Trifacta Wrangler License Agreement
TRIFACTA LIMITED EDITION LICENSE AGREEMENT
BY CLICKING ON THE "I ACCEPT" BUTTON OR BY OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE TRIFACTA SERVICES AND/OR THE TRIFACTA SOFTWARE (EACH AS DEFINED BELOW) OFFERED BY TRIFACTA INC., A DELAWARE CORPORATION WITH AN OFFICE AT 575 MARKET ST., 11TH FLOOR, SAN FRANCISCO, CALIFORNIA 94105 ("TRIFACTA"), INCLUDING, FOR EXAMPLE, BY ACCESSING OR USING THE TRIFACTA SOFTWARE OR THE TRIFACTA SERVICES, THIS ENTITY, INDIVIDUAL OR ORGANIZATION ("CUSTOMER") CONSENTS TO BE BOUND BY THIS AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF THE PRODUCT AND SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY TRIFACTA.
Trifacta Software; Trifacta Services. For the purposes of this Limited Edition License Agreement, "Trifacta Software" shall mean: (a) the object code version of the Trifacta Data License Software, and (b) any associated user documentation provided to Customer ("Documentation"), and (c) any updates, upgrades, and/or modifications of the forgoing which are provided to the Customer pursuant to the terms of this Agreement. "Trifacta Services" shall mean the online Trifacta applications and platform which are made accessible to Customer by Trifacta, which offers the Trifacta Software on an outsourced basis for the License Term
Limited License. Subject to the terms and conditions of this Limited Edition License Agreement, during the License Term, Trifacta grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Trifacta Software and the Trifacta Services solely for Customer's internal business purposes, solely in accordance with the Documentation and solely for the scope set forth in the applicable Trifacta Order Form executed by Customer and Trifacta
Restrictions. Customer shall not, and shall not authorize any third party to: (i) sublicense, use or duplicate the Trifacta Software, or any portion thereof, except as expressly authorized in this Limited Edition License Agreement; (ii) use the Trifacta Software and/or the Trifacta Services by, or for the benefit of any third party; (iii) modify, translate, or prepare derivative works based upon the Trifacta Software and/or the Trifacta Services; (iv) reverse-compile or decompile, disassemble or otherwise reverse engineer the Trifacta Software, except to the extent expressly required to be permitted by applicable law; (v) rent, lease, loan, sell, transfer, or distribute the Trifacta Services, or any copy or portion thereof, to any other person or entity; (vi) alter, remove, or obscure any copyright, trademark, or other proprietary notices or confidentiality legend on or in the Trifacta Services or the Trifacta Software; (vii) use the Trifacta Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; and/or (viii) use the Trifacta Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. Except for the license expressly granted by Trifacta to Customer under this Limited Edition License Agreement, and Trifacta reserves all right, title and interests in and to the Trifacta Services and the Trifacta Software and any derivative works derived therefrom, and all intellectual property rights therein.
Customer Obligations. Customer understands that, in order to deliver the Trifacta Services in a timely and accurate manner, Trifacta may need to rely on Customer for access to certain customer hardware, software, systems, data and personnel. Customer shall (i) be responsible and liable for any action or inaction of Customer's employees or contractors which is in violation of this Limited Edition License Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of any data or materials processed by the Trifacta Services and of the means by which Customer acquire, upload, transmit and process those materials, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Trifacta Services, and notify Trifacta promptly of any such unauthorized access or use; (iv) make any disclosures to and obtain any consents (including from any Customer employees and contractors) as required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer materials in or for the Trifacta Software and the Trifacta Services or as otherwise contemplated by this Limited Edition License Agreement; and (f) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Trifacta Software and the Trifacta Services, including, without limitation, computers, computer operating system and internet access. Trifacta does not own or accept responsibility for any data, information or material that Customer may process or submit to the Trifacta Services ("Customer Data"). Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data, and Trifacta shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
Support. Trifacta shall use reasonable efforts to provide Support for the Trifacta Software and the Trifacta Services as during the License Term. At Customer's request, Trifacta may use reasonable efforts to assist Customer in the installation of the Trifacta Software and the Trifacta Services.
PAYMENT. The Fee for the Trifacta Software and the Trifacta Services during the License Term shall be $0. Trifacta may change the Fee for any Renewal Term by providing Customer not less than thirty (30) days prior notice. To the extent Customer retains the Trifacta Software and/or access to the Trifacta Services after the end of the License Term, Customer shall pay Trifacta a fee equal to Trifacta's then-current list price and subject to Trifacta's then-current Terms and Conditions. All fees paid under this Limited Edition License Agreement (collectively "Fees") shall be payable in U.S. dollars and are due within thirty (30) days of Trifacta's invoice. Excluding taxes based on Trifacta's income, Customer is liable for all taxes, duties and customs fees associated with the Fees, whether or not Trifacta invoices Customer for such taxes, duties or customs fees. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. Except as otherwise expressly provided in this Limited Edition License Agreement, Customer shall not be entitled to any refund of any Fees paid for the Trifacta Software and/or the Trifacta Services.
TERM AND TERMINATION. The term of this Limited Edition License Agreement shall commence on the earlier of the date this Limited Edition License Agreement is accepted by the Customer or the date Customer installs or otherwise accesses the Trifacta Software and/or the Trifacta Services (the "Effective Date") and shall continue for twelve (12) months, subject to termination as set forth in this Section 3. This Limited Edition License Agreement may be terminated by either party: (i) upon five (5) days written notice if the other party materially breaches any provision of this Limited Edition License Agreement and such breach remains uncured within such five (5) day period; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it; (iv) effective immediately, upon any breach of Section 1.2 or Section 6 of this Limited Edition License Agreement; or (v) by either party, upon thirty (30) days written notice. Upon any expiration or termination of this Limited Edition License Agreement: (i) all licenses and rights granted by Trifacta to Customer hereunder shall terminate; and (ii) Customer will cease all use of the Trifacta Software and the Trifacta Services; and (iii) and Customer shall immediately return to Trifacta the Trifacta Software and the Trifacta Services, all duplicates, and any Trifacta Confidential Information. The provisions of Sections 1.3, 2, 3, 4, 5, 6 and 7 shall survive and remain effective after the effective date of termination or expiration of this Limited Edition License Agreement.
INDEMNIFICATION. Trifacta, at its own expense (including payment of attorneys fees, expert fees and court costs), shall defend Customer from any and all third party claims that the Trifacta Software and/or the Trifacta Services infringes any patent or copyright or misappropriates any third party's trade secret and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle such claims, provided that Customer: (a) gives Trifacta prompt written notice of any such claim; (b) permits Trifacta to control and direct the defense or settlement of any such claim; and (c) provides Trifacta all reasonable assistance in connection with the defense or settlement of any such claim. If Customer's use of the Trifacta Software and/or the Trifacta Services is (or in Trifacta's opinion is likely to be) enjoined, Trifacta, at its expense and in its sole discretion, may terminate this Limited Edition License Agreement and Customer's right to use the Trifacta Software and the Trifacta Services. Notwithstanding the foregoing, Trifacta shall have no obligations under this Section to the extent any infringement claim is based upon or arising out of: (i) any modification or alteration to the Trifacta Software or the Trifacta Services not made by Trifacta; (ii) any combination or use of the Trifacta Software or the Trifacta Services with products or services not approved by Trifacta in writing; (iii) Customer's continuance of allegedly infringing activity after being notified thereof; and/or (iv) use of the Trifacta Software or the Trifacta Services not in accordance with the terms of this Limited Edition License Agreement. The remedies set forth in this Section constitute Customer's sole and exclusive remedies, and Trifacta's entire liability, with respect to infringement or misappropriation of third party intellectual property.
DISCLAIMER; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TRIFACTA SOFTWARE AND THE TRIFACTA SERVICES AND ANY MATERIALS PROVIDED BY TRIFACTA HEREUNDER ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. TRIFACTA DOES NOT GUARANTEE THAT THE TRIFACTA SERVICES, DOCUMENTATION OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. FURTHER, TRIFACTA AND ITS SUPPLIERS DO NOT WARRANT THE RESULTS OF USE OF THE TRIFACTA SOFTWARE OR TRIFACTA SERVICES ARE BUG/ERROR FREE OR THAT ITS USE WILL BE UNINTERRUPTED. IN ADDITION, DUE TO CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON/ATTACKING NETWORKS, HARDWARE AND SOFTWARE, TRIFACTA DOES NOT WARRANT THAT THE TRIFACTA SOFTWARE OR TRIFACTA SERVICES OR ANY EQUIPMENT, SYSTEM, OR NETWORK ON WHICH THE TRIFACTA SOFTWARE OR TRIFACTA SERVICES ARE USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. TRIFACTA DOES NOT WARRANT THAT ANY SERVICES CONNECTING TO THE TRIFACTA SOFTWARE OR TRIFACTA SERVICES PROVIDED BY THIRD PARTIES OR ANY DATA PROVIDED BY SUCH THIRD PARTIES WILL BE FREE FROM ERRORS OR INTERRUPTIONS OF SERVICE. EXCEPT FOR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTIONS 1.2 OR 6 OF THIS LIMITED EDITION LICENSE AGREEMENT, (A) CUSTOMER'S SOLE REMEDY AND TRIFACTA'S SOLE LIABILITY FOR ANY BREACH OF THIS LIMITED EDITION LICENSE AGREEMENT SHALL BE TO TERMINATE THE AGREEMENT, CEASE ALL USE OF THE TRIFACTA SOFTWARE AND THE TRIFACTA SERVICES; AND IMMEDIATELY RETURN TO TRIFACTA THE TRIFACTA SOFTWARE AND THE TRIFACTA SERVICES, ALL DUPLICATES, AND ANY TRIFACTA CONFIDENTIAL INFORMATION; (B) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS; (C) IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY, OR ANY THIRD PARTY LICENSORS UNDER THIS LIMITED EDITION LICENSE AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED TEN THOUSAND DOLLARS ($10,000), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
CONFIDENTIAL INFORMATION. Each party (the "Receiving Party") acknowledges that it may receive from the other (the "Disclosing Party") confidential information relating to the Disclosing Party. Such information shall belong solely to the Disclosing Party and includes, but is not limited to, the terms of this Limited Edition License Agreement and other technical, business, marketing and financial information, and any data not previously known that could reasonably be considered confidential or proprietary ("Confidential Information"). Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure; or (iv) is approved for release by written authorization of the Disclosing Party. During and after the term of this Limited Edition License Agreement, the Receiving Party shall: (y) not use (except as expressly authorized by this Limited Edition License Agreement) or disclose Confidential Information without the prior written consent of the Disclosing Party; and (z) take all reasonable measures to maintain the Confidential Information in confidence. Information shall not be deemed confidential if it becomes public without breach of this Limited Edition License Agreement by the Receiving Party. The Trifacta Services and all technical information relating thereto shall be considered Confidential Information of Trifacta. Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and the opportunity to obtain appropriate confidential treatment for such confidential information. Trifacta may disclose aspects of this Limited Edition License Agreement to its licensors to the extent such information is required under the agreement with such licensor. Trifacta will be free to use any data, metadata and information it so collects relating to the Trifacta Software and Trifacta Services, and may allow others to do so.
Compliance with Laws; Export Control. Customer shall use the Trifacta Software and the Trifacta Services in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in this Limited Edition License Agreement, Customer shall not export or import the Trifacta Software and the Trifacta Services (including without limitation any Documentation) or any technical information provided under this Limited Edition License Agreement.
Assignment. Neither this Limited Edition License Agreement, nor any rights, licenses nor any obligations hereunder, may be assigned by Customer without the prior written consent of Trifacta. Any attempted assignment in violation of this Limited Edition License Agreement shall be void and without effect.
U.S. Government End-Purchaser. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Trifacta Software and Trifacta Services and accompanying documentation provided by Trifacta are "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.
European Data Transfer. To the extent Customer is located within the European Union, Customer and Trifacta agree to the Standard Contractual Clauses located at https://wrangler-distribution-cdn.trifacta.com/trifacta_clickthrough_standard_data_clause.pdf
Marketing Customer consents to Trifacta's use of Customer name and logo and general description of Customer's relationship with Trifacta in press releases and other marketing materials and appearances.
Miscellaneous. Should any term of this Limited Edition License Agreement be declared void or unenforceable by any court of competent jurisdiction, that provision shall modified, limited or eliminated to the minimum extent necessary and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. This Limited Edition License Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, excluding rules governing conflict of law and choice of law. The federal and state courts within San Francisco, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Limited Edition License Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being affected upon it by registered mail and sent to the address set forth at the beginning of this Limited Edition License Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to this Limited Edition License Agreement nor to any dispute or transaction arising out of this Limited Edition License Agreement. This Limited Edition License Agreement and the Exhibits attached hereto sets forth the entire agreement of the parties with respect to the subject matter contained herein, and no oral or written statement or representations not contained in this Limited Edition License Agreement shall have any force or effect. Customer's representative identified herein represents and warrants that he/she has the authority to bind Customer to the terms herein. This Limited Edition License Agreement may be amended only upon the written consent of both parties. Notwithstanding the foregoing, in the event the parties enter into, or have entered into a formal written agreement, including, without limitation an agreement which the parties have electronically signed, the terms of that agreement shall control over the terms of this Limited Edition License Agreement.