FUELPLUS APPLICATION SERVICE AGREEMENT FOR TRIAL USAGE
IMPORTANT – READ CAREFULLY: THIS FUELPLUS TRIAL ACCOUNT AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR the legal ENTITY on whose behalf this Trial Account is being opened (such person is referred to herein as “CUSTOMER”, “YOU”, and/or “YOUR”) AND FUELPLUS (“FUELPLUS”, “WE”, “US” and/or, “OUR”). PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT OUT A COPY FOR YOUR RECORDS. THIS AGREEMENT SUPERSEDES ALL PREVIOUS VERSIONS.
BY SELECTING “I AGREE” AND/OR ACCESSING OR OTHERWISE USING THE TRIAL ACCOUNT ENABLED FOR YOU BY FUELPLUS, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND/OR DO NOT INSTALL OR OTHERWISE USE THE TRIAL ACCOUNT.
Please review the User Guides, which can be found under the Help tab in the Application Service during the Trial Account Period, so that you become familiar with the features and functions of the Application Service before you make your purchase.
1.1 “Customer Information” means any data, information, or other materials of any nature whatsoever, provided to FuelPlus by you in the course of implementing and/or using the Application Service.
1.2 “Demonstration Account” means a non-production account that provides access and the ability to use some or all of the features of the Application Service and is populated with fabricated sample data in order to facilitate a more illustrative demonstration experience, as determined by the applicable representative of ours.
1.3 “Trial Account” means a temporary account that provides access to and the ability to use some or all of the features of the Application Service, as determined by the applicable representative of ours and Demonstration Account.
1.4 “Trial Account Period” means the period beginning on the date that you are first provided with access to the Trial Account and ending on the earlier to occur of: thirty (30) days thereafter; or when we disable the Trial Account.
1.5 “Application Service” means OUR on-line business application suite of products and services being made available to you under this Agreement.
1.6 “User Guides” mean the detailed online guides that explain the workflow and setup of features like Planning, Contract Management, Accounting and Operations provided to You by FuelPlus
2. LICENSE GRANTS.
2.1 Trial Account. During the Trial Account Period, and subject to the terms and conditions contained herein, we hereby grant to you a limited, temporary, non-exclusive and non-transferable license for a period of 30_days to access and use the Trial Account solely for the purpose of evaluating the Application Service for procuring a paid subscription to the Application Service for your own internal use and not for production use. You shall be able to access the Trial Account from only one computer terminal at any given time.
2.2 No Assignment; No Other Rights. The rights granted to you under this Section 2 may not be assigned or transferred to any other party, by operation of law or otherwise. For the avoidance of doubt, except as expressly set forth herein, no other rights are granted to you by FuelPlus with respect to the Trial Account. There are no implied rights.
You shall not: (a) modify, disassemble, decompile or reverse engineer the Application Service in whole or in part; (b) copy or otherwise reproduce the Application Service, in whole or in part, except as expressly provided in Section 2 above; (c) remove, modify or otherwise tamper with notices or legends on the Application Service; or (d) use the Trial Account and/or the Application Service in any manner to provide service bureau, time sharing or other computer service to third parties. You shall have no right to license, distribute or otherwise transfer the Trial Account or any rights therein. You may not access the Application Service if you are reviewing it on behalf or at the direction of our direct competitor, except with our prior written consent. In addition, you may not access the Application Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison, or competitive purposes.
Any ideas, feedback, suggestions, requests, questions, comments, results of your testing and evaluation of the Trial Account and the Application Service (“Feedback”) shall become the property of FuelPlus. You hereby assign and agree to assign to FuelPlus all rights, title and interest worldwide in and to such Feedback and the related intellectual property rights and agrees to assist FuelPlus, at our expense, in perfecting and enforcing such rights.
5. CONFIDENTIALITY OBLIGATIONS.
You agree and acknowledge that the Application Service contains proprietary and trade secret information, as well as other intellectual property, that is our sole and exclusive property and that you may obtain or view information or images relating to FuelPlus and the Application Service which you know, or have reason to know, is of a confidential and/or proprietary and/or copyrighted nature (“Confidential Information”). You agree not to disclose the Confidential Information to any third party at any time. Confidential Information shall include, without limitation, the Feedback and the specific design and structure of the Application Service. You shall, at all times, both during the term of this Agreement and at all times thereafter, keep in confidence and trust all of the Confidential Information provided to you. You shall not use the Confidential Information other than as necessary to exercise its rights under this Agreement. You shall take all reasonable steps to prevent unauthorized disclosure or use of the Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. You shall not disclose Confidential Information, including but not limited to screen shots or pictures of the Application Service, to any person or entity other than your officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with you which protect the Confidential Information containing terms and conditions at least as protective of our rights as the terms and conditions herein. These obligations shall not apply to the extent that Confidential Information includes information which: (a) is, or, through no act or failure to act of you, becomes publicly known; or (b) is approved for release by our written authorization. You agree to destroy any Confidential Information upon termination of this Agreement as specified in Section 8.
6. NO WARRANTY.
The Application Service and the Trial Account are provided to you solely for the purpose of evaluation and use on an “AS IS” basis and without warranty. WE DO NOT REPRESENT THAT YOUR USE OF THE APPLICATION SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE APPLICATION SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE APPLICATION SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE APPLICATION SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 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. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE APPLICATION SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
7. NO LIABILITY FOR CONSEQUENTIAL DAMAGES AND LIMITATION ON DIRECT DAMAGES.
IN NO EVENT SHALL WE BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF THE USE OF THE TRIAL ACCOUNT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except with regard to breaches of Sections 2, 3 and 5, the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the one hundred dollars ($100). The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are an essential basis of the barging between the parties and shall apply notwithstanding any failure of essential purpose of any limited remedy.
8. TERM AND TERMINATION.
This Agreement is effective as of the date of acceptance of the Agreement by you and shall continue until the end of the Trial Account Period. At the end of the Trial Account Period FuelPlus shall automatically terminate the Application Service unless otherwise agreed. We may, at our option, extend the Trial Account Period by providing you with prior written notice authorizing such extension of the Trial Account Period. Either party may terminate this Agreement at any time and for any reason, with or without cause, and without penalty, and without compensation of any kind, except as expressly set forth herein, effective after giving written notice of termination to the other party. Upon any termination of this Agreement: (a) You shall immediately cease the use of all of the Trial Account; and (b) we may disable all access to and/or delete your Information. The provisions of Sections 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 16 shall survive any termination or expiration of this Agreement.
9. TRANSMISSION OF DATA.
You understand that the technical processing and transmission of your Electronic Communications is fundamentally necessary to your use of the Application Service. You expressly consent to our interception and storage of Electronic Communications and/or your Data, and you acknowledge and understand that your Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by FuelPlus. You acknowledge and understand that changes to your Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that we are not responsible for any Electronic Communications and/or your Data which are delayed, lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by FuelPlus, including, but not limited to, the Internet. “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
10. ACCESS TO CUSTOMER INFORMATION.
You acknowledge and agree that our account representative that enables your Trial Account may have access to your Information and may have system administrator privileges with respect to the Trial Account.
12. THIRD-PARTY WEBSITES, PRODUCTS AND SERVICES.
The Application Service may provide, or third parties may provide, links to other World Wide Web sites or resources and enable you to connect through the Application Service to be able to use the products and services of various third parties (“Third Party Products and Service”). Because we have no control over such sites and resources and/or the Third Party Products and Service, you agree that we are not responsible for the availability of such external sites or resources and/or Third Party Third Party Products and Service, and do not endorse and are not responsible or liable for any content, advertising, or other materials on or available from third party web sites or vendors. You further agree that we have no control over, do not endorse or warrant and have no responsibility for the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of (a) any Third Party Product or Service that you may purchase through the Service, or (b) any descriptions, promises or other information related to the foregoing. We are not an agent of any provider of Third Party Products and Service in connection with any sale of Third Party Products and Service purchased by you, and you agree that we have no liability for, or relationship to, the sale or purchase of any Third Party Products and Service. We are solely responsible for contacting the applicable provider with respect to any issues pertaining to any Third Party Products and Service.
You acknowledge and agree that you shall not import, export, or re-export, directly or indirectly, any commodity (including, without limitation, the Trial Account or related information) to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of the EU and various European countries. You further agree to defend, indemnify and hold FuelPlus harmless for any losses, costs, claims or other liabilities arising out of your breach of this Section 13.
15. GOVERNING LAW.
This Agreement will be governed by the laws of the State of New York, United States of America as applied to agreements entered into. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any disputes arising out of this Agreement shall be resolved by binding arbitration before the ICC International Court of Arbitration. If you are located in Europe, the place of arbitration shall be Paris. If you are located in the Americas, the place of arbitration shall be New York City and if you are located in Asia or Australia or New Zealand, the place of arbitration shall be Singapore.
16. GENERAL PROVISIONS.
This Agreement is not assignable or transferable, in whole or in part, by you, whether involuntarily, by merger, operation of law or otherwise without our prior written consent. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. In the event any provision of this Agreement is held to be invalid or unenforceable, such provision shall be severed from the remainder of this Agreement, and such remainder will remain in force and effect. This Agreement constitutes the entire agreement between the parties relating to the Trial Account and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements, whether written or oral.
You may not access the Application Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Application Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.