TRIFACTA DATAPREP DOWNLOADABLE SERVICE LICENSE AGREEMENT (“MARKETPLACE AGREEMENT”)
BY CLICKING ON THE “I ACCEPT” BUTTON OR BY OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE TRIFACTA SOLUTION 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 SOLUTION, THIS ENTITY, INDIVIDUAL OR ORGANIZATION (“CUSTOMER”) CONSENTS TO BE BOUND BY THIS MARKETPLACE AGREEMENT, OR, IF APPLICABLE, BY THE TERMS OF A CURRENTLY EFFECTIVE WRITTEN AGREEMENT REGARDING THE USE OF THE TRIFACTA SOLUTION SIGNED BY AN AUTHORIZED AGENT OF CUSTOMER AND BY TRIFACTA.
1.1 Definitions. “Trifacta Solution” means the hosted version of the Trifacta Software which is made accessible to Customer by Trifacta through the Google Marketplace (or any successor, the “Marketplace”) provided by Google LLC and its affiliates (collectively, “Google”). “Trifacta Software” means Trifacta’s data wrangling software. “Customer Data” means any materials provided by or on behalf of Customer to be processed using the Trifacta Solution. “Documentation” means the end user or technical documentation pertaining to the Trifacta Solution provided by Trifacta.
1.3 Restrictions. Customer shall not, and shall not authorize any third party to: (a) rent, transfer, distribute, sublicense, use or duplicate or use for the benefit of any third party the Trifacta Software or the Trifacta Solution, or any portion thereof, except as expressly authorized in this Marketplace Agreement; (b) modify, translate, or prepare derivative works based upon the Trifacta Software or the Trifacta Solution; (c) disclose any performance testing results relating to the Trifacta Solution without Trifacta’s prior written consent; (d) reverse-compile or decompile, disassemble or otherwise reverse engineer the Trifacta Software, except to the extent expressly required to be permitted by applicable law; (e) alter, remove, or obscure any copyright, trademark, or other proprietary notices on or in the Trifacta Solution or the Trifacta Software; and/or (f) use the Trifacta Solution to store or transmit infringing, harmful, malicious, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights. Except for the license expressly granted by Trifacta to Customer under this Marketplace Agreement, Trifacta reserves all right, title and interests in and to the Trifacta Solution and the Trifacta Software and any derivative works derived therefrom, and all intellectual property rights therein.
1.4 Customer Obligations. Customer shall (a) be responsible and liable for any action or inaction of Customer’s users which is in violation of this Marketplace Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of any Customer Data and of the means by which Customer acquires, uploads, transmits and processes the Customer Data, (c) prevent unauthorized access to or use of the Trifacta Solution, and notify Trifacta promptly of any unauthorized access or use of which it becomes aware; (d) make any disclosures to and obtain any consents required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer Data in or for the Trifacta Solution or as otherwise contemplated by this Marketplace Agreement; (e) be responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Trifacta Solution; and (f) comply with Trifacta’s Acceptable Use Policy located at https://www.trifacta.com/acceptable-use-policy/ (the “AUP”).
1.5 Third Party Reports. Trifacta may receive notices from third parties (“Reporters”) regarding Customer Data or Customer’s use of the Services (“Reports”). Trifacta will forward all Reports directly to Google which will have the responsibility for forwarding the Reports to Customer. Customer acknowledges that it will indemnify and hold Trifacta harmless from any failure of either Google or Customer to address the Report within five (5) business days of Trifacta’s forwarding of the report to Google. Without limiting that obligation, Trifacta may, but is not required to take actions it deems appropriate in its sole discretion to resolve any Report.
1.6 Data Security and Privacy. Customer shall own all intellectual property rights in and to the Customer Data. To the extent Trifacta has any access to Customer Data, Trifacta will provide the security measures for the Trifacta Solution set forth in Trifacta’s then-current Data Protection Policy which may be found https://www.trifacta.com/data-protection-policy/.
1.7 Professional Services. Trifacta will provide any professional services (“Professional Services”) which Customer has elected to purchase pursuant to a statement of work, order form or other document describing those Professional Services agreed to by the parties (each an “SOW”). Customer understands that Trifacta’s delivery of the Professional Services is dependent on Customer’s timely provision of information, material, and resources. Customer shall pay to Trifacta the fees for the Professional Services (the “Professional Services Fees”) in the amounts and at the times specified in the SOW. Except to the extent the SOW provides that the Professional Services Fees will be paid through the Marketplace, all Professional Services Fees are payable in U.S. dollars and are due within thirty (30) days of Trifacta’s invoice. Excluding taxes based on Trifacta’s net income, Customer is liable for all taxes, duties and customs fees associated with the Professional Services Fees, whether or not Trifacta invoices Customer for them. Past due accounts shall be charged interest of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law.
2. TERM AND TERMINATION. The term of this Marketplace Agreement shall commence on the earlier of the date this Marketplace Agreement is accepted by the Customer or the date Customer uses or otherwise accesses the Trifacta Solution and/or any Trifacta Services (the “Effective Date”) and shall continue until the termination of Customer’s relevant agreement with Google, subject to termination as set forth below. This Marketplace Agreement may be terminated by Trifacta: (a) upon five (5) days written notice if Customer materially breaches any provision of this Marketplace Agreement and such breach remains uncured within that five (5) day period; or (b) effective immediately, if Customer ceases to do business, or otherwise terminates its business operations; or (c) effective immediately, if Customer 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; or (d) effective immediately, upon any breach of Section 1.3 or Section 6 of this Marketplace Agreement;. Upon any expiration or termination of this Marketplace Agreement: (A) all licenses and rights granted by Trifacta to Customer hereunder shall terminate; and (B) Customer will cease all use of the Trifacta Solution; and (C) and Customer shall immediately return to Trifacta or destroy the Trifacta Software and the Trifacta Services, all duplicates, and any Trifacta Confidential Information. The provisions of Sections 1.3, 1.4, 1.5, 2, 3, 5, 6 and 7 shall survive and remain effective after the effective date of termination or expiration of this Marketplace Agreement. Trifacta may, at any time and without limiting any rights and remedies, block the provision of the Trifacta Solution to Customer to the extent Trifacta believes Customer is in violation of this Marketplace Agreement or to the extent Trifacta believes Customer’s use of the Trifacta Solution may negatively impact Trifacta or the Trifacta Solution.
3. INDEMNIFICATION. Customer shall defend Trifacta (including payment of attorneys’ fees, expert fees and court costs) from any third-party claims arising out of: (a) Customer Data; or (b) Customer’s use of the Services in breach of this Marketplace Agreement. The above defense and indemnification obligations do not apply to the extent a claim arises from the Trifacta Solution or Trifacta’s breach of this Marketplace Agreement.
4. OPEN SOURCE SOFTWARE. Open Source Software and Customer’s use of Open Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in that Open Source Software. Trifacta grants Customer a license to use the Open Source Software to the full extent permitted by the applicable open source license.
5. DISCLAIMER; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TRIFACTA SOLUTION, THE TRIFACTA SOFTWARE, THE PROFESSIONAL SERVICES, THE TRIFACTA SERVICES AND ANY MATERIALS OR SERVICES PROVIDED BY TRIFACTA 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. EXCEPT AS EXPRESSLY PROVIDED IN THIS MARKETPLACE AGREEMENT, (A) CUSTOMER’S SOLE REMEDY AND TRIFACTA’S SOLE LIABILITY FOR ANY BREACH OF THIS MARKETPLACE AGREEMENT BY TRIFACTA SHALL BE TO TERMINATE THE MARKETPLACE AGREEMENT, CEASE ALL USE OF THE TRIFACTA SOLUTION, 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 TRIFACTA 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; AND (C) IN NO EVENT WILL THE AGGREGATE LIABILITY OF TRIFACTA, OR ANY OF ITS THIRD PARTY LICENSORS UNDER THIS MARKETPLACE AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED ONE THOUSAND DOLLARS ($1,000), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
6. CONFIDENTIAL INFORMATION. Customer acknowledges that it may receive from Trifacta confidential information relating to Trifacta. That information shall belong solely to Trifacta and includes, but is not limited to, the terms of this Software 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”). Confidential Information shall not include information which: (i) is already known to Customer prior to disclosure by Trifacta; (ii) becomes publicly available without fault of Customer; (iii) is rightfully obtained by Customer from a third party without restriction as to disclosure; or (iv) is approved for release by written authorization of Trifacta. During and after the term of this Software License Agreement, Customer shall: (y) not use (except as expressly authorized by this Software License Agreement) or disclose Confidential Information without the prior written consent of Trifacta; 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 Software License Agreement by Customer. The Trifacta Software and all technical information relating thereto shall be considered Confidential Information of Trifacta. Customer may disclose Confidential Information to the extent required by law, provided that Customer gives Trifacta reasonable advance notice of the required disclosure and the opportunity to obtain appropriate confidential treatment for the Confidential Information. Trifacta may disclose aspects of this Software License Agreement to its licensors to the extent required under the agreement with the licensor. Trifacta will be free to use any data, metadata and information it so collects relating to the Trifacta Software and may allow others to do so.
7.1 Compliance with Laws; Export Control. Customer shall use the Trifacta Solution, the Trifacta Software and the Trifacta Services in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in this Marketplace Agreement, Customer shall not export or import the Trifacta Solution, the Trifacta Software or the Trifacta Services (including without limitation any Documentation) or any technical information provided under this Marketplace Agreement.
7.2 Assignment. Neither this Marketplace 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 Marketplace Agreement shall be void and without effect.
7.3 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, the Trifacta Solution and all Trifacta Software 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.
7.4 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.
7.5 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.
7.6 Notice. Any notices must be in writing and delivered by certified mail (receipt requested), overnight courier, hand delivery or, in the case of notices to Customer, by electronic mail to any email address which Customer has provided to Google. Notices shall be deemed to have been received on the same business day of the day of hand delivery or overnight courier or email transmission, or on the fifth business day following the day of forwarding by certified mail. The address of either party may be changed at any time by giving written notice to the other party in accordance with the foregoing.
7.7 Miscellaneous. Should any term of this Marketplace 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 Marketplace 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 Marketplace 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 Marketplace 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 Marketplace Agreement nor to any dispute or transaction arising out of this Marketplace Agreement. This Marketplace 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 Marketplace 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 Marketplace 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 Marketplace Agreement.