGATIONS, BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (I) NEITHER PARTY, ITS CONTRACTORS OR THEIR RESPECTIVE PERSONNEL SHALL BE LIABLE FOR ANY CLAIMS, LIABILITIES OR EXPENSES RELATING TO THIS AGREEMENT FOR AN AGGREGATE AMOUNT IN EXCESS OF THE FEES PAID BY CLIENT TO THINKDATA HEREUNDER OVER THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE INITIAL ACT OR OMISSION GIVING RISE TO THE LIABILITY FIRST OCCURS; AND (II) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, NOR FOR EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSS OF GOODWILL, EXCLUDING CLAIMS FOR FRAUD, WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR ARISING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS OR OBLIGATIONS RELATING TO WORK PRODUCT AND INVENTIONS UNDER THIS AGREEMENT. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND THINKDATA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Miscellaneous. ThinkData shall provide the Services consistent with laws and regulations applicable to ThinkData’s provision of such Services generally, including but not limited to, regarding data protection and international transfers of personal data, without regard to Client’s specific utilization of the Services except to the extent set forth in an Order Form, and subject to Client’s compliance with this Agreement. Except with ThinkData’s prior written consent, neither this Agreement nor the access or licenses granted hereunder may be assigned, transferred, or sublicensed by Client, including, without limitation, pursuant to a change of control of Client or sale of all or substantially all of the assets of Client; any attempt to do so shall be void. ThinkData may terminate this Agreement in the event of a change of control of Client or sale of all or substantially all of the assets of Client. ThinkData may subcontract this Agreement or portions thereof. Any notice required or permitted hereunder shall be in writing to the parties at the addresses set forth in the applicable Order Form and if by email, notifications to ThinkData shall be sent to legal@thinkdataworks.com. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable. Any and all modifications, waivers or amendments must be made by mutual agreement and shall be effective only if made in writing and signed by each Party. No waiver of any breach shall be deemed a waiver of any subsequent breach. Except for the obligation to pay money, neither Party will be liable for any failure or delay under this Agreement due to any cause beyond its reasonable control, including without limitation acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet, telecommunications, or hosting service provider, computer attacks, or malicious acts; provided that the delayed Party: (a) gives the other Party prompt notice of such cause; and (b) uses commercially reasonable efforts promptly to correct such failure or delay in performance. ThinkData has the right to immediately suspend access to the Services: (a) if Client is in material breach of this Agreement; (b) to prevent a security incident impacting Client, Client Data, or the Services; or (c) if continued access would violate applicable laws or if required to do so pursuant to applicable law or regulation or requests or orders of governmental, regulatory, or judicial authorities. There are no third party beneficiaries under this Agreement, whether express or implied. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The Parties have freely negotiated all clauses of this Agreement, in written exchanges, telephone conversations, or meetings, and pursuant to these negotiations have agreed to adopt this Agreement and hereby acknowledge the negotiated nature of this Agreement. In the event of a conflict between these Terms of Service and any Order Forms or exhibit, the terms of such Order Form or exhibit will prevail.