Evaluation Terms of Service
These Evaluation Terms of Service governs your use of the Ably Solution during your Evaluation Trial as set forth in the Order.
1. Defined Terms
"Ably Solution": the services, features, functionality, data and content made available to you as set forth in an Order, as well as the Client Software and any related documentation.
"Application": the software application owned or controlled by you, and configured, using the Client Software, to utilize the Ably Solution.
"Client Software": the software for use on your computer or device (server and client) that we provide as part of the Ably Solution, as may be updated or modified by us in our sole discretion on one or more occasions.
"Content": text, images, graphics, photos, video, audio, and any other content, information or data, created, derived from or accessible via use of the Ably Solution, or otherwise made available by and to Ably end users.
"Data Processing Addendum" or "DPA": the Data Processing Addendum to these Terms, set forth at https://ably.com/data-processing-addendum, as may be amended on one or more occasions.
"Evaluation Trial": provision of the Ably Solution free of charge, including provision of the free account level of service.
"Order": the online signup page or separate ordering form (as may be amended), digitally or physically accepted by you, setting forth the Evaluation Trial and other associated terms.
"Services": the services, such as professional and support services, that Ably may provide under these Terms and the Order.
"Terms": these Ably Evaluation Terms of Service and the Order, if any, referencing this agreement.
"We", "us", "our" or "Ably": Ably Realtime Ltd., organized under the laws of England.
"You" or "your": the individual using the Ably Solution, or clicking "accept" or "agree" (or otherwise demonstrating acceptance of the Terms) where indicated, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual and/or that accepted an Order, and all affiliates thereto.
2. Evaluation of the Ably Solution
2.1 Availability. Subject to your compliance with these Terms, we will make available an Evaluation Trial subscription to the Ably Solution to you pursuant to these Terms and in accordance with the applicable Order(s) during the term of your Evaluation Trial. You may not use the Ably Solution if you barred from doing so under the laws of the United States or other countries including the country in which you are resident or from which you use the Ably Solution.
2.2 Evaluation Trial. Any Content, data, personalizations, integrations, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you purchase to the applicable Ably Solution. Except as the parties may otherwise agree in the Order, we are under no obligation to provide Services during or in support of the Evaluation Trial. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. You must cancel the Evaluation Trial by the end of the stated number of days in the Evaluation Trial offer to avoid incurring charges, unless we notify you otherwise. If you do not cancel at the end of the Evaluation Trial period, we may charge you for the subscription. Continued use of an access to the Ably Solution after the Evaluation Trial will be governed by the Ably Terms of Service at https://ably.com/terms. You hereby agree to such terms effective upon the end of the Evaluation Trial.
2.3 Consent to Emails. You agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Ably Solution, including notifications related to your subscriptions, Services, administrative notices and service announcements or changes.
2.4 Reservation of Rights. We retain all right, title and interest in and to the Ably Solution and our Content, and all associated intellectual property rights. We grant no licensed rights to our patents. You retain all right, title and interest in and to your Content and all associated intellectual property rights, subject to section 3.4.
3. Use of Ably Solution
3.1 Necessary Systems. Access to and ability to effectively use the Ably Solution or Services is conditioned on your procurement of all necessary system, hardware, software, operating environment, applications, connectivity, and network access. You shall comply with our Acceptable Use Policy at https://ably.com/acceptable-use-policy.
3.2 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, ratings, comments, suggestions, or improvements, that you, or any employee or agent thereof, may at any time disclose or submit to us relating to the Ably Solution or the Services for our business purposes.
3.3 Unauthorized Use. Your use of the Ably Solution must be in compliance with applicable law. You shall not use or access the Ably Solution: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
3.4 License to Content. You hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, modify, create derivative works of, perform, display and distribute Content for purposes of providing the Ably Solution.
4. Client Software
4.1 License to Use. Subject to your compliance with the obligations of these Terms, we hereby grant to you a worldwide, non-sublicensable, non-transferable, and non-exclusive license to (a) install and use the applicable components of the Client Software on any computing device on which the Client Software is intended to run, and any Ably documentation and APIs, for your internal or personal use in support of your business operations, in the development, testing and operation of your Application, and in setting up the Ably Solution in your environment; and (b) reproduce and distribute copies of the applicable components of the Client Software (designated by us as client libraries suitable for such use), solely as permanently embedded in your Application, and solely for the purpose of utilizing the Ably Solution.
4.2 Unauthorized Use. Except as set forth above, you will not (a) make more than the number of copies of Client Software reasonably required for authorized use and distribution as permitted by section 4.1; (b) modify, or create derivative works or improvements of, the Client Software; or (c) sublicense, rent, lease, or host the Client Software. All rights not expressly granted in section 4.1 are reserved to us. You will have no right or license to the Client Software other than the rights expressly granted by us.
4.3 Reverse Engineering. You shall not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the Client Software, or work around technical protections or limitations associated with the Client Software, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; and (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Client Software; (c) such activity is confined to those parts of the Client Software which are necessary to achieve interoperability; and (d) we have not made such information available to you under reasonable terms and conditions upon Customer's request sent to [email protected]. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Client Software. You shall not circumvent or bypass any technological protection measures in or relating to the Ably Solution or enable access by unauthorized third party applications.
4.4 Open Source. Certain components or libraries included in or bundled with the Client Software may be covered by open source licenses. To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section, solely with respect to those libraries or components that are licensed under such open source licenses.
4.5 Account Data. While we will endeavor to back up data, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that your Content will not be retrievable or accessible except via your authorized use of the Ably Solution, and that we are under no obligation to compile and return to you your Content, including if you elect to deactivate your account, except as we may otherwise agree in writing.
5.1 Provision of Services. Subject to your compliance with these Terms, including payment obligations, we may provide Services if and as set out in the Order.
5.2 Services Deliverables. We retain all right, title and interest in and to the Ably Solution and any "Services Deliverables", defined as deliverables, software, materials, data, information or content provided to you in connection with your use of the Ably Solution, or developed as part of the Services, and all associated intellectual property rights. We grant to you during the Evaluation Trial a non-exclusive, non-transferable, worldwide license to use such Services Deliverables solely for your internal operations in connection with your authorized use of the Ably Solution. The licenses set forth in this section are the only licenses granted to you with respect to the Services Deliverables or associated intellectual property rights.
6. Limitation of Liability
6.2 Indemnification. You hereby agree to fully indemnify, defend and hold harmless Ably, its affiliates, and officers, directors, employees and agents of Ably and its affiliates, from and against any and all claims, losses, damages, judgments, awards, costs, liabilities, expenses, sanctions, and fees (including our reasonable in-house and external lawyers fees and costs) directly or indirectly caused by or incurred by reason of a third party allegation, lawsuit, claim or proceeding, arising out of or related to (a) Content; (b) your end users or any conduct or activity of your end users; (c) breach of these Terms; (d) infringement of intellectual property rights; or (e) your business activities. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You shall not settle or compromise any such claims without our prior written consent.
7. Term & Termination
The Evaluation Trial commences and expires on the dates set forth in the Order and will not in any event continue for a duration of longer than 90 days. Either party may terminate the Evaluation Trial at any time immediately upon notice.
8. General Provisions
8.1 Data Protection. You will take all necessary and reasonable steps to ensure that you have full legal right and authority to disclose and process all personal and personally identifying data, and that the processing of such data will not violate any applicable data protection or data privacy laws. You acknowledge that Ably is a data processor to the extent Ably processes personal data on your behalf as part of the Ably Solution, and that you are the data controller. The parties hereby agree to the terms of the DPA.
8.2 Export Control. You agree to comply with all export and import laws and regulations of the United States, the United Kingdom, the European Union, and other applicable jurisdictions. Without limiting the foregoing: (a) you represent and warrant that you are not listed on any government or international list of prohibited, sanctioned, or restricted parties, or located in or a national of a country that is subject to any government or international embargo, sanction or designation, (b) you will not (and will not permit any third parties to) access or use the Ably Solution in violation of any export embargo, prohibition or restriction, or applicable law, and (c) you will not submit any information or application that is controlled under the U.S. International Traffic in Arms Regulations or similar laws or regulations.
8.3 Governing Law. The Subject Matter (as defined in section 6.1), and any disputes between us and related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of England.
8.4 Dispute Resolution. (A) Any disputes between or claims brought by you or us arising out of or related to the Subject Matter (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes (subject to section 8.4(B) below) will be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce in effect at the time of arbitration except as inconsistent with this section. The arbitration will be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in London, England. The arbitrator will apply the law specified in section 8.3 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion. (B) Notwithstanding the foregoing, nothing in this section will preclude the right and ability to bypass arbitration and file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto.
8.5 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
8.6 Miscellaneous. The Terms constitute the entire agreement between you and us and govern your use of the Ably Solution and Services during the Evaluation Trial, superseding any prior agreements, understandings, communications or proposals. The terms of any click-wrap, on-line or similar agreement, and the terms of any purchase order, presented by you will be of no force or effect unless separately agreed to in an independent writing signed by an officer of Ably, who is the only person with authority to agree to such terms, order or agreement.