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Trial Agreement

Revised March 15, 2013

PLEASE READ CAREFULLY: This Cerillion Skyline Trial Agreement ("Agreement") is between the entity who will use the Services identified in the Account Information ("Customer") and Cerillion Technologies Ltd, a limited liability company registered in England No. 3849601 with registered office at 1 Princeton Mews, 167-169 London Road, Kingston upon Thames, Surrey, KT2 6PT, United Kingdom ("Cerillion")

BY CHOOSING THE "I ACCEPT" OPTION, YOU ARE AGREEING ON BEHALF OF CUSTOMER THAT CUSTOMER WILL BE BOUND BY THIS AGREEMENT AND THAT YOU HAVE THE AUTHORITY TO SO BIND CUSTOMER.

1 Definitions

Acceptable Use Policy- Cerillion's policy for acceptable use of Services that access the Internet as defined in Clause 2.4.

Account Information means registration information provided by Customer at initiation of the Cerillion Skyline trial which is relied on by Cerillion in authorising and setting up the trial.

Additional Services - other services, including without limitation support & maintenance, consultancy, implementation, training, data migration, advice or assistance which Cerillion may provide either for additional charge or without charge. Additional Services may be associated with additional terms and conditions.

Agreement  - this Cerillion Skyline Trial Agreement together with any Attachments.

APIs - application programming interfaces Cerillion may provide which provide programming code to interface with and utilize the Services.

Attachments - attachments to this Agreement containing additional terms and conditions associated with Additional Services which are incorporated and made part of this Agreement when so agreed in writing between the two parties.

Cloud Data Centre - a data centre facility from where Cerillion provides the Services and makes them  available for Customer use.

Confidential Information - this Agreement, any Attachments hereto, all Content, data, drawings, benchmark tests, specifications, trade secrets, object code and source code of the Software, and any other proprietary information made available to Customer by Cerillion, including all items marked as "Confidential Information".

Contact Information  - the business contact information of Customer's employees and contractors and information about Customer as a legal entity

Content - any audio and visual information, documents, Software, products, and services made available by Cerillion as part of the Services.

Customer  - the company identified in the Account Information provided during on-line acceptance of this Agreement.

Customer Business Address - the business address of the Customer identified in the Account Information provided during on-line acceptance of this Agreement.

Customer Data  - all data, graphics, software and information, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets, or servlets that are created, installed, uploaded, or transferred in connection with the Services by Customer. Customer Data also includes information provided by Customer for account management.

Evaluation Period  - the period of time which shall be no longer than forty-five (45) days beginning on the date Cerillion provides access to the Services via the Internet to Licensee, unless extended by Cerillion in its sole discretion.

Feedback - any and all suggestions, comments, improvements, or other feedback about the Services that Customer provides to Cerillion either directly or indirectly in any format or media.

Personal Information -any data, either alone or in combination with other information, which is information related to a natural person protected under  EU directive 95/46/EC as amended and/or superseded.

Services - the provision of access via the Internet to audio and visual information, documents, Software, products, and services by Cerillion, to which Customer is being granted access under this Agreement.

User - those who access or use the Services using user account identifications associated with Customer's Account to access the Services.

2 Access and Use of Services

2.1 Access. Customer's use of and access to Services and any Content provided as part of the Services is governed exclusively by this Agreement.  

2.2 License Grant. Cerillion grants to Customer a temporary, personal, non-transferable, limited, non-exclusive and revocable right to access and use the Services during the Evaluation Period solely for the purpose of evaluating the suitability of the Services for Customer's use. Company may not access the Services if Company is a direct competitor of Cerillion. Additionally, Company may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.3 Limitations. The license granted herein is granted solely to Customer, and not, by implication or otherwise, to any parent, subsidiary or affiliate of Customer. Customer may not provide access to the Services to any third party, nor use the Services for any commercial purpose, including but not limited to processing data in support of its own business purposes or on behalf of a third party, Cerillion reserves all rights not expressly granted to Customer. Customer shall not copy, distribute, reproduce, use or allow access to the Services, except as explicitly permitted under this Agreement. Customer shall not modify, adapt, translate, or prepare derivative works from the Services and, to the extent permitted by applicable law, shall not, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services. Customer shall not remove, obscure, or alter Cerillion's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Services. Cerillion's provision of Services hereunder does not constitute a distribution by Cerillion of any Content including any Cerillion proprietary or third party software.

2.4 Acceptable Use Policy. Cerillion's policy for acceptable use is also part of and incorporated into this Agreement and applies to the Services. The policy can be found here ("Acceptable Use Policy"). Changes to this Acceptable Use Policy will be made by posting a new version to the same webpage. Customer agrees to periodically review the website for changes to the Acceptable Use Policy. Customer agrees to and accepts any modified terms by continuing to use the Services after the changes are posted and effective. A change will take effect upon the effective date specified in such notice or posting.

2.5 Support & Additional Services. During the Evaluation Period, Customer may request information & support via an email contact point which will be provided by Cerillion. Cerillion will endeavour to provide (but cannot guarantee) a response to such requests. Cerillion may suspend or modify the Services in part or in whole to carry out preventative or corrective maintenance, whether requested by the Customer, or in response to symptoms detected by Cerillion. In the event that Cerillion agrees to provide Additional Services, such Services may be governed by additional terms and conditions.

2.6 Trademarks. Neither party grants the other the right to use its trademarks, trade names, or other designations in any promotion, publication, or website without prior written consent or as expressly provided in this Agreement.

2.7 Priority.In the event of a conflict, the terms of Attachments prevail over this Agreement, and the latest dated Attachment will prevail over an earlier version of an Attachment, except as may be expressly specified otherwise. Throughout this Agreement, the term "Agreement" includes applicable Attachments and the Acceptable Use Policy. Attachments are part of this Agreement only for those Services to which they apply.

3 Customer Obligations, Representations And Warranties

3.1 Obligations.  Customer agrees to do each of the following: (i) comply with all applicable laws, rules and regulations, including those regarding data privacy, copyright, and export control, and the terms of this Agreement; (ii) use reasonable security precautions for providing access to the Services by its employees or other individuals to whom Customer provides access including private keys and other security options; (iii) cooperate with Cerillion's reasonable investigation of outages, security problems, and any suspected breach of this Agreement; (iv) comply with all license terms or terms of use for any software, content, service or website (including Content) (whether made available to Customer through the Services by Cerillion or a third party) Customer uses or accesses when using the Services; (v) give Cerillion true, accurate, current, and complete Account Information when establishing Customer's account associated with the Services and keep such Account Information up to date; (vi)  prevent unauthorized access to or use of the Services and immediately notify Cerillion of any known or suspected unauthorized use of Customer's account, the Services, or any other breach of security;  (vii) be responsible for all activity occurring under Customer's user accounts which must abide by all applicable local, national, and foreign, laws, treaties and regulations in connection with Customer's use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data.

3.2 Representations and Warranties.  Customer represents and warrants that (i) it has the full power and authority to enter into this Agreement and to grant Cerillion the rights granted herein; (ii) the Customer Data does not and shall not violate or infringe any intellectual property right of any third party; and (iii)  Customer is acquiring the right to access and use the Services for the purposes of a business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Services or this Agreement.

3.3 Confidentiality. Customer agrees not to use Cerillion's Confidential Information except in connection with Customer's authorized use of the Services.  Customer agrees not to disclose Cerillion's Confidential Information  to any third person or party for a period of five (5) years following the termination or expiration of this Agreement except where the Confidential Information:  (i) was in Customer's possession prior to receipt from Cerillion; (ii)  is publicly known or readily ascertainable by proper means; (iii) is rightfully received by Customer from a third party without a duty of confidentiality; (iv) is disclosed by Cerillion to a third party without a duty of confidentiality on the third party; (v) is independently developed or learned by Customer; or (vi) is disclosed by Customer with Cerillion's prior written approval.  Customer will provide reasonable prior notice to Cerillion and will request a protective order if Customer is required to reveal the Confidential Information under a subpoena, court order or other operation of law.

4 Content, Feedback and Customer Data

4.1 Content. Cerillion and its licensors retain all right, title, and interest in the Content.

4.2 Feedback. Cerillion shall own all right, title and interest in and to the Feedback.  Customer hereby irrevocably assigns to Cerillion all right, title, and interest in and to the Feedback and agrees to provide Cerillion with any assistance Cerillion may request to document, perfect, and maintain Cerillion's rights in the Feedback.

4.3 Customer Data. Customer retains all right, title, and interest in Customer Data. By any party using Customer's Account and adding, creating, installing, uploading, or transferring Customer Data for use in conjunction with the Services, Customer grants Cerillion and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable license and approval to host, cache, copy, and display Customer Data for the purpose of and in conjunction with providing the Services for the term of this Agreement. Customer represents that Customer has and will keep in effect during Customer's use of the Services, all licenses and approvals necessary to grant Cerillion and its subcontractors these rights and that they will be provided at no charge to Cerillion. Customer is responsible for complying with the terms of any such license agreements including entitlements and permitted uses. Customer represents that by adding, creating, installing, uploading, or transferring Customer Data, or using APIs to do any of the foregoing, for use in conjunction with the Services, Customer is not exceeding any specified entitlement or permitted use or violating applicable license agreements or applicable laws. Customer agrees to reimburse Cerillion for any reasonable costs and other amounts that Cerillion may incur from Customer's failure to obtain these licenses or approvals.

4.4 Customer Data Responsibilities. Customer is responsible for all Customer Data, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support. Customer is also responsible for any Personal Information or any information Customer considers confidential that is included in the Customer Data. Customer acknowledges that Cerillion does not control the transfer of data over telecommunications facilities, including the Internet.

4.5 Customer Data Confidentiality. Where Customer Data is clearly identified as Customer Confidential Information, Cerillion will:

a. use the same care and discretion to avoid disclosure of such Customer Confidential Information as it uses to avoid disclosure of its own similar information;

b. disclose Customer Confidential Information only to its employees or employees who have a need to know to provide the Services; and

c. disclose Customer Confidential Information to subcontractors who have a need to know to provide the Services and Cerillion will have appropriate agreements in place with its subcontractors to meet the confidentiality obligations as set forth in this section. Cerillion may disclose Customer Confidential Information to the extent required by law. However, Cerillion will, to the extent possible, give the Customer prompt notice to allow Customer a reasonable opportunity to obtain a protective order.

4.6 Cerillion is under no obligation for any information Customer identified as Customer Confidential Information that is:

a. already in Cerillion's possession without obligation of confidentiality;

b. developed independently;

c. obtained from a source other than the exposure during the provision of the Services without obligation of confidentiality;

d. publicly available through no fault of Cerillion; or

e. disclosed by Customer to another without obligation of confidentiality.

4.7 Cerillion is free to use in its business activities the ideas, concepts and know-how contained in any Customer Data which are retained in the memories of Cerillion employees who have had access to the Customer Confidential Information during the performance of the Services

5 Privacy

5.1 Collection of Personal Information.  Customer's access to the Services is via a Cerillion-controlled website.  As such, Customer's interaction with the website, and any Personal Information that may be collected by the website, is governed by the Cerillion Privacy Policy. 

5.2 Data Controller. Customer is and shall remain the data controller of the Customer Data it uploads or provides as part of the Services.  Cerillion is a service provider to Customer and has the role of data processor.  Cerillion does not own or otherwise act as data controller of the Customer Data.  It is Customer's responsibility to verify that the security and privacy protections offered by the Services are adequate and in compliance with all applicable laws governing the type of data included in the Customer Data which is uploaded in or provided to the Services.

5.3 Data Processing. Cerillion will only process such Personal Information in a manner which is reasonably necessary to provide the Services and only for that purpose. Customer agrees that the delivery of the Services, as defined herein, is consistent with its processing instructions with respect to the Personal Data.

5.4 Data Transfer. Customer agrees that Cerillion may transfer Customer's Customer Data, including Customer's Personal Information, across a country border, including outside the EEA or to a country that has not been declared by the European Commission to provide an adequate level of data protection, to such entities and countries as Cerillion reasonably determines appropriate or useful to provide the Services. Customer consents to the Services being provided by the aforementioned entities or countries, and is solely responsible for determining that any transfer by Cerillion or Customer of Personal Information, across a country border under the terms of the Agreement, complies with the applicable data protection laws.

5.5 Business Contact Information. Customer agrees that Cerillion may process Contact Information in furtherance of Cerillion's business relationship with Customer. This contact information can be stored, disclosed internally and processed by Cerillion and its subsidiaries, Business Partners and subcontractors wherever they do business, solely for the purpose described above provided that these companies comply with applicable data privacy laws related to this processing. Where required by applicable law, Customer has notified and obtained the consent of the individuals whose contact information may be stored, disclosed internally and processed and will forward their requests to access, update, correct or delete their contact information to Cerillion who will then comply with those requests.

6 Warranties & Disclaimers

6.1 Cerillion does not warrant that the Service will be uninterrupted, error-free, or completely secure.  Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of Customer privacy, confidential information, Customer Data, and/or property.  Cerillion has no obligation to provide security other than as stated in this Agreement.  To the extent permitted by law, Cerillion disclaims any and all warranties, statutory or otherwise,  not expressly stated in this Agreement, including the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and noninfringement.  Customer is solely responsible for the suitability of the services chosen.  The Services are provided "AS IS".  Any Additional Services Cerillion may perform for Customer at Customer's request are provided "AS IS", unless otherwise stated in terms and conditions provided to Customer in writing at the time of the supply of such Additional Services.

6.2 The disclaimers of this Clause 6 apply also to any suppliers and subcontractors of Cerillion.

7 Term, Termination & Suspension

7.1 Term. This Agreement comes into force and effect upon the Customer representative accepting the terms and conditions of this Agreement by selecting the "I ACCEPT" option, and Cerillion making available the Services for use. It continues until the end of the Evaluation Period, unless terminated earlier in accordance with the provisions of this Clause 7.

7.2 ANY CUSTOMER DATA ENTERED INTO THE SERVICES BY THE CUSTOMER, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR THE CUSTOMER, DURING THE PERIOD OF THE TRIAL AGREEMENT WILL BE PERMANENTLY LOST ON TERMINATION. CUSTOMER MUST EXPORT ITS CONTENT BEFORE THE END OF THE EVALUATION PERIOD OR THE ENTERED DATA WILL BE PERMANENTLY LOST.

7.3 Agreement Termination and Closing Account. Customer may terminate this Agreement on written notice to Cerillion. Prior to any such request for termination Customer agrees, and is required, to delete all Customer Data. Upon receipt of a termination request, Cerillion will proceed to close Customer's Account.

7.4 Termination of the Services by Cerillion. Cerillion may terminate Customer's access to Services, in whole or in part, or prevent access to any new Services if; i) in Cerillion's sole discretion there is an emergency situation, including but not limited to breach of security; ii) continued provision of Services, in whole or in part or Customer's use of Services in whole or in part may cause Cerillion to violate any law, rule, regulation, governmental policy, or court order; iii) use of Services in whole or in part, is inconsistent with a contractual commitment or intellectual property right of a third party; iv) Customer materially violates the terms of this Agreement, including providing false Customer Account Information; or v) there is a violation of the Acceptable Use Policy.

7.5 Suspected Violations. Cerillion reserves the right to investigate complaints relating to use of the Services by Customer, Users, or someone using Services associated with Customer's Account, or any potential violation of the terms of this Agreement (including but not limited to the Acceptable Use Policy, Additional Terms or other separate license agreement). Notwithstanding any other terms, policies, or other rights available, Cerillion may take any action it deems appropriate, including without limitation, disclosing information to enforcement agencies. In addition to any other remedies available to it, Cerillion reserves the right to:

a. restrict Customer's access to or terminate any of the Services, as described above;

b. require the removal of offending Customer Data; or

c. exercise other rights and remedies available at law or in equity.

7.6 Except for an emergency as determined by Cerillion or as may otherwise be required by law, before undertaking the remedies described in Clauses 7.4 (Termination of Services by Cerillion) and 7.5 (Suspected Violations), Cerillion will attempt to notify the Customer by any reasonable practical means under the circumstances. Customer is required to immediately backup Customer Data or demonstrate to Cerillion that the violation has been remedied. Customer must take such action, at most within three business days.

7.7 Survival. Any terms of this Agreement that by their nature extend beyond the termination of Services remain in effect until fulfilled, and apply to both parties' respective successors and assignees.

8 Indemnity

8.1 Customer agrees to defend Cerillion and its subcontractors at Customer's expense, and pay all costs, damages, and reasonable attorneys' fees that a court finally awards (or which Customer agrees to in any final settlement) for any third party claim arising out of or related to i) Customer Data or ii) any violation of this Agreement, including but not limited to the Acceptable Use Policy by Customer or any entity using Customer's Account.

8.2 For indemnification under this clause 8, Cerillion will:

a. promptly notify Customer in writing of the claim; and

b. allow Customer to control, and reasonably cooperate with Customer in, the defence and any related settlement negotiations.

8.3 Customer agrees to promptly notify Cerillion of any event or circumstance related to Services, Customer Data or Customer's use of Services, that Customer becomes aware of which could lead to a claim or demand against Cerillion. Customer agrees to provide all relevant information relating to such event or circumstance to Cerillion at Cerillion's request.

9 Limitation of Liability

9.1 Under no circumstances is Cerillion, its suppliers or subcontractors liable for any of the following even if informed of their possibility:

a. Loss of, or damage to, Customer Data;

b. special, incidental, exemplary, or indirect damages or consequential damages; or

c. wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.

9.2 In no event will Cerillion's liability for actual direct damages arising out of this agreement or the use or performance of the Services exceed £1,000. This limit also applies to any of Cerillion's suppliers and, subcontractors. Customer acknowledges and agrees that any action for recovery of costs and damages is to  be made against Cerillion, and not its suppliers and subcontractors, but that the limitation detailed in this clause is the maximum for which Cerillion and its suppliers and subcontractors are collectively responsible.

9.3 Damages for bodily injury (including death), and damage to real property and tangible personal property for which Cerillion is legally liable are not subject to a cap on the amount of damages.

9.4 Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or the Services more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or the Services and all respective rights related to any such action lapse.

10 General

10.1 Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Cerillion. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.2 Notices. All notices required to be sent hereunder to Cerillion shall be in writing and shall be deemed to have been given three business days after being mailed by first class mail to the address listed above. Cerillion will send notices to Customer  to the email address identified in the Account Information.  Subject to the foregoing, Customer and Cerillion consent to the use of electronic means, email, and facsimile transmissions to send and receive communications in connection with our business relationship arising out of this Agreement, and such communications are acceptable as a signed writing.

10.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable consistent with its objective. In any case, the remaining provisions of this Agreement remain in full force and effect.

10.4 Disputes. In the event of a dispute between Cerillion and Customer regarding the interpretation of applicable law or this Agreement, Cerillion's reasonable determination shall control. 

10.5 Force Majeure. Neither Cerillion nor the Customer shall be held liable to the other or be held in breach of this Agreement if prevented hindered or delayed in the performance or observance of its obligations hereunder resulting from acts beyond the reasonable control of the party concerned.

10.6 Waiver. The waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.

10.7 Rights of Third Parties. Unless expressly provided in this Agreement, no express term of this Agreement or any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

10.8 No Agency. This Agreement and Services provided under it do not create an agency, joint venture, or partnership between Customer and Cerillion. Each party is free to enter into similar agreements with others to develop, acquire or provide competitive services.

10.9 Compliance with Laws. Cerillion will comply with laws applicable to Cerillion generally as a provider of information technology services. Cerillion is not performing Customer's regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer's business, including those relating to Services hereunder. The Services are not designed to comply with any particular law or regulations. Customer is responsible for complying with laws, rules, and regulations that may be applicable to Customer Data and Customer's use of the Services. Customer agrees not to place or allow any Customer Data within the Services that require any specific legal or regulatory compliance by Cerillion except as expressly stated in the Agreement. Regardless of where Customer or Users are located when accessing the Services, Customer agrees to comply with all applicable export and import laws and regulations, associated embargo and sanctions regulations and prohibitions on export for certain end uses or by any prohibited end users. Customer represents that Customer Data will not, in whole or part, be controlled under the U.S. International Traffic in Arms Regulation (ITAR). Customer is prohibited from exporting, re-exporting, diverting transfer, disclosing or permitting access to any portion of the Services, Customer Data, or related technical information, directly or indirectly, in violation of such export and import laws and regulations. Customer acknowledges that Cerillion may use global resources (non-permanent residents used locally and personnel in locations worldwide) to remotely support the delivery of Services. Customer represents that no Customer Data accessible to Cerillion for the Services will require an export license or is restricted from export to any Cerillion global resource or personnel under applicable export control laws.

10.10   Entire Agreement. This Agreement shall constitute the complete agreement between the parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Nothing in this item shall have the effect of excluding or limiting liability for fraud. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement. Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate applicable law.

10.11   Governing Law and Jurisdiction. This Agreement shall be subject to, governed by, and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English Courts.