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.
1. LICENSE.
1.1 Trifacta Software; Trifacta Services. For the purposes of this Trial License Agreement, “Trifacta Software” shall mean: (a) the object code version of the Trifacta Trial Software, and (b) any associated user documentation provided to Customer (“Documentation”), and (c) any updates, upgrades, and/or modifications of the foregoing which are provided to the Customer pursuant to the terms of this Agreement. “Trifacta Services” shall mean any online Trifacta applications and platform which are made accessible to Customer by Trifacta, which may include a hosted version of the Trifacta Software on an outsourced basis.
1.2 Limited License. Subject to the terms and conditions of this Trial License Agreement, during the License Term, Trifacta grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Trifacta Software and Trifacta Services for Customer’s internal business purposes in accordance with the Documentation for the scope set forth.
1.3 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 Agreement; (ii) use the Trifacta Software or Trifacta Services by, or for the benefit of any third party; (iii) modify, translate, or prepare derivative works based upon the Trifacta Software or 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 Software or 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 Software or Trifacta Services; (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 Trial 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.
1.4 Customer Obligations. Customer shall (i) be responsible and liable for any action or inaction of Customer’s employees or contractors which is in violation of this Trial 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) prevent unauthorized access to or use of the Trifacta Services, and notify Trifacta promptly of any 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 Trial 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. Customer represents and warrants that all information Customer provides to Trifacta is true and accurate.
1.5 Third Party Reports. Trifacta may receive notices from third parties (“Reporters”) regarding Customer’s use of the Trifacta Services (“Reports”). Trifacta will forward all Reports directly to Customer. 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 person making the Report (the “Reporter”), including informing the Reporter that Customer (and not Trifacta) is the appropriate party to address the matter. Trifacta may provide the Customer’s information to a Reporter inquiring about Customer data or Customer’s use of the Services.
1.6 Support. Trifacta shall use reasonable efforts to provide Support for the Trifacta Software and the Trifacta Services as during the License Term.
2. CONSIDERATION. The Fee for the Trifacta Software and the Trifacta Services during the License Term shall be $0 but in consideration for the license granted under this Trial License Agreement, Customer agrees to receive marketing communications and other solicitations and materials from Trifacta, as determined by Trifacta in its sole discretion.
3. TERM AND TERMINATION. The term of this Trial License Agreement shall commence on the earlier of the date this Trial 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 fourteen (14) days, subject to termination as set forth in this Section 3. This Trial License Agreement may be terminated by either party: (i) upon written notice if the other party materially breaches any provision of this Trial License Agreement and the breach remains uncured within that two (2) 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 proceeding of that nature is filed against it; (iv) immediately, upon any breach of Section 1.3, Section 1.4 or Section 6 of this Trial License Agreement; or (v) by either party, upon two (2) days’ written notice. Upon any expiration or termination of this Trial License Agreement: (a) all licenses and rights granted by Trifacta to Customer hereunder shall terminate; and (b) Customer will cease all use of the Trifacta Software and the Trifacta Services; and (c) 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, 1.4, 1.5, 3, 4, 5, 6 and 7 shall survive and remain effective after the effective date of termination or expiration of this Trial License Agreement.
4. INDEMNIFICATION.
4.1 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 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 Trial License 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 approved by Trifacta in writing; (c) Customer’s continuance of allegedly infringing activity after being notified thereof; and/or (d) use of the Trifacta Software or the Trifacta Solution not in accordance with the terms of this Trial 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.
4.2 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: (a) Customer data; or (b) Customer’s use of the Trifacta Services.
4.3 Conditions of Indemnification. Each party’s indemnification obligations under this Section 4 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.
5. DISCLAIMER; LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TRIFACTA SOFTWARE AND 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. TRIFACTA DOES NOT GUARANTEE THAT THE TRIFACTA SERVICES, DOCUMENTATION OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. 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. 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 THIRD PARTIES WILL BE FREE FROM ERRORS OR INTERRUPTIONS OF SERVICE. EXCEPT FOR TRIFACTA’S OBLIGATIONS UNDER SECTION 4 OF THIS TRIAL LICENSE AGREEMENT, (A) CUSTOMER’S SOLE REMEDY AND TRIFACTA’S SOLE LIABILITY FOR ANY BREACH OF THIS TRIAL 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 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; AND (C) IN NO EVENT WILL THE AGGREGATE LIABILITY OF TRIFACTA OR ANY OF ITS THIRD PARTY LICENSORS (UNDER ANY THEORY OF LIABILITY) EXCEED TEN THOUSAND DOLLARS ($10,000), 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 Trial 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 Trial License Agreement, Customer shall: (y) not use (except as expressly authorized by this Trial 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 Trial License Agreement by Customer. The Trifacta Services 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 Trial 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 Trifacta Services, and may allow others to do so.
7. GENERAL:
7.1 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 Trial License Agreement, Customer shall not export or import the Trifacta Software and the Trifacta Services (including any Documentation) or any technical information provided under this Trial License Agreement.
7.2 Assignment. Neither this Trial 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 Trial License 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, 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.
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 Miscellaneous. Should any term of this Trial 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 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 Trial 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 Trial License 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 Trial License 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 Trial License Agreement. This Trial License 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 Trial 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 Trial License 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 Trial License Agreement.