Subscription Service Documentation & Trial Agreement

1. Definitions

   1. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. Application means Symmetry’s application program with the functionality described in the Documentation, including modifications, revisions, customizations, enhancements, derivative works, and updates (if included as part of the Subscription Service), and enhancements, if any.
   3. Customer means the legal entity and its Affiliate that executes or otherwise accepts the Agreement and supplementary Schedules or uses the Subscription Service.
   4. Customer Data means any material, data, or information, in any form or media, that is uploaded via the Subscription Service by an end user, and/or the resulting unique output that is generated by the Application when processing the uploaded data or information.
   5. Documentation means the Symmetry user guides, training manuals, schema descriptions, and other similar documentation, as updated or revised from time to time.
   6. Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights and other similar rights, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Subscription Service is used or offered.
   7. Schedule means a schedule attached hereto, and any Schedule(s) or other form of ordering documentation signed by both parties that references this Agreement. Each Schedule is incorporated into this Agreement by this reference.
   8. Subscription Service means the Application and other functionality, if any, made available as a cloud or hosted service by Trial Subscription as specified in a Schedule. Subscription Service includes all Documentation.
   9. Trial Period means a time-limited trial period as defined on a Schedule.
   10. Trial Subscription means a temporary, non-exclusive, non-transferable, and non-sublicensable right to access and use the Subscription Service solely for the purpose of evaluation and consideration for procuring a paid subscription to the Application.
       
       Capitalized terms used in this Agreement and not otherwise defined shall have the meaning indicated on the applicable Schedule.

2. Trial Subscription Service

   1. Subscriptions. In consideration of the fees described on a Schedule, Symmetry shall provide the Subscription Service to Customer during the Trial Period as specified on a Schedule. Customer may use the Subscription Service or incorporate it into Customer’s software product solely for evaluation and testing purposes and solely for Customer’s internal use. Customer may not use the Subscription Service for commercial use, in a production environment, with any production data, and may not use the Subscription Service in any manner to provide service bureau, time sharing or other computer service to third parties. Customer may not modify, disassemble, decompile or reverse engineer the Subscription Service or the Application, in whole or in part, or access the Subscription Service to build a competitive product or service. Customer may not make the Subscription Service available to any third-party (including any of Customer’s business clients) for any purpose.
   2. Term. The Trial Subscription will automatically terminate upon expiration of the Trial Period. At its sole discretion and for an additional fee, Symmetry may grant a single short-term extension of the Trial Period under a separate invoice at the time of the extension. If Customer retains the Application after the Trial Period expires, Customer must enter into an agreement with Symmetry for Customer’s continued use of the Subscription Service.
   3. No Assignment or Other Rights. Customer may not assign or transfer the whole or any part of this Agreement, by operation of law or otherwise. For avoidance of doubt, except as expressly set forth herein, no other rights are granted to Customer by Symmetry with respect to the Subscription Service, Documentation or Intellectual Property Rights. There are no implied rights.
   4. Export. Customer acknowledges and agrees that it shall not import, export, or re-export, directly or indirectly, the Application, Documentation, or any other item provided by Symmetry to any country in violation of the regulations of the United States, and the import and export restrictions of the various European countries.

3. Ownership

   1. Customer Data. As between the parties, Customer controls and owns all right, title and interest in and to Customer Data and remains the data controller under this Agreement and applicable data protection laws. Customer grants Symmetry the right to use and process Customer Data on Customer’s behalf in order to perform certain on-line calculations and related functionality of the Subscription Service (“On-Line Features”). Customer represents and warrants that it has complied with all relevant laws in collecting, using, and disclosing the Customer Data and that it has all necessary rights to provide the Customer Data to Symmetry to the extent required to enable the On-Line Features. Customer will not disclose to Symmetry any personal information except as necessary to use the Subscription Service or enable the On-Line Features. Symmetry may use Customer Data solely to provide the On-Line Features and Symmetry may not use the Customer Data beyond the Trial Period. Nothing in the Agreement transfers or conveys to Symmetry any ownership interest in or to Customer Data.
   2. Title and Protection. The Subscription Service, Documentation, and the Applications are owned by Symmetry or its licensor(s). Customer shall respect and will not remove or conceal any copyright, trademark, or other proprietary and confidential notices that may appear on the Application and related Documentation. Customer or its users may provide ideas, feedback, suggestions, requests, questions, comments, results of Customer’s testing and evaluation of the Subscription Service (“Feedback”). Feedback will not be considered Customer’s Confidential Information, and Symmetry is free to use, profit from, disclose, and otherwise exploit Feedback without compensation or attribution to Customer. Customer is under no obligation to provide, and Symmetry is under no obligation to implement, any Feedback.

4. Confidentiality

   1. Confidential Information. Confidential Information includes, without limitation: (a) nonpublic information relating to the disclosing party’s technology, prices, Intellectual Property Rights, specifications, manuals, business plans, product roadmaps, results of benchmark tests, promotional and marketing activities, finances, and other business affairs; (b) the Symmetry Application, Documentation, and any other software, technology or components of a Subscription Service; (c) Customer Data; (d) third-party information that the disclosing party is obligated to keep confidential, including but not limited to data, names, contacts or information regarding any customers or prospective customers; (e) the discussions, negotiations, and proposals between the parties leading to this Agreement and any Schedules; and (f) the terms of this Agreement and any Schedules. Confidential Information does not include information that (i) is or becomes available without breach of the Agreement; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is independently developed by receiving party after disclosure without breach of the Agreement; or (iv) is rightfully obtained by the receiving party without any confidentiality obligation.
   2. Protection and Use. Receiving party will use disclosing party’s Confidential Information solely to perform its obligations under this Agreement and will adopt and use measure to safeguard the disclosing party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable operational, technical, and physical measures. Receiving party must not disclose disclosing party’s Confidential Information except to its employees, Affiliates, and agents who (a) have a need to know Confidential Information in connection with this Agreement, and (b) are bound by written confidentiality obligations no less restrictive than these terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information of which it becomes aware and take all reasonable action to recover Confidential Information and prevent further unauthorized use or disclosure, including action for seizure and injunctive relief. Upon termination or expiration of this Agreement, each party will promptly return to the other or destroy all Confidential Information of the other party.
   3. Required Disclosure. Receiving party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (a) gives the disclosing party reasonable written notice to allow the disclosing party to seek a protective order or other appropriate confidential treatment to protect any Confidential Information disclosed; and (b) discloses only such information as is required by the governmental entity or otherwise required by law.

5. Representations, Warranties And Disclaimers

   1. No Professional Tax Opinion and Advice. Symmetry does not provide professional tax opinions or tax management advice specific to the facts and circumstances of Customer’s business. Customer’s use of the Subscription Service or the Application does not create any fiduciary obligations on the part of Symmetry. Although Symmetry strives to ensure that data and information contained in the Subscription Service are current and accurate, Symmetry depends on third parties not acting under Symmetry’s direction or control, including but not limited to, state and local governmental agencies to timely update and provide information that affect such data and information. Due to rapidly changing tax rates and regulations that require interpretation by qualified tax professionals, Customer bears full responsibility to determine the applicability and accuracy of the output generated by the Subscription Service. Customer shall conduct due diligence and seek the assistance of qualified tax counsel or accounting professionals on matters requiring professional advice.
   2. No Warranty. The Subscription Service is provided to Customer solely for the purpose of evaluation and trial use on an “AS IS” basis and without warranty. There Are No Warranties Or Conditions, Express Or Implied, Including Without Limitation, Those Of Merchantability, Fitness For A Particular Purpose And/ Or Noninfringement Of Third Party Rights.

6. Limitations Of Liability

   1. Limitation. To The Maximum Extent Permitted By Applicable Law, (A) Symmetry And Its Licensors Are Not Liable For Any Special, Indirect, Consequential, Punitive Or Other Damages Of Any Kind Arising Out Of This Agreement, Even If Symmetry Was Advised, Knew, Or Should Have Known Of The Possibility Thereof Including, But Not Limited To, Lost Profits, Lost Business Revenues, Failure To Realize Expected Savings, Other Commercial Or Economic Loss Of Any Kind, Or For Any Claim Against Customer By Any Other Party, And (B) Symmetry’s And Its Licensors' Aggregate Liability For All Losses Will Be Limited To The Greater Of The Amount Of Fees Paid For The Use Of The Subscription Service During The Trial Period Or $500. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement.

7. Indemnification

   1. Indemnification by Symmetry. Symmetry will defend, indemnify, and hold Customer harmless against an unaffiliated third-party claim or legal action alleging that the Subscription Service as delivered by Symmetry to Customer directly infringes any patent, copyright or trademark. Symmetry has no obligation or liability under this Section 7.1 for any infringement claim arising from (a) Customer’s breach of this Agreement or use of the Subscription Service in a manner contrary to the Documentation; (b) modification of the Subscription Service by anyone other than Symmetry, or modification by Symmetry for non-standard features or functionality for Customer or according to Customer’s specifications; (c) use of a Subscription Service in combination with hardware, software, method, or process not provided by Symmetry or authorized in the Documentation, if infringement would not occur without the combination; (d) any content, information, or data (including Customer Data) provided by Customer, Customer Clients, Users, or other third parties; or (e) Customer’s failure to cooperate or allow Symmetry to install a revision, update, or release provided by Symmetry that would have eliminated the infringement. If Symmetry believes the Subscription Service infringes or may infringe a third-party’s Intellectual Property Rights, then Symmetry shall either (i) obtain the right for Customer, at Symmetry’s expense, to continue using that Subscription Service; (ii) provide a non-infringing, functionally equivalent replacement; or (iii) modify the Subscription Service or create a workaround so that the Subscription Service no longer infringes. If options (i)-(iii) are not commercially reasonable, then Symmetry may terminate Customer’s use of the Subscription Service (with a pro-rata refund of any prepaid fees for the terminated Subscription Service). This Section 7.1 states Symmetry’s sole liabilities and Customer’s exclusive remedies for infringement claims.
   2. Indemnification by Customer. Customer shall defend, indemnify and hold harmless Symmetry, its officers, directors and employees from any claims or causes of action related to or resulting from (a) a breach by Customer of any of its obligations under this Agreement, including any claim that an unauthorized use of the Subscription Services or the Application results in a misappropriation or infringement of the intellectual property rights of any third-party and (b) Symmetry’s access to or processing of Customer Data as permitted by this Agreement.
   3. Indemnified Party Obligations. As a condition of the indemnifying party’s obligations under this Section 7, the indemnified party must (a) notify the indemnifying party promptly in writing of such action or claim (provided that a failure to provide such notice will only relieve the indemnifying party of its obligations to the extent its ability to defend such claim is materially prejudiced by the delay); (b) cooperate and, at the indemnifying party’s request and expense, assist in the defense of such claim; and (c) give the indemnifying party sole control of the defense thereof and any related settlement negotiations; provided that any settlement which admits liability or fault or which imposes any obligation on the indemnified party (other than the payment of sums that are indemnified hereunder) will require the prior written consent of the indemnified party.

8. Termination

   Symmetry may terminate this Agreement immediately upon written notice to Customer if Customer breaches any term of this Agreement. Upon the termination or expiration of this Agreement, unless the parties have entered into a Subscription Service Agreement permitting Customer’s continued use of the Application, Customer will (a) immediately cease use of the Subscription Service. Sections 3, 4, 5, 6, 7, 8, and 9 shall survive any termination of this Agreement.

9. Miscellaneous

   1. Third-Party Software. The Software may contain or include third-party software that is available under and is subject to open source or free software licenses, as detailed in the open source license file that accompanies the Software. The terms of such open source licenses are incorporated by reference into this Agreement.
   2. Governing Law and Dispute Resolution. The Agreement is governed by the internal laws of the State of Delaware, without regard to its conflict of laws principles. Any action or proceeding arising from or relating to this Agreement shall be finally resolved by binding arbitration before a single arbitrator and administered according to the commercial arbitration rules of the American Arbitration Association in effect at the time the action is brought (“AAA Rules”). The arbitrator shall be a person with experience and knowledge in the computer software business and will not have any authority to make any ruling, finding or award that is not consistent with this Agreement. Judgment on the arbitration award may be entered and enforceable by any court of competent jurisdiction. The location of the arbitration will be determined in accordance with the AAA Rules. This Section does not restrict either party’s right to seek injunctive relief in any court of competent jurisdiction.
   3. Injunctive Relief. Customer acknowledges that any breach of its obligations under this Agreement (including by violating the restrictions on use of the Subscription Service, its breach of Section 3 (Ownership) or Section 4 (Confidentiality), will cause irreparable injury to Symmetry for which the remedies at law are inadequate. Therefore, Symmetry is entitled to immediate equitable relief for any such breach, without requirement of posting bond and without the necessity of showing actual money damages.
   4. Entire Agreement. The Agreement, Schedules, and any amendments contain the entire agreement with respect to the subject matter of this Agreement and supersede and replace all prior or contemporaneous proposals, understandings, agreements, negotiations, and representations, oral or written. Any pricing, payment and term length conditions in a Schedule that are inconsistent with the Agreement will control for that Schedule only. Any inconsistent or additional terms of Customer’s purchase order are excluded regardless of Symmetry’s accepting the purchase order for payment purposes. If there is a conflict between these Subscription Service Trial Agreement terms and a Schedule for specific Subscription Services, the terms of the Schedule will control with respect to that specific Subscription Service only. All headings are for reference purposes only and must not affect the interpretation of the Agreement.

If you have questions, we can be reached at:
Symmetry Software LLC
14350 N 87th Street, Suite 310
Scottsdale, Arizona 85260
480-596-1500
legal@symmetry.com