TapRooT® Software Trial Agreement

TapRooT® VI Trial Agreement

CAREFULLY READ THE FOLLOWING TapRooT® VI TRIAL AGREEMENT (the “Agreement”) BEFORE USING TapRooT® VI TRIAL (the “PROGRAM”).  THIS AGREEMENT GOVERNS LICENSEE’S USE OF THE PROGRAM PROVIDED BY SYSTEM IMPROVEMENTS, INC. (“SYSTEM IMPROVEMENTS” OR “SI”), a Tennessee corporation having its principal place of business at 238 S. Peters Rd., Suite 301, Knoxville, TN 37923. LICENSEE EXPRESSLY ACCEPTS THE TERMS AND CONDITIONS SET FORTH BELOW. 

1. DEFINITIONS

  1. TapRooT® Causes – The Basic Cause Categories (e.g. Procedures, Training, etc.), Near Root Causes (e.g. No Training, Understanding NI, etc.), and Root Causes (e.g. Task Not Analyzed, Decided not to Train, etc.) that are found on theTapRooT® Root Cause Tree®
  2. Licensee – Company that wishes to use the PROGRAM for a Trial Period and that has executed, along with SI, a TapRooT® VI Trial Letter Agreement and paid the required Trial PROGRAM fee.
  3. Licensee Data – Data that is derived directly from an incident and is not the data or intellectual property of System Improvements and is entered into the PROGRAM by LICENSEE during the Trial Period.
  4. TapRooT® VI TRIAL PROGRAM or the “PROGRAM” – The TapRooT® VI Software offered on a temporary basis in a web-based format per the terms of this Agreement.
  5. Trial PROGRAM Fee – The fee paid to access and use the PROGRAM during the Trial Period. 
  6. Trial Period – The time period during which Licensee has access to the PROGRAM as set forth in the TapRooT® Trial Letter Agreement executed by LICENSEE and SI.
  7. TapRooT® Website – www.taproot.com

2. PROGRAMS AND USE GRANT

  1. During the Trial Period only and subject to the terms of this Agreement and the TapRooT® Trial Letter Agreement, System Improvements hereby grants to the Licensee a non­exclusive, non­transferable right to access and use the PROGRAM via the Trial Site for Licensee’s internal business purposes.  Licensee agrees to limit use of the PROGRAM to its full-time employees that are necessary to evaluate the PROGRAM.  Licensee shall not provide access to the PROGRAM to any Contractor or third-party. 
  2. Licensee acknowledges that the PROGRAM will be web-based only pursuant to the terms of this Agreement.  SI will provide access to the PROGRAM by hosting TapRooT® VI on a shared server and allowing the Licensee to login through a Trial Site.  The PROGRAM will not be installed on any servers or other computer equipment owned or controlled by Licensee. 
  3. Licensee is solely responsible for all facilities and materials not specifically undertaken by SI hereunder. Licensee shall provide all computers or other points of access, maintain adequate, uninterrupted electrical power, supply and maintain broadband internet access, comply with system requirements, and shall be solely responsible for the performance fitness and compatibility of such access. SI undertakes no obligations and accepts no responsibility or liability for the configuration, management, performance or any other issue relating to Licensee’s internal network, computers, or internet access.
  4. SI will provide periodic bug fixes, corrections, modifications, enhancements, upgrades and new releases to the PROGRAM to ensure the reasonable functionality of the PROGRAM.
  5. SI will use reasonable efforts to make the PROGRAM available.  However, on occasion the PROGRAM may be offline or otherwise unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure. 
  6. All rights in and to the PROGRAM not expressly granted herein are reserved to System Improvements.

3. INTELLECTUAL PROPERTY

    1. Licensee expressly agrees that SI shall own all rights, title and interest in the PROGRAM, all intellectual property rights in and to the PROGRAM, and all data, code, appearance, architecture, structure, organization, design, technique, and materials comprising the PROGRAM, including but not limited to all modifications, copies, merged portions, translations, derivatives or improvements thereto, and to any suggestions, enhancement requests, feedback, recommendations, or other information provided by Licensee.
    2. This Agreement does not transfer, sell, assign, or entitle Licensee to any of SI’s intellectual property or any other ownership rights.
    3. SI’s trademarks may not be used by Licensee in connection with any product, application, or service, in any manner that is likely to cause confusion among users or the general public, or in any manner that disparages or discredits SI or its products, materials, services or software.

4. USE RESTRICTIONS

    1. Licensee SHALL NOT directly, indirectly, alone, with another party, or permit another party to do any of the following:
    2. COPY, DISASSEMBLE, REVERSE ENGINEER, OR DECOMPILE THE PROGRAM OR ANY PORTION OF THE PROGRAM;
    3. REPRODUCE, MODIFY, TRANSLATE, CHANGE, CREATIVE DERIVATIVE WORKS FROM, OR REVISE ANY PART OF THE PROGRAM;
    4. INCORPORATE THE PROGRAM OR ANY PORTION OF THE PROGRAM INTO OTHER PROGRAM APPLICATIONS, PROCEDURES, POLICIES, DOCUMENTATION OR MATERIALS;
    5. REMOVE, ALTER, OR OTHERWISE ACCESS THE UNDERLYING PROGRAM CODE FOR ANY REASON;
    6. LICENSE, SELL, RENT, LEASE, TRANSFER, GRANT ANY RIGHTS IN OR OTHERWISE COMMERCIALLY EXPLOIT THE PROGRAM IN ANY FORM TO ANY OTHER PARTY;
    7. SHARE THE PROGRAM OR LOGIN INFORMATION WITH ANY CONTRACTOR OR THIRD PARTY;
    8. ATTEMPT TO VIEW, ACCESS, OR COPY ANY MATERIAL OR DATA OTHER THAN LICENSEE DATA;
    9. TRANSMIT ANY PART OF THE PROGRAM IN ANY FORM OR BY ANY MEANS, ELECTRONIC OR MECHANICAL, INCLUDING PHOTOCOPYING, RECORDING, OR INFORMATION STORAGE AND RETRIEVAL SYSTEMS, WITHOUT THE EXPRESS WRITTEN PERMISSION OF SYSTEM IMPROVEMENTS;
    10. MAKE THE PROGRAM AVAILABLE OVER A NETWORK WHERE IT CAN BE ACCESSED BY MULTIPLE USERS OR COMPUTERS;
    11. CREATE ANY FORM OF TABLE, CHART, PULL-DOWN MENU, CHECK-OFF LIST OR OTHER MECHANISM THAT WOULDALLOW LICENSEE TO ACCESS IN LICENSEE’S INCIDENT MANAGEMENT SOFTWARE ANY OF THE INFORMATION, OR A MODIFICATION OR DERIVATIVE OF ANY OF THE INFORMATION, FOUND IN THE TapRooT® Corrective Action Helper Guide®, THE TapRooT® Root Cause Tree® DICTIONARY, OR THE TapRooT® CAUSES OR THE HUMAN PERFORMANCETROUBLESHOOTING GUIDE QUESTIONS (“15 QUESTIONS”) FROM THE TapRooT® Root Cause Tree®,
    12. CREATE OR INCLUDE IN ITS INCIDENT MANAGEMENT SOFTWARE THE FOLLOWING: (A) ITS OWN DEFINITIONS FOR THE TapRooT® CAUSES; (B) ITS OWN DERIVATIVE OF THE TapRooT® Corrective Action Helper Guide® CORRECTIVE ACTIONS TO ADDRESS THE TapRooT® CAUSES; OR (C) ITS OWN DERIVATIVE OF THE HUMAN PERFORMANCE TROUBLESHOOTING GUIDE’S 15 QUESTIONS OR THE TapRooT® CAUSES FROM THE TapRooT® Root Cause Tree®.
    13. CAUSE, OR TAKE OR ALLOW ACTION THAT IS LIKELY TO CAUSE, DAMAGE TO SI’S PREMISES OR ANY AFFILIATED NETWORK, HARDWARE, EQUIPMENT, SERVERS, FACILITIES, OR SYSTEMS. ANY ATTEMPT TO UNDERMINE OR CAUSE HARM TO A SERVER OR OTHER CLIENT OF SI IS STRICTLY PROHIBITED.  THIS INCLUDES BUT IS NOT LIMITED TO: ATTEMPTING TO GAIN ACCESS TO PASSWORD FILES OTHER THAN LICENSEE’S OWN; ATTEMPTING TO GAIN UNAUTHORIZED ACCESS TO OTHER ACCOUNTS; UPLOADING ANY VIRUS; INSTITUTING ANY ATTACK ON OR HACKING OF ANY SERVER OR WEBSITE; INSTALLING ANY THIRD-PARTY SOFTWARE ON SI’S SERVERS; OR ANY OTHER ACTION THAT CAUSES SERVER MALFUNCTION.
    14. Licensee is solely responsible for its own choices and actions in using the PROGRAM to achieve its intended results, and for the use and results obtained from the PROGRAM. 
    15. Licensee will immediately notify System Improvements if it becomes aware of any loss or theft or unauthorized use of any of Licensee’s login information.  System Improvements has the right at any time to terminate or suspend PROGRAM access to Licensee if it believes in good faith that such termination or suspension is necessary to preserve the security, integrity, or accessibility of the PROGRAM or System Improvements’ network.
    16. The PROGRAM may not be transferred to any other entity during the Trial Period.
    17. All rights to use the PROGRAM are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.

5. PAYMENT

    1. Licensee shall pay to System Improvements the PROGRAM Fee in the amount and for the duration as set forth in the TapRooT® Trial Letter Agreement.
    2. The PROGRAM Fee must be received prior to Licensee receiving their login information to access the PROGRAM.
    3. At the expiration of the Trial Period, SI may terminate access rights to the PROGRAM without prior notice. 

6. DATA AND STORAGE

  1. Licensee expressly grants to System Improvements, a non­exclusive, non­transferable, non-sublicensable right and license to access, use, copy, transmit, modify, and display Licensee Data for the purposes of Licensee’s use of the PROGRAM, and System Improvements’ internal business purposes, including but not limited to providing access to the PROGRAM, technical support, PROGRAM maintenance, and the evaluation of metadata.
  2. Licensee acknowledges that the PROGRAM is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly sensitive personal information, and that Licensee assumes all risk arising from use of any such sensitive information with the PROGRAM, including the risk of any inadvertent disclosure or unauthorized access thereto. 
  3. Licensee is responsible for ensuring that its use of the PROGRAM is in compliance with all applicable laws and governmental regulations and Licensee assumes all risk arising from any such use that is not compliant with applicable laws and regulations.
  4. Licensee is solely responsible for maintaining the security of all login information, for the security of its information systems used to access the PROGRAM, and for Licensee’s compliance with the terms of this Agreement.
  5. Licensee agrees to indemnify and defend System Improvements against any liability, claim, proceeding, cost, expense, including legal fees, and loss of any kind arising from any actual or alleged claim that any Licensee Data infringes on the claimant’s rights, including Intellectual Property and privacy rights.
  6. Although System Improvements takes measures to backup all Licensee Data during the Trial Period, SYSTEM IMPROVEMENTS IS NOT RESPONSIBLE FOR MAINTAINING AN ACCESSIBLE BACKUP OF LICENSEE DATA.
  7. License shall not be permitted to take screen shots or otherwise copy the PROGRAM for purposes of data backup.  However, Licensee may save offline copies of their data using the reporting function available in the PROGRAM.  For clarity, nothing in this Agreement is intended to prevent any exportable reports from the PROGRAM that are in pdf format or other format that result from analyzing an incident or problem in the PROGRAM from being used by that Licensee as an attachment to said report’s corresponding incident or problem in any application software.
  8. System Improvement expressly reserves all rights to permanently delete the PROGRAM and all Licensee Data following the expiration of the Trial Period.

7. SUPPORT

  1. PROGRAMs Generally. Subject to the terms of this Agreement, System Improvements shall use commercially reasonable efforts to make the PROGRAM available to Licensee.
  2. Updates and Upgrades.  System Improvements shall make improvements, updates and upgrades to the PROGRAM as they are completed during the Trial Period that may require the PROGRAM to be offline or otherwise unavailable. Licensee will not be charged any additional fees for updates or upgrades to the PROGRAM.
  3. In the event that the PROGRAM experiences an error or is otherwise offline and unavailable, System Improvements will make efforts to resolve the issue in a reasonable time period.  Licensee shall provide such access, information, and support as System Improvements may reasonably require in the process of resolving any issue. 
  4. Technical Support.
      1. All technical support email and phone issues are handled in the order of receipt and will be treated equally. 
      2. For issues reported during normal business hours, System Improvements will attempt to provide a response the same day.  If an issue is reported outside normal business hours, a response is normally provided within 8 hours from the start of the subsequent business day. 
      3. Issue resolution will be provided as soon as the schedule permits.  Any reported issue without an immediate resolution will be added to System Improvements’ future development list and will be considered, but not guaranteed, for inclusion in future product updates. 
      4. Business Hours are: 7am – 6pm EST Monday through Friday.  Phone number for Support is 865-375-0080. Contact information is listed on the TapRooT® Website at https://www.taproot.com/contact/.

8. TERM AND TERMINATION

  1. Automatic Termination.
      1. This Agreement will terminate automatically at the end of the Trial Period.
      2. IF LICENSEE VIOLATES ANY OF THE TERMS OF THIS AGREEMENT, ITS RIGHTS UNDER THIS AGREEMENT WILL AUTOMATICALLY TERMINATE.  SUCH TERMINATION SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY CRIMINAL, CIVIL, OR OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY TO SYSTEM IMPROVEMENTS. 
  2. Termination Upon Notice.  Licensee may elect to terminate this Agreement at any time with 30 days written notice to SI.  However, Licensee will not receive any refund of fees paid.

9. CONFIDENTIALITY

  1. Except as otherwise set forth herein, SI agrees to use its best efforts to hold the Licensee’s Data in confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose Licensee Data to third parties.
  2. SI shall advise the Licensee immediately in the event SI learns or has reason to believe that any person who has had access to Licensee Data has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

c. SI may disclose Licensee Data as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that SI: (i) gives the Licensee reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause System Improvements to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) uses its best efforts to obtain confidential treatment for any Licensee Data so disclosed.

10. LIMITATION OF LIABILITY  

    1. SI HEREBY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM PROVIDED, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE OF THE PROGRAM. SI shall have no liability or responsibility FOR LICENSEE’S USE OF OR INABILITY TO USE THE PROGRAM, OR FOR the sufficiency of the PROGRAM to prevent the occurrence of any future problems or events. 
    2. THE CORRECTIVE ACTION GUIDANCE PROVIDED BY THE PROGRAM IS NOT A COMPLETE OR EXHAUSTIVE LIST OF POSSIBLE CORRECTIVE ACTIONS.  LICENSEE IS SOLELY RESPONSIBLE FOR CHOOSING AND IMPLEMENTING ALL CORRECTIVE ACTIONS. THE USER’S JUDGMENT, EXPERIENCE, AND KNOWLEDGE ARE THE MOST IMPORTANT FACTORS IN THE DEVELOPMENT OF CORRECTIVE ACTIONS. SYSTEM IMPROVEMENTS IS NOT RESPONSIBLE FOR THE SUFFICIENCY OR EFFECTIVENESS OF ANY CORRECTIVE ACTIONS DEVELOPED USING THE PROGRAM.    x
    3. LICENSEE RETAINS ALL LIABILTY AND RESPONSIBILITY FOR THE USE OF THE PROGRAM, INCLUDING ALL LIABILITY FOR DEATH, BODILY INJURY OR PROPERTY DAMAGE ALLEGED TO HAVE ARISEN OUT OF USE OF THE PROGRAM.  LICENSEE EXPRESSLY ASSUMES THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE PROGRAM. 
    4. WITHOUT LIMITING THE FOREGOING, SI DISCLAIMS ANY WARRANTY THAT THE PROGRAM, ANY RELATED OFFERINGS PROVIDED BY SI, OR THE OPERATION OF THE SYSTEM ARE OR WILL BE ACCURATE, ERROR ­FREE OR UNINTERRUPTED. SI MAKES NO, AND HEREBY DISCLAIMS ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON­INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
    5. Disclaimer of Consequential Damages. TO THE MAXIMUM AMOUNT PERMITTED BY LAW, SI HAS NO LIABILITY WITH RESPECT TO THE PROGRAM, OR ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION, EQUIPMENT DAMAGES OR THE COST OF COVER) EVEN IF SYSTEM IMPROVEMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

11.  MISCELLANEOUS

    1. Force Majeure.  SI will not be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond System Improvements reasonable control, including but not limited to fire, flood, storm, act of God, war, malicious damage, failure of a utility program transport or telecommunications network.
    2. In the event that any part, article, paragraph, sentence or clause of this Agreement shall be held to be indefinite, invalid, illegal or otherwise unenforceable, the entire Agreement shall not fail, but the unenforceable, illegal, invalid or indefinite provision shall be severed from the remainder of this Agreement, which shall continue in full force and effect, provided that the severance does not materially alter the scope, meaning and intent of the Agreement. 
    3. Survival.  The obligations set forth in Sections 3, 4, 6, 9 and 10 shall survive the expiration, termination or cancellation of this Agreement.
    4. No Waiver. Failure at any time to enforce any provision of this Agreement or to exercise any option herein is not a waiver of such provisions, rights or options, nor does such failure reduce the validity of this Agreement. 
    5. This Agreement may only be modified or amended by a separate, signed, mutual agreement of the parties in writing with specific reference to this Agreement. 
    6. This Agreement shall be governed by the laws of the State of Tennessee, with exclusive jurisdiction and venue in Knox County, Tennessee.
    7. Any questions or notices concerning this Agreement should be referred in writing to System Improvements, Inc., 238 S. Peters Road, Suite 301, Knoxville, TN 37923.

LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND, BY USING THE PROGRAM, INDICATES ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS, AND THIS AGREEMENT, ALONG WITH THE TapRooT® TRIAL LETTER AGREEMENT, COMPRISE THE COMPLETE AGREEMENT BETWEEN LICENSEE AND SYSTEM IMPROVEMENTS ON THIS SUBJECT AND IT SUPERSEDES ANY PRIOR DISCUSSIONS OR INFORMATION LICENSEE RECEIVED RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

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