BY CLICKING ON THE “I ACCEPT” OR SIMILARLY LABELLED BUTTON OR BY USING OR BY OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE TRIFACTA SOLUTION OR THE TRIFACTA SOFTWARE (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 SOLUTION, THE TRIFACTA SOFTWARE OR ANY PROFESSIONAL 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.
1.1 License. Trifacta grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Trifacta Software identified on an order form issued by Trifacta or its authorized reseller (a “Trifacta Order Form”) for the Initial Term specified on the Trifacta Order Form for Customer’s internal business purposes in accordance with the documentation provided by Trifacta to Customer (the “Documentation”) for the scope of usage set forth in the Trifacta Order Form (the “Scope”) to be installed either on a Customer controlled environment (including on any hosted environment under Customer’s control) (a “Customer Managed Solution”) or as part of a hosted environment made available by Trifacta (the “Trifacta Solution” as specified in the Trifacta Order Form.
1.2 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 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; (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; and/or (g) use the Trifacta Solution 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 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, provided that the foregoing does not include the results of Customer’s use of use of the Trifacta Solution, which will remain Customer Data.
1.4 Software Support. 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; (e) be solely 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 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; (e) be solely 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”).
1.6 Third Party Reports. Trifacta may receive notices from third parties (“Reporters”) regarding Customer Data or Customer’s use of the Trifacta Solution (“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.
1.7 Professional Services. Trifacta will provide any Professional Services which Customer has elected to purchase pursuant to a Trifacta Order Form. Customer understands that Trifacta’s delivery of the Professional Services is dependent on Customer’s timely provision of information, material, and resources.
1.8 Fees. In consideration of the license to the Trifacta Software and/or the Trifacta Solution granted hereunder and the provision of any Professional Services, Customer shall pay to Trifacta the Fees in the amounts and at the times specified in the Trifacta Order Form.
1.9 Tracking; Reporting. At anytime during the Term, if Customer wishes to increase the Scope, then Customer shall notify Trifacta and the parties shall execute an additional Trifacta Order Form. Customer shall pay the applicable Fees and after Trifacta receives the payment, the Scope will be amended.
1.10 Payment Terms. All Fees under this Agreement 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 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. Except as otherwise expressly provided in this Agreement, Customer shall not be entitled to any refund of any Fees if Customer fails to use the full Scope during the Term.
3. TERM AND TERMINATION.
1.11 Term. The term of each Order Form under this Agreement shall commence on the Effective Date set forth on the Trifacta Order Form and shall continue for the Initial Term set forth on the Trifacta Order Form (the “Initial Term”). At the end of the Initial Term and each Renewal Term, the Order Form and this Agreement will automatically renew for additional twelve (12) month terms (each, a “Renewal Term”) unless either party provides notice of non-renewal at least sixty (60) days before the end of the Initial Term or then-current Renewal Term. The rate of Fees will increase by nine percent (9%) upon the commencement of each Renewal Term. (The Initial Term and any Renewal Terms are the “Term”.)
1.12 Termination. This Agreement may be terminated by either party: (a) upon thirty (30) days written notice if the other party materially breaches any provision of this Agreement and the breach remains uncured at the end of that thirty (30) day period; or (b) effective immediately, if Customer ceases to do business, or otherwise terminates its business operations or 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 and not dismissed within ninety (90) days; or (c) effective immediately, upon any breach of Section 1.2 of this Agreement.
1.13 Effect of Termination. Upon any expiration or termination of this Agreement: (a) all licenses and rights granted by Trifacta to Customer shall terminate; and (b) Customer will cease all use of the Trifacta Software and the Trifacta Solution; and (c) and Customer shall immediately return to Trifacta the Trifacta Software, all duplicates, and any Trifacta Confidential Information; and (d) Customer shall pay to Trifacta within thirty (30) days of the date of termination 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 Term or then-current Renewal Term.
1.14 Survival. The provisions of Sections 1.2, 2, 3, 4, 6, 7 and 8 shall survive and remain effective after the termination or expiration of this Agreement.
1.15 Survival. Trifacta, at its own expense, shall defend, indemnify and hold Customer harmless from any third party claims that the Trifacta Software or the Trifacta Solution infringes any patent or copyright or misappropriates any third party’s trade secret, provided that Customer: (a) gives Trifacta prompt written notice of any claim; (b) permits Trifacta to control and direct the defense or settlement of any claim; and (c) provides Trifacta all reasonable assistance in connection with the defense or settlement of any claim. If Customer’s use of the Trifacta Software or the Trifacta Solution is (or in Trifacta’s opinion is likely to be) enjoined, Trifacta, at its expense and in its sole discretion, may: (m) procure the right to allow Customer to continue to use the Trifacta Software or Trifacta Solution; or (n) modify or replace the Trifacta Software or the Trifacta Solution to become non-infringing; or (o) terminate Customer’s right to use the affected portion of the Trifacta Software and/or the Trifacta Solution and refund any pre-paid, unused Fees with respect thereto. Trifacta shall have no obligations under this Section to the extent any infringement claim is based on: (w) any modification to the Trifacta Software or the Trifacta Solution not made by Trifacta; (x) any combination or use of the Trifacta Software or the Trifacta Solution with products or services not approved by Trifacta in writing; (y) Customer’s continuance of infringing activity after being notified thereof; and/or (z) 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 remedies, and Trifacta’s entire liability, with respect to infringement or misappropriation of third-party intellectual property.
1.16 Customer, at its own expense, shall defend, indemnify and hold Trifacta harmless from any third-party claims resulting from any breach by Customer of Section 1.2 or Section 1.5 of this Agreement.
1.17 Customer Managed Solution Warranty. If Customer will be using the Trifacta Software as part of a Customer Managed Solution, Trifacta warrants to Customer that, during the Term the Trifacta Software will perform in all material respects in accordance with its Documentation. Trifacta’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Trifacta, at its option, within forty-five (45) days from the date of Trifacta’s receipt of written notification of the defect from Customer: (a) to correct the defect, or (b) to replace the non-complying Trifacta Software with complying Trifacta Software, or (c) if, in Trifacta’s judgment, (a) and (b) above are not reasonably available, to refund the Subscription Fees paid for the period during which the Trifacta Software is non-conforming and any pre-paid, unused Fees and to terminate this Agreement. The foregoing warranties do not cover non-conformity due to: (x) any modification of the Trifacta Software not made by Trifacta; (y) any use of the Trifacta Software on a system that does not meet Trifacta’s minimum standards; or (z) any software other than the Trifacta Software or any hardware. Trifacta shall be responsible under this Section 5.1 only if Customer provides Trifacta with a written warranty claim detailing the non-conformity in the Trifacta Software within thirty (30) days of the non-conformity (the “Warranty Period”). The warranty in this Section 5.1 will not apply with regard to Customer’s use of the Trifacta Software as part of a Trifacta Solution.
1.18 Trifacta Solution Warranty. Trifacta warrants to Customer that the Trifacta Solution will materially perform in accord with the Documentation at the Service Level Availability found at https://www.trifacta.com/hostedSLA/ (the “SLA”). Trifacta’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Trifacta to provide the Service Credits as set forth in the SLA, or if in Trifacta’s judgment, Trifacta will be unable to meet the Service Level Availability, to refund the Fees paid for any period during which the Trifacta Solution is non-conforming and any pre-paid, unused Fees and to terminate the Trifacta Order Form. The warranties in this Section 5.2 do not cover non-conformances due to: (x) any modification, reconfiguration or maintenance of the Trifacta Solution performed by anyone other than Trifacta; (y) any use of the Trifacta Solution with a system that does not meet Trifacta’s minimum standards; or (z) any network, software or hardware not provided by Trifacta. Trifacta shall be responsible under this Section 5.2 only if Customer provides Trifacta with a written warranty claim detailing the non-conformance in the Trifacta Solution within thirty (30) days of the non-conformance.
1.19 Services Warranty. Trifacta represents and warrants to Customer that it will provide the Professional Services in a manner conforming to generally accepted industry standards and practices for similar services. Trifacta’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Trifacta to re-perform the Professional Services, provided that Trifacta must have received written notice of the nonconformity from Customer no later than thirty (30) days after the original performance of the services by Trifacta. Trifacta’s performance will be extended appropriately and equitably to reflect any delays resulting from Customer actions or inactions or changes to customer products or systems.
6. DISCLAIMER; LIMITATION OF LIABILITY.
1.20 To the maximum extent permitted by law, except as expressly warranted herein, the Trifacta Software, the Trifacta Solution and any other software or services Trifacta provides are without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability, or fitness for a particular purpose.
1.21 Except for a breach by either party of its obligations under Sections 1.2, 1.5 or 7 or a party’s obligations under Section 4, (a) 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 the party has been advised of the possibility of those damages or costs; and (b) in no event will the aggregate liability of either party, or any third party licensors under this agreement (under any theory of liability) exceed the fees received by Trifacta from Customer (or, in the case of Customer’s liability, fees paid and due to Trifacta) in the twelve (12) month period prior to the claim, whether any remedy set forth herein fails of its essential purpose or otherwise. In no event will Trifacta’s liability for a breach of Section 7 of this Agreement exceed three (3) times the fees paid to Trifacta in the twelve (12) month period prior to the claim.
7. CONFIDENTIAL INFORMATION.
1.22 Disclosure and Use. Each party (the “Receiving Party”) agrees to keep the Confidential Information (as defined below) of the other party (the “Disclosing Party”) in confidence and not to use the Confidential Information except in performing hereunder. The Receiving Party agrees to: (a) protect all Confidential Information of the Disclosing Party in the same manner as it protects its own similar proprietary information, but in no case with less than reasonable care; and (b) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know the information for the purposes of this Agreement, provided that any employee and contractor shall be subject to a binding written agreement with respect to Confidential Information at least as protective of the Disclosing Party as this Agreement. Any act or omission of the any employee or contractor of the Receiving Party will be deemed an act of the Receiving Party for the purposes of this Agreement. Subject to applicable confidentiality obligations, Trifacta may disclose the terms of this Agreement and Order Forms to its third party licensors, solely for the purpose of Trifacta’s compliance with the terms of its license agreements with those third party licensors. If the Receiving Party is required by law to disclose any of the Disclosing Party’s Confidential Information then, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party prior to making any such disclosure, in order to facilitate the Disclosing Party’s efforts to protect its Confidential Information. The Receiving Party will cooperate with the Disclosing Party, at the Disclosing Party’s reasonable expense, in seeking and obtaining protection for the Disclosing Party’s Confidential Information.
1.23 “Confidential Information” means any non-public data, information and other materials regarding the products, services or business of a party (and, if a party is bound to protect the confidentiality of any third party’s information, of that third party) where the information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where the information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, the Trifacta Software and any performance and technical information relating thereto, Trifacta’s pricing information and the terms and conditions of this Agreement (but not its existence) are the Confidential Information of Trifacta. and the Customer Data is the Confidential Information of Customer Confidential Information shall not include information which: (a) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (b) becomes publicly available without fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party.
1.24 Audit. During each calendar year of the Term and for one (1) year after the Term, Trifacta shall have the right upon forty-five (45) days’ notice, to examine, during Customer’s regular business hours, Customer’s relevant records for the purpose of verifying Customer’s compliance with this Agreement. Trifacta shall pay the fees and expenses of the auditor unless any examination discloses a greater than five percent (5%) shortfall in the payments due Trifacta, in which case Customer shall pay the fees and expenses of the auditor. The Trifacta Software may contain automated reporting routines that automatically identify certain aspects of the performance of the Trifacta Software and provide reports to Trifacta. Trifacta will be free to use that data for development, diagnostic and corrective purposes.
1.25 Compliance with Laws; Export Control. Customer shall use the Trifacta Software in compliance with all applicable laws, statutes, rules and regulations. Customer acknowledges that the Trifacta Software may be subject to United States or other governments’ export laws, rules and regulations, and any use or transfer of that technical information or products made using technical information must be permitted under those laws, rules or regulations.
1.26 Notice. Any notices must be in writing and delivered by certified mail (receipt requested), overnight courier, or hand delivery to the other party to the address set forth on the Trifacta Order Form. 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. Either party may change its address for notices at any time by giving written notice to the other party in accordance with the foregoing.
1.27 Publicity. 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 further permits Trifacta to use it as a reference account for marketing purposes and agrees to support Trifacta by participating in reference phone call(s) and other marketing events with press, analysts, and Trifacta’s existing or potential investors or customers upon reasonable request by Trifacta. Customer shall use commercially reasonable efforts to provide positive quotes for press and marketing materials upon reasonable request of Trifacta.
1.28 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 the Trifacta Solution 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.
1.29 Severability; Waiver. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, that provision shall modified or eliminated to the minimum extent necessary and the declaration shall have no effect on the remaining terms, which shall continue in full force and effect. The failure of either party to enforce any rights or to take action against the other party in the event of any breach shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
1.30 Assignment. Neither party may assign this Agreement without the consent of the other party except in the event of a its merger, acquisition or sale of all or substantially all of its assets. Any attempted assignment in violation of this Agreement shall be void and without effect.
1.31 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.
1.32 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.
1.33 Governing Law; Venue. 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 expressly consents to the personal jurisdiction of, and venue in, those courts and service of process being affected upon it by registered mail and sent to the address set forth on the Trifacta Order Form. 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 nor to any dispute or transaction arising out of this Agreement. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
1.34 Entire Agreement. This Agreement and any exhibits attached hereto and each Trifacta Order Form set 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. This Agreement may be amended only upon the written consent of both parties.