- “Aggregated Statistics” has the meaning set forth in Section 2(f).
- “Authorized User” means Customer and Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Licensed Software under the rights granted to Customer pursuant to these Terms, and (ii) for whom access to the Service or Licensed Software has been purchased hereunder in accordance with the applicable purchase order.
- “Confidential Information” has the meaning set forth in Section 9.
- “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Service.
- “Documentation” means RailFlow's user manuals, handbooks, and guides relating to the Licensed Software provided by Railflow to Customers either electronically or in hard copy form.
- “Feedback” has the meaning set forth in Section 12.
- “Fees” has the meaning set forth in Section 5.
- “Licensed Software” has the meaning set forth in the preamble to these Terms.
- “Railflow IP” means the Service (including any software component of the Service), the Licensed Software, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Railflow IP includes Aggregated Statistics and any information, data, or other content derived from Railflow's monitoring of Customer's access to or use of the Service or Licensed Software but does not include Customer Data.
2. License and Service Terms.
Railflow grants to you a limited, non-transferable, non-exclusive, non-assignable, license to use the Licensed Software in object code form on your premises in accordance with the terms and conditions herein and the restrictions set forth in the software license type applicable to your license. Customer may install and use the licensed edition and version of the Licensed Software specified in the License Certificate within their company provided that the Railflow licensed users remain less than or equal to the TestRail licensed users. Violation of the license terms will trigger the termination clause (11c, 11d).
(b) Free Trial Version.
If you register for a free trial offered by Railflow, Railflow will make Licensed Software available to you on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered (the “Trial Period”). The Trial Version may be used only by you to review, evaluate and demonstrate the Licensed Software internally. The Trial Version may cease operating after the end of the Trial Period ends.
These Terms apply to your use of the Trial Version of Licensed Software during the Trial Period.
3. Documentation License.
Subject to the terms and conditions contained in these Terms, Railflow hereby grants you a non-exclusive, non-sublicensable, non- transferable license for your Authorized Users to use the Documentation solely for your internal business purposes in connection with your use of the Licensed Software.
4. Use Restrictions.
You shall not, and shall not permit any Authorized Users to, use the Licensed Software or Documentation for any purposes beyond the scope of the access granted in these Terms and the terms of any invoice provided by Railflow. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative work, in whole or in part, the Licensed Software, or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Licensed Software or any Documentation except as expressly permitted under these Terms; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Licensed Software, in whole or in part; (iv) use the Licensed Software in order to build a competitive product or service; (v) copy any features, functions or graphics of the Licensed Software; (vi) use the Licensed Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) remove any proprietary notices from the Licensed Software or Documentation; or (viii) use the Licensed Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule. If the restriction set forth in clause (iii) above is prohibited by applicable law, you shall provide Railflow with detailed prior written notice of any such intention to reverse engineer the Licensed Software and shall provide Railflow with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software servicer.
5. Fees and Payment.
Customer shall pay Railflow the fees as described in the applicable invoice ("Fees") on the dates indicated therein. If a payment date is not otherwise specified in the applicable purchase order, all Fees for Licensed Software shall be paid within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date.
6. Reservation of Rights.
Railflow reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Railflow IP.
7. Third-Party Components.
The Licensed Software may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third Party Components”) Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components. Nothing in this Terms limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Components. Railflow makes no warranties or representations as to any Third Party Components.
8. Maintenance and Support Services.
(a) Description. Railflow shall provide maintenance and support services (the “Maintenance and Support Services”) to you set forth in Railflow’s Product Support Manual as it exists from time to time. In addition, as part of the Maintenance and Support Services, Railflow may make available bug fixes, planned feature lists, and other supplemental materials. Railflow makes no representations or warranties of any kind for these materials. (b) Support Fees. Maintenance and Support Services are provided to you without additional charge as part of your license. However, Railflow retains the right to refuse any unreasonable maintenance or support requests, as determined by Railflow in its sole discretion. If Railflow determines that a Customer request is unreasonable, Railflow will provide the rationale in writing upon request by Customer.
9. Confidential Information.
From time to time, Railflow and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under these Terms. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under these Terms, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non- disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
The term of these Terms shall commence upon delivery of the Licensed Software and these Terms shall continue for the period specified for the license type or until terminated by either party in accordance with Section 11. Notwithstanding the foregoing, if you purchased a perpetual license to the Licensed Software, the license shall be perpetual upon full payment of the associated license fees.
Notwithstanding anything contained herein to the contrary, these Terms may be terminated prior to the end of the Term: (a) by mutual written agreement of Railflow and you, (b) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, (c) by either party if the other party materially breaches these Terms and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof; or (d) by Railflow immediately by delivery of written notice thereof to Customer you if you violate the use restrictions set forth in Section 4 Termination shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all fees that have accrued or become payable hereunder. Any right, obligation, or required performance of the parties in these Terms which, by its express terms or nature and context is intended to survive termination of these Terms, will survive any such termination. Railflow will not refund license fees for early terminations.
12. Intellectual Property Ownership; Feedback.
As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Licensed Software; and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, video-conference, or otherwise, suggesting or recommending changes to the Licensed Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, contributions to the forum sections of the website, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
13. Limited Warranty and Warranty Disclaimer.
(a) Limited Warranty. Railflow warrants for the Warranty Period (as defined below) that the Licensed Software (not including any Third Party Components) will conform in all material respects in accordance with its Documentation. If, during the Warranty Period, the Licensed Software fails to comply with the limited warranty set forth in this Section and such failure is not excluded from this warranty pursuant to Section 13(b), Railflow shall, subject to you promptly notifying Railflow in writing of such failure, at its sole option, repair or replaces the Licensed Software, provided that you provide Railflow with all information Railflow reasonably requests to resolve the reported failure, including sufficient information to enable Railflow to recreate such failure. For purposes of these Terms, “Warranty Period” is ninety (90) days after delivery of the Licensed Software to you (the “Warranty Period”) The remedies set forth in this Section 13(a) are Licensee's sole remedies and Licensor's sole liability under the limited warranty set forth in this Section 13(a). (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 13(a), THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND RAILFLOW SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RAILFLOW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. RAILFLOW MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) Railflow Indemnification. (i) Railflow shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Licensed Software, or any use of the Licensed Software in accordance with these Terms, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies Railflow in writing of the Third-Party Claim, cooperates with Railflow, and allows Railflow sole authority to control the defense and settlement of such Third-Party Claim. (ii) If such a Third-Party Claim is made or Railflow anticipates such a Third-Party Claim will be made, Customer agrees to permit Railflow, at Railflow's sole discretion, to (A) modify or replace the Licensed Software, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Licensed Software, as the case may be. If Railflow determines that neither alternative is reasonably available, Railflow may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 14(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Licensed Software infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. (iii) This Section 14(a) will not apply to the extent that any such Third- Party Claim arises from Customer Data or Third-Party Products. (b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Railflow’s option, defend Railflow and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's intellectual property rights; or (ii) based on Customer's or any Authorized User's negligence or willful misconduct or use of the Service or the Licensed Software in a manner not authorized by these Terms; provided that Customer may not settle any Third- Party Claim against Railflow unless Railflow consents to such settlement, and further provided that Railflow will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
15. Limitations of Liability.
IN NO EVENT WILL RAILFLOW BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RAILFLOW WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL RAILFLOW AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RAILFLOW UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
You acknowledge and agree that we have the right, in our sole discretion, to modify these Terms from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on our website. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Service after the effective date of the modifications will be deemed acceptance of the modified terms. Material modifications to these Terms will be sent via email to the address provided by Customer.
17. Governing Law and Jurisdiction.
These Terms are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to these Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
18. Force Majeure.
Railflow is not liable for delay in the performance of its duties, obligations or responsibilities hereunder due to force majeure. A force majeure impediment is an unforeseen event which occurs after acceptance of orders, and which is beyond Railflow’s reasonable control, such as strikes, blockade, war, mobilization, natural disaster, pandemic, supply chain issues, refusal of license by government or other stipulations or restrictions by the authorities, Internet service failures, delays or availability issues (including downtime or service outages) or any other similar or dissimilar cause beyond the control of Railflow. Notwithstanding the foregoing, a force majeure does not extinguish your obligations to pay the applicable Fees hereunder.
Unless you request in writing, which may be via email, to be added to the Railflow unauthorized logos list, you agree to be identified as a customer of Railflow and agree that Railflow may refer to you by name, trade name and/or trademark, if applicable, and may briefly describe your business in Railflow’s marketing materials and on Railflow’s websites. You hereby grant Railflow a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to Railflow pursuant to this Section 19. You also grant Railflow the right to add your name and company logo to our customer list and website.