BY ACCESSING OR USING ALL OR ANY PORTION OF THE THOUGHTSPOT SUBSCRIPTION SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON THOUGHTSPOT’S WEBSITE AT WWW.THOUGHTSPOT.COM/LEGAL (OR SUCCESSOR URL). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND IS LEGALLY BINDING BETWEEN YOU AND THOUGHTSPOT, INC. OR THE APPLICABLE THOUGHTSPOT AFFILIATE (“THOUGHTSPOT”). IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE SUBSCRIPTION SERVICE. IF YOU WISH TO USE THE SUBSCRIPTION SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
This Subscription Agreement, together with its incorporated terms and conditions (“Agreement”) is between ThoughtSpot and you (individual or entity) that has downloaded or otherwise procured the Subscription Service (as defined below) for use as an end user (“you” and “your”).
This Agreement incorporates by this reference all of the numbered sections below (“Main Body”) as well as the terms and conditions of all Order Forms and SOWs signed by authorized representatives of both parties and the Support Guide. In the event of any conflict between terms and conditions in this Agreement, the following order of precedence will apply: (1) any Order Form (solely with respect to that Order); (2) any SOW (solely with respect to that SOW); (3) the Main Body; (4) the Support Guide; and (5) any other incorporated document.
1.1 “Affiliate” means, with respect to a party, any legal entity (such as a corporation, partnership, or other legal entity) that controls, is controlled by, or is under common control with such party. For purposes of this definition, “control” means the legal power to direct or cause direction of the general management of the corporation, partnership, or other legal entity. Your Affiliates are “Your Affiliates” and Affiliates of ThoughtSpot are “ThoughtSpot Affiliates.”
1.2 “Your Data” means electronic data uploaded by or for you or your agents, employees, or contractors, and processed in the Subscription Service.
1.3 “Support Guide” means the ThoughtSpot Support and Maintenance Program Guide at http://www.thoughtspot.com/legal/.
1.4 “Support” means technical support and maintenance for the Software, as set forth in the Support Guide.
1.5 “Subscription Term” means the period of authorized access to and use of the Subscription Service, as set forth in an Order Form.
1.6 “Subscription Service” means the ThoughtSpot software-as-a-service offering ordered by you under an Order Form.
1.7 “SOW” means a statement of work that describes the scope of Professional Services signed by authorized representatives of you and ThoughtSpot.
1.8 “Professional Services” means consulting, implementation, configuration, integration, or training services provided by ThoughtSpot or its authorized service providers.
1.9 “Order Form” means an ordering document signed by the authorized representatives of you and ThoughtSpot that specifies: (a) Subscription Service access purchased, its price, and its Subscription Term; and (b) the scope and price of Professional services purchased (if any).
1.10 “Law” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, and requirements of any government authority (federal, state, local, or international) having jurisdiction.
1.11 “Intellectual Property Rights” or “IPR” means all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered.
1.12 “Effective Date” means the date of your first Order Form or the initial delivery date of credentials to access the Subscription Service (whichever is earlier).
1.13 “Documentation” means the then-current, published installation and operating instructions, user manuals, and help files made available by ThoughtSpot to you intended for use in connection with the Subscription Service.
1.14 “Confidential Information” means: (a) the Subscription Service (which is ThoughtSpot’s Confidential Information); (b) any information of a party that is disclosed in writing or orally and designated confidential at time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party should reasonably understand to be disclosing party’s confidential information; and (c) the terms of this Agreement, any Order Form, any SOW, and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties).
1.15 “Claim” means any suit, claim, action, or demand, in each case solely to the extent brought by an unaffiliated third party.
1.16 “Authorized User” means those uniquely identified individuals who are authorized by you to access and use the Subscription Service.
1.17 “Authorized Partner” means a third-party reseller authorized by ThoughtSpot to sell access to the Subscription Service and related Professional Services.
2.1 Orders and Payment. If you have signed an Order Form directly with ThoughtSpot, then ThoughtSpot will provide the Subscription Service or Professional Services identified in an Order Form or SOW pursuant to the terms of this Agreement. If you have purchased from an Authorized Partner of ThoughtSpot, see Section 2.5 (Reseller Orders) below. Upon execution by the parties, each Order Form is non-cancellable and, except as otherwise provided in this Agreement, non-refundable. Prices stated in each Order Form are final, and Professional Services are separately ordered from (and not required for use of) the Subscription Service. Support is purchased as part of the licensed Subscription Service as set forth in an Order Form.
2.2 Affiliate Orders. Your Affiliates may separately enter into Order Forms or SOWs that reference this Agreement with ThoughtSpot or a ThoughtSpot Affiliate. Except as otherwise expressly stated in an Order Form, each such Affiliate’s Order Form will be governed by this Agreement, and Your Affiliate will be a deemed a party to this Agreement and will be treated as you under the terms of this Agreement for the purposes of that Order Form. If Your Affiliate resides in a different country than you, such Affiliate’s Order Form may include modifications particular to international transactions (e.g., tax rates and governing law).
2.3 Invoices and Payment. Each Subscription Term is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire Subscription Term. Unless otherwise indicated in an Order Form, fees for Professional Services performed on a fixed fee basis are invoiced at the time of availability of the Software as provided in this Section 2.3, and fees for Professional Services performed on a time and materials basis are invoiced monthly in arrears. You will pay each invoice within 30 days after the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum interest rate, whichever is lower. You will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of ThoughtSpot’s delinquency notice. ThoughtSpot may suspend the Subscription Service or delivery of Professional Services while any payment is delinquent in addition to other rights and remedies (including, without limitation, termination as set forth herein), without liability until the delinquency is paid in full. You will make payments free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by ThoughtSpot. You may not reduce any amount payable to ThoughtSpot under this Agreement due to any counterclaim, set-off, adjustment, or any other claim you might have against ThoughtSpot or any other party. All terms of this Section 2 apply except as may be expressly stated otherwise in the applicable Order Form, SOW, or elsewhere in this Agreement.
2.4 Taxes. All payments, fees, and other charges payable by you to ThoughtSpot under this Agreement are exclusive of all federal, state, local, and foreign taxes, levies, tariffs, duties, value-added taxes, export and import fees, withholding, and all other taxes or government assessments (collectively, “Taxes”). You will pay all Taxes arising out of the transactions contemplated by this Agreement (except Taxes based on ThoughtSpot’s net income) or will provide ThoughtSpot with a tax exemption certificate acceptable to the applicable taxing authorities.
2.5 Reseller Orders. If you order Subscription Service subject an agreement with an Authorized Partner (“Reseller Purchase Agreement”) and not ThoughtSpot, then notwithstanding anything to contrary in this Agreement: (a) your use of the Subscription Service is subject to any additional terms in the Reseller Purchase Agreement, including any limitations on use of the Subscription Service in conjunction with third-party applications; and (b) Sections 2.2 through 2.4 will not apply to your Reseller Purchase Agreement with the Authorized Partner, provided that you agree to pay the Authorized Partner the fees agreed in the Reseller Purchase Agreement associated with the Software licensed, Appliance, and any Professional Services purchased, and you have no direct payment obligations to ThoughtSpot for such purchase. Any licensing, support, warranty, and other terms provided for the Software, Appliance, and Professional Services shall be exclusively as stated in this Agreement, and any additional or conflicting terms offered by the Authorized Partner shall be of no effect between you and ThoughtSpot. Notwithstanding anything in this Agreement to the contrary: (i) the Reseller Purchase Agreement does not modify any of the terms of this Agreement; and (ii) the Reseller Purchase Agreement is between you and the Authorized Partner and is not binding on ThoughtSpot. ThoughtSpot may terminate this Agreement (including your right to use the Software or Appliance) in the event ThoughtSpot fails to receive payment for your use of the Software or Appliance from the Authorized Partner or if you breach any term of this Agreement.
Access and Restrictions.
3.1 Subscription Service. Subject to the terms of this Agreement and payment of all fees due, ThoughtSpot authorizes you to access and use the Subscription Service during the Subscription Term stated in the applicable Order Form, solely for use by Authorized Users for your internal business purposes in accordance with the Documentation.
3.2 Authorized Users. Authorized Users will receive unique username and password credentials to access the Subscription Service. Credentials may not be shared between Authorized Users and you must ensure that all Authorized Users keep user credentials strictly confidential. Each Authorized User’s access rights may be further specified in the applicable Order Form. You may permit your contractors and Affiliates to access the Subscription Service as Authorized Users in accordance with this Agreement, provided that you will remain liable for the acts and omissions of your contractors and Affiliates as if they were you under this Agreement.
3.3 Technical Support. During the Subscription Term, ThoughtSpot will provide Support for the Subscription Service pursuant to the Support Guide.
3.4 Restrictions. You will not (and have no license to): (a) use the Subscription Service or Documentation except as permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Subscription Service or reconstruct any Subscription Service, or attempt to derive or obtain any source code, structure, algorithms, processes, techniques, technologies, know-how, or ideas embodied by, underlying, or contained in the Subscription Service; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, host, manage for third parties, or otherwise provide a third party with access to the Subscription Service except as expressly set forth in an Order Form; (d) alter, modify, or create derivative works of the Subscription Service (including the underlying source code) in any way, including through customization, translation, or localization; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Subscription Service or Documentation; (f) publicly disseminate performance information from any source related to the Subscription Service; (g) use the Subscription Service to develop a product that is competitive with the Subscription Service or other ThoughtSpot product offerings; (h) enable access to the Subscription Service for a greater number of Authorized Users than the sum quantity of subscriptions or credentials purchased in the applicable Order Form; (i) reassign subscription access rights or credentials between Authorized Users so frequently as to enable a single subscription to be shared among multiple users; or (j) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation. You will not cause, encourage, or permit any other person or entity under its control from taking any actions that you are prohibited from taking under this Agreement.
4.1 General. You are solely responsible for the accuracy and content of all Your Data. You represent and warrant to ThoughtSpot that: (a) you have sufficient rights in Your Data to authorize ThoughtSpot to process, distribute and display Your Data as contemplated by this Agreement and the Documentation; and (b) your use of the Subscription Service and Your Data is at all times compliant with your privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
4.2 Protected Health Information. You shall not upload to the Subscription Service or publish thereon any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended) (“HIPAA”), or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that ThoughtSpot is not a Business Associate as that term is defined in HIPAA. ThoughtSpot will have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
4.3 Payment Card Data. You will not upload to the Subscription Service or publish thereon any payment card information and you acknowledge that the Subscription Service is not compliant with the Payment Card Industry Data Security Standards.
4.4 Data Backup. The Subscription Service does not replace the need for you to maintain regular data backups or redundant data archives. THOUGHTSPOT HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
5.1 Ownership. As between the parties, ThoughtSpot, ThoughtSpot Affiliates, and its and their suppliers and licensors own all right, title, and interest in and to all IPR in (and in all copies of) the Subscription Service and Documentation, regardless of the form or media in or on which the original or other copies may subsequently exist. Except for the access and use rights granted in this Agreement, ThoughtSpot reserves all, and does not grant any other, rights (express, implied, by estoppel, through exhaustion, or otherwise). The Subscription Service to which you are granted access is not sold, even if ThoughtSpot makes reference to words such as “sale” or “purchase” in the applicable Order Form or other documents.
5.2 Your Ownership. As between the parties, you and your licensors will retain all right, title, and interest in and to all IPR in Your Data. You hereby grant to ThoughtSpot a royalty-free, fully-paid, non-exclusive, non-transferrable (except as set forth in Section 12.3 (Assignment)), worldwide, right to use Your Data solely to provide and support the Subscription Service.
5.3 Feedback. ThoughtSpot encourages you to provide suggestions, proposals, ideas, recommendations, or other input regarding the Subscription Service (collectively, “Feedback”). To the extent that you provide such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
6.1 Use of Confidential Information. For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three years after disclosure of the Confidential Information, the party receiving Confidential Information (the “receiving party”) from the other party (the “disclosing party”) will use it solely to perform the rights and obligations provided under this Agreement, and not for any other purpose without the disclosing party’s prior written consent. Subject to Section 6.2 (Exceptions), the receiving party will not disclose to any third party any of the disclosing party’s Confidential Information. The receiving party will use at least the same degree of care in handling the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but no less than reasonable care. The receiving party will notify disclosing party immediately on becoming aware of any unauthorized use or release of the disclosing party’s Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information to those of its Affiliates, directors, advisors, employees, or contractors (collectively, “Representatives”) who have a need to know such Confidential Information to perform under or in relation to this Agreement, but only if such Representatives are subject to a binding, written agreement no less protective of disclosing party than the confidentiality terms of this Agreement. The receiving party will, at the disclosing party’s request or on termination of this Agreement, return all originals, copies, and summaries of Confidential Information and other tangible materials and devices provided to receiving party as Confidential Information, or at the disclosing party’s option, certify destruction of same (although nothing in this sentence may be construed to require either party to purge copies automatically archived in backup media that are not readily accessible for further use or review). Nothing under this Agreement or trade secret Law may be construed to restrict or limit ThoughtSpot’s right to perform (or assign any personnel to perform) Professional Services for any other party or to use any information incidentally retained in the unaided memories of its personnel providing Professional Services.
6.2 Exceptions. The receiving party’s obligations under this Section 6 (Confidentiality) will not apply, and the receiving party will have no further obligations, with respect to any of the disclosing party’s Confidential Information that is: (a) generally known to the public at the time of disclosure or becomes generally known through no wrongful act of receiving party; (b) rightfully in the receiving party’s possession, or otherwise rightfully known by the receiving party, at the time of disclosure by the disclosing party and not subject to a confidentiality obligation; (c) required to be disclosed by the receiving party to comply with a court order, Law, or government regulations, but only if the receiving party promptly notifies disclosing party to enable the disclosing party to seek a protective order or other appropriate remedy, and takes commercially reasonable and lawful actions to avoid or minimize the extent of, and to obtain confidential treatment for, any such disclosure; or (d) independently developed by the receiving party without use of, reference to, or reliance on the disclosing party’s Confidential Information.
6.3 Publicity. Neither party will issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement or referencing the other party without the other party’s prior written approval.
Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, THOUGHTSPOT (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS) AND THOUGHTSPOT AFFILIATES: (A) DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THOUGHTSPOT KNOWS OR SHOULD HAVE KNOWN SUCH PURPOSE), PERFORMANCE, AND NON-INFRINGEMENT; (B) PROVIDE THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES “AS IS” AND “AS AVAILABLE”; AND (C) WITHOUT LIMITING THE FOREGOING CLAUSES (A) AND (B), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT THE SUBSCRIPTION SERVICE, PROFESSIONAL SERVICES, AND ANY USE OF EITHER, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPATIBLE WITH ANY PARTICULAR ENVIRONMENT, OR FREE FROM DEFECTS, VIRUS, OR ERRORS (OR THAT ANY ERRORS WILL BE CORRECTED).
Limitations of Liability.
8.1 Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL, CUMULATIVE LIABILITY ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE IN AN AMOUNT NOT EXCEEDING: (A) FOR ANY GIVEN CLAIM, THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THIS AGREEMENT FOR THE SUBSCRIPTION SERVICE AND PROFESSIONAL SERVICES GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY; AND (B) US$ 500,000 FOR ALL SUCH CLAIMS IN THE AGGREGATE.
8.2 Exclusions. TO THE EXTENT PERMITTED BY LAW, NEITHER THOUGHTSPOT NOR YOU WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO: (A) LOSS OR INACCURACY OF, OR DAMAGE TO, DATA; (B) LOST REVENUE OR PROFITS; (C) LOSS OF BUSINESS; (D) DAMAGE TO GOODWILL; (E) WORK STOPPAGE; (F) IMPAIRMENT OF OTHER ASSETS; OR (G) INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED AND WITHOUT REGARD TO THE LEGAL THEORY UNDER WHICH THEY ARE SOUGHT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, FORESEEABLE OR NOT, AND WITHOUT REGARD TO WHETHER A PARTY HAS BEEN ADVISED SUCH DAMAGES ARE POSSIBLE.
8.3 Gross Negligence; Willful Misconduct. As provided by Law, nothing in this Agreement is intended or may be construed to limit a party’s liability in an action in tort (separate and distinct from a cause of action for a breach of this Agreement) for a party’s gross negligence or willful misconduct.
9.1 ThoughtSpot Obligation. Subject to the limitations in this Section 9 (Third-Party Claims), ThoughtSpot will: (a) defend you and Your Affiliates, and its and their officers, directors, and employees against any Claim to the extent alleging that the Subscription Service accessed or used in accordance with this Agreement infringes any third-party patent, copyright, or trademark, or misappropriates any third-party trade secret; and (b) pay any settlement amount or any court-ordered award of damages to the extent arising from such Claim.
9.2 Mitigation. If any Claim alleges any part of the Subscription Service infringes any third-party IPR, ThoughtSpot may: (a) contest the Claim; (b) obtain permission from the claimant for your continued use of the Subscription Service; (c) avoid such Claim by replacing or modifying your access to and use of the Subscription Service with a substantially similar Subscription Service; or, if ThoughtSpot determines in its sole discretion (after the exercise of commercially reasonable efforts to perform in accordance with the foregoing options (a), (b), or (c)) that options (a), (b), and (c) are not commercially practicable, then (d) terminate your access to the affected Subscription Service on 60 days’ prior notice and refund to you any prepaid subscription fees covering that part of the applicable Subscription Term for such Subscription Service remaining after the effective date of termination.
9.3 Limitations. ThoughtSpot will have no obligation or liability for any Claim: (a) if the Subscription Service was modified by any party other than ThoughtSpot (including you), if the alleged infringement relates to such modification; (b) if the Subscription Service is or was combined or integrated with other product, processes or data not provided or authorized by ThoughtSpot and where the alleged infringement would not have arisen but for such combination; (c) if you are using an unsupported version of the Subscription Service; (d) arising from your unauthorized use of the Subscription Service; (e) based on IPR owned by you or Your Affiliates.
9.4 Customer Obligation. You will: (a) defend ThoughtSpot and ThoughtSpot Affiliates, and its and their officers, directors, and employees against any Claim to the extent alleging that Your Data or a modification to the Subscription Service made to your specifications or otherwise made by or on behalf of you by any person other than ThoughtSpot or a person acting at ThoughtSpot’s direction (but only if the Claim would have been avoided by use of the unmodified Subscription Service), infringes any patent, copyright, or trademark, misappropriates any third-party trade secret, or violates any third party privacy rights; and (b) pay any settlement amount or any court-ordered award of damages, under the foregoing subsection (a) to the extent arising from such Claim.
9.5 Process. The obligations of ThoughtSpot and you under Section 9 (Third-Party Claims) are conditioned on the indemnified party: notifying the indemnifying party promptly of any actual or threatened Claim; giving the indemnifying party sole control of the defense of such Claim and any related settlement negotiations; and (c) cooperating and, at indemnifying party’s reasonable request and expense, assisting in such defense. The indemnifying party will not stipulate, acknowledge, or admit fault or liability on the indemnified party’s behalf, or publicize any settlement, without the indemnified party’s prior written consent (which will not be unreasonably withheld or delayed). This Section 9 (Third-Party Claims) states each party’s entire liability and the other party’s exclusive remedy for third-party claims and third-party actions.
Term and Termination.
10.1 Term and Termination. This Agreement begins on the Effective Date and continues until terminated under its terms. Either party may terminate this Agreement in its entirety: (a) on 30 days’ prior notice to the other, if at the time of notice there are no Order Forms in effect; (b) immediately on notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors; or (c) immediately on notice if the other party materially breaches this Agreement and does not cure such breach within 30 days after the other party’s receipt of notice of the breach. Either party may terminate an Order Form or SOW on notice if the other party materially breaches this Agreement or the applicable Order Form or SOW for the affected service and does not cure the breach within 30 days after receiving notice of the breach from the nonbreaching party. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order Form.
10.2 Effect. On termination or expiration of the Subscription Service, you will stop accessing and using, and ThoughtSpot will stop providing, the Subscription Service and all related rights granted to you in this Agreement will terminate immediately, automatically, and without notice. ThoughtSpot will, within 30 days after the effective date of termination by you for ThoughtSpot’s breach, refund to you any prepaid fees received by ThoughtSpot covering that part of the Subscription Term for the affected Subscription Service, if any, remaining after the effective date of termination. Within 30 days after the effective date of termination by ThoughtSpot for your breach, You will pay all remaining amounts, if any, payable under this Agreement for the Subscription Term applicable to the terminated Subscription Service regardless of the due dates specified in the Order Form.
10.3 Survival. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 2.1 (Orders and Payment), 2.3 (Taxes), 2.5 (Reseller Orders), 3.4 (Restrictions), 4 (Customer Data), 5 (Intellectual Property), 6 (Confidentiality), 7 (Disclaimer of Warranties), 8 (Limitations of Liability), 9 (Third-Party Claims), 10 (Term and Termination), 11 (Proper Conduct), and 12 (General).
11.1 Compliance with Law. Each party will comply with all Law in its performance of this Agreement.
11.2 Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. The Subscription Service is subject to U.S. Export Administration Regulations (“EAR”) and you will comply with EAR. Without limiting the foregoing, you represents and warrants that: (a) it is not located in, and will not use any Subscription Service from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) you will not use the Subscription Service in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) you are not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, You are responsible for complying with any local Law that may impact your right to import, export, or use the Subscription Service or any of them.
11.3 U.S. Government Use. The Subscription Service provided under this Agreement is commercial computer software (as defined in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases) and ThoughtSpot services are commercial items. If the software is licensed or services acquired by or on behalf of a civilian agency, ThoughtSpot provides the software, its documentation, and any other technical data subject to this Agreement consistent with FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data). If software is licensed or services acquired by or on behalf of any DOD agency, ThoughtSpot provides the software, its documentation, and any other technical data subject to this Agreement consistent with DFARS 227.7202-3. If this is a DOD prime contract or DOD subcontract, the DOD agency you may acquire additional rights in technical data under DFARS 252.227- 7015(b). This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.1 Use Verification. ThoughtSpot may remotely review your use of the Subscription Service, and on ThoughtSpot’s written request, you will provide reasonable assistance to verify your compliance with the Agreement, and access to and use of the Subscription Service. If ThoughtSpot determines that you have exceeded your permitted access and use rights to the Subscription Service, ThoughtSpot will notify you and within 30 days thereafter you shall either: (a) disable any unpermitted use, or (b) purchase additional subscriptions commensurate with your actual use.
12.2 Waiver; Amendment. No delay or failure by either party to exercise any right under this Agreement will waive that or any other right. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
12.3 Assignment. Neither party will assign, delegate, or otherwise transfer this Agreement, or any of its rights or duties under it, to a third party without the other’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any purported transaction in breach of this Section 12.3 is material and is void. Each party is, however, deemed to have consented to any such assignment, delegation, or transfer to: (a) an Affiliate; or (b) any entity that acquires all or substantially all of its capital stock or assets related to this Agreement through purchase, merger, consolidation, or otherwise, but only if such entity is not a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement will bind and benefit the parties, their successors, and permitted assigns.
12.4 Notices. All notices and other communications under this Agreement will be: (a) in writing; (b) in English; and (c) deemed given when delivered (or the first business day after delivery with confirmation of receipt, for notices permitted by email). Notices under this Agreement will be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service with tracking capabilities; (iii) mailed by certified or registered mail, return receipt requested, to a party at the address stated in this Agreement (or at such address as the recipient has notified the other party of, before notice was sent); or (iv) sent via email, if the recipient’s email address is provided in this Agreement (but email will not be sufficient for notices regarding a Claim or alleged breach). All notices except for ordinary business communications will be cc’d to the address stated in this Agreement.
12.5 Dispute Resolution. This Agreement and performance under it will be governed by the substantive laws of the State of California, disregarding its conflict of law rules. If federal jurisdiction exists over any suit, action, or proceeding arising out of or relating to this Agreement, the parties consent to exclusive jurisdiction and venue in San Francisco, California. If not, the parties consent to exclusive jurisdiction and venue in the California state courts sitting in Santa Clara County, California. In any such suit, action, or proceeding, the prevailing party may recover its reasonable attorneys’ fees, costs, and other expenses, including those on appeal or in a bankruptcy action.
12.6 Force Majeure. Neither party will be responsible for any delay or failure in its performance of any obligation under this Agreement (other than payment) due to causes beyond its reasonable control, but only if the party invoking this Section 12.6 promptly notifies the other party and resumes performance promptly when conditions allow it to do so.
12.7 Relationship. The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf. There are no third-party beneficiaries to this Agreement. ThoughtSpot’s licensors will have no liability of any kind under this Agreement. ThoughtSpot’s liability with respect to any third-party Subscription Service embedded in the Subscription Service will be subject to Section 9 (Limitations of Liability).
12.8 Severability. If any part of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that part will be deemed reformed to effectuate the parties’ intentions, and the rest of this Agreement will remain in full force and effect.
12.9 Execution and Construction. This Agreement is effective only when executed by facsimile, via electronic signature service, or in counterparts, which together will be deemed the entire agreement. Such execution requirement is, without limitation, a material term. Section headings are intended solely for convenience and will not affect the meaning of this Agreement. This Agreement will be interpreted according to its plain meaning without presuming it should favor either party. Unless stated or context requires otherwise: (a) all internal references are to this Agreement and its parties; (b) first-level section references (e.g., “as provided in Section 1”) includes all subordinate subsections (e.g., 1.1, 1.2, etc.) within that section; (c) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (d) “days” means calendar days; (e) “may” means that the applicable party has a right, but not a concomitant duty; (f) “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership; (g) “notify” means to give notice under (and “notice” means a notice that complies with) Section 12.4 (Notices); (h) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured; (i) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (j) lists of examples following “including”, “e.g.”, “such as”, “excludes”, “for example”, or similar words are deemed to include “without limitation”; (k) the word “or” is deemed to be an inclusive “or”; and (l) a party’s choices under this Agreement are in its sole discretion. Any translation of the English-language version of this Agreement is for convenience only, and the English-language version will govern. If you are domiciled in Canada, the parties expressly wish to execute this Agreement and any associated documentation in English.
12.10 Entire Agreement. This Agreement sets forth the complete and exclusive agreement between the parties relating to its subject matter and supersedes all prior oral and written agreements, understandings, and communications (including any requests for quote, requests for information, requests for proposal, or the like), and click-through agreements regarding its subject matter. Purchase orders issued by you will be effective solely to specify the quantities of Subscription Service and Professional Services ordered, and, to the extent such purchase orders are based on ThoughtSpot’s Order Forms, the price. Invoices issued by ThoughtSpot will be effective solely to specify the charges for the Subscription Service and Professional Services. All other terms and conditions printed or included on, or referenced in, such purchase orders, invoices, and other ordering documents or correspondence, that purport to add to or modify the terms of this Agreement are expressly rejected by ThoughtSpot and will be of no force or effect.