HCSS Trial Agreement
This HCSS Trial Agreement (this “Trial Agreement”) contains terms and conditions that govern your access to and use of the HCSS Trial Offerings (as defined below) and is a contract between Heavy Construction Systems Specialists, LLC (“HCSS”), and you or the entity or organization that you represent. You and HCSS may be referred to each individually as “Party” or collectively as the “Parties”.
BY USING THE HCSS TRIAL OFFERINGS OR BY CLICKING “I AGREE” OR OTHER FORM OF ASSENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT. IF YOU ARE ENTERING INTO THIS TRIAL AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR ORGANIZATION AND ITS AFFILIATES TO THIS TRIAL AGREEMENT, IN WHICH CASE THE TERMS “YOU" AND “YOUR” SHALL REFER TO SUCH ENTITY OR ORGANIZATION AND ITS AFFILIATES, OR ANY PERSON ON THEIR BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS TRIAL AGREEMENT, YOU MUST NOT ACCEPT THIS TRIAL AGREEMENT AND MAY NOT USE THE HCSS TRIAL OFFERINGS.
Application of Trial Agreement
This Trial Agreement applies to your use of the services and products provided by HCSS in a testing or trialenvironment (the “HCSS Trial Offerings”) either on one of HCSS’s websites or applications orunder an applicable Order Form made pursuant to the terms of this Trial Agreement. An “Order Form” is any purchasing or licensing document entered into by you and HCSS, including, but notlimited to, an order form, statement of work, proposal, quote, or purchase order, for HCSS Trial Offerings thatis subject to the terms of this Trial Agreement.
Except as expressly set forth in an Order Form and subject to your continued compliance with the terms of thisTrial Agreement and each applicable Order Form, HCSS grants you a limited, non-exclusive, non-sublicensable,non-transferable, revocable license to access and use the HCSS Trial Offerings for your internal, nonproduction,noncommercial evaluation of the HCSS Trial Offerings. You agree to only use the HCSS Trial Offerings in strictaccordance with this Trial Agreement and any applicable Order Form, and you agree not to use the HCSS TrialOfferings for any commercial, competitive, or production purposes. All rights not expressly granted hereunderare reserved to HCSS. As applicable, you grant HCSS a worldwide, non-exclusive, fully paid-up, royalty-freelicense to use your Confidential Information, including any personal data as defined by applicable law, asrequired to give effect to and perform the services and activities contemplated by this Trial Agreement and eachapplicable Order Form. You acknowledge and agree that: (i) the HCSS Trial Offerings may have limitedfunctionality and reduced or altered features; (ii) the proper functionality of the HCSS Trial Offerings may beinterrupted for evaluation, review, and maintenance purposes; and (iii) HCSS may introduce new or removeexisting features or functionality to or from the HCSS Trial Offerings. This Trial Agreement does not entitleyou to any guaranteed service level availability, support, maintenance, upgrades, or modifications for the HCSSTrial Offerings, and HCSS may provide limited technical support in its sole discretion. HCSS reserves the rightto make changes, modifications, reductions in functionality, and enhancements to the HCSS Trial Offerings at anytime without prior notice. HCSS has no obligation to monitor your content and your applications, but at HCSS’ssole discretion, HCSS may access, monitor, and/or review your activity, content, and applications in the HCSSTrial Offerings.
Conditions of Use
- You shall: (i) strictly comply with this Trial Agreement, all applicable laws, and industry standards; (ii) obtain and maintain all necessary permissions, licenses, and valid consents required to lawfully transfer data to HCSS and to enable such data to be lawfully collected, processed, and shared by HCSS for the purposes of providing the HCSS Trial Offerings or as otherwise directed by you; (iii) be responsible for the accuracy, quality, and legality of any data and information provided to HCSS or used in or with the HCSS Trial Offerings; (iv) keep your passwords and any API tokens secure and confidential and use industry-standard password management practices; (v) limit your users to the number set forth in the applicable Order Form; (vi) prevent unauthorized usage or copying of the HCSS Trial Offerings; and (vii) protect the integrity of the HCSS Trial Offerings and control access to the HCSS Trial Offerings.
- You shall not: (i) resell or redistribute the HCSS Trial Offerings on a stand-alone basis or otherwise use the HCSS Trial Offerings in any service or product not specifically authorized in this Trial Agreement or an Order Form; (ii) disassemble, decompile, reverse engineer, modify, or otherwise alter the HCSS Trial Offerings or any part thereof; (iii) access any of the HCSS Trial Offerings not intended for your own use; (iv) log on to a server or an account that you are not authorized to access; (v) probe, scan, or test the vulnerability of a system or network; (vi) attempt to breach security or authentication measures without proper authorization; (vii) interfere with services to any user, host, or network, including, but not limited to, submitting a virus to any HCSS website, overloading, flooding, spamming, mailbombing, or crashing; (viii) use or attempt to use any engine, software, tool, agent, or other device or mechanism to navigate or search an HCSS website other than the search engine and search agents available from HCSS on one of HCSS’s websites or any generally available third-party web browsers; (ix) use the HCSS Trial Offerings to store or transmit data that violate or infringe a third party’s privacy right or intellectual property right; (x) name or refer to HCSS or your use of the HCSS Trial Offerings in any of your advertisements or promotional or marketing materials unless agreed to in writing by HCSS; or (xi) access all or any part of the HCSS Trial Offerings in order to build a product or service that competes with the HCSS Trial Offerings or other HCSS products or services.
- You are responsible for maintaining the confidentiality of any password(s) or security routines you are given to access and use the HCSS Trial Offerings and for all activities that occur under your password(s) or security routines. You agree to notify HCSS immediately of any accidental or unauthorized access to or use of the HCSS Trial Offerings, whether suspected or confirmed. In the event of a suspected or confirmed security incident impacting your use of the HCSS Trial Offerings or other exigent circumstances, HCSS reserves the right to immediately withdraw or suspend access to the HCSS Trial Offerings and to alter your password(s). If you utilize, and HCSS consents to the use of, the services of a third-party processor or data storage provider to process or store any HCSS Trial Offerings, you shall ensure that (i) such third-party processor or data storage provider adheres to the prevailing industry standards with respect to data privacy and data security; (ii) usage of the HCSS Trial Offerings by a third-party processor or data storage provider is limited to storing the HCSS Trial Offerings on your behalf; (iii) the HCSS Trial Offerings are not stored internationally; and (iv) you are fully liable for any use, access, storage, or processing by any third-party processor or data storage provider.
As between the Parties, HCSS is and will remain the sole and exclusive owner of all right, title, and interest,including all intellectual property rights, in and to the HCSS Trial Offerings, including, but not limited to,all information and data in and to the HCSS Trial Offerings, moral rights, rights of publicity, anymodifications, updates, improvements, upgrades, derivative works, HCSS’s Confidential Information, and Feedbackrelated thereto. If you provide suggestions, comments, ideas, recommendations, or requests for enhancements,additional features, or functionality, or other feedback to HCSS (collectively “Feedback”), you hereby assignall right, title, and interest, including intellectual property rights, in and to the Feedback to HCSS. YourConfidential Information used in the HCSS Trial Offerings, if any, shall remain your property, and HCSS shallhave no ownership rights in your Confidential Information, if any.
Term, Termination, and Conversion into a Full Production License
This Trial Agreement is effective on the date you are granted access to the HCSS Trial Offerings or on the dateindicated in the Order Form and will continue in effect until the expiration of the trial period (“Trial Period”). If there is no Trial Period, either Party may terminate this Trial Agreement anddiscontinue your use and access of the HCSS Trial Offerings at any time and for any reason. Upon expiration ortermination of this Trial Agreement: (i) any and all outstanding fees and payment obligations of yours will bedue and payable immediately; (ii) you shall immediately cease all access and use of the HCSS Trial Offerings;(iii) you must return or destroy all Confidential Information of HCSS in your possession or control; and (iv) inthe case of destruction of HCSS’s Confidential Information, you shall provide written certification to HCSS ofsuch destruction within a reasonable time following the expiration or termination of this Trial Agreement. Inthe event you wish to enter into a full production license for the use of the production versions of the HCSSTrial Offerings, you will be required to: (i) agree to a separate HCSS Services Agreement; and (ii) execute anOrder Form, detailing the production versions of the HCSS Trial Offerings, duration, and pricing applicable tothe use of the production versions of the HCSS Trial Offerings.
Fees, Taxes, and Payment
- If you have an Order Form that sets forth any fees for HCSS’s provision of the HCSS Trial Offerings, you shall pay the fees set out in such Order Form pursuant to the terms of this Trial Agreement.
- Unless otherwise specified in the Order Form, you shall pay each invoice submitted to you by HCSS in full within thirty (30) days of the date HCSS sends you an invoice. Fees not paid within thirty (30) days will accrue interest at the highest rate allowed by applicable law. In the event you fail to make timely payments, HCSS, in its sole discretion, may suspend your access to the HCSS Trial Offerings and accelerate the payment terms to require the amount of all remaining fees be due immediately.
- You may not withhold payment of any invoice or other amount due to HCSS by reason of any right of set-off or counterclaim which you may have, or allege to have, or for any reason whatsoever.
- The fees set forth in each Order Form are exclusive of any taxes. You shall pay all taxes of any type, nature, or description associated with your purchases under an Order Form (including, but not limited to, sale, use, gross receipts, excise, import, export, income, and employment taxes); provided, however, you shall not pay for any income taxes imposed upon HCSS by any taxing jurisdiction, arising by virtue of the performance of this Trial Agreement.
- “Confidential Information” means all nonpublic, confidential, or proprietary information disclosed by, or on behalf of, a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether orally or in writing or via electronic means, that is marked as “confidential” or that should be reasonably understood to be confidential. Confidential Information includes, without limitation, financial statements, business and marketing plans, customer transactions, customer lists, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, computer programming methods, source code, object code, designs, specifications, plans, drawings, programs, databases, intellectual property, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and work in progress. The terms of this Trial Agreement will also be deemed Confidential Information. Confidential Information does not include information that: (i) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party; (ii) the Receiving Party rightfully possessed before it was received from the Disclosing Party; or (iii) is subsequently furnished to the Receiving Party by a third party without restrictions on disclosure.
- Each Party retains all ownership rights in and to its Confidential Information. The Receiving Party must use the Disclosing Party’s Confidential Information only to perform its obligations under this Trial Agreement and each Order Form, and for no other purpose. The Receiving Party shall not remove any copyright, trademark, patent, or other proprietary legend on or in the Confidential Information of Disclosing Party. The Receiving Party shall protect the Confidential Information using the same standard of care with which it protects its own Confidential Information, but in no event less than reasonable care.
- The Receiving Party may only disclose the Confidential Information to its officers, employees, consultants, counsel, independent contractors, or agents (collectively “Representatives”) who: (i) need access to the Confidential Information only to the extent necessary to assist the Receiving Party for the purposes of this Trial Agreement and each applicable Order Form; (ii) have been instructed not to disclose the Confidential Information; and (iii) have executed a nondisclosure or confidentiality agreement with the Receiving Party that contains protections not materially less protective of the Confidential Information than those in this Trial Agreement. The Receiving Party shall be fully responsible and liable for any breach or violation of this Trial Agreement by its Representatives and shall use reasonable efforts to restrain its Representatives from any unauthorized use or disclosure of the Confidential Information. The Receiving Party must immediately notify the Disclosing Party in writing of all circumstances which the Receiving Party becomes aware of surrounding any possession, use, or knowledge of Confidential Information by any person or entity other than those authorized by this Trial Agreement.
- If the Receiving Party is compelled by law, governmental regulation, court order, or other legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party may do so if: (i) it provides the Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted); and (ii) it provides the Disclosing Party with reasonable assistance, at the Disclosing Party’s reasonable expense, if the Disclosing Party determines in its sole discretion to contest the disclosure.
Representations, Warranties, and Disclaimers
- You represent and warrant that you: (i) have the right and power to enter into this Trial Agreement; (ii) are an authorized representative who has read and accepted this Trial Agreement; (iii) will comply with all applicable laws and regulations pertaining to this Trial Agreement and each Order Form; and (iv) either own or have the authority, license, or permission to use all material, content, data, and information provided to HCSS and/or used within the HCSS Trial Offerings.
- THE HCSS TRIAL OFFERINGS ARE PROVIDED ON AN “AS IS” BASIS AND HCSS HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO YOU, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF THE HCSS TRIAL OFFERINGS. WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY PRECEDING SENTENCE, NEITHER HCSS NOR ANY OF ITS THIRD-PARTY SUPPLIERS OR SERVICE PROVIDERS MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE ACCURACY, COMPREHENSIVENESS, OR COMPLETENESS OF THE HCSS TRIAL OFFERINGS NOR THAT THEY WILL BE UNINTERRUPTED.
Data Security and Privacy
- Each Party shall maintain and ensure all third parties maintain reasonable and appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the other Party’s Confidential Information. Those safeguards include measures to protect Confidential Information from loss, misuse, unauthorized disclosure, unauthorized access, alteration, and destruction. You shall maintain and enforce those safeguards to prevent unauthorized or fraudulent use or access of the HCSS Trial Offerings.
- During this Trial Agreement and thereafter, the data derived by HCSS or its licensors in the performance and provision of the HCSS Trial Offerings may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided, however, such data may only be used in an anonymized, aggregated form and may not contain: (i) your Confidential Information; (ii) any information that identifies or can be reasonably used to identify your or an individual person; or (iii) any information that identifies or can be reasonably used to identify any activities or behaviors of you. The results of such analysis may be used by HCSS and its licensor for any lawful purpose.
You shall indemnify, defend, and hold harmless HCSS and its respective officers, shareholders, directors, andpersonnel, (and keep such individuals indemnified on a full indemnity basis), from and against any third-partyclaims, suits, hearings, actions, damages, liabilities, fines, penalties, costs, losses, judgments or expenses(including reasonable attorneys' fees) (collectively, “Claims”), arising from or relating to your: (i) grossnegligence or willful misconduct; (ii) use of the HCSS Trial Offerings in violation of the terms of this TrialAgreement or an Order Form; (iii) violation of applicable law; or (iv) data provided to HCSS that infringes orviolates a third party’s privacy right or intellectual property right.
Limitation of Liability
IN NO EVENT WILL HCSS BE LIABLE TO YOU AND YOUR AFFILIATES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY,CONSEQUENTIAL, OR PUNITIVE DAMAGES OR “COSTS OF COVER” ARISING OUT OF OR RELATING TO THIS TRIAL AGREEMENT ANDALL APPLICABLE ORDER FORMS, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING OUT OF ANY MISTAKES, OMISSIONS,INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR ANTICIPATORYPROFITS, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN OR WAS FORESEEABLE. THE MAXIMUMAGGREGATE LIABILITY OF HCSS AND ITS AFFILIATES TO YOU AND YOUR AFFILIATES, UNDER ANY THEORY OF TORT, CONTRACT,STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR RELATING TO THIS TRIAL AGREEMENT AND ALLAPPLICABLE ORDER FORMS WILL NOT EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).
Export Control and Sanctions Laws
Each Party will comply with all applicable export control and sanctions laws and regulations of the UnitedStates of America and any other applicable governmental authority, including, but limited to, the U.S. ExportAdministration Regulations and U.S. sanctions regulations (collectively, “Export Control and Sanctions Laws”). Neither Party will engage in any transactions with any person, legal entity, or countryprohibited by Export Control and Sanctions Laws, including, but not limited to, the prohibition againsttransactions with: (i) a national or resident of any country subject to United States of America sanctions orsimilar restrictions; or (ii) anyone on the U.S. Department of the Treasury’s Specially Designated Nationals andBlocked Persons List or other sanctions lists (collectively, “OFAC Lists”). Each Partyrepresents and warrants that is not: (a) listed on the OFAC Lists; (b) located in a country subject tosanctions; or (c) owned or controlled by any entity listed on the OFAC Lists or located in a country subject tosanctions.
United States Government Rights
If you are a branch, agency, or instrumentality of the United States federal, state, or local government oracquired a license to the HCSS Trial Offerings pursuant to a government contract or with government funds, thenas defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5) or otherwise, all HCSS TrialOfferings provided in connection with this Trial Agreement are considered “commercial items”, “commercialcomputer software”, or “commercial computer software documentation”. Consistent with DFAR §227.7202, FAR§12.212, and any other relevant sections of the Code of Federal Regulations, any use, modification,reproduction, release, performance, display, disclosure, or distribution by or for the United States governmentis governed solely by the terms of this Trial Agreement and is prohibited except to the extent permitted by theterms of this Trial Agreement.
You may not assign this Trial Agreement or any of its rights or obligations under this Trial Agreement withoutHCSS’s prior written consent. Any attempted assignment in violation of this section will be deemed null andvoid. This Trial Agreement will be binding upon and will inure to the benefit of the Parties hereto and theirrespective heirs, representatives, successors, and permitted assignees.
Remedies and Waivers
All remedies hereunder are cumulative, and the exercise by any Party of any rights hereunder will not precludesuch Party from pursuing any additional remedies available to it under this Trial Agreement, or any other legalor equitable rights afforded such Party. The failure of either Party to require the performance of any term orcondition of this Trial Agreement will not prevent any subsequent enforcement of such term or condition, norwill it be deemed a waiver of any subsequent breach.
Governing Law, Jurisdiction, and Waiver of Jury Trial
This Trial Agreement is governed by the laws of the State of Texas, without regard to the conflicts of lawprinciples. The Parties irrevocably submit to the exclusive jurisdiction of any United States federal or Texasstate court located in Houston, Texas with respect to any matter arising out of or relating to this TrialAgreement. THE PARTIES AND ANY OF THEIR AFFILIATES WAIVE THE RIGHT TO A TRIAL BY JURY ON ANY CLAIM RELATING TOOR ARISING OUT OF THIS TRIAL AGREEMENT.
A decision by any court of competent jurisdiction invalidating or holding unenforceable any part of this TrialAgreement will not affect the validity and enforceability of any other part of this Trial Agreement.
Relationship of the Parties; No Third-Party Beneficiaries
Each Party will perform its obligations under this Trial Agreement as an independent contractor, not as theother Party’s employee, partner, or agent. Neither Party will have authority to act in the name of or on behalfof the other, or to enter into any commitment or make any representation or warranty or otherwise bind the otherParty in any way. There are no third-party beneficiaries to this Trial Agreement.
Any notice required will be given in email or writing. If the notice is delivered by email, the notice will bedeemed effectively given when the other Party acknowledges having received that email. If the notice isdelivered in writing, the notice will be deemed effectively given upon: (i) personal delivery, (ii) deposit inthe U.S. post office as certified or registered mail; (iii) or deposit with a private next day delivery service.All correspondence to you required by this Trial Agreement will be addressed to the contact information set outin the Order Form or with the email address you submitted to HCSS to access the HCSS Trial Offerings. Allcorrespondence to HCSS required by this Trial Agreement will be addressed to Heavy Construction SystemsSpecialists, LLC, 13151 W Airport Blvd, Sugar Land, TX 77478, Attn: General Counsel.
Entire Trial Agreement and Order of Precedence
This Trial Agreement constitutes the entire agreement between the Parties with respect to your use of the HCSSTrial Offerings and merges all prior and contemporaneous communications relating to the subject matter of thisTrial Agreement. The Parties agree that any term or condition stated in your purchase order or in any other ofyour order documentation is void. In the event of a conflict among the terms and conditions of this TrialAgreement and an Order Form relating to the subject matter of this Trial Agreement, such Order Form willcontrol. Titles and headings of the sections of this Trial Agreement are for description and convenience onlyand will not affect the construction of any provision of this Trial Agreement.
The following sections will survive any expiration or termination of this Trial Agreement: “Conditions of Use”,“Proprietary Rights”, “Term, Termination, and Conversion into a Full Production License”, “Fees, Taxes, andPayment”, “Confidentiality”, “Representations, Warranties, and Disclaimers”, “Indemnification”, “Limitation ofLiability”, “Export Control and Sanction Laws”, “Assignment”, “Remedies and Waivers”, “Governing Law,Jurisdiction, and Waiver of Jury Trial”, “Severability”, “Relationship of the Parties; No Third-PartyBeneficiaries”, “Notices”, “Entire Trial Agreement and Order of Precedence”, “Surviving Provisions”, and anyother provisions or sections which, by their nature, are intended to survive expiration or termination of thisTrial Agreement.
(Version Date: May 5, 2023)