Free Trial Service Agreement – Terms & Conditions

Tealium Inc.

Free Trial Service Agreement. This Free Trial Service Agreement (“TSA”) is entered into between Tealium Inc., a Delaware corporation (“Tealium”) and the customer who accepts these terms ("Customer"). This TSA governs Customer's access to and use of certain Services for the purpose of a free trial, as made available by Tealium in its sole discretion. This TSA is effective as of the date Customer accepts these terms by clicking “I Agree” or a similar button (the "Effective Date"). Notwithstanding anything to the contrary, Customer's click-through acceptance of this TSA constitutes Customer’s agreement to be bound by this TSA. The individual accepting these terms on behalf of an entity represents and warrants that it has authority to bind that entity, and the term “Customer” refers to that entity. If Customer does not agree to this TSA, Customer must not access or use the Services.
 
1. Definitions. The following defined terms are used in this TSA:

“Authorized Usage Level” means the usage limits applicable to Customer's access to the Free Trial Services, as specified on the landing page through which Customer accessed and accepted this TSA.

“Code” means any and all HTML code, JavaScript, mobile SDK or other computer language code or instructions that Tealium provides to Customer in conjunction with the Free Trial Services. The Code will be deemed part of the Tealium Technology, as such Technology is defined below.

 “Confidential Information” means any information disclosed by one Party to the other that should, under the circumstances, be understood to be confidential by a person exercising reasonable business judgment.

“Connector” means a connection between Tealium servers and a Customer-selected vendor’s servers as implemented in connection with the Tealium CDP (fka AudienceStream) or Tealium Event Streaming (fka EventStream) Services.

“Connector Action” means a specific configuration in a Connector that enables a specific stream of Event or Visitor data to a Customer selected destination.

“Connector Call” means Event or Visitor data transmitted from a Tealium server via a Connector Action.

“Customer Data” means electronic data and information submitted by or for Customer to the Free Trial Services including enhancement and output thereof derived from use of the Free Trial Services. Customer Data is comprised of Production Data or Test Data, as applicable. “Digital Property” means a domain, native app, mobile app, connected device, or digital instance on which the Free Trial Services are deployed that are (a) owned and administered by Customer, or (b) owned by an affiliate of Customer and administered by Customer.

“Documentation” means Tealium's published technical documentation and usage guides for the applicable Free Trial Service made available in Tealium’s online help files or through the Free Trial Service.

“DPA” means the Data Processing Addendum located at:
https://tealium.com/download/legal-americas-cpp-2024/
 
“DSS” means the Data Security Statement located at:
https://tealium.com/download/legal-americas-cpp-2024/

“Event” means any call made to Tealium's data collection servers, or any row of data uploaded to Tealium by or on behalf of Customer using Tealium's omnichannel capability, or any Connector Call, or other API call made to Tealium by or on behalf of Customer.

“Force Majeure” means any cause beyond such Party’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, acts of civil or military authorities, or acts of God.

“Free Trial Services” means any and all services, including use of the Code, made available to Customer by Tealium on a free trial basis as specified on the landing page through which Customer accessed and accepted this TSA.

“Free Trial Service Term” means the period of time during which Customer is authorized to access the Free Trial Services, as specified on the landing page through which Customer accessed and accepted this TSA, unless earlier terminated in accordance with this TSA or extended by the parties in writing.

“Malicious Code” means computer instructions or software code whose purpose is to disrupt, damage or interfere with the Free Trial Services or any Party’s computer or communications systems, networks, facilities or equipment, or to provide unauthorized access to such systems, networks, facilities or equipment. Examples of Malicious Code include, without limitation, any code containing viruses, Trojan horses, worms, traps, spyware, back doors, disabling devices or similar destructive code or code that self-replicates.

"MSA" means a separate, active master services agreement between Customer and Tealium for paid Tealium services, if any, in effect at the time of Customer's click-through acceptance of this TSA.

“Non-Tealium Products” means third party systems or services with whom Customer may have a contractual right to connect, many of whom may be listed on the Tealium website (which list may vary from time to time) under “integrations” or “marketplace”.

“Personal Data” or “Personally Identifiable Information” has the meaning set forth in applicable law or regulations relating to the collection, use, storage or disclosure of information about an identifiable individual, or if no definition, means information about an individual that can be used to identify, contact or locate a specific individual, or can be combined with other information that is linked to a specific individual to identify, contact or locate a specific individual.

“Production Data” means real, live data drawn from Customer's actual business operations and that may include the Personal Data of individuals.

“Prohibited Data” means Personal Data whose unauthorized disclosure or use could reasonably entail a serious potential security or privacy risk for a data subject, including but not limited to government issued identification numbers such as national insurance numbers, passport numbers, driver’s license numbers, or similar identifier, or credit or debit card numbers, medical or financial information, biometric data, and/or financial, medical or other account authentication data, such as passwords or PINs.

“Tealium Systems” means the data centers, servers, networks, networking equipment, applications, and host software systems (e.g. virtual firewalls) that are within the control of Tealium or its sub-processors and are used to provide the Services.

“Technology” means any proprietary technology, including internet design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, and documentation (both printed and electronic), know-how, trade secrets, and any related intellectual property rights (including without limitation copyright, patent, trade secret, and trademark rights) throughout the world and any derivatives, improvements, enhancements, or extensions of such technology conceived, reduced to practice, or developed during the Term by the owner of such technology.

“Test Data” means artificial or synthetic data that does not relate to any real individual and does not contain any Personal Data.

“User Data” means the login details and contact information of the authorized users of the Free Trial Services.

“Visitor” means an individual who accesses Digital Properties on which the Services are implemented.

“Visitor Profile Data” means Tealium provided data concerning Visitors associated with Tealium’s CDP (fka AudienceStream) Service.

“Visitor Profile Term” means the trailing period of time in which a Visitor must visit a Digital Property in order to be included in a given set of Visitor Profile Data. For the purposes of this TSA, the Visitor Profile Term is the Free Trial Service Term.

2. Free Trial Services, Service Levels and Customer Assistance.

2.1 Free Trial Services. During the Free Trial Service Term, Tealium will provide Customer with access to the Free Trial Services, as determined by Tealium. For Tealium customers who have an existing MSA, this TSA applies solely to the Free Trial Services and does not modify, supersede, or otherwise affect the existing MSA with respect to any other Services. For customers who do not have an existing MSA, this TSA will also govern any subsequent purchase of Services by such Customer unless and until a subsequent master services agreement is entered into. Customer will ensure that its use of the Services does not exceed the Authorized Usage Level. If Customer's usage of the Free Trial Services exceeds the Authorized Usage Level, Tealium may, in its sole discretion, suspend Customer's access to the Free Trial Services without prior notice and without liability to Customer. If Customer has an existing MSA and active paid service order, and Customer’s usage of the Free Trial Services exceeds the Authorized Usage Level, then such overage may, in Tealium’s discretion and with Customer’s agreement (email is acceptable), be applied against Customer’s authorized usage level under such service order.  During the Free Trial Service Term, (x) Customer is authorized to use the Services on one of its Digital Properties, and (y) Tealium grants Customer a limited, non-exclusive, non-transferable (with no right to sublicense) right and license to copy the Code only for insertion in specified Digital Properties for use in connection with the Services. Tealium reserves all rights not expressly granted under this TSA, and there are no implied rights granted by Tealium hereunder, whether by estoppel or otherwise.

2.2 Customer Assistance. Customer will supply Tealium personnel with such information, resources, and assistance as Tealium may reasonably request in connection with making the Free Trial Services available to the Customer.

3. Payments. The Free Trial Services are provided to Customer by Tealium at no cost.  However, any taxes that may be due as a result of Customer receiving the Free Trial Services will be solely borne by Customer, except for taxes on Tealium’s income. 

4. Intellectual Property.

4.1 Customer Proprietary Rights. Customer Data is owned by Customer. Customer Data is Customer Confidential Information. Tealium will not sell Customer Data. Tealium may use Customer Data only as reasonably necessary for Tealium (a) to provide and monitor performance of the Free Trial Services, (b) to monitor usage of the Free Trial Services by Customer, (c) to prevent or address support, security and technical issues, (d) to comply with the terms of this TSA, and (e) as otherwise permitted by Customer. Tealium may use aggregated, anonymized Customer Data to improve the Free Trial Services and develop and provide additional products and services. Neither this TSA nor its performance transfers from Customer to Tealium any Customer Technology.

4.2 Tealium Proprietary Rights. Tealium, or its licensors, retains all right, title and interest in and to the Free Trial Services including all Technology that is a part of the Free Trial Services or that Tealium makes, develops, conceives or reduces to practice, whether alone or jointly with others, in the course of performing the Free Trial Services and all Tealium Technology is Tealium Confidential Information. All suggestions, enhancement requests, feedback, recommendations, and other input provided by Customer relating to the Free Trial Services or Tealium Technology will be owned by Tealium. Neither this TSA nor its performance transfers from Tealium to Customer any Tealium Technology.

5. Confidentiality.

5.1 Obligations. Each Party agrees that it will (a) hold the other Party’s Confidential Information in confidence using the same standard of care it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; (b) not disclose the Confidential Information of the other to any third party without the other’s prior written consent, except as expressly permitted under this TSA; (c) limit access to the other’s Confidential Information to those of its employees or agents having a need to know who are bound by confidentiality obligations at least as restrictive as those set forth herein; and (d) use the other Party’s Confidential Information solely to perform its obligations or receive its benefits under this TSA. The obligations set forth in this Section 5 will apply during the Free Trial Service Term and will continue for a period that will end five (5) years after the expiration or termination of this TSA. Following termination of this TSA or upon request of the disclosing Party, all Confidential Information in any form and any copies thereof in the custody and control of the receiving Party will be deleted, destroyed or returned.

5.2 Exclusions. The restrictions on the use and disclosure of Confidential Information will not apply to any Confidential Information, or portion thereof, which (a) is or becomes publicly known through no act or omission of the receiving Party; (b) is lawfully received from a third party without restriction on disclosure; (c) is already known by the receiving Party without a duty of confidentiality at the time it is disclosed by the disclosing Party, as shown by the receiving Party’s written records; or (d) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, as shown by the receiving Party’s written records. Notwithstanding the foregoing, either Party may make disclosures as required or requested by a court of law or any governmental entity or agency, provided that, to the extent permitted under applicable law, such Party provides the other with reasonable prior notice to enable such Party to seek confidential treatment of such information; and either Party may disclose the terms and conditions of this TSA to potential investors, acquisition partners and its legal counsel and accountants in connection with a proposed financing or acquisition, provided that each such third party is bound by confidentiality obligations at least as restrictive as those set forth herein.

6. Customer’s Use Obligations.

6.1 Customer Affirmative Covenants (the “Will Do’s”). Customer will use the Services only in accordance with this TSA (including all addenda) and in accordance with all applicable laws and government regulations.

6.2 Customer Negative Covenants (the “Won’t Do’s”). Customer will not do, or permit any third party to do, any of the following: (a) make the Services available for use by or for the benefit of any third party (other than Customer's contractors or consultants acting on behalf of Customer); (b) modify, reverse engineer, disassemble, decompile, reproduce or create derivative works from the Services or Tealium Technology; (c) use or access the Services in order to develop a competitive or similar product or service or otherwise copy any features or functions of the Services; (d) interfere with or disrupt or attempt to interfere with or disrupt the integrity or the performance of the Services; (e) gain or provide unauthorized access to the Services or its related systems or networks; (f) introduce into the Services, the Tealium Technology or the Tealium Systems any Malicious Code, either directly or through a third party to whom Customer provides or from whom Customer receives Customer Data. 

6.3 Data Protection. Customer will not transmit to Tealium nor require Tealium to process any Prohibited Data. In the event that Customer causes Personal Data to be transferred under this TSA, Customer will comply with all applicable laws and regulations, or any equivalent, applicable legislation. Customer agrees that it has the authorization necessary for Personal Data to be processed pursuant to this TSA, prior to transfer to Tealium. Customer will establish user login credentials such as usernames, passwords and PINs (“Account Credentials”) for Customer’s employees and contractors to access and use the Free Trial Services. Customer is solely responsible for protecting the confidentiality of Customer’s Account Credentials. Customer is solely responsible for, and Tealium will have no liability for, actions taken by non-Tealium personnel who have accessed Customer’s account within the Free Trial Services using Customer’s Account Credentials.

6.4 Acceptable Use Policy. Customer may not: (a) use, or encourage, promote, facilitate or instruct others to use, the Services for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive; (b) use the Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each a “System”); and (c) use the Services or any System to facilitate the distribution, publishing, or sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (e.g. "spam") in violation of any law or regulation.

7. Tealium Warranties.

7.1 Tealium Affirmative Warranties. Tealium will (a) make the Services available in accordance with Tealium’s obligations under applicable laws and government regulations; and (b) not introduce into Customer’s system or computer network any Malicious Code.

7.2 Data Security and Privacy.  If Customer is permitted to send Production Data to Tealium as part of the Free Trial Services, then Tealium will (a) maintain an information security program in accordance with the DSS; and (b) process Personal Data in accordance with the DPA.

7.3 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 7.1 AND 7.2 ABOVE, THE SERVICES ARE PROVIDED SOLELY ON AN “AS IS,” AND ON AN “AS AVAILABLE BASIS” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TEALIUM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND THAT THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE NOR DOES TEALIUM WARRANT THAT IT WILL REVIEW CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. TEALIUM DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO NON-TEALIUM PRODUCTS AND SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURE OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS GENERALLY.

8. Limitation of Liability.

8.1 TEALIUM’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF THIS TSA OR ITS PERFORMANCE HEREUNDER, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF (A) FIFTY DOLLARS ($50) OR (B) THE APPLICABLE LIABILITY CAP SET FORTH IN THE MSA, IF APPLICABLE.

8.2 TEALIUM WILL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, DEPRECIATION OF STOCK PRICE, BUSINESS INTERRUPTION, OR OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THE FREE TRIAL SERVICES, OR OTHERWISE UNDER THIS TSA, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

9. Term and Termination.

9.1 Term. The term of this TSA runs concurrently with the Free Trial Service Term, unless earlier terminated in accordance with this TSA or extended by the parties in writing.

9.2 Termination for Breach. Either Party may terminate this TSA upon written notice to the other Party, for any material breach by the other Party if such breach is not cured within seven (7) days following written notice of such breach from the non-breaching Party. Tealium may, without terminating this TSA, deny or otherwise suspend the Free Trial Services pending Customer’s cure of any breach of this TSA.

9.3 Effect of Termination. Upon expiration or termination of this TSA, Tealium will stop providing the Free Trial Services, all licenses granted by Tealium hereunder will terminate, Customer will cease all use of the Free Trial Services, and Customer will remove all copies of Code from all Digital Properties. The provisions of Sections 3, 4, 5, 6, 7.3, 8 and Sections 10-19 inclusive will survive termination or expiration of this TSA.

10. Notices. All notices permitted or required under this TSA will be in writing, and will be deemed effective when: (a) delivered by personal delivery, (b) confirmed by the recipient, for notices delivered by electronic mail, or (c) three (3) days after being sent by certified or registered mail (return receipt requested) or overnight courier. Notices will be sent to the addresses set forth in the applicable Service Order or such other address as either Party may specify in writing in accordance with this paragraph. Notices to Tealium must be sent to Legal@tealium.com.

11. Law and Venue. This TSA will be construed and enforced in accordance with the laws of the State of California without regard to its conflict of laws principles, and the exclusive venue for any dispute arising under this TSA will be the state or federal courts in San Diego County, California, and each Party agrees to personal jurisdiction in such venue, and waives any objection thereto.

12. Severability; Waiver. If any term or provision of this TSA is held to be invalid or unenforceable by any court of competent jurisdiction, such provision will be construed to effectuate to the greatest possible extent the Parties’ expressed intent, and the remainder of this TSA will not be affected and will remain valid and enforceable. The failure of either Party to exercise or enforce any right or provision of this TSA will not constitute a waiver of such right or provision, and any waiver granted by a Party in one instance does not constitute a waiver for other instances.

13. Independent Contractors. The relationship between the Parties is solely that of independent contractors, and neither Party will have any authority to bind or commit the other. Nothing in this TSA will be deemed or construed to create a joint venture, partnership, employment, or agency relationship between the Parties for any purpose. 

14. Assignment. Customer may not assign this TSA without the prior consent of Tealium, which may be withheld in Tealium’s sole discretion.

15. Attorneys’ Fees. In the event legal action of any kind is instituted arising out of this TSA, the substantially prevailing Party will be entitled to recover reasonable attorneys' fees, expert witness fees, and other costs of suit from the non-prevailing Party.

16. Headings. The headings used for the sections of this TSA are for information purposes and convenience only and do not define, limit, construe, or describe the scope or extent of the sections.

17. Entire Agreement. This TSA constitutes the entire agreement between the Parties with respect to the Free Trial Services and supersedes and replaces any prior or contemporaneous agreements between the Parties regarding the Free Trial Services. No oral or written representation that is not expressly contained in this TSA is binding on Tealium or Customer with respect to the Free Trial Services. This TSA will control over any different or additional terms and conditions in any purchase order or other non-Tealium ordering document. No amendment to this TSA will be binding on either Party unless agreed to in writing and signed by both Parties. If Customer has an existing MSA with Tealium: (i) this TSA does not modify, amend, supplement, or supersede the MSA with respect to all paid services provided thereunder; (ii) in the event of a conflict between this TSA and such MSA regarding the Free Trial Services, the terms of this TSA will control; (iii) a breach of this TSA will not constitute a breach of the MSA, and a breach of the MSA will not constitute a breach of this TSA, unless the same act or omission independently constitutes a breach of both agreements; and (iv) upon expiration or termination of this TSA, Customer's rights and obligations under the MSA will be unaffected. Customer's click-through acceptance of this TSA constitutes Customer's binding agreement to all terms herein.

18. Third Party Beneficiaries. This TSA does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties.

19. Force Majeure. Neither Party will be liable for any breach of this TSA for any delay or failure of performance caused by any Force Majeure.