END USER LICENSE AGREEMENT
If the User and ThoughtSpot have signed and delivered a separate written agreement that is currently effective and intended to cover the Products identified in this End User License Agreement ("Other Agreement"), then the terms and conditions of the Other Agreement shall apply to the Products to the extent the terms of this End User License Agreement and the Other Agreement conflict.
READ CAREFULLY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS THAT GOVERN ALL USE OF THE PRODUCTS AND SOFTWARE (EACH AS DEFINED BELOW). USE OF THE PRODUCTS, OR INSTALLING, COPYING, ACCESSING, LOADING OR USING THE SOFTWARE IN ANY MANNER CONSTITUTES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT AND CREATES A LEGALLY ENFORCEABLE CONTRACT IN WHICH YOU WILL BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, WITHOUT MODIFICATION. NO PURCHASE ORDER OR SIMILAR DOCUMENTS OR TERMS SHALL APPLY. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO ACCEPT AND ENTER INTO THIS AGREEMENT, THEN YOU MAY NOT USE THE PRODUCTS OR INSTALL, COPY, ACCESS, LOAD OR USE THE SOFTWARE IN ANY MANNER.
- About This Agreement. This Agreement applies to all Products made available by ThoughtSpot, Inc. (“ThoughtSpot”) to you. As used herein, (i) “Hardware” means the computer hardware components of the ThoughtSpot system delivered by ThoughtSpot to you pursuant to this Agreement, including but not limited to host computer(s), memory, hard disk drives, network devices, and other components, as well as replacement and spare parts; (ii) “Software” means any computer software or firmware (a) installed on or embedded in the Hardware, or (b) otherwise provided by ThoughtSpot or ThoughtSpot’s authorized agent (e.g., an authorized reseller or customer) to you pursuant to this Agreement for use with Products, including but not limited to any applicable updates, patches, or new releases that ThoughtSpot or its licensors may provide from time to time; (iii) “Documentation” means the installation and operating instructions, user manuals, and help files provided by ThoughtSpot to you pursuant to this Agreement and intended for use in connection with Products; and (iv) “Products” means, collectively, the Hardware, Software and Documentation.
- Permitted Use and Restrictions.
2.1 Permitted Use. Products shall only be used by you solely for your internal business purposes, and shall be accessed and used only by your authorized affiliates, employees, and contractors, (if applicable).
2.2 Restrictions. You may not use the Products except as permitted in this Agreement. You shall not: (i) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Products or reconstruct any Products, or attempt to derive or obtain any source code, structure, algorithms, process, technique, technology, know-how, or ideas embodied by, underlying, or contained in Products; (ii) remove any product identification or proprietary rights notices, legends, symbols or labels from Products; (iii) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or otherwise provide access to Products to any third party except as expressly permitted by this Agreement; (iv) alter, modify or create derivative works of any Products (including the underlying source code of the Software) in any way, including without limitation customization, translation or localization; (v) perform any benchmark tests or other comparative tests on the Products; or (vi) use or copy Products except as expressly provided by this Agreement. You may not release the results of any performance or functional evaluation of any of the Products to any third party without prior written approval of ThoughtSpot for each such release. You shall not permit or facilitate any other person or entity from taking any actions which you are prohibited from taking pursuant to this Agreement.
2.3 Software and Documentation License. Copies of the Software and Documentation are licensed and not sold. Subject to the terms and conditions of this Agreement, including payment of the purchase price and/or all fees, ThoughtSpot hereby grants to you a limited, non-exclusive, non-transferable (except as set forth herein), non-sublicenseable, right to use the Software and Documentation during the term of this Agreement for your internal business purposes. You shall use your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized disclosure or use. ThoughtSpot and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to you. ThoughtSpot’s licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein. There are no implied licenses granted by ThoughtSpot under this Agreement. Except as specified above, you shall have no rights to the Software or Documentation.
2.4 Third Party Software. The Products may contain copyrighted software of ThoughtSpot’s suppliers which are obtained under a license from such suppliers (“Third Party Software”). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and by using the Products, you represent and warrant that you have read, understood, and agree to be bound by the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation any end user license agreement or other end user licensing terms made available at http://www.thoughtspot.com/legal and applicable to such Third Party Software. ThoughtSpot shall provide to you any copyright notices and licensing terms and conditions applicable to the Third Party Software.
2.5 Open Source Software. For any Software that is identified in the applicable Documentation as open source software, you may request the machine-readable source code from ThoughtSpot and may use the source code subject to the terms and conditions of the applicable open source license.
2.6 Audit Rights. ThoughtSpot will have the right to perform technical audits on Products provided to you to ensure compliance with the terms of this Agreement. Each audit will be conducted at the Installed Site, during your normal business hours, and with at least five (5) business days prior written notice. As used herein, “Installed Site” means any facility where Products are installed.
- Proprietary Rights.
3.1 Ownership. ThoughtSpot owns all right, title and interest in and to the Products, including the Hardware, and nothing in this Agreement will confer on you any right of ownership or interest in the Products. You will be solely responsible for the risk of loss or damage to the Products, including the Hardware, from any and every cause whatsoever, from the time of delivery of the Products to you until the Products are returned to ThoughtSpot (“Risk of Loss Period”). If any Product or portion thereof is damaged or destroyed during the Risk of Loss Period, then, without limiting any other rights or remedies, ThoughtSpot shall have the right and may, in its sole and absolute discretion, repair such damage or replace such destroyed Product and you shall immediately reimburse ThoughtSpot for all costs and expenses incurred in connection therewith.
3.2 Intellectual Property. Except as expressly stated herein, this Agreement does not constitute a grant of license with respect to any Intellectual Property Rights. ThoughtSpot retains all its Intellectual Property Rights, whether or not specifically recognized or perfected under the laws of the country where Products are located. ThoughtSpot and its licensors retain all right, title, and interest in and to the Products and all copies thereof, regardless of the form or media in or on which the original or other copies may subsequently exist. All suggestions or feedback provided by you to ThoughtSpot with respect to the Products shall be ThoughtSpot’s property and deemed Proprietary Information of ThoughtSpot. As used herein, “Intellectual Property” means patent, trademark, copyright, trade secret, and any other intellectual and intangible property rights, including but not limited to all registrations and applications for such rights, and all continuations, continuations in part, divisional applications, and renewals of any of the foregoing.
3.3 Trademarks. Neither party grants the other party the right to use its trademarks, service marks, or trade names, whether registered or not, in any promotion or publication (including but not limited to the Internet) without prior written consent.
- No Support. This Agreement does not entitle you to receive from ThoughtSpot or its licensors any support, telephone assistance, or enhancements or updates to the Products.
- Confidentiality. Proprietary Information. As used herein, “Proprietary Information” means the Products and all other information disclosed to you that ThoughtSpot characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (i) is previously rightfully known to you without restriction on disclosure; (ii) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (iii) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (iv) is independently developed by you without access to the Proprietary Information. You shall use your best efforts to preserve and protect the confidentiality of the Proprietary Information at all times, both during the term hereof and for a period of at least three (3) years after termination of this Agreement; provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Proprietary Information to any person, firm, corporation or other third party without the prior written consent of ThoughtSpot. You shall not use any Proprietary Information other than in the course of the activities permitted hereunder. You shall notify ThoughtSpot in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement, and will cooperate with ThoughtSpot in every reasonable way to regain possession of Proprietary Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Proprietary Information, then, prior to such disclosure, you will (a) immediately notify ThoughtSpot prior to such disclosure to allow ThoughtSpot an opportunity to contest the disclosure, (b) assert the privileged and confidential nature of the Proprietary Information, and (c) cooperate fully with ThoughtSpot in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information. In the event such protection is not obtained, you shall disclose the Proprietary Information only to the extent necessary to comply with the applicable legal requirements.
- Term and Termination. This Agreement automatically terminates if you fail to comply with its terms and conditions. Immediately upon termination, you shall return all Products in your possession, custody or control and if requested you shall certify to ThoughtSpot in writing that such return has occurred. The following Sections of this Agreement survive any expiration or termination hereof: 1, 2.2, 2.4, 3 and 5 - 14.
- NO WARRANTY. YOU AGREE THAT THE PRODUCTS ARE PROVIDED “AS IS” AND THAT THOUGHTSPOT AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS. THOUGHTSPOT AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THOUGHTSPOT KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE PRODUCTS, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT. THOUGHTSPOT AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCTS OR ANY RESULTS OF USE THEREOF WILL BE FREE OF DEFECTS, ERRORS OR VIRUSES, RELIABLE OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS OR IN A PARTICULAR ENVIRONMENT OR THAT ERRORS THEREIN, IF ANY, WILL BE CORRECTED.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER THOUGHTSPOT NOR ITS AFFILIATES, LICENSORS, OR SUPPLIERS WILL BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO LOSS OR INACCURACY OF, OR DAMAGE TO, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE, OR IMPAIRMENT OF OTHER ASSETS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THOUGHTSPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF THOUGHTSPOT AND ITS AFFILIATES, LICENSORS, AND SUPPLIERS ARISING IN ANY WAY OUT OF PRODUCTS OR SERVICES, THEIR USE OR DISPOSITION, OR OTHERWISE UNDER THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU HEREUNDER FOR PRODUCTS AND SERVICES WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY, OR (ii) ONE HUNDRED DOLLARS ($100).
- Injunctive Relief. You acknowledge and agree that your breach or threatened breach of this Agreement shall cause ThoughtSpot irreparable damage for which recovery of money damages would be inadequate and that ThoughtSpot therefore may obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all other remedies available at law or in equity.
- Export Controls. The Products and the underlying information and technology may not be downloaded or otherwise exported or re-exported in contravention of export control and economic sanctions requirements. Without limitation, the Products and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any Crimea, Cuba, Iran, North Korea, Sudan, Syria or any other jurisdiction with respect to which the U.S. government imposes a trade embargo; or (ii) to anyone on the U.S. Treasury Department’s List of Specially Designated Nationals, the U.S. Commerce Department’s Denied Persons List, or any other U.S. government list of persons who are subject to international trade-related sanctions. By downloading or using the Products, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such jurisdiction or on any such list and you agree to comply with all export control and economic sanctions laws and other applicable laws.
- U.S. Government End Users. The Products were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. § 2.101. The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. § 12.211, all U.S. Government End Users acquire only technical data and the rights in that data as specifically provided in this Agreement.
- Miscellaneous. (i) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of ThoughtSpot. (ii) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of California, U.S.A., excluding its conflict of law provisions. (iii) You expressly agree that jurisdiction for any claim or dispute arising from the use of the Products resides in the federal and state courts situated in the Santa Clara County, California, U.S.A., and you consent to the personal jurisdiction thereof. (iv) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (v) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or ThoughtSpot may at its option terminate this Agreement. (vi) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (vii) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (viii) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. ThoughtSpot may assign this Agreement to any entity at its sole discretion. (ix) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
- User Outside the U.S. If you are using the Products outside the U.S.A., then the following shall apply: (i) you confirm that this Agreement and all related documentation is and will be in the English language; (i) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Products, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
June 28, 2016