Trifacta Inc., a Delaware corporation with an office at 575 Market St., 11th Floor, San Francisco, California 94105 (“Trifacta”), and ____________________, a ____________ with an address of _________________ (“Customer”) agree as follows:
- Definitions. “Trifacta Solution” means the hosted version of the Trifacta Software which is made accessible to Customer by Trifacta through the AWS Marketplace (or any successor, the “Marketplace”) provided by Amazon, Inc. and its affiliates (collectively, “Amazon”). “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.
- 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.
- Customer Obligations. Customer shall (a) be responsible and liable for any action or inaction of Customer’s users which is in violation of this 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”).
- 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 Customer. Customer acknowledges that it will indemnify and hold Trifacta harmless from any failure of Customer to address the Report within five (5) business days of Trifacta’s forwarding of the report to Customer. Without limiting that obligation, Trifacta may, but is not required to take actions it deems appropriate in its sole discretion to resolve any Report.
- Professional Services. Trifacta will provide any professional services (“Professional Services”) which Customer has elected to purchase pursuant to a statement of work agreed to by the parties (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.
- Support. Trifacta shall use reasonable efforts to provide Support for the Trifacta Software and the Trifacta Services as during the License Term in accord with Trifacta’s then-current support policies.
- CONSIDERATION. The Fee for the Trifacta Software during the Initial License Term shall be as set forth on the Order Form executed by Customer. Except as otherwise provided in an Order Form, all fees paid under this 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 those 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 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 Agreement shall commence on the earlier of the date this Agreement is executed by the Customer, or the date Customer installs or otherwise accesses the Trifacta Software (the “Effective Date”) and shall continue for the term set out on the Order Form executed by Customer or, if the parties have not executed an Order Form, for sixty (60) days (the “License Term”). This Agreement may be terminated by either party: (a) upon ten (10) days written notice if the other party materially breaches any provision of this Agreement and the breach remains uncured within that ten (10) day period; or (b) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations; or (c) 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 proceeding of that nature is filed against it; or (d) immediately, upon any breach of Section 1.3. or Section 7 of this Agreement. Upon any expiration or termination of the License Term or this Agreement: (a) all licenses and rights granted by Trifacta to Customer hereunder shall terminate; (b) Customer will cease all use of the Trifacta Software; (c) and Customer shall immediately return to Trifacta the Trifacta Software and any Trifacta Confidential Information; ; and (d) Customer shall pay to Trifacta any fees accrued prior to the date of termination and, if this Agreement is terminated for any reason other than Trifacta’s uncured breach, any fees that would have been payable for the remainder of the Initial License Term or then-current Renewal Term. The provisions of Sections 1.3., 3, 4, 5, 6, 7 and 8 shall survive and remain effective after the effective date of termination or expiration of this Agreement.
- Indemnification by Trifacta. Trifacta shall defend Customer (including payment of attorneys’ fees, expert fees and court costs) from any third-party claims that the Trifacta Software and/or the Trifacta Solution infringe any U.S. issued patent, copyright or other proprietary right and shall indemnify Customer from any amounts assessed against Customer in a resulting judgment or amounts to settle claims. If Customer’s use of the Trifacta Software and/or the Trifacta Solution is (or in Trifacta’s opinion is likely to be) enjoined, Trifacta may terminate this Agreement and Customer’s right to use the Trifacta Software and the Trifacta Solution. Trifacta shall have no obligations under this Section to the extent any infringement claim is based on: (a) any modification or alteration to the Trifacta Software or the Trifacta Solution not made by Trifacta; (b) any combination or use of the Trifacta Software or the Trifacta Solution with products or services not provided by Trifacta; (c) any unauthorized use of the Trifacta Software or the Trifacta Solution; (d) any unsupported release of the Trifacta Software or the Trifacta Solution or if Customer fails to install an update provided by Trifacta that could have avoided the actual or alleged third party claim; (e) if Customer settles or makes any admissions with respect to a claim without Trifacta’s prior written consent; (f) Customer’s continuance of allegedly infringing activity after being notified thereof; and/or; (g) use of the Trifacta Software or the Trifacta Solution not in accordance with the terms of this 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.
- Indemnification by Customer. Customer shall defend Trifacta (including payment of attorneys’ fees, expert fees and court costs) from any third-party claims arising out of any breach by Customer of this Agreement.
- Conditions of Indemnification. Each party’s indemnification obligations under this Section 5 are conditioned on (a) prompt written notice of any claim; (b) the ability to control and direct the defense or settlement of any claim; and (c) all reasonable assistance in connection with the defense or settlement of any claim.
- DISCLAIMER; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TRIFACTA SOFTWARE 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. CUSTOMER’S SOLE REMEDY AND TRIFACTA’S SOLE LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL BE TO TERMINATE THE AGREEMENT, CEASE ALL USE OF THE TRIFACTA SOFTWARE AND IMMEDIATELY RETURN TO TRIFACTA THE TRIFACTA SOFTWARE AND ALL DUPLICATES, AND ANY TRIFACTA CONFIDENTIAL INFORMATION. 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 IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR COSTS. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TRIFACTA OR ANY OF ITS THIRD PARTY LICENSORS (UNDER ANY THEORY OF LIABILITY) EXCEED ONE THOUSAND DOLLARS ($1,000), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
- 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 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: (a) is already known to Customer prior to disclosure by Trifacta; (b) becomes publicly available without fault of Customer; (c) is rightfully obtained by Customer from a third party without restriction as to disclosure; or (d) is approved for release by written authorization of Trifacta. During and after the term of this Agreement, Customer shall: (y) not use (except as expressly authorized by this 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 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 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.
- Compliance with Laws; Export Control. Customer shall use the Trifacta Software in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in this Agreement, Customer shall not export or import the Trifacta Software (including any Documentation), or any technical information provided under this Agreement.
- Assignment. Neither this 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 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.
- Open-Source Code. Components of the Trifacta Software may be covered by so-called “open source” software licenses (“Open-Source Software”). Customer’s use of any Open-Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in that Open-Source Software (each an “Open-Source License”). Trifacta grants Customer a license to use the Open-Source Software to the full extent permitted by the applicable Open-Source License.
- 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. Customer agrees to receive marketing communications and other solicitations and materials from Trifacta, as determined by Trifacta in its sole discretion
- International Transfers.
a) Datacenter locations. Trifacta may transfer and process Customer Data, including any Personal Data contained therein, anywhere in the world where Trifacta, its affiliates or its sub processors maintain data processing operations, provided that such processing complies with the requirements of applicable law. Specifically, Trifacta may store or otherwise process Customer Data within the United States, regardless of the country in which Customer is based or the country of origin for Customer Data.
b) Transfers from the EEA. To the extent that Personal Data contained within Customer Data is transferred by or on behalf of Customer (including onward transfers) from within the European Economic Area (EEA) to Trifacta in a jurisdiction outside of the EEA, the Parties agree that, with respect to any restricted transfer under the GDPR, the Standard Contractual Clauses approved by the European Commission under Decision 2021/914 of 4 June 2021 (Module 2) shall apply and provide the appropriate safeguards required of such transfer.
c) Transfers from the United Kingdom. To the extent that Personal Data contained within Customer Data is transferred by or on behalf of Customer (including onward transfers) from within the United Kingdom to Trifacta in a jurisdiction outside of the United Kingdom, the Parties agree that, with respect to any restricted transfer under applicable law, the Standard Contractual Clauses approved by the European Commission under Decision 2010/87 of 5 February 2010 shall apply and provide the appropriate safeguards required of such transfer.
d) Alternative Transfer Mechanism. The Parties agree that the Standard Contractual Clauses shall not apply if and to the extent that Trifacta adopts an alternative mechanism for the lawful transfer of Personal Data under applicable law, in which event, the alternative mechanism shall apply instead.
- Miscellaneous. Should any term of this 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 the 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 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 Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, those courts and service of process being affected upon it by registered mail sent to the address set forth at the beginning of this Agreement in the case of Trifacta, and by registered mail to any address provided by Customer to Trifacta in the case of Customer. 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 Agreement. This Agreement 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 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 Agreement may be amended only upon the written consent of both parties. 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 Agreement.
|The Parties acknowledge that they are bound by the foregoing Agreement as of _______________.|
|___________________________ (“Customer”)||Trifacta Inc.:|