BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, 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 INSTALL THE SOFTWARE. IF YOU WISH TO USE THE SOFTWARE 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 ThoughtSpot Evaluation License Agreement (“Agreement”) is between ThoughtSpot and the you (individual or entity) that has downloaded or otherwise procured the licensed Software or Appliance (as those terms are defined below) for use as an end user (“Company”).
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.
1.2. “Company Data” means all data (including all text, sound, video, image files, and other content of any kind or nature) that is loaded on, or copied to, any hardware running the Software by or on behalf of Company.
1.3. “Confidential Information” means: (a) the Software (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). Confidential Information specifically excludes Company Data.
1.4. “Documentation” means the then-current, published installation and operating instructions, user manuals, and help files made available by ThoughtSpot to Company intended for use in connection with the Software.
1.5. “Effective Date” means the date of your first Order Form or the initial delivery date of the Software or Appliance (whichever is earlier).
1.6. “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.
1.7. “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.
1.8. “Software” means any computer code provided by ThoughtSpot to Company under this Agreement.
2. Software License. Subject to the terms and conditions of this Agreement, ThoughtSpot grants to Company a temporary, limited, revocable, non-exclusive, non-sublicensable, non-transferable, worldwide license to install and execute one copy of the Software on a hardware device or software environment as authorized by ThoughtSpot in the Documentation (or in a separate writing provided by ThoughtSpot to Company), to use and execute the Software exclusively for evaluation and testing purposes in an internal non-production environment.
3. Restrictions. Company will not (and has no license to): (a) use or make multiple copies of the Software or Documentation, or the output of the Software, except as expressly permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Software or reconstruct any Software, 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 Software; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or provide a third party with access to the Software, on a hosted basis, as a managed service provider, or otherwise; (d) alter, modify, or create derivative works of the Software (including the underlying source code) in any way, including alteration or disconnection of any Software call-home feature or through customization, translation, or localization; (e) share the output of the Software or any testing or evaluation results with any third parties with the exception of Company’s employees, directors, Affiliates, contractors, or agents; or (f) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Software or Documentation. Company will not cause, encourage, or permit any other person or entity under its control from taking any actions that Company is prohibited from taking under this Agreement.
4. No Support or Maintenance. ThoughtSpot shall have no obligation to provide technical support, software maintenance subscription services (including the provision of updates, upgrades, patches, bug fixes, or error corrections), or other support for the Software (“Support”). However, if ThoughtSpot chooses to provide any Support to Company from time to time, such Support will be governed by the then-current ThoughtSpot support policies.
5. No Warranty. 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 SOFTWARE AND 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 SOFTWARE AND ANY RELATED 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 SOFTWARE, 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).
6. Ownership and Feedback. 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 Software and Documentation, regardless of the form or media in or on which the original or other copies may subsequently exist. Except for the limited licenses expressly granted in this Agreement, ThoughtSpot reserves all, and does not grant any other, rights (express, implied, by estoppel, through exhaustion, or otherwise). The Software is licensed and not sold. ThoughtSpot encourages Company to provide suggestions, proposals, ideas, recommendations, or other input regarding the Software (collectively, “Feedback”). To the extent that Company provides such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
7.1. Use of Confidential Information. For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three (3) 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 7.2 (Exceptions), the receiving party will hold in confidence, and 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 ThoughtSpot to purge archived backup media). 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.
7.2. Exceptions. The receiving party’s obligations under this Section 7 (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 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 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.
7.3. 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.
8. Limitations of Liability. TO THE EXTENT PERMITTED BY LAW, NEITHER THOUGHTSPOT NOR COMPANY 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. 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 US$ 500.00 FOR ALL CLAIMS IN THE AGGREGATE. This Section does not apply to: (i) infringement, misappropriation, or other violation by Company of ThoughtSpot’s IPR; or (ii) breach of a party’s obligations under Section 7 (Confidentiality). These limitations and exclusions do, however, apply to and protect ThoughtSpot Affiliates and their suppliers and licensors.
9. Term and Termination. This Agreement begins on the Effective Date and terminates upon the earlier of: the expiration of 30 days; signature of a ThoughtSpot Master Ordering Agreement or other master license agreement; or, if this Agreement was incorporated into a separate agreement previously signed between the parties (e.g., a ThoughtSpot Channel Sales Program Agreement), then upon termination of that agreement. Either party may terminate this Agreement: (a) immediately upon written notice from Company; (b) upon 15 days’ prior written notice from ThoughtSpot or immediately upon written notice from ThoughtSpot if Company materially breaches this Agreement; or (c) immediately on written notice if the other 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. On termination of this Agreement for any reason: (i) all licenses granted by ThoughtSpot immediately terminate; (ii) Company will immediately discontinue use of all Software; (iii) Company will destroy all copies of Software and Documentation in its possession, custody, or control; and (iv) if requested, Company will certify such return or destruction to ThoughtSpot in writing. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 3 (Restrictions), 5 (No Warranty), 6 (Ownership and Feedback), 7 (Confidentiality), 8 (Limitations of Liability), 9 (Term and Termination), 10 (Proper Conduct), and 11 (General). Termination of this Agreement will have no effect on the agreement into which it was incorporated.
10. Proper Conduct.
10.1. Compliance with Law. Each party will comply with all Law in its performance of this Agreement.
10.2. Responsibility for Data Integrity. The Software will be executed by Company in Company’s own datacenter environment. Company is solely responsible for adequately duplicating, documenting, and protecting its Company Data, and ThoughtSpot assumes no liability for Company’s failure to do so.
10.3. Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. The Software is subject to U.S. Export Administration Regulations (“EAR”) and Company will comply with EAR. Without limiting the foregoing, Company represents and warrants that: (a) it is not located in, and will not use any Software from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Company will not use the Software 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) Company is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Company is responsible for complying with any local Law that may impact Company’s right to import, export, or use the Software or any of them.
10.4. U.S. Government Use. The Software provided under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise set forth in this Agreement, use, duplication, and disclosure by civilian agencies of the U.S. Government will not exceed those minimum rights set forth in FAR 52.227-19(c) or successor regulations. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the software license terms contained in this Agreement, as stated in DFARS 227.7202 or successor regulations. U.S. Government rights will apply only to the specific agency and program for which the Software is obtained.
10.5. Remote Deployment Review. ThoughtSpot may, upon reasonable notice to Company, verify Company’s use of the Software solely in a manner authorized herein. ThoughtSpot may conduct no more than one review in any 6-month period, reviews will be conducted during normal business hours, and ThoughtSpot will use commercially reasonable efforts to minimize the disruption of Company’s normal business activities. ThoughtSpot will not access Company’s computing devices in connection with any such review without Company’s prior written consent. Company will reasonably cooperate with ThoughtSpot for such review.
11.1. 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.
11.2. Assignment. Neither party may assign its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party. Any attempted or purported assignment in violation of this Section will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.3. 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 an alleged breach). All notices except for ordinary business communications will be cc’d to the address stated in this Agreement.
11.4. 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.
11.5. 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 software embedded in the Software will be subject to Section 8 (Limitations of Liability).
11.6. 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.
11.7. 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 11.3 (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”; (l) if this Agreement is incorporated into another agreement signed between the parties, then the defined term for Company in that agreement (e.g., “Customer” or “Participant” or “Partner”) shall mean Company as that term is defined herein and vice-versa; and (m) 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 Company is domiciled in Canada, the parties expressly wish to execute this Agreement and any associated documentation in English.
11.8. 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 regarding its subject matter. All other terms and conditions printed or included on, or referenced in, purchase orders 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.