Messenger Trial Agreement

Updated on: Oct 23 2019

 This Dataflix Messenger Trial Agreement (the “Agreement”) is entered by Dataflix Inc. (“Dataflix”) and the other party (“Customer”) filling this “form” (“Dataflix Messenger Registration Form”), on the date (“Effective Date”) customer submits the form and will remain in effect for the duration of the trial period as specified below. Dataflix and Customer collectively may be referred to as the “Parties” and, each individually, as a “Party.” Customer is responsible for carefully reading the terms of this trial agreement before signing this agreement. By submitting the form customer confirms that customer has read and accepts the terms of this agreement. 

The individual who is signing represents and warrants that he or she has the legal power and authority to enter into this Agreement and to legally bind the Customer (“Customer”) to the terms of this Trial Agreement. The terms and conditions of this Agreement shall govern the product Dataflix Messenger (“Messenger”) to be provided by Dataflix during the Trial Period. The term “Dataflix” shall include Dataflix, and any third parties which are providing third party services or products, on behalf of Dataflix, as part of the Trial Services. A Definitions section is included at the end of this Agreement which includes further applicable definitions used in this Agreement.  

1) License Grant/Limitations/Restrictions 

Subject to the terms and conditions of this Agreement, Dataflix hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited license to use Messenger during the Trial Period solely for Customer’s own business purposes and strictly for purposes of its own internal evaluation of Messenger and not for any commercial or competitive purpose. 

2) Limitations on Use 

Customer may not release to any third party the results of any evaluation of Messenger performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of Dataflix. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make Messenger available to any third party or the Content in any way; (ii) modify or make derivative works based upon Messenger or the Content; (iii) reverse engineer Messenger; or (iv) access Messenger in order to build a competitive product or service. Additionally, Customer shall not use Messenger to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.  

3) Trial Period and Full Subscription License 

The Trial Period for Messenger will be for fourteen (14) days from the Effective Date, unless: a) such Trial Period is for a longer term as specified by Dataflix; or b) is extended by mutual Agreement of the parties. Customer acknowledges and agrees that, at the end of the Trial Period, Customer’s access to Messenger will be AUTOMATICALLY terminated, with or without notice, unless Customer elects to license the Services on a paid subscription basis. Customer must contact Dataflix at least two (2) business days prior to the end of the Trial Period if Customer wishes to continue using the Services beyond the Trial Period. 

4) Customer’s Responsibilities 

Customer is responsible for all activity occurring under Customer’s designated User accounts (if any) and shall comply with all applicable laws and regulations in connection with Customer’s use of Messenger, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify Dataflix immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to Messenger; (ii) report to Dataflix immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, Messenger, Services or 

Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Dataflix user or provide false identity information to gain access to or use Messenger. In performing its obligations under this Agreement, in the event that Customer processes credit cards using Messenger, Customer acknowledges its responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”) and agrees to: a) implement and maintain reasonable security measures to protect cardholder data in its possession and b) not take any action when using Messenger to place Dataflix in non-compliance with PCI DSS (e.g. storing any cardholder data (even if encrypted) in any Services custom fields). Customer shall indemnify and hold Dataflix, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that use of the Customer Data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party provided in any such case that Dataflix (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases Dataflix of all liability and does not adversely affect Dataflix’s business or Service); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim. 

5) Customer Data 

Dialogflow Agent’s data is owned and managed by customer. Customer, not Dataflix, shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and Dataflix shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of such Customer Data. Dataflix’s use of Customer Data shall be limited to the purpose of providing Messenger to the Customer. 

6) Intellectual Property Ownership 

Dataflix alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Dataflix Messenger, the Content and the Services and Deliverables (if any), including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to Messenger, to any Deliverable, the Dataflix Technology or the Intellectual Property Rights owned by Dataflix. The Dataflix name, the Dataflix logo, and the product names associated with Messenger are trademarks of Dataflix or third parties, and no right or license is granted to use them. 

7) Suspension and Termination 

Dataflix reserves the right to suspend or terminate this Agreement and Messenger, with or without cause, at any time, with or without notice. Customer may terminate Messenger, with or without cause, at any time, by providing a written notice to Dataflix at support@dataflix.com. 

8) Disclaimer of Warranty 

MESSENGER OR THE SERVICES ARE PROVIDED “AS IS” AND DATAFLIX MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DATAFLIX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. DATAFLIX DOES NOT WARRANT THAT MESSENGER, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DATAFLIX TO ANY THIRD PARTY. DATAFLIX’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATAFLIX IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY DATAFLIX. 

9) Limitation of Liability 

IN NO EVENT SHALL DATAFLIX’S AND ITS LICENSORS BE LIABLE FOR ANY DAMAGES, OF WHATEVER NATURE, AS A RESULT OF THIS AGREEMENT OR MESSENGER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR USE OF MESSENGER, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE MESSENGER, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH MESSENGER, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF DATAFLIX OR DATAFLIX’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

10) Assignment 

Customer may not assign this Agreement to any third party except upon Dataflix’s prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. 

11) Confidentiality 

Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans. If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Notwithstanding the above, Dataflix Confidential Information shall include the Dataflix Technology and all pricing terms offered to Customer under any Order Form, and Customer Confidential Information shall include Customer Data. Confidential Information does not include information which (i) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement or, if applicable, the Post Trial Agreement, and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, attorneys, accountants, and other professional advisors of the Receiving Party, in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement and, if applicable, the Post Trial Agreement. 

12) General/Notices 

This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or Messenger shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara, California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the 

invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Dataflix as a result of this Agreement or use of Messenger. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, (including any other documents referenced therein), comprises the entire agreement between Customer and Dataflix regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. All notices from Customer to Dataflix may be made by emailing legal@dataflix.com and Dataflix may give notice by emailing Customer’s contact as specified on the trial registration form. Customer agrees that “Powered by Dataflix” or similar marks may appear in forms, web pages and other outputs of Messenger. 

13) Definitions 

As used in this Agreement and/or in any Messenger materials associated herewith: 

“Content” means the audio and visual information, documents, software, products and services contained in or made available via Messenger, other than Customer Data; “Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Dataflix or Messenger in the course of using Messenger; “Sample Data” means any pre-populated data provided in Messenger (if any) to enable Customer to use Messenger without entering its own Customer Data; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties; “Dataflix Technology” means all of Dataflix’s proprietary technology (including Sample Data, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Dataflix in providing Messenger; “Service(s)” means Dataflix’s online integrated subscription management, billing, data analysis, to which Customer is being granted access to on a trial basis under this Agreement, including the Dataflix Technology, the Content and any product, service or license belonging to a any third party that is part of Messenger; “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use Messenger and have been supplied temporary user identifications and passwords by Customer (or by Dataflix at Customer’s request); “Trial Services” means access to a designated sub-set of Services and functionality for the purpose of enabling Customer to evaluate the Services during the Trial Period; “Trial Period” means the duration of the Trial Period, starting on the Effective Date, and ending at the end of fourteen (14) days or such other period as mutually agreed by the parties; “Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by Dataflix (either alone or jointly with Customer or others) that result from professional services (if any) provided in connection with the Trial Services. 

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