ThoughtSpot Channel Sales Program Agreement

Version 5.0, January 1, 2023

 

THIS THOUGHTSPOT CHANNEL SALES PROGRAM AGREEMENT (TOGETHER WITH ITS APPENDICES AND INCORPORATED TERMS, “AGREEMENT”) FORMS A BINDING CONTRACT BETWEEN THE ENTITY IDENTIFIED IN THE THOUGHTSPOT CHANNEL SALES PROGRAM APPLICATION OR, IF PRESENT, IN THE ELECTRONIC SIGNATURE INFORMATION AT THE END OF THIS DOCUMENT (“PARTICIPANT”) AND THOUGHTSPOT, INC. (“THOUGHTSPOT”). IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, THEN DO NOT APPLY FOR ENROLLMENT, REGISTER WITH, ACCESS MATERIALS OF, OR OTHERWISE PARTICIPATE IN THE THOUGHTSPOT CHANNEL SALES PROGRAM.

PARTICIPANT ACCEPTS THIS AGREEMENT BY: (1) APPLYING FOR ENROLLMENT IN THE THOUGHTSPOT CHANNEL SALES PROGRAM; (2) INDICATING ACCEPTANCE OF THESE TERMS; OR (3) ACCESSING ANY PROGRAM BENEFIT (INCLUDING EXERCISING OR PURPORTING TO EXERCISE ANY OF THE RIGHTS GRANTED TO PARTICIPANT UNDER THIS AGREEMENT). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF PARTICIPANT REPRESENTS THAT THEY: (A) HAVE THE AUTHORITY TO REPRESENT PARTICIPANT AND, IF APPLICABLE, COMMIT FUNDS ON ITS BEHALF; AND (B) HAVE READ AND UNDERSTAND ALL THE PROVISIONS OF THIS AGREEMENT. THOUGHTSPOT ACCEPTS THIS AGREEMENT BY ISSUING AN APPOINTMENT CONFIRMATION.

Participant and ThoughtSpot each shall be referred to as a “party” and collectively as the “parties.”

1. Definitions.
   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 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. Affiliates of Participant are “Participant Affiliates” and Affiliates of ThoughtSpot are “ThoughtSpot Affiliates.”
   2. “Appointment Confirmation” means an electronic communication issued by ThoughtSpot confirming Participant’s appointment to the Program.
   3. “Collateral” means ThoughtSpot sales, marketing and advertising materials made available to or provided to Participant under this Agreement, in printed or electronic format, pertaining to a Program or Product, as may be further described in the Guide.
   4. “Confidential Information” means: (a) the Product (which is ThoughtSpot’s Confidential Information); (b) any information of a party or its Affiliates 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 confidential information; (c) information of a confidential or proprietary nature obtained from ThoughtSpot related to any Customer, regardless of whether it is marked as such, including information supplied by a Customer during its use of the Product or to receive Consulting Services; and (d) the terms of this Agreement, any Order Form, and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties).
   5. “Customer” is a customer of ThoughtSpot with current access to a purchased production license to the Software.
   6. “Consulting Services” means user assistance, consulting, and training services provided by or on behalf of ThoughtSpot to a Customer.
   7. “Customer” is a customer of ThoughtSpot with current access to a purchased production access grant or license to a Product.
   8. “Documentation” means the then-current, published installation, operating, and interface instructions, user manuals, and help files (including API documentation) published for each version of the Product at https://docs.thoughtspot.com/.
   9. “Effective Date” means, with respect to this Agreement, the date that the Appointment Confirmation is sent to Participant.
   10. “Evaluation Subscription” means access to a ThoughtSpot non-production cluster during participation in the Program as described in Section 5.1 (Evaluation Subscription for Demos) below.
   11. “Guide” means the most current ThoughtSpot Channel Sales Program Guide together with its attached and referenced documents, as updated from time to time and provided by ThoughtSpot.
   12. “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.
   13. “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.
   14. “Opportunity Registration Terms” means the Opportunity Registration Terms and Conditions, as updated from time to time and provided by ThoughtSpot.
   15. “Order Form” means an ordering document signed by the authorized representatives of Participant and ThoughtSpot that specifies: (a) Product subscriptions or licenses purchased, their prices, and their term of permitted use; or (b) the scope and price of Consulting Services purchased.
   16. “Partner Code of Conduct” means the most current policy documentation addressing business practices and conduct requirements applicable to Participant’s activities under this Agreement, as updated from time to time and provided by ThoughtSpot.
   17. “Partner Portal” means standard web portal(s) for communication with Program participants, as well as deal registration, marketing resources, and other enablement information, for which login credentials are provided by ThoughtSpot to Participant under this Agreement, including any related or successor sites.
   18. “Pre-Release Product” means Product provided by ThoughtSpot to Participant under this Agreement that has not yet been made generally available by ThoughtSpot.
   19. “Product” means any ThoughtSpot software-as-a-service or licensed application provided to a Customer as described in an Order Form.
   20. “Program” means the ThoughtSpot Channel Sales Program described herein and in the Guide.
   21. “Sub-Type Appendix” means the terms and conditions applicable to a particular sub-type of the Program (e.g., the Reseller sub-type), as specified in an appendix to this Agreement or as otherwise agreed in a separate document signed by both parties. Each Sub-Type Appendix is a part of this Agreement but is not effective unless and until Participant receives an Appointment Confirmation applicable to the Program identified in such Program Terms.
   22. “Territory” means the geographic location(s) or other markets displayed in Participant’s partner account profile page in the Partner Portal, in which Participant may conduct the activities specified in each agreed Sub-Type Appendix.
   23. “Trademarks” means a party’s logos, service marks, trademarks and certification marks. “ThoughtSpot Trademarks” means Trademarks owned by ThoughtSpot that ThoughtSpot expressly authorizes Participant to use in connection with this Agreement. “Participant Trademarks” means Trademarks owned by Participant that Participant expressly authorizes ThoughtSpot to use in connection with this Agreement.
2. Program Overview.
   1. Appointment. Participant will accept the terms of this Agreement upon submitting its application for participation in the Program; however, Participant will be deemed enrolled in the Program and any sub-type thereof, subject to the terms of this Agreement, and this Agreement will be binding on the parties, only upon Participant’s receipt of an Appointment Confirmation accepting Participant into the Program and any applicable sub-types. ThoughtSpot may decline to admit Participant into the Program or any sub-type for any reason or no reason, including missing or inaccurate application information or lack of apparent authority of the individual purporting to accept this Agreement on behalf of Participant. At the time of acceptance of this Agreement or any time during its term, Participant may request appointment to one or more additional sub-types of the Program, as designated by the Sub-Type Appendix to this Agreement. Appointment to the Program or any sub-type is nonexclusive.
   2. Benefits. Upon appointment to the Program, Participant may request access to an Evaluation Subscription and use ThoughtSpot Trademarks and Collateral subject to and in accordance with the licenses and use authorizations granted under Section 5 (Access to ThoughtSpot Resources) below and the other terms of this Agreement. Referral, resale, and subcontracting rights are subject to (and the parties shall comply with) the applicable Sub-Type Appendix, which delineates further benefits, requirements, and other terms and conditions applicable to that sub-type.
   3. Program Changes. ThoughtSpot may, from time to time in its sole discretion upon 60 days’ notice to Participant, amend a Sub-Type Appendix or a Guide on a going-forward and non-discriminatory basis. If Participant does not agree to such amendments, Participant’s sole recourse will be to terminate this Agreement in accordance with Section 3 (Term and Termination).
3. Term and Termination.
   1. Term. The term of this Agreement commences on the Effective Date and thereafter automatically renew for successive one (1) year renewal periods unless otherwise terminated as provided herein.
   2. Termination for Convenience. Either party may terminate this Agreement or any Sub-Type Appendix for convenience upon 90 days’ prior notice. In addition, if Participant objects to an amendment to a Sub-Type Appendix, the Guide, the Opportunity Registration Terms, or the Partner Code of Conduct, then Participant may, within 30 days after provision of such amendment, either terminate the applicable Sub-Type Appendix or this Agreement immediately upon notice to ThoughtSpot.
   3. Termination for Cause. Either party may immediately terminate this Agreement or any Sub-Type Appendix upon notice to the other party if the other party materially breaches its obligations under this Agreement and fails to cure such breach within 30 days following receipt of notice from the non-breaching party. Either party may terminate this Agreement immediately in the event the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency or any assignment for the benefit of creditors. Either party may immediately terminate this Agreement upon notice if the other party breaches the provisions of Section 9 (Proper Conduct).
   4. No Reliance. The parties agree that no expectation of future income or reliance is created by this Agreement and that the rights of termination or expiration hereunder are absolute. A party who permits the Agreement to expire, or who exercises its rights hereunder to terminate this Agreement, will have no liability whatsoever (including indemnification obligations) for any compensation, reimbursement, damage, loss or expense of any kind, whether consequential, indirect or direct, suffered or incurred by the other party arising from or incident to the termination or expiration of this Agreement including loss of goodwill, prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or other commitments, whether or not such party is aware of any such damage, loss or expense. Participant waives any right it may have to receive any compensation or reparations on termination of this Agreement or any Sub-Type Appendix by operation of Law or otherwise, other than as expressly provided in this Agreement. Subject to Section 3.6 (Effect of Termination of Agreement), this Section does not operate to affect a party’s liabilities arising through breach of the obligations provided herein, including outstanding payments, Order Forms, or Work Orders (as described in the Reciprocal Subcontractor Sub-Type Appendix) provided they are signed and still in effect for the other party’s signature.
   5. Effect of Termination of Sub-Type Appendix. Unless otherwise specified in the applicable Sub-Type Appendix, upon the termination of any Sub-Type Appendix: (a) Participant’s appointment to the applicable Program sub-type automatically terminates; (b) all access and other rights granted to Participant under the Sub-Type Appendix will immediately terminate and Participant shall cease use of and access to the Evaluation Subscription and other benefits provided under the applicable Program sub-type; (c) all Order Forms signed and provided by ThoughtSpot under the Sub-Type Appendix that, at the time of such expiration or termination, remain unsigned by Participant shall be null and void; and (d) all Confidential Information provided under the Sub-Type Appendix must be returned or destroyed in accordance with Section 6.1 (Confidentiality) subject to any surviving rights hereunder.
   6. Effect of Termination of Agreement. Upon expiration or termination of this Agreement: (a) all Sub-Type Appendices hereunder will terminate subject to Section 3.5 (Effect of Termination of Sub-Type Appendix); (b) all rights granted to the parties hereunder will immediately terminate except as provided below; (c) each party will cease use of the other party’s Trademarks and Collateral; and (d) all Confidential Information provided under the Agreement will be returned or destroyed in accordance with Section 6.1 (Confidentiality). Notwithstanding the foregoing, no liability of either party arising before expiration or termination of this Agreement, including liability for payments due, will be affected. Sections 1 (Definitions), 3 (Term and Termination), 4.5 (Invoices and Payment), 4.6 (Taxes), 5.4 (Trademarks) (but excluding Sections 5.4.2 and 5.4.3), 6 (Proprietary Rights), 7 (Third-Party Claims) (but only for a period of two years), 8 (Limitations of Liability), and 10 (General); will survive expiration or termination of this Agreement for any reason.
4. Orders.
   1. Applicability. The terms of this Section 4 (Orders) will apply to Order Forms governed by the Reseller and Reciprocal Subcontracting Sub-Type Appendices; if Participant did not apply for and receive acceptance to the Reseller or Reciprocal Subcontracting sub-types, then this Section 4 (Orders), will be of no force or effect. The terms of this Section 4 (Orders) will apply to all Order Forms except as may be expressly stated otherwise in the applicable Order Form or elsewhere in this Agreement. As used in this Section 4 (Orders), the term Order Form will include “Work Orders” as that term is defined in the Reciprocal Subcontractor Sub-Type Appendix
   2. Prices. Benefits available to Participant under the Program will be listed in the Guide, which will specify the fee, if any, for the benefit. Unless otherwise provided in the Guide, a specified discount will be construed as a discount relative to the prices on ThoughtSpot’s standard price list, as updated from time to time. Discounts cited in a Guide, the Opportunity Registration Terms or related partner documentation are in lieu of, and may not be combined with, any other discounts offered by ThoughtSpot, contractually or through special promotions 
   3. Order Forms. To the extent permitted under the applicable Sub-Type Appendix, Participant may initiate an order of Product or Consulting Services by executing an Order Form with ThoughtSpot. ThoughtSpot may accept or reject any Order Form for any reason. Upon execution by the parties, each Order Form is non-cancellable, non-refundable and not contingent upon resale or acceptance by a Customer. Prices stated in each Order Form are final. All Order Forms are governed exclusively by the terms and conditions of this Agreement (except for Order Forms that expressly reference a different agreement signed by the parties that governs Participant’s own use of ThoughtSpot products or services).  
   4. Price Updates. ThoughtSpot may from time to time update its price lists and discount schedules. Changes to prices or discounts do not apply to, amend, or modify, any Order Form signed by the parties, regardless of whether Participant had notice of the changes when ThoughtSpot provided the Order Form for signature. It is Participant’s responsibility to confirm before signing an Order Form that the Order Form reflects the current prices and discounts to which Participant may be entitled, and Participant should request from ThoughtSpot a revised Order Form if necessary. Neither party is obligated to provide any refund, credit, or revised pricing for an Order Form that contains prices or discounts different from those to which Participant is eligible at the time of issue or execution of the Order Form.
   5. Invoices and Payment. ThoughtSpot will electronically issue the initial invoice to Participant corresponding with each Order Form upon the provision of administrative credentials for use of the applicable Product. Each Order Form is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire term of product access described in the Order Form. Unless otherwise indicated in an Order Form, fees for Consulting Services are offered on a fixed-fee basis and invoiced upon signature of the corresponding Order Form. The ordering party will pay each invoice in full, within 30 days after the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum, whichever is lower. A party providing subcontracted services may suspend the delivery of the subcontracted services while any payment is delinquent. Payments will be made free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by the other party. A party may not reduce any amount payable to the other party under this Agreement due to any counterclaim, set-off, adjustment, or other claim Participant might have against the other party, any other party, or otherwise.  
   6. Taxes. Amounts payable under this Agreement are stated exclusive of 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 (collectively, “Taxes”). Participant will pay all Taxes associated with the transactions, access, and use, contemplated by this Agreement except Taxes based on ThoughtSpot’s net income, property, or employees. If ThoughtSpot has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.6, ThoughtSpot will invoice Participant and Participant will pay that amount unless Participant provides ThoughtSpot with a valid tax exemption certificate authorized by the appropriate taxing authority prior to execution of the applicable Order Form. Taxes will not be deducted from payments to ThoughtSpot, except as required by Law, in which case Participant will increase the amount payable as necessary so that, after making all required deductions and withholdings, ThoughtSpot receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon ThoughtSpot’s request, Participant will provide to ThoughtSpot its proof of withholding tax remittance to the respective tax authority.
5. Access to ThoughtSpot Resources. .
   1. Evaluation Subscription for Demos. Subject to the terms and conditions of this Agreement and the CSA (as defined below), upon Participant’s acceptance into the Program, ThoughtSpot authorizes Participant to access and use an Evaluation Subscription (as defined in the CSA): (a) during the term of this Agreement; (b) solely for non-production business purposes of demonstration to third-party customer prospects (provided that no administrative rights or credentials are provided for access by a third party), configuration and integration testing, and for internal training or the training of prospective customers or current Customers; and (c) in accordance with the Documentation. Participant’s access rights and limitations on access and liabilities with regard to the Evaluation Subscription will otherwise be as described in the ThoughtSpot Cloud Subscription Agreement available at https://www.thoughtspot.com/legal/ at the time of Participant’s access (“CSA”), in which “Participant” will mean Customer as defined in the CSA. Exclusively applicable to Participant’s use of the Evaluation Subscription as described in this Section 5.1, the CSA is expressly incorporated into this Agreement by this reference, and in the event of any conflict between the terms of the CSA and this Agreement, the terms of this Agreement will govern to the extent of such conflict as it pertains to Participant’s use of the Evaluation Subscription. Except as modified in this Section 5.1 which will supersede the terms of the CSA, the CSA will exclusively govern all rights and obligations of Participant and ThoughtSpot regarding access to ThoughtSpot Cloud under this Agreement, including regarding any third-party access provided by Participant. Notwithstanding any limitation on ThoughtSpot’s obligations with respect to third-party claims in the CSA, the protections against third-party claims as described in Section 7.1 (ThoughtSpot Obligation) apply to Participant’s use of the Evaluation Subscription as described in this Section 5.1. Termination of this Agreement will concurrently terminate the CSA, and the “effects of termination” described in the CSA will apply accordingly.
   2. Pre-Release Product. At Participant’s voluntary request, and subject to availability, ThoughtSpot’s approval, and the terms of this Agreement, ThoughtSpot may provide Participant with limited access to Pre-Release Product. Pre-Release Product is an Evaluation Subscription except that it must be maintained by Participant as strictly confidential and may not be demonstrated to any third party. If ThoughtSpot provides Participant with access to Pre-Release Product, then ThoughtSpot grants to Participant: (a) a limited, non-exclusive right to access and use the Pre-Release Product provided by ThoughtSpot as software-as-a-service, solely to internally evaluate the Pre-Release Product in a non-production environment and with non-confidential, non-production data; and (b) a right to access and use Pre-Release Product made available to Participant for internal evaluation and the provision of suggestions and feedback. Participant acknowledges and agrees that the Pre-Release Product, including its features and functionality: (i) is not an official product and has not been commercially released; (ii) may not be in final form or be fully functional; (iii) may contain errors, design flaws or other problems; (iv) may generate or produce inaccurate information or unexpected or incorrect results; (v) may cause loss of data or communications; (vi) may never be released as a commercial version; (vii) may include or be provided with software that is licensed under open source or third-party license agreements; and (viii) may be discontinued by ThoughtSpot in whole or in part, at any time and without any obligation or liability to Participant. The right to access Pre-Release Product will expire and it will be inaccessible to Participant at a date specified by ThoughtSpot to Participant, or if no date is specified, then the earlier of 30 days following the date of general release of Pre-Release Product, or 60 days from the date the Pre-Release Product was provided to Participant. This Section 5.2 will apply to Pre-Release Product notwithstanding any contrary provision in this Agreement. ThoughtSpot may terminate any rights to Pre-Release Product at any time upon written notice to Participant, in ThoughtSpot’s sole discretion. In addition to the provisions of Section 5.1 (Confidentiality), Participant shall not: (1) demonstrate any Pre-Release Product, its contents or its related documentation to third parties notwithstanding any provision herein to the contrary; (2) download any portion of a Pre-Release Product that is made available to Participant as software-as-a-service; (3) take screen captures or otherwise record any of a Pre-Release Product's user interfaces, duplicate interfaces, features or functionality; or (4) issue any press release or public announcement referencing or disclosing any information pertaining to a Pre-Release Product.
   3. Marketing Collateral. Subject to the terms of this Agreement, upon Participant’s acceptance into the Program, ThoughtSpot grants to Participant a limited, royalty-free, revocable, non-transferable, non-sublicensable, non-exclusive, worldwide license during the term of this Agreement to reproduce, publicly display, publicly perform, distribute and transmit (all without modification) Collateral designated for use with the Program, solely for the purposes of marketing and advertising ThoughtSpot products and services and Participant’s appointment to the Program, and as otherwise permitted by the Guide.
   4. Trademarks.
      1. Trademark Ownership. ThoughtSpot acknowledges that Participant owns all Participant Trademarks and any goodwill derived from the use of Participant Trademarks by ThoughtSpot under this Agreement inures solely to the benefit of Participant. Participant acknowledges that ThoughtSpot owns all ThoughtSpot Trademarks and any goodwill derived from the use of the ThoughtSpot Trademarks by Participant under this Agreement inures solely to the benefit of ThoughtSpot.
      2. Trademark License to Participant. ThoughtSpot may from time to time publish trademark usage guidelines (“Trademark Guidelines”) for Program participants. The Trademark Guidelines and the Guide may designate certain ThoughtSpot Trademarks for use by Participants along with guidelines for using those marks. Subject to Participant’s compliance with this Agreement, including the restrictions set forth in this Section 5.4, ThoughtSpot grants to Participant a limited, personal, revocable, non-sublicensable, non-transferable (except as provided in Section 10.2 (Assignment)), non-exclusive license in the Territory to use ThoughtSpot Trademarks solely to promote its participation in the Program. Participant’s use of ThoughtSpot Trademarks must conform to the Trademark Guidelines and any other applicable requirements set forth in this Agreement or the applicable Guide. ThoughtSpot may terminate the foregoing license for any reason upon reasonable written notice provided to Participant.
      3. Trademark License to ThoughtSpot. Participant grants to ThoughtSpot a limited, personal, revocable, non-sublicensable, non-transferable (except as provided in Section 10.2 (Assignment)), non-exclusive, royalty-free, worldwide license to use Participant Trademarks subject to Participant’s trademark and logo usage guidelines, if any, provided by Participant to ThoughtSpot, for purposes of marketing and advertising ThoughtSpot products and services and to promote and advertise Participant’s participation in a Program to which Participant is appointed. Participant may terminate the foregoing license for any reason upon reasonable written notice provided to ThoughtSpot.
      4. Cooperation. Each party licensed hereunder to use the other party’s Trademarks must: (a) cooperate with the licensor in facilitating monitoring and control of the licensee’s use of the licensed Trademark, including with respect to the nature and quality of the materials in which the Trademark is used; (b) upon request, provide the licensor with specimens of the licensed use of the Trademark; and (c) comply with any instructions by the licensor in relation to such use, including, if so requested, submitting any proposed use of the Trademark to the licensor for review and approval prior to public use or dissemination of materials using the Trademark. Each party hereby assigns to the other all right, title and interest in the other party’s Trademarks that may accrue to such party by operation of law, together with all goodwill attaching thereto that may inure to such party in connection with this Agreement or from its use of the other party’s Trademarks.
      5. Trademark Use Restrictions. Except as otherwise set forth in this Agreement, each party is expressly prohibited from any use of the other party’s Trademarks. Neither party will use the other party’s Trademarks in any way that is likely to cause confusion, disparage the other party or its products or services, injure its reputation as a company providing high quality products and services or otherwise diminish or damage its goodwill in its Trademarks. Participant may not use the ThoughtSpot Trademarks in any manner that would indicate, or could be interpreted as, endorsement or sponsorship by ThoughtSpot of any product or service offered by Participant or any third party. Neither party shall incorporate or combine the other party’s licensed Trademarks into its own trademarks, service marks or certification marks, or mutilate or otherwise modify the other party’s licensed Trademarks.
      6. No Contest. Participant shall at no time contest or aid in contesting the validity or ownership of the ThoughtSpot Trademarks or any other marks owned by ThoughtSpot or take any action in derogation of ThoughtSpot’s rights therein. Participant shall not adopt or register in any jurisdiction, whether as a corporate name, domain name, trademark, service mark or indication of origin, any of the ThoughtSpot Trademarks or other marks owned by ThoughtSpot, or any word or mark confusingly similar thereto.
   5. Publicity. Participant expressly agrees that ThoughtSpot may reference Participant as a member of the Program and feature Participant on its website and related Program promotional materials. Subject to the foregoing, 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.
6. Proprietary Rights.
   1. Confidentiality. 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 exercise the rights and perform the 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 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 except with regard to source code (if any is received) and Pre-Release Product, which must be kept in strict confidence. 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) Consulting Services for any other party or to use any information incidentally retained in the unaided memories of its personnel providing Consulting Services.
   2. Exceptions. The receiving party’s obligations under Section 6.1 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 the Law, 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.
   3. 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 Product, Collateral 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 Products are licensed and not sold.
   4. Feedback. ThoughtSpot encourages its partners to provide suggestions, proposals, ideas, recommendations, or other input regarding the Products (collectively, “Feedback”). To the extent that Participant provides such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
7. Third-Party Claims..
   1. ThoughtSpot Obligation. As used in this Section 7, “Participant” and “ThoughtSpot,” when used in the context of a party entitled to defense, shall include that party’s shareholders, directors, officers, employees and subcontractors. “Claim” means any suit, claim, action or demand made by an unaffiliated third party. Subject to the limitations in this Section 7, ThoughtSpot shall: (a) defend Participant against any Claim (including by paying litigation costs and reasonable attorneys’ fees) solely to the extent alleging: (i) that Participant’s use of Product pursuant to and in accordance with the license grants of Section 5.1 (Evaluation Subscription for Demos) directly infringes any valid patent, copyright or trademark of a third party; (ii) unpaid employee wages, compensation, awards, group insurance or other employment benefits by ThoughtSpot to its employees, agents and contractors, any challenge of ThoughtSpot’s right to dismiss its personnel, and any allegation that any employee, agent and contractor of ThoughtSpot is entitled to participate in or receive benefits under any Participant employee benefit plan, program or policy, or is in any way an employee of Participant; or (iii) breach by ThoughtSpot of its obligations under Section 9 (Proper Conduct); and (b) pay any settlement or any adverse final judgment to the extent arising from the Claim.
   2. Participant Obligation. Subject to the limitations in this Section 7, Participant shall: (a) defend ThoughtSpot against any Claim solely to the extent alleging: (i) Participant’s implementation or other consulting or professional services, or any software provided by Participant to a Customer for use with the Product, directly infringes any valid patent, copyright or trademark of a third party; (ii) breach by Participant of representations, warranties, obligations, liabilities, or other terms created between Participant and a Customer that are inconsistent with Participant’s obligations under this Agreement or as otherwise expressly agreed between Participant and ThoughtSpot in an Order Form; (iii) breach of any representation or warranty made by Participant to a Customer; (iii) negligence of Participant that results in bodily injury, death or damage to real or tangible personal property; (iv) unpaid Taxes owed by Participant, including any fees or penalties relating thereto; (v) unpaid employee wages, compensation, awards, group insurance or other employment benefits by Participant to its employees, agents and contractors, any challenge of Participant’s right to dismiss its personnel, and any allegation that any employee, agent and contractor of Participant is entitled to participate in or receive benefits under any ThoughtSpot employee benefit plan, program or policy, or is in any way an employee of ThoughtSpot; or (vi) breach by Participant of its obligations under Section 9 (Proper Conduct); and (b) pay any settlement or any adverse final judgment to the extent arising from the Claim.
   3. Mitigation. If any Claim alleges any part of the Product infringes any third-party IPR, ThoughtSpot may: (a) contest the Claim; (b) obtain permission from the claimant for Participant’s continued use of the Product; (c) avoid such Claim by replacing or modifying the Product with a substantially similar Product; or (d) terminate Participant’s access or license to the affected Product immediately upon written notice to Participant.
   4. Limitations. Notwithstanding the above, ThoughtSpot will have no obligation or liability for any Claim to the extent arising in whole or in part from: (a) any Product that: (i) is or was modified in accordance with a Customer’s or Participant’s written specifications or instructions, and such Customer or Participant specifications or instructions are the source of the alleged infringement; (ii) was modified by any party other than ThoughtSpot (including Participant or a Customer), if the alleged infringement relates to such modification; (iii) is or was combined or integrated with other products (hardware or software), processes, or materials (including other products provided by Participant or any third party) where the alleged infringement relates to, and would not have arisen but for, such combination; or (iv) is an unsupported version; (b) a Customer’s continued use of the Product after expiration or termination of the corresponding Order Form or Participant’s continued use of the Product after expiration or termination of this Agreement or the agreement under which use was permitted (or continued use by a Customer or Participant of the original Product after ThoughtSpot’s provision of a replacement under Section 7.3(c) (Mitigation)); or (c) a claim based on IPR owned by Participant or its Affiliates.
   5. Process. Each party’s obligations under this Section 7 are expressly conditioned on the party claiming protection against a Claim: (a) notifying the other party promptly of any actual or threatened Claim; (b) giving the other party sole control of the defense of such Claim and any related settlement negotiations; and (c) cooperating and, at the other party’s reasonable request and expense, assisting in such defense. Neither party will stipulate, acknowledge, or admit fault or liability on the other party’s behalf, or publicize any settlement, without the other party’s prior written consent (which will not be unreasonably withheld or delayed). This Section 7 (Third-Party Claims) states each party’s entire liability and the other party’s exclusive remedy for third-party claims and third-party actions.
8. Limitations of Liability.
   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, FOR ALL CLAIMS IN THE AGGREGATE, THE AMOUNTS PAID OR PAYABLE BY PARTICIPANT UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY.
   2. Exclusions. TO THE EXTENT PERMITTED BY LAW, NEITHER THOUGHTSPOT NOR PARTICIPANT 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.
   3. Applicability. The provisions of Sections 8.1 (Limitation of Liability) and 8.2 (Exclusions) do not apply to: (a) payment obligations under Section 4.5 (Invoices and Payment) or tax obligations under Section 4.6 (Taxes); (b) infringement, misappropriation, or other violation by a party of the other party’s IPR; (c) breach by a party of its obligations under Section 6.1 (Confidentiality); or (d) payments to a third party arising from obligations under Section 7 (Third-Party Claims). The parties, and not their Affiliates, suppliers, or licensors, are wholly responsible for any liabilities hereunder.
   4. 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. Proper Conduct.
   1. Partner Code of Conduct. Participant acknowledges that it has read, understands and will abide by the Partner Code of Conduct, including any insurance minimums therein, which is hereby incorporated into this Agreement by this reference. ThoughtSpot may, from time to time upon 30 days’ notice to Participant, amend the Partner Code of Conduct on a going forward and non-discriminatory basis, in ThoughtSpot’s sole discretion. If Participant does not agree to an amendment, its recourse will be to terminate this Agreement in accordance with Section 3.2 (Termination for Convenience).
   2. Participating Affiliates. Participant may provide to ThoughtSpot a list of certain Participant Affiliates that will conduct business under this Agreement. The list of Participant Affiliates must be sent in writing to [email protected] and signed by Participant’s authorized signatory with authority to bind Participant to legal obligations and commit funds on Participant’s behalf. ThoughtSpot will review the list of Participant Affiliates provided and respond with an acceptance email as described in Section 2.1 (Appointment) for each listed Participant Affiliate, including the respective Territory and Program sub-type for each. Subject to the terms and conditions of this Agreement, the licenses, access and rights granted to Participant under this Agreement shall also be granted to the accepted Participant Affiliates listed in the signature block as “Participating Affiliates.” Participant agrees to be jointly and severally liable for all obligations, acts, and omissions of each listed Participant Affiliate accepted by ThoughtSpot into the Program as if such Participant Affiliate were Participant.
   3. Compliance with Law. Each party will comply with all Law in its performance of this Agreement. In particular, neither party will make any payments or transfers of value which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business in violation of law, including the U.S. Foreign Corrupt Practices Act, the U.S. Federal Anti-Kickback Statute or other law that prohibits the giving, accepting, soliciting (i.e., asking for) or arranging items of value in any form (e.g., gifts, certain discounts or cross-referrals between parties), either directly or indirectly for the purpose of inducing or rewarding another party for referrals of services paid for by a government program, or in violation of any other statutes, regulation or law that would render any arrangement under this Agreement illegal.
   4. Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. The Product is subject to U.S. Export Administration Regulations (“EAR”) and Participant will comply with EAR. Without limiting the foregoing, Participant represents and warrants that: (a) it is not located in, and will not use any Product from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Participant will not use the Product 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) Participant is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Participant is responsible for complying with any local Law that may impact Participant’s right to import, export, or use the Product or any of them.
10. General.
    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.
    2. 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 10.2 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.
    3. Compliance Review. Participant shall retain records of its activities under this Agreement for at least four years in accordance with its customary and reasonable business practices. During the term of this Agreement and for one year thereafter, ThoughtSpot will have the right to audit Participant’s records relating to its performance under this Agreement and to verify that Participant has fulfilled its obligations under this Agreement. Any such audit will be conducted during normal business hours on a date mutually acceptable to both parties, and ThoughtSpot must provide at least ten business days’ prior notice. Participant agrees to review the audit results with ThoughtSpot and, if any underpayments are owed, pay such amounts upon receipt of an invoice from ThoughtSpot as described herein. The audit will be conducted at ThoughtSpot’s expense, unless the audit reveals that Participant has materially breached its obligations hereunder, in which case Participant shall promptly reimburse ThoughtSpot for its reasonable expenses incurred in connection with such audit. Such audits will be conducted no more than once in any period of twelve consecutive months, or twice during the same time period in the event that an audit reveals a material breach of Participant’s obligations hereunder.
    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, in the application website where this Agreement was accepted, or in the Partner Portal (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.
    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.
    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 10.6 promptly notifies the other party and resumes performance promptly when conditions allow it to do so.
    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, or to represent that it has such right or authority. Participant agrees that it is not entitled to any benefits ThoughtSpot may offer to its employees, such as group insurance or other employment benefits. Participant is solely responsible for filing all its tax returns and submitting all tax payments as required by the applicable taxing authorities arising from any payments to Participant under this Agreement. There are no third-party beneficiaries to this Agreement. ThoughtSpot’s licensors will have no liability of any kind under 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. Construction. 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”) include 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 10.4 (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 Participant 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. This Agreement incorporates by this reference all of the numbered sections herein (“Main Body”) as well as the terms and conditions of all Order Forms, the Sub-Type Appendices, the Guide, the Opportunity Registration Terms, and the Code of Conduct. In the event of any conflict between terms and conditions in this Agreement, documents earlier in the following list will take precedence over later documents, unless the later document expressly recites the parties’ intent to supersede specific terms in the earlier document: (1) any Order Form (solely with respect to that order); (2) the CSA referenced in Section 5.1 (Evaluation Subscription for Demos) (solely as it applies to Participant’s use of the Evaluation Subscription); (3) the Main Body of this Agreement; (4) the Code of Conduct; (5) the Guide; (6) the Opportunity Registration Terms; and (7) any other document incorporated by reference into either the main body of this Agreement, the Sub-Type Appendices or the Guide. Purchase orders issued by Participant will be effective solely to specify the quantities of Product and Consulting Services ordered, and, to the extent such purchase orders are based on ThoughtSpot’s Order Forms, the price. Participant agrees that any terms and conditions in any purchase order submitted by Participant to ThoughtSpot are superseded and replaced by the terms and conditions of this Agreement, and such purchase order terms and conditions will have no force or effect. Invoices issued by ThoughtSpot will be effective solely to specify the charges for the Product and Consulting 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 the parties and will be of no force or effect.

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SUB-TYPE APPENDIX

RECIPROCAL SUBCONTRACTING SUB-TYPE

This Appendix is attached to and made a part of the ThoughtSpot Channel Sales Program Agreement between Participant and ThoughtSpot. This Sub-Type Appendix will apply if and when Participant is appointed to the reciprocal subcontracting program sub-type as evidenced by an Appointment Confirmation from ThoughtSpot, and apply to any Work Orders (defined below) between the parties (and do not apply if no Work Orders are in effect between the parties). Pursuant to each Work Order, one party shall be designated as “Prime” and the other as “Subcontractor” and, for that Work Order, the rights and obligations of each party in its respective role (as Prime or Subcontractor) shall be as set forth in this Appendix..

1. Definitions.
   1. “Change Request” means an agreement executed by the parties that describes a modification to Subcontractor Services or to any material provision of a Work Order.
   2. “Newly Created Service Documentation” means the portion of Subcontractor Services materials provided by Subcontractor to Prime for delivery to a Customer comprising templates, planning and deployment documentation, and training materials to the extent created by Subcontractor in the performance of the Subcontractor Services pursuant to a Work Order, excluding Project Materials, Pre-Existing Service Documentation, and materials owned by third parties.
   3. “Pre-Existing Service Documentation” means the portion of Subcontractor Services materials provided to Prime for delivery to a Customer comprising templates, planning and deployment documentation, and training materials to the extent they were authored by Subcontractor other than for or in connection with the Work Order under which they were provided. When ThoughtSpot acts as the Subcontractor, any updates to the Product or Documentation will be deemed ThoughtSpot’s Pre-Existing Service Documentation (and not Newly Created Technology), regardless of when or how created.
   4. “Project Materials” means any software, documentation, templates, applications, hardware, and any components thereof, furnished to Subcontractor by or on behalf of Prime to enable or support Subcontractor Services.
   5. “Qualification Requirements” means the ThoughtSpot personnel background testing and screening requirements as updated from time to time and posted online or e-mailed to Participant.
   6. “Subcontractor Services” means consulting, deployment, implementation, integration, training, or other professional services of Subcontractor with regard to the Product, as described in an Order Form or Work Order.
   7. “Work Order” means the agreement executed by the parties that describes the Subcontractor Services to be provided and any terms and conditions specific to the Subcontractor Services. A Work Order may be signed separately or attached to, or incorporated into, an Order Form.
2. Appointment.
   1. Subcontractor. Participant is appointed to the Reciprocal Subcontractor Sub-Type in the Territory until this Sub-Type Appendix or the Agreement expires or is terminated. Participant may sign Work Orders as Prime or Subcontractor with ThoughtSpot to provide any kind of user assistance, configuration, consulting, or training services to Customers, as described in each Work Order. For each Work Order signed between the parties, Subcontractor will provide the Subcontractor Services to Prime in accordance with the Work Order, subject to the terms and conditions of the Agreement and this Sub-Type Appendix for use by the Customer identified in the Work Order.
   2. Work Orders. Each Work Order will: (a) incorporate this Agreement; and (b) specify and describe the relevant business parameters, including but not limited to, the Subcontractor Services, responsibilities, assumptions, project descriptions, delivery schedules, materials to be delivered, staff roles, pricing, payment schedule and project manager points of contact for each party to the Work Order.
   3. Non-Exclusivity. Nothing in this Sub-Type Appendix or any Work Order will be construed to obligate Prime to use Subcontractor’s services, or that of any personnel of Subcontractor, in any guaranteed quantity or for any guaranteed period of time. The quantity and duration of service shall be determined by Prime in its sole discretion.
3. Term and Termination.
   1. Term. Each Work Order shall commence on its specified effective date and shall continue until it is terminated in accordance with this Section 3 or until Subcontractor has provided all of the Subcontractor Services to be provided thereunder.
   2. Termination. Either party may terminate a Work Order for convenience upon two weeks’ prior notice to the other party. ThoughtSpot may terminate a Work Order immediately if: (a) Customer indicates misconduct or incompetence in the performance of the Participant Services and requests removal of Participant; (b) in accordance with Section 4.5 (Personnel) below, ThoughtSpot has requested the replacement of Participant personnel and Participant has failed to offer a replacement within two business days; or (c) Participant has failed to provide ThoughtSpot with two weeks' notice prior to changing the personnel assigned under a Work Order.
   3. Effects of Termination. Upon termination of a Work Order, the licenses granted pursuant to Section 4.3 (License to Project Materials) below shall automatically terminate, and Subcontractor shall cease all use of the Project Materials and destroy or delete all reasonably accessible copies in its possession or control. Upon termination of a Work Order for any reason, Prime shall pay to Subcontractor unpaid fees for Subcontractor Services provided, work performed, and expenses incurred by Subcontractor prior to the termination date, subject to the other terms and conditions of the Work Order and this Section 3 (Term and Termination); and Subcontractor shall provide to Prime the Newly-Created Service Documentation and necessary Pre-Existing Service Documentation created for the Subcontractor Services until the date of termination. Termination or expiration of a Work Order shall have no effect on the Agreement or this Sub-Type Appendix.
4. Project Management. Performance under each Work Order shall be in accordance with this Section 4.
   1. Duties, Schedules & Locations. Subcontractor shall perform all Subcontractor Services at locations approved in advance in writing by Prime. Subcontractor and each of its personnel shall be required to follow reasonable work rules established by Prime and, if applicable, the Customer.
   2. Project Change Request. Either party may request modification of a Work Order by means of a Change Request. When a party submits a Change Request, Subcontractor shall promptly estimate the financial and scheduling impacts, if any, expected as a result of the proposed Change Request. The parties shall promptly meet to review the estimate and determine whether, and with what modifications, the Change Request would be mutually acceptable. Subcontractor may not unreasonably refuse to accept a Change Request initiated by Prime if Prime agrees to bear the financial and schedule impacts identified by Subcontractor. If the parties agree to a Change Request, they shall attach it signed and dated to the applicable Work Order. If the parties are unable to agree within five business days after the Change Request is submitted, then the submitting party may either withdraw the Change Request or immediately terminate the Work Order by notice to the other party at the address for notice provided herein.
   3. License to Project Materials. Prime hereby grants to Subcontractor a royalty-free, non-sublicensable, non-transferable (except as provided in the general assignment provision of the Agreement), non-exclusive, worldwide license to use, make, copy and create derivative works of the Project Materials solely for the purpose of providing the Subcontractor Services.
   4. Delay of Project Materials. Prime acknowledges and agrees that Subcontractor’s performance of the Subcontractor Services is contingent on Prime’s timely delivery of, or provision of access to, the Project Materials. Any scheduling or financial impacts caused by Prime’s failure to deliver or provide access to such materials or technology will be treated as a Change Request.
   5. Personnel. Prime may reasonably approve or reject any personnel proposed by Subcontractor in its sole discretion. Subcontractor shall ensure that any person performing the Subcontractor Services complies with the Work Order and this Sub-Type Appendix. Upon Subcontractor’s receipt of a written request from Prime to remove or replace Subcontractor personnel assigned to perform Subcontractor Services, including specific reasons for such request, Subcontractor shall use reasonable efforts to replace such personnel. Prime may terminate a Work Order immediately if Subcontractor cannot offer replacement personnel within two business days.
5. Payment and Expenses.
   1. Fees. Prime shall pay Subcontractor the fees for Subcontractor Services under each Work Order, in addition to any expenses due and payable, in accordance with the fixed price or hourly fees at the rates stated in the Work Order, or on such other basis as defined in the Work Order and any corresponding Change Request(s). Timecards, if any are described in the Work Order, must be submitted on a weekly basis for work on a time and materials basis. A Work Order may specify that payments are contingent upon the completion of a milestone, such as the rendering of specified Subcontractor Services. No overtime rates shall apply except as expressly described in the Work Order. No increase of applicable fees shall apply except as provided in a Change Request.
   2. Expenses. Prime shall reimburse Subcontractor its reasonable and necessary travel expense and other out-of-pocket expenses as specified in the applicable Work Order.
   3. Payment. Unless otherwise agreed in the applicable Work Order, invoices shall be submitted by Subcontractor to Prime each month for Subcontractor Services during the preceding month for fees and expenses and shall be based upon the hours worked or if applicable the milestones attained. In support of the invoice, as applicable, Subcontractor shall submit a detailed description of hours worked by each of Subcontractor’s personnel assigned to perform Subcontractor Services, a description of the specified Subcontractor Services performed by each such personnel, and other information reasonably requested by Prime, along with documentation of reimbursable expenses. Unless otherwise specified in the applicable Work Order, properly submitted and approved invoices shall be paid within 30 days from Prime’s receipt of payment from the Customer for the corresponding Subcontractor Services.
   4. Taxes and Benefits. Unless otherwise provided in the applicable Work Order, Subcontractor shall be responsible for paying (either directly or through its permitted subcontractors) all federal, state and local income taxes and other payroll taxes, as well as contributions for unemployment insurance, workers’ compensation insurance, retirement funds or their local equivalents, pensions, or annuities which it now or may hereafter be required to deduct from the wages of its personnel, and shall file or cause to be filed all required returns related to such taxes, contributions and payroll deductions.
6. Intellectual Property.
   1. Ownership of Project Materials and Pre-Existing Service Documentation. Except as expressly provided herein: (a) Prime and its licensors shall retain all right, title and interest in and to the Project Materials; and (b) Subcontractor and its licensors shall retain all right, title and interest in and to the Subcontractor’s Pre-Existing Service Documentation. There are no implied licenses granted hereunder, and any rights of a party that are not expressly granted to the other party are reserved.
   2. Newly Created Documentation. Except as otherwise set forth in the applicable Work Order, Subcontractor hereby transfers, assigns and conveys to Prime all right, title and interest (including all worldwide Intellectual Property Rights) in and to the Newly Created Service Documentation incorporated into or delivered as part of the Subcontractor Services. Subcontractor will execute such documents, render such assistance and take such other actions as Prime may reasonably request, at Prime’s expense, to apply for, register, perfect, confirm and protect Prime’s rights in Newly Created Service Documentation. Subcontractor hereby waives any and all moral rights, including without limitation the right to identification of authorship or limitation on subsequent modifications that Subcontractor and its employees have or may have in the Newly Created Service Documentation.
   3. Pre-Existing Service Documentation. To the extent that Subcontractor delivers or incorporates any of its Pre-Existing Service Documentation or licensed third-party materials or software with or into the materials provided as part for the Subcontractor Services, Subcontractor hereby grants to Prime a royalty-free, sublicensable, non-transferable (except as provided in the general assignment provision of the Agreement), non-exclusive, worldwide right and license to use the Pre-Existing Service Documentation and the licensed third-party materials in any manner necessary to enable the Customer’s use of the Subcontractor Services as described in the relevant Work Order.
7. Screening and Performance.
   1. Independent Contractors. Subcontractor acknowledges and agrees that it is acting as an independent contractor in performing the Subcontractor Services hereunder. Prime shall carry no worker’s compensation insurance or any health or accident insurance to cover Subcontractor or its employees. Prime shall not pay any contribution to social security, unemployment insurance, or federal or state withholding taxes nor provide any other contributions or benefits that might be expected in an employer-employee relationship. Subcontractor agrees to report and pay its own contributions for taxes, unemployment insurance, social security and other benefits.
   2. Compliance with Policies. Subcontractor shall comply with Prime’s travel and expense policies provided to Subcontractor while performing Subcontractor Services.
   3. Compliance with Laws. Subcontractor shall provide the Subcontractor Services in accordance with all Law (whether existing at the Effective Date or coming into force afterwards but prior to termination or expiration of this Agreement) including all applicable equal employment opportunity and employment discrimination laws (including, in the United States, the National Labor Relations Act, the Americans With Disabilities Act, etc.), overtime laws, tax laws, immigration laws, workers’ compensation laws, occupational safety and health laws, and unemployment insurance laws. Subcontractor shall obtain all licenses and consents necessary for its performance and shall maintain them during the term of the Agreement. Subcontractor shall comply with and shall oblige its employees and permitted subcontractors in providing the Subcontractor Services to comply with each Customer’s health, safety and security rules and procedures in the performance of its obligations.
   4. Qualification Compliance. Participant acknowledges that ThoughtSpot offers representations to Customers regarding the security of services that may involve contact with Customer data as it is used with the Product. Participant must comply with the Qualification Requirements at all times to act as Subcontractor. Upon ThoughtSpot’s written request, Participant shall promptly provide evidence of Participant’s compliance with the Qualification Requirements.
8. Representations and Warranties.
   1. Services. Subcontractor represents and warrants that: (a) it will perform the Subcontractor Services in a professional and workmanlike manner and in accordance with generally accepted industry standards; and (b) the materials provided as part of the Subcontractor Services will conform in all material respects to the requirements of the applicable Work Order.
   2. Rights and Authority. Subcontractor represent and warrants to Prime that Subcontractor has all necessary rights and authority to grant to Prime the rights in the materials provided during the Subcontractor Services. Prime represents and warrants to Subcontractor that Prime has all necessary rights and authority to grant to Subcontractor the rights in the Project Materials described in this Sub-Type Appendix.
   3. Disclaimer. THE PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS OF THE SUBCONTRACTOR SERVICES OR THE DELIVERABLES FOR A PARTICULAR PURPOSE.

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