BY CLICKING ON THE “I ACCEPT” OR SIMILARLY LABELLED BUTTON OR BY USING OR OTHERWISE EXERCISING ANY RIGHTS PROVIDED BELOW TO USE THE TRIFACTA SOFTWARE OR THE TRIFACT SOLUTION (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, 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 Definitions. “Trifacta Solution” means the hosted version of the Trifacta Software which is made accessible to Customer by Trifacta. “Customer Data” means any materials provided by or on behalf of Customer. “Trifacta Software” means Trifacta’s data wrangling software. “Documentation” means the end user or technical documentation pertaining to the Trifacta Solution provided by Trifacta. “Services Term” means the Initial Term and any Renewal Terms as defined in Section 3.1
1.2 License. Trifacta grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Trifacta Solution for the Services Term for Customer’s internal business purposes in accordance with the Documentation for the number of Named Users set forth in the Trifacta Order Form (the “Quantity”).
1.3 Restrictions. Customer shall not, and shall not authorize any third party to: (a) rent, transfer, distribute, sublicense or duplicate or use for the benefit of a third party the Trifacta Software or the Trifacta Solution, or any portion thereof, except as authorized in this Hosted Services Agreement; (b) modify, translate, or prepare derivative works based upon the Trifacta Software and/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 or confidentiality legend on or in the Trifacta Solution or the Trifacta Software; (g) use the Trifacta Solution 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 (h) 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 Hosted Services 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 Customer Obligations. Customer shall (a) be responsible for any action or inaction of Customer’s users which is in violation of this Hosted Services Agreement; (b) be responsible for the accuracy, quality, integrity and legality of any Customer Data or materials processed by the Trifacta Solution and the means by which Customer acquires, uploads, transmits and processes those materials; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Trifacta Solution and to notify Trifacta promptly of any unauthorized access or use of the Trifacta Solution of which it becomes aware; (d) make any disclosures and obtain any consents as required by any applicable law, rule or regulation for the use, processing, transfer, disclosure, or access to Customer Data by the Trifacta Solution; (e) be solely responsible for any equipment or services needed to connect to or use the Trifacta Solution, including, without limitation, computers, computer operating system and internet access; and (f) comply with Trifacta’s Acceptable Use Policy which may be found at https://www.trifacta.com/acceptable-use-policy/.
1.5 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 an email address provided by Customer designated to receive Reports (the “Abuse Contact”). Upon receipt of a Report, Customer will (a) acknowledge receipt within two (2) business days of receipt; and (b) address the Report within five (5) business days with the Reporter, including informing the Reporter that Customer (and not Trifacta) is the appropriate party to address the matter. Trifacta may provide the Abuse Contact to a Reporter inquiring about Customer Data or Customer’s use of the Trifacta Solution.
1.6 Professional Services. Trifacta will provide any Professional Services packages 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 Support. Trifacta shall provide Support for the Trifacta Solution during the Services Term as set forth at www.trifacta.com/suppportpolicy.
2.1 Fees. In consideration of the license to the Trifacta Solution granted under this Hosted Services Agreement, Customer shall pay to Trifacta the Fees in the amounts and at the times specified in the Trifacta Order Form.
2.2 Tracking; Reporting. At anytime during the Term, if Customer exceeds the Quantity, then Customer shall pay the applicable Fees and the Quantity shall be amended to reflect this change. At the end of each calendar quarter, Trifacta may invoice Customer for any increase in Quantity during that quarter.
2.3 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 Quantity during the Term.
3. TERM AND TERMINATION.
3.1 Terms. The term of this Hosted Services 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”), subject to termination as set forth in Section 3.2. At the end of the Initial Term and each Renewal Term, the term will automatically renew for additional twelve (12) month terms (each, a “Renewal Term”) at Trifacta’s then-current rates unless Customer notifies Trifacta at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term.
3.2 Termination. This Hosted Services Agreement may be terminated by either party: (a) upon thirty (30) days written notice if the other party materially breaches any provision of this Hosted Services Agreement and the breach remains uncured within that thirty (30) 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 is filed against it (and not dismissed within ninety (90) days); or (d) effective immediately, upon any breach of Section 1.3 of this Hosted Services Agreement.
3.3 Effect of Termination. Upon any expiration or termination of this Hosted Services 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; (c) Customer shall immediately return to Trifacta the Trifacta Software, all duplicates, and any Trifacta Confidential Information in its possession or control; 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.
3.4 Survival. The provisions of Sections 1.3, 1.4, 3, 4, 6, 7 and 8 shall survive and remain effective after the effective date of termination or expiration of this Hosted Services Agreement.
4.1 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 infringes any 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, 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 and/or the Trifacta Solution are (or in Trifacta’s opinion are likely to be) enjoined, Trifacta may terminate this Hosted Services Agreement and Customer’s right to use the Trifacta Software and the Trifacta Solution and refund to Customer any prepaid, unused Fees. Trifacta shall have no obligations under this Section to the extent any infringement claim is based upon or arising out of: (w) any modification or alteration 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 allegedly 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 Hosted Services 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.
4.2 Customer shall defend Trifacta (including payment of attorneys fees, expert fees and court costs) from any third party claims resulting from any breach by Customer of the provisions of Sections 1.3 and 1.4 provided that Trifacta: (a) gives Customer prompt written notice of any claim; (b) permits Customer to control and direct the defense or settlement of any claim; and (c) provides Customer all reasonable assistance in connection with the defense or settlement of any claim.
5.1 Trifacta Solution Warranty. Trifacta warrants to Customer that, during the Services Term the Trifacta Solution will materially perform in accord with the Documentation at the Service Level Availability located at 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 are non-conforming and any pre-paid, unused Fees and to terminate this Hosted Services Agreement. The warranties do not cover non-conformances due to: (a) any modification, reconfiguration or maintenance of the Trifacta Solution or Trifacta Software performed by any party other than Trifacta; (b) any use of the Trifacta Solution on a system that does not meet Trifacta’s minimum standards; (c) any hardware ir software other than the Trifacta Solution. Trifacta shall be responsible under this Section 5.1 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.
5.2 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. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE TRIFACTA SOLUTION, THE TRIFACTA SOFTWARE 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. EXCEPT FOR A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 1.3 OR SECTION 1.4 OR A PARTY’S OBLIGATIONS UNDER SECTION 4 OF THIS HOSTED SERVICES AGREEMENT, (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 TRIFACTA OR ANY OF TRIFACTA’S THIRD PARTY LICENSORS UNDER THIS AGREEMENT (UNDER ANY THEORY OF LIABILITY) EXCEED THE FEES RECEIVED BY TRIFACTA FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM, WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
7. 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.
8.1 Compliance with Laws; Export Control. Customer shall use the Trifacta Software and the Trifacta Solution in compliance with all applicable laws, statutes, rules and regulations. Except as expressly permitted in this Hosted Services Agreement, Customer shall not export or import the Trifacta Software and the Trifacta Solution (including without limitation any Documentation) or any technical information provided under this Hosted Services Agreement.
8.2 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, pandemics, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Trifacta or Customer employees, respectively), or, where Trifacta is in compliance with its obligations under this Agreement, computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
8.3 Assignment. Neither this Hosted Services 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 Hosted Services Agreement shall be void and without effect.
8.4 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 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.
8.5 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 agree to use commercially reasonable efforts to provide positive quotes for press and marketing materials upon reasonable request of Trifacta.
8.6 Miscellaneous. Should any term of this Hosted Services 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 Hosted Services 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 Hosted Services 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 Hosted Services 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 Hosted Services Agreement. This Hosted Services 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 Hosted Services 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 Hosted Services 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 Hosted Services Agreement.