ThoughtSpot SeekWell Subscription Agreement

Version: 16 April 2021

THIS THOUGHTSPOT SEEKWELL SUBSCRIPTION AGREEMENT (“AGREEMENT”) FORMS A BINDING AGREEMENT BETWEEN YOU INDIVIDUALLY OR THE BUSINESS ENTITY OR PUBLIC AGENCY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT (“CUSTOMER”) AND THOUGHTSPOT, INC. (“THOUGHTSPOT”).

THIS AGREEMENT IS ACCEPTED BY: (1) INDICATING ACCEPTANCE OF THESE TERMS BY CLICKING “SUBMIT,” “ACCEPT” OR A SIMILAR BUTTON WHEN THIS AGREEMENT IS REFERENCED IN THE SEEKWELL SERVICE OR ON A WEB PAGE TO REGISTER AN ACCOUNT FOR OR ACCESS TO SEEKWELL, OR SIGNING AN ORDER FORM OR OTHER ORDERING DOCUMENT REFERENCING THIS AGREEMENT FOR A NEW OR RENEWAL SUBSCRIPTION; OR (2) ACCESSING OR USING ANY PORTION OF SEEKWELL. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT THEY: (A) ARE AN EMPLOYEE, CONTRACTOR, OR AGENT OF, AND HAS THE AUTHORITY TO REPRESENT, CUSTOMER; AND (B) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT WISH TO ACCEPT THIS AGREEMENT, OR THE INDIVIDUAL ACCEPTING THE AGREEMENT DOES NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, THEN DO NOT CLICK OR SIGN TO ACCEPT THIS AGREEMENT OR ACCESS OR USE SEEKWELL.

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF THOUGHTSPOT CLOUD, THE EVALUATION ACCESS PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

This Agreement is subject to revision from time to time; any changes to its terms will take effect upon thirty days’ notice provided by ThoughtSpot to the email provided by Customer in the account registration information.

1. Definitions.
   1. Authorized User” means an individual who was provided access credentials to access and use SeekWell by Customer, or otherwise using Customer’s account.
   2. “Customer Data” means electronic data made accessible to SeekWell by or for Customer or Authorized Users, or processed in SeekWell for data workflow automation.
   3. “Documentation” means the then-current service operating and interface instructions (including API documentation) for use of SeekWell published by ThoughtSpot at https://doc.seekwell.io/ and https://docs.thoughtspot.com/.
   4. “Effective Date” means the earlier date that Customer accepts this Agreement as described above.
   5. “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.
   6. “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.
   7. “SeekWell” means the ThoughtSpot SeekWell software-as-a-service offering for data workflow automation purchased by Customer, any updates and upgrades thereto, and any modifications, enhancements, or improvements, of any of the foregoing.
   8. “Subscription Term” means the purchased period of authorized access to SeekWell as described in the purchase process, not to exceed twelve months from the Effective Date.
2. Purchasing.
   1. Registration. To use certain SeekWell features, you must register an account and provide registration information. Customer represents and warrants that Customer will: (a) submit only truthful and accurate information; and (b) maintain the accuracy of such information during any Subscription Term. Customer may delete its account and the information therein at any time as described in the Documentation.
   2. Payment. Customer may purchase SeekWell access by requesting an offered Subscription Term using the ThoughtSpot website. Customer will make payments by credit card as indicated in the account registration process. Each purchase is non-cancellable and non-refundable. Prices stated at the time of purchase are final. Customer will pay for each Subscription Term in advance by credit card. Customer will be wholly responsible for all taxes, duties, levies, imposts, fines, or similar governmental assessments of any nature, including, for example, sales, use, GST, withholding, value-added, or similar taxes, imposed by any jurisdiction, and the interest and penalties on any of these, with the exception of taxes based on ThoughtSpot’s net income, property, or employees.
3. Permissions and Limitations.
   1. Access. Subject to the terms and conditions of this Agreement and payment of all fees due, ThoughtSpot authorizes Authorized Users to access and use SeekWell during the Subscription Term and to the extent expressly specified (including regarding numbers of users, runs per month, query time limits, connections, and other pricing metrics) in the applicable Documentation, solely for its internal business purposes in accordance with the Documentation.
   2. Authorized Users. Authorized Users will receive unique username and password credentials to access SeekWell (or, in the event of use of single-sign-on software, credentials to that software). User credentials may not be shared between Authorized Users such that Authorized User limitations apply to consistent individual users at all times, and Customer must ensure that all Authorized Users keep user credentials strictly confidential. Customer may permit third-party affiliates, contractors, agents, advisors, and other third parties who are not competitors of ThoughtSpot and its affiliates to access SeekWell as Authorized Users in accordance with this Agreement, provided that each is an Authorized User and subject to pricing limitations thereto, and that Customer will be wholly responsible for compliance with this Agreement as if such third parties were Customer. Customer agrees to immediately notify ThoughtSpot of any unauthorized use or suspected unauthorized use of its account or Authorized User credentials or any other breach of access. ThoughtSpot will have no liability for any loss or damage arising from Customer’s failure to comply with the obligations in this Section 3.2.
   3. Support. 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 SeekWell. 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.
   4. Restrictions. Customer will not (and has no right to): (a) use SeekWell 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 SeekWell or reconstruct SeekWell, or attempt to derive or obtain any source code, structure, algorithms, processes, techniques, technologies, know-how, or ideas embodied by, underlying, or contained in SeekWell; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or provide a third party with access to SeekWell except as expressly permitted herein, for time sharing, as a managed service provider, or otherwise; (d) alter, modify, or create derivative works of SeekWell (including any 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 SeekWell or Documentation, including in generated analytics reports; (f) circumvent or remove by any means any click-accept or copy protection used by ThoughtSpot in connection with SeekWell, or use user credentials not supplied by ThoughtSpot; (g) use SeekWell or Documentation to conduct competitive research, to develop a product that is competitive with any ThoughtSpot product offering, or otherwise access it if Customer is a competitor to ThoughtSpot, or to assert, authorize, assist, or encourage a third-party to assert, against ThoughtSpot or any of its affiliates, customers, vendors, business partners, or licensors, any patent or other IPR claim regarding ThoughtSpot products or services; (h) publicly disseminate any performance or security vulnerability test (including a penetration test) results or analysis related to or derived from SeekWell; (i) automate processes, including API calls, user interface refreshes, searches, or visualizations, if such automation or integration has a detrimental impact on ThoughtSpot’s ability to provide SeekWell to its other customers; (j) use SeekWell 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; or (k) access or disable any ThoughtSpot or third-party data, software, or network (other than Customer’s own instance). Before Customer engages in any of the foregoing acts that it believes it may be entitled to, it will provide ThoughtSpot with 30 days’ prior notice to [email protected], and provide reasonably requested information to allow ThoughtSpot to assess Customer’s claim. ThoughtSpot may, in its discretion, provide alternatives that reduce adverse impacts to ThoughtSpot’s IPR or other rights.
4. Customer Data.
   1. License. Subject to the terms of this Agreement, Customer hereby grants to ThoughtSpot a nonexclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide SeekWell to Customer or as required by Law.
   2. Accuracy and Backup. Customer is solely responsible for the accuracy and content of all Customer Data. Customer represents to ThoughtSpot that: (a) Customer has sufficient rights in the Customer Data to authorize ThoughtSpot to process, distribute and display the Customer Data as contemplated by this Agreement and the Documentation; and (b) Customer’s use of SeekWell and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, health data or other regulations based on data types, international communications, and the exportation and transfer of technical or personal data. ThoughtSpot does not provide a source of record for data, archival service, or data backup service. SeekWell does not replace the need for Customer to maintain regular data backups or redundant data archives. THOUGHTSPOT HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS,
   3. Payment Card Data. With the exception of payments rendered via credit card as described herein, Customer shall not upload to SeekWell or transmit therein any payment card information and Customer acknowledges that SeekWell is not compliant with the Payment Card Industry Data Security Standards.
5. Proprietary Rights.
   1. Ownership. As between the parties, Customer and its licensors will retain all right, title, and interest in and to all IPR in Customer Data. 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) SeekWell 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).
   2. Third-Party Services. SeekWell utilizes and may connect to third-party services such as Google Sheets and other Google applications, as well as data warehouse APIs and documentation (collectively, “Third-Party Services”). Customer represents and warrants that it will use SeekWell only with Third-Party Services to which it has the appropriate rights of use and access.
   3. Feedback. ThoughtSpot encourages Customer to provide suggestions, proposals, ideas, recommendations, or other input regarding SeekWell (collectively, “Feedback”). To the extent that Customer provides such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
6. Third-Party Claims.
   1. Customer. Customer will defend ThoughtSpot from and against any claim or demand by a third party arising from or relating to Customer’s violation of Law, Customer’s violation of this Agreement, any Customer data, or any product or service offered by Customer, and will indemnify ThoughtSpot from and against any damages and costs awarded against ThoughtSpot or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim or demand.
   2. Process. ThoughtSpot will: (a) provide prompt notification of any actual or threatened claim or demand; (b) give Customer control of the defense and any related settlement negotiations; and (c) provide all necessary cooperation with the defense at the indemnifying party’s reasonable request and expense. Failure by ThoughtSpot to notify Customer of a claim under this Section 6 will not relieve Customer of its obligations therein. Customer will not stipulate, acknowledge, or admit fault or liability on ThoughtSpot’s behalf, or publicize any settlement, without ThoughtSpot’s prior written consent (which will not be unreasonably withheld, conditioned, or delayed).
7. Limitations of Liability.
   1. Disclaimers. 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 SEEKWELL (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), TITLE, AND NON-INFRINGEMENT; (B) PROVIDES SEEKWELL “AS IS” AND “AS AVAILABLE”; AND (C) WITHOUT LIMITING THE FOREGOING CLAUSES (A) AND (B), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT SEEKWELL AND ANY USE THEREOF, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPATIBLE WITH ANY PARTICULAR ENVIRONMENT, OR FREE FROM DEFECTS, VIRUS, OR ERRORS (OR THAT ANY ERRORS WILL BE CORRECTED).
   2. 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, FOR ALL CLAIMS IN THE AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE SEEKWELL SUBSCRIPTION GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY (OR, IF NO FEES WERE PAID, THEN $500.00).
   3. Exclusions. TO THE EXTENT PERMITTED BY LAW, NEITHER CUSTOMER NOR THOUGHTSPOT 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, CUSTOMER 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.
   4. Applicability. The provisions of 8.1 (Limitation of Liability) and 8.2 (Exclusions) do not apply to: (a) infringement, misappropriation, or other violation of ThoughtSpot’s IPR; (b) violations of Section 3.4 (Restrictions); or (c) tort actions (separate and distinct from a cause of action for a breach of this Agreement) for a party’s gross negligence or willful misconduct. The parties, and not their suppliers or licensors, are wholly responsible for any liabilities hereunder.
8. Term and Termination.
   1. Term and Survival. This Agreement begins on the Effective Date and continues until terminated under its terms. Either party may terminate this Agreement in its entirety on 30 days’ prior written notice for any reason or no reason. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 2.2 (Payment), 3.4 (Restrictions), 4.2 (Accuracy and Backup), 5 (Proprietary Rights), 6 (Third-Party Claims), 7 (Limitations of Liability), 8 (Term and Termination), and 9 (General).
   2. Suspension. In addition to other rights or remedies in this Agreement, ThoughtSpot reserves the right to suspend provision of SeekWell: (a) if ThoughtSpot deems such suspension necessary as a result of Customer’s breach of Sections 3.4 (Restrictions) or 4 (Customer Data); (c) if ThoughtSpot reasonably determines suspension is necessary to avoid material harm to ThoughtSpot or its other customers, including if SeekWell is receiving denial of service attacks, integration overuse, or other attacks or disruptions
9. General.
   1. Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. SeekWell is subject to U.S. Export Administration Regulations (“EAR”) and Customer will comply with EAR. Without limiting the foregoing, Customer represents and warrants that: (a) it is not located in, and will not use SeekWell from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Customer will not use SeekWell 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) Customer is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local Law that may impact Customer’s right to import, export, or use SeekWell.
   2. U.S. Federal Government Access. SeekWell accessed under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise expressly 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 SeekWell is obtained.
   3. 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.
   4. 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 9.4 is deemed material and is void. Each party is, however, deemed to have consented to any such assignment, delegation, or transfer to: (a) a wholly-owned subsidiary; 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.
   5. Notices. All notices and other communications under this Agreement will be deemed given and sufficient only when sent in English: (a) to Customer at the e-mail address provided in the registration information; or (b) to ThoughtSpot at [email protected] with a copy delivered by certified mail with receipt requested to 910 Hermosa Court, Sunnyvale, California 94085, USA.
   6. 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. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. 9
   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.
   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.
   9. Execution and Construction. This Agreement is effective only when executed by 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) “notify” means to give notice under (and “notice” means a notice that complies with) Section 10.6 (Notices); (g) “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; (h) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (i) lists of examples following “including”, “e.g.”, “such as”, “excludes”, “for example”, or similar words are deemed to include “without limitation”; (j) the word “or” is deemed to be an inclusive “or”; and (k) 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 Customer is domiciled in Canada, the parties expressly wish to execute this Agreement and any associated documentation in English.
   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) regarding its subject matter. Notwithstanding the prior sentence, in the event that this Agreement is referenced in an ordering document labeled ‘Order Form’ and signed by the authorized representatives of Customer and ThoughtSpot that specifies a SeekWell subscription purchased, its pricing, and its Subscription Term (an “Order Form”), then that Order Form will take precedence over the terms of this Agreement to the extent of any conflict. Purchase orders issued by Customer are for Customer’s internal purposes only and ThoughtSpot rejects, and in the future is deemed to have rejected, any purchase order terms. Invoices issued by ThoughtSpot will be effective solely to specify the charges for SeekWell. 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.