FREE-TRIAL SUBSCRIPTION AGREEMENT
Last Modified: February 1, 2023
1) Free-Trial Subscription. This TOTOGI Charging-as-a-Service Free-Trial Subscription Agreement (this “Agreement”) contains terms and conditions that govern your acquisition of subscriptions to, and use of, TOTOGI Charging-as-a-Service (defined below), and is a contract between TOTOGI, Inc., a Delaware corporation (“TOTOGI”), and you or the entity or organization that you represent. If you are an individual using TOTOGI Charging-as-a-Service for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age or have otherwise reached the age of majority where you reside, and that you have the right, power, and authority to enter into this Agreement. If you are using TOTOGI Charging-as-a-Service on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of majority where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer. The purpose of the TOTOGI Free-Trial Subscription program is to make the TOTOGI plan-design software, services, and related documentation, materials, and information (collectively, the “TOTOGI Charging-as-a-Service”) available to participants to determine whether to purchase a license to the TOTOGI Plan Design software. This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use TOTOGI Charging-as-a-Service, or (2) when you click an “I Accept,” “Sign up” or similar button or check box referencing this Agreement (the “Effective Date”).
2) Use of TOTOGI Charging-as-a-Service. TOTOGI may, in its sole discretion, provide you with software or services as part of TOTOGI Charging-as-a-Service. Your use of such software or services will be subject to the terms and conditions of this Agreement and any other applicable license agreement. Further, TOTOGI Charging-as-a-Service may enable access to TOTOGI services and third-party services and websites (the “Services”). Subject to your strict compliance with this Agreement, TOTOGI hereby grants you a non-exclusive, non-sub-licensable, and non-transferable license to use TOTOGI Charging-as-a-Service solely for evaluation purposes and only in connection with the Free-Trial Subscription program. This license does not grant you the right to use TOTOGI Charging-as-a-Service for any other purpose, or to disclose, reproduce, distribute, modify, or create derivative works of, TOTOGI Charging-as-a-Service. You agree not to decompile, reverse engineer, disassemble, decrypt, decode, adapt, or otherwise attempt to derive or gain access to the source code of TOTOGI Charging-as-a-Service. You agree that you will use TOTOGI Charging-as-a-Service solely for evaluation purposes in connection with the Free-Trial Subscription program, and will not rent, sell, lease, sublicense, assign, distribute, publish, or otherwise transfer TOTOGI Charging-as-a-Service. TOTOGI retains ownership of all TOTOGI Charging-as-a-Service and reserves all rights not expressly granted by this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any intellectual property rights or other right, title, or interest in or to TOTOGI Charging-as-a-Service.
3) Your Responsibilities. You are responsible for all uses of TOTOGI Charging-as-a-Service resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. You are responsible for all acts and omissions of your employees in connection with the use of TOTOGI Charging-as-a-Service. You will use reasonable efforts to make employees aware of this Agreement’s requirements and will ensure employees comply with such requirements.
4) Third-Party Software and Information. TOTOGI Charging-as-a-Service may include third-party software and other copyrighted material (“Third-Party Products”). Such Third-Party Products are subject to their own license terms. Reference to third parties or Third-Party Products in any TOTOGI materials, advertising, promotions, or coupons is for informational purposes only and is not intended as an endorsement or a recommendation. All Third-Party Product terms are supplied by the applicable third party.
5) Intellectual Property; Feedback
5.1) Reservation of Rights. You acknowledge that, as between you and TOTOGI, TOTOGI owns all right, title, and interest, including all intellectual property rights, in and to TOTOGI Charging-as-a-Service and any Third-Party Products.
5.2) Feedback. You may submit bug reports, enhancement requests, issue reports, support information, and other feedback (collectively, “Feedback”) to TOTOGI. You hereby assign to TOTOGI, on your own behalf and on behalf of your Employees, contractors, and agents, all right, title, and interest in and to any Feedback. TOTOGI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property contained in the Feedback, for any purpose whatsoever; provided, however, that TOTOGI is not required to use any Feedback.
6) No Export. You agree that you will not, directly or indirectly, export or re-export or release any of TOTOGI Charging-as-a-Service or any Confidential Information received from TOTOGI. TOTOGI Charging-as-a-Service may not be exported or re-exported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of “Specially Designated Nationals” or the U.S. Department of Commerce’s “Denied Person’s List” or “Entity List” or any other restricted-party lists. You represent and warrant that you are not located in any such country or on any such list. You also agree not to use TOTOGI Charging-as-a-Service for any purposes prohibited by United States law. You further agree not to transfer or export any product, process, or service that is derived from TOTOGI Charging-as-a-Service.
7) Data Use.
7.1) Usage Data. You acknowledge and agree that TOTOGI may collect, use, store, transmit, process, and analyze diagnostic, technical, and usage logs and information regarding your use of TOTOGI Charging-as-a-Service and any other TOTOGI Charging-as-a-Service or services (“Usage Data”). Usage Data may also include unique device identifiers and, if “Location Services” is enabled, certain location information. Usage Data will otherwise not contain any personally identifiable information. You agree that TOTOGI may share Usage Data with third parties solely for the purpose of improving third-party products and services operating on or in connection with TOTOGI-branded products.
7.2) Your Data. You may choose to put your own data (“Customer Data”) into TOTOGI Charging-as-a-Service. TOTOGI makes no guarantee as to the availability or security of Customer Data and may limit the speed with which you can import or access such data. You hereby grant TOTOGI a limited license to use the Customer Data solely for testing and evaluation purposes and only in connection with this Free-Trial Subscription program.
7.3) Data Loss. TOTOGI Charging-as-a-Service may have errors or inaccuracies that could cause failures, corruption, or loss of data and information from your computer or device, or from peripheral equipment (including, without limitation, servers, and printers) connected thereto. TOTOGI strongly encourages you to back up all data and information on your computers, devices, and any peripherals prior to participating in the Free-Trial Subscription program. TOTOGI EXPRESSLY DISCLAIMS LIABILITY FOR ANY DATA LOSS. TOTOGI Charging-as-a-Service is not intended for commercial use and should not be used in pre-production, production, or business-critical systems.
8) No Warranty. TOTOGI PROVIDES TOTOGI Charging-as-a-Service AND ALL CONFIDENTIAL INFORMATION ON A STRICTLY “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TOTOGI DOES NOT WARRANT THAT TOTOGI Charging-as-a-Service OR OTHER CONFIDENTIAL INFORMATION, AND ANY PRODUCTS OR RESULTS DERIVED FROM THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR FREE OF HARMFUL CODE OR ERRORS. YOU ASSUME ALL RISKS AND ALL COSTS ASSOCIATED WITH TESTING, INSTALLING, AND USING TOTOGI Charging-as-a-Service AND OTHER CONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY BACKUP EXPENSES, COSTS INCURRED IN THE USE OF TOTOGI Charging-as-a-Service ON YOUR COMPUTER, DEVICES, OR PERIPHERALS, AND ANY DAMAGE TO ANY EQUIPMENT, SOFTWARE, INFORMATION, OR DATA.
9) Disclaimer of Liability. TOTOGI WILL NOT BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FOR: (1) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS; (2) LOSS OF GOODWILL OR REPUTATION; (3) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (4) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TOTOGI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES WERE OTHERWISE FORESEEABLE. TOTOGI’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE AMOUNT OF ONE THOUSAND DOLLARS ($1000.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10) Term and Termination. The term of this Agreement is fourteen (14) days. You may terminate this Agreement for any reason and at any time upon written notice to TOTOGI. If you are unable to remove all TOTOGI Charging-as-a-Service from your computer and devices, you will so notify TOTOGI. TOTOGI may terminate this Agreement at any time, for any reason, upon written notice to you. Your license to use TOTOGI Charging-as-a-Service will terminate automatically without notice from TOTOGI after seven (7) days have elapsed since the Effective Date.
11) General. No delay or failure to act under this Agreement will constitute a waiver unless expressly waived in writing and signed by a duly authorized representative of TOTOGI, and no single waiver will constitute a continuing or subsequent waiver. Any dispute between you and TOTOGI arising out of or relating to this Agreement, TOTOGI Charging-as-a-Service, or your relationship with TOTOGI, will be governed by the laws of the State of Texas, without reference to its conflicts of law principles. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the state or federal courts in Austin, Texas, and you irrevocably: (a) submit to the exclusive jurisdiction of such courts; and (b) waive any objection to such courts based on venue or inconvenience. You further waive any right to a jury trial. Service of process, summons, notice or other document by mail to such address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This Agreement may not be assigned by you in whole or in part, and any attempted assignment will be void. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and eﬀect and enforceable. This Agreement, including any appendices made eﬀective pursuant to this Agreement and any additional licenses accompanying TOTOGI Charging-as-a-Service, constitutes the entire agreement with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written agreements with respect thereto. Except as expressly set forth in this Agreement, any waiver or amendment of any provision of this Agreement will be eﬀective only if in writing and signed by authorized representatives of both parties.