End User Software and Subscription Agreement
READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE TALEND ORDER FORM ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE TALEND SOFTWARE AND THE PROVISION BY TALEND OF ASSOCIATED SERVICES, INCLUDING THE TALEND CLOUD SERVICES. BY DOWNLOADING, INSTALLING AND/OR USING THE TALEND SOFTWARE, OR BY RECEIVING THE TALEND SERVICES, OR BY ACCESSING OR USING THE TALEND CLOUD SERVICES, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD, INSTALL THE TALEND SOFTWARE OR RECEIVE THE TALEND SERVICES OR ACCESS AND USE THE TALEND CLOUD SERVICES.
This End User Software and Subscription Agreement (this “Agreement“) is entered into by and between Talend USA, Inc., a Delaware corporation with offices located at 800 Bridge Parkway, Redwood City, CA 94065 (“Talend”) and the customer, identified on the Order Form, that is purchasing a Software Subscription and/or Services (“You” or “Customer”), and is effective as of the date you download the Talend Software, receive the Talend Services, access the Talend Cloud Services for production use (i.e. not trial use) or sign the Order Form, whichever comes first (the “Effective Date”). Talend and Customer are collectively referred to as the “Parties” and individually as a “Party”. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.
This Agreement permits Customer to order the Talend Software and/or Services or the Talend Cloud Services (as applicable) from Talend pursuant to the terms and conditions contained herein. If Customer is ordering or otherwise obtaining the Talend Software and/or receiving Services, then the terms and conditions of this Agreement shall govern Customer’s use of the Talend Software and/or Services. If Customer is ordering the Talend Cloud Services, then the additional terms and conditions of Exhibit A to this Agreement shall govern Customer’s access to and use of the Talend Cloud Services. If Customer is ordering the Stitch Products, then the additional terms and conditions of the Stitch Products Addendum shall govern Customer’s access to and use of the Stitch Products.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
1.1. “Documentation” means the end user manuals or documentation regarding the use of the Talend Software and/or Talend Cloud Services that are generally provided with each Talend Software and/or Talend Cloud Services product.
1.2. “Generated Code” means an independently executable program or other similar binary code artifact that is generated by the Talend Software for which Customer has purchased a Software Subscription hereunder.
1.3. “Learner” means an individual identified by Customer as an individual authorized to use or access a Learning Subscription.
1.4. “Learning Services” means the training modules available through Talend’s online training portal: https://academy.talend.com.
1.5. “Learning Subscription” means Learners’ right to unlimited access and personal use of Learning Services, on a subscription basis, as specified in the applicable Order Form, and subject to the applicable License Type restrictions for which such right has been purchased and to the remaining terms of this Agreement.
1.6. “License” means a license granted under Section 2.1.
1.7. “License Type” means the type of License applicable to the Talend Software and/or Talend Cloud Services, as more fully described in the License Type Addendum.
1.8. “License Type Addendum” means the License Type descriptions available at https://res.cloudinary.com/talend/image/upload/v1623806921/docs/legal/license-type-addendum_b92e3d.pdf.
1.9. “Microservices Generated Code” means a type of Generated Code that is produced or derived from ESB binary code artifacts that are packaged using the Talend Software as a standalone Java executable application using the Spring Boot framework (https://spring.io/projects/spring-boot). As used in this Agreement, all terms and conditions that apply to the term “Generated Code” shall apply equally to the term “Microservices Generated Code”, except as provided in the License Type Addendum, incorporated herein by reference.
1.10. “Open Source Software” means individual software components that are provided with the Talend Software, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components.
1.11. “Order Form” means (i) a Talend order form accepted by both Parties, pursuant to which Customer may order Talend Software and Services from Talend, or (ii) any document accepted by and between an authorized reseller of Talend pursuant to which Customer may order Talend Software and Services from Talend.
1.12. “Services” means collectively the Consulting Services, Learning Services, and/or Training Services as further described in Section 3 herein.
1.13. “Software Subscription” means Customer’s right to use the applicable Talend Software, subject to the License Type restrictions for which such right has been purchased.
1.14. “Software Subscription Key” means a logical code that activates and controls a Software Subscription based on (i) the applicable License Type, (ii) the Talend Software edition for which a Software Subscription has been purchased, and (iii) the Subscription Term. A Software Subscription Key is “attached” to a specific hardware machine identified by a MAC address, and may be installed on only one machine at a time.
1.15. “Stitch Products Addendum” means those terms and conditions located at https://res.cloudinary.com/talend/image/upload/v1623806921/docs/legal/stitch-products-addendum_ixadp2.pdf.
1.16. “Subscription Term” means the period of time set forth in the applicable Order Form for which a Software Subscription, a Learning Subscription, a Cloud Subscription is valid. Notwithstanding the foregoing, the Subscription Term for any Generated Code is always perpetual.
1.17. “Support Services” means the technical support services related to the use of the Talend Software and/or Talend Cloud Services (excluding the Stitch Products) that are purchased by Customer, as set forth on an applicable Order Form, and as further described in Talend’s “Support Services Policy” located at http://www.talend.com/legal-terms/us-support-policy. The Support Services Policy is hereby incorporated into and made part of this Agreement. Customer support for the Stitch Products shall be as set forth in the Stitch Products Addendum.
1.18. “Talend Cloud Services” and “Cloud Subscription” shall be as defined in Exhibit A. If Customer has ordered Stitch Products pursuant to the Stitch Products Addendum, references to the Talend Cloud Services herein (excluding Exhibit A) shall include the Stitch Products.
1.19. “Talend Open Studio” or “TOS” means the open source only version of the Talend integration software tools available for free download and licensed under an open source license.
1.20. “Talend Software” means the object code version of the Talend proprietary software for which Customer has purchased a Software Subscription hereunder, as indicated on the applicable Order Form, along with any Updates thereto provided by Talend to Customer hereunder and including, without limitation, any Generated Code but expressly excluding Talend Open Studio or any other Talend software made available under an open source license.
1.21. “Unsupported Code” means any program or binary code artifacts created or generated through use of Talend Open Studio.
1.22. “Update” means any Major Release, Minor Release, Service Pack and/or Patch (all as defined in the Support Services Policy) of or for the Talend Software that is made generally available by Talend to its customers during the term of this Agreement.
2. Software Subscription, Delivery, Restrictions
2.1. License Grants. Subject to the terms and conditions of this Agreement, including the payment of all applicable fees, Talend hereby grants to Customer, solely for Customer’s internal business operations, a limited, non-exclusive, non-transferable right and license to: (a) Use the Talend Software during the Subscription Term, subject to the applicable License Type restrictions (as specified on an Order Form); (b) Use any Generated Code in perpetuity subject to the restrictions set forth below in Section 2.2; (c) use, reproduce and distribute internally a reasonable number of copies of the Documentation, provided that Customer must include on such copies all Talend trademarks, trade names, logos and notices present on the Documentation as originally provided by Talend; (d) Permit third party contractors performing services on Customer’s behalf to use the Talend Software and Documentation in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer; and (ii) Customer shall be responsible for all acts and omissions of such third parties and; (e) Make a reasonable number of copies of the Talend Software for backup and/or archival purposes, excluding Hot and Warm Backup purposes as such terms are defined in The License Type Addendum.
2.2. Reservation of Rights; Restrictions. Talend owns all right title and interest in and to the Talend Software and any derivative works thereof, and no other license to the Talend Software is granted to Customer by implication, estoppel or otherwise. Customer understands and agrees that Customer’s ability to use the Talend Software is determined by the Software Subscription Key provided to Customer. Customer agrees not to: (i) use the Talend Software other than for licensed purposes, such as for the processing of Unsupported Code other than Generated Code; (ii) prepare derivative works from, modify, copy or use the Talend Software in any manner except as expressly permitted in this Agreement; (iii) attempt to circumvent, disable or defeat the limitations on Customer’s use of the Talend Software encoded into the Software Subscription Key, including without limitation any restrictions on the ability to process or utilize binary code artifacts that were created using TOS; (iv) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Talend Software or the Generated Code in whole or in part to any third party; (v) use the Talend Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (vi) alter or remove any proprietary notices in the Talend Software or the Generated Code; and (vii) make available to any third party any analysis of the results of operation of the Talend Software, including benchmarking results, without the prior written consent of Talend.
2.3. Delivery; Software Subscription Keys. The Talend Software is only available electronically via download and will not be available in any other format. Talend Software shall be deemed delivered to Customer upon Talend making available to Customer the Software Subscription Key. Customer understands and agrees that a Software Subscription Key provided by Talend is required to enable the Talend Software and that Software Subscription Keys are valid only during the Subscription Term. Customer further understands and agrees that: (i) Customer will be provided with a temporary Software Subscription Key upon invoicing, and upon receipt by Talend of payment in full for the then-current Software Subscription Term, Customer will be provided with a Software Subscription Key that is effective for the duration of such Software Subscription Term; (ii) the Talend Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and (iii) the Software Subscription Key will automatically prevent the use of the Talend Software in violation of the applicable License Type restrictions, as set forth in the Order Form.
2.4. Government Rights. The Talend Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Talend Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Talend Software under this Agreement and in any Subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed. Customer will not export the Products in violation of the export laws of the United States or of any other country.
2.5. Protection Against Unauthorized Use. Customer shall promptly notify Talend of any unauthorized use, reproduction or distribution of the Talend Software or Documentation of which it becomes aware. In the event of any unauthorized use, reproduction or distribution by any of Customer’s employees, agents or representatives, Customer shall use commercially reasonable efforts to terminate any such unauthorized use and to retrieve any unauthorized copy of the Talend Software or Documentation in the possession or control of the person or entity engaging in such unauthorized use. Talend may, at its option and expense, participate in any such proceeding and, in such an event, Customer shall provide such authority, information and assistance related to such proceeding as Talend may reasonably request.
3.1. Support Services. Subject to the payment by Customer to Talend of applicable fees, Talend will provide Customer with the Support Services specified in the Order Form. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Talend reserves the right to modify reasonably its Support Services Policy from time to time, provided that in no event will Talend materially degrade or diminish the level and quality of Support Services provided under its Support Services Policy during the term of this Agreement. Talend shall have no obligation to support versions of the Talend Software that have been modified by Customer or used to process, manipulate, or otherwise utilize Unsupported Code.
3.2. Consulting Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to make commercially reasonable efforts to provide Customer with consulting services (“Consulting Services”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work. Unless expressly specified in the applicable Order Form, Consulting Services are provided on a time and material (“T&M”) basis pursuant to the T&M rates specified in the applicable Order Form. Any hour worked during a weekend (Saturday, Sunday) or Bank/National Holiday will be charged at 1.5 times the agreed hourly rate. Any estimate of time or number of days or hours required to perform Consulting Services or any monetary amount stated in the applicable Order Form or Statement of Work for T&M Services, shall be deemed an estimate for Customer’s budgeting and Talend resource scheduling purposes.
3.3. Training Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to provide Customer with the instructor-led training services (“Training Services”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work. Training Services may be provided on a T&M basis, or education credits may be purchased by Customer and applied towards any number of training courses within twelve (12) months from the date of purchase. Each day of Training Services requires fifteen (15) education credits for private courses. Private courses are restricted to eight (8) attendees, unless otherwise agreed in writing with Talend. Education credits may not be applied to Learning Services or Expenses.
3.4. Learning Services.
3.4.1. General. Subject to the payment by Customer to Talend of applicable Fees, Talend will provide Customer Learners with access to the Learning Services, if any, set forth on an applicable Order Form. All access and resources provided with a Learning Services may only be consumed during the Learning Subscription Term. Talend reserves the right to modify the contents of the Learning Services from time to time, in its sole discretion.
3.4.2. Customer Responsibilities. Customer shall designate an individual to be assigned a unique user name and password to access and administer the Learning Subscription (“Power User”). The Power User shall be responsible for identifying and authenticating all Learners, approving access by such Learners to the Learning Subscription (“Active Learners”), and deactivating or re-activating Learners. Active Learners are limited to the total number of Licensed Users. Customer is solely responsible for (a) assessing each Learner’s suitability for the Learning Subscription, (b) each Learner’s enrollment in appropriate course(s), and (c) ensuring Learners maintain the confidentiality of user names, passwords and account information.
3.5. Cancellation and Rescheduling. Cancelling or rescheduling of Consulting or Training Services must be done in writing. Consulting or Training Services scheduled by joint agreement between the Parties and cancelled or postponed by Customer less than five (5) business days prior to the engagement commencing shall be subject to a cancellation/rescheduling fee of $1,500 per Talend Consultant; in addition, Customer shall reimburse Talend for any non-refundable travel expenses that have been incurred by Talend prior to such cancellation or postponement of the Consulting and /or Training Services by Customer.
3.6. Subcontractors. Talend reserves the right to use subcontractors to perform Services on Talend’s behalf, and Customer hereby consents to such use, provided that Talend shall remain solely responsible to Customer for the provision of all applicable Services.
3.7. Customer Policies. While on premises owned, controlled or hired by Customer, all Talend personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer.
3.8. Ownership of Work Product and Other Materials. In the course of performing the Services, Talend may create derivative works of the Talend Software, new software or other works of authorship (collectively “Work Product”). Talend shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Talend hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s license to the Talend Software set forth in Section 2.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, Talend shall retain ownership of the Generated Code. Nothing in this Agreement shall be deemed to prohibit Talend from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Talend to Customer in connection with the provision of Learning Services or Training Services (“Materials”), other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by Talend to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Talend. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials will be limited to use by the specific persons to whom the applicable Training Services are provided. All Talend trademarks, trade names, logos and notices present on the Training Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Talend trademarks without Talend’s express written authorization. A Learning Subscription provides Learners with ongoing access to a variety of materials and services for their personal use and are not assignable or transferrable. Providing Learning Subscription Materials to, or using them for the benefit of, a third party or anyone other than the applicable Learner is a material breach of the Agreement, provided however that the foregoing shall not restrict Learners from applying the skills and knowledge they obtain as a result of using the Learning Services.
3.9. Customer Obligations. Customer agrees to provide Talend with such cooperation, materials, information, access and support which Talend deems to be reasonably required to allow Talend to successfully provide the Services. Customer understands and agrees that Talend’s obligations to provide Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.
4. Fees, Payment and Taxes
4.1. Fees. Customer agrees to pay Talend the applicable Software Subscription, Services and Cloud Subscription fees stated on the Order Form.
4.2. Invoicing. Unless otherwise specified on an Order Form, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid Purchase Order by Talend.
4.3. Payment. Unless otherwise specified on an Order Form, all invoices will be paid in US dollars and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. Customer shall pay all amounts due under this Agreement to Talend at the address set forth herein or such other location as Talend designates in writing. Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.
4.4. Pre-Packaged Services & Expenses. Training Services, and any Consulting Services that are not provided on a T&M basis, are sold as “Pre-packaged Services” with fixed prices, as set forth on an applicable Order Form. Fees for Pre-packaged Services shall be as stated on the applicable Order Form. Any Pre-packaged Services for which the applicable fees are pre-paid must be consumed by Customer within one (1) year from the time of purchase, and such fees are non-refundable. Customer shall reimburse Talend for all reasonable travel, accommodation, communications, and out-of-pocket expenses incurred in conjunction with provision of the Services (“Expenses”), provided that Talend agrees that any such reimbursement may, at Customer’s written request, be limited by Customer’s standard travel reimbursement policies. Education credits may not be applied to Expenses, and do not cover any Expenses related to Training Services provided at Customer’s location.
4.5. Taxes. All amounts payable by Customer to Talend under this Agreement are exclusive of any tax, levy, other similar governmental charge that may be assessed by any jurisdiction (“Taxes”). Customer agrees to pay such Taxes, whether based on gross revenue, the delivery, possession or use of the Talend Software, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs; provided, however, that Customer shall have no liability for any net income, net worth or franchise taxes assessed on Talend by the United States or any state thereof. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Talend, then the amount of the payment to Talend shall be automatically increased to totally offset such tax, so that the amount actually remitted to Talend, net of all taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Talend with the official receipt of payment of these taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Talend with a certificate of exemption acceptable to the taxing authority.
4.6. Purchases through Resellers. In the event Customer purchases licenses to the Talend Software and/or purchases the Services (including the Talend Cloud Services and any renewals thereof) through an authorized reseller of Talend, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to delivery, pricing, payment or taxes. Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller. In the event Customer ceases to pay the Reseller, or terminates its agreement with the Reseller, Talend shall have the right to terminate Customer’s access to the Talend Cloud Service at any time upon thirty (30) days’ prior written notice to Customer unless Customer and Talend have agreed otherwise in writing.
5. Term and Termination
5.1. Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.2 below, continue in force until the expiration of the applicable Subscription Term.
5.2. Termination; Post Termination. Either Party may, upon written notice to the other Party, terminate this Agreement for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that Customer intentionally breaches the scope of the license granted in Section 2.1 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Talend Software and Documentation and destroy (and certify to Talend in writing the fact of such destruction), or return to Talend, all copies of the Talend Software and Documentation then in Customer’s possession or under Customer’s control.
5.3. Survival. All payment obligations under Section 4, plus Sections 1, 2.2, 2.5, 2.6, 3.7, 5.2, 5.3, and 6 – 10 shall survive any termination or expiration of this Agreement.
6.1. Confidential Information. “Confidential Information” means information or materials provided by one party to the other which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person would believe to be confidential, including but not limited to the Talend Software, Documentation, employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, research, advertising plans, leads and sources of supply, development activities, design and coding, interfaces with Talend Software, anything provided by Talend in connection with its Support Services and other information of the parties which by its nature can be reasonably expected to be proprietary and confidential, whether it is presented in oral, printed, written, graphic or photographic or other tangible form (including information received, stored or transmitted electronically) even though specific designation as Confidential Information has not been made.
6.2. Non-use and Non-disclosure. The parties shall at all times, both during the term of this Agreement and thereafter, retain in confidence all Confidential Information of the other party and shall not use such Confidential Information other than as necessary to carry out its duties under this Agreement, nor shall either party disclose any Confidential Information to third parties without the other party’s prior written consent. Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section.
6.3. Non-Applicability. The obligations of confidentiality shall not apply to information which: (i) has entered the public domain except where such entry is the result of a party’s breach of this Agreement; (ii) prior to disclosure hereunder was already in the receiving party’s possession without restriction; (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information; (iv) is independently developed by the receiving party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
6.4. Disclosure Required by Law. Notwithstanding anything to the contrary herein, each party may comply with an order from a court or other governmental body of competent jurisdiction and disclose the other party’s Confidential Information in compliance with that order only if such party: (i) unless prohibited by law, gives the other party prior notice to such disclosure if the time between that order and such disclosure reasonably permits or, if time does not permit, gives the other party notice of such disclosure promptly after complying with that order and (ii) fully cooperates with the other party, at the other party’s cost and expense, in seeking a protective order, confidential treatment, or taking other measures to oppose or limit such disclosure. Each party must not release any more of the other party’s Confidential Information than is reasonably necessary to comply with an applicable order.
7. Warranties and Remedies
7.1. Software Performance Warranty and Remedy. Talend warrants to Customer that for a period of sixty (60) days from the Effective Date (“Warranty Period”), the Talend Software will perform in all material respects in accordance with the Documentation. Customer’s exclusive remedy and Talend’s sole obligation for any failure of the Talend Software to perform in all material respects in accordance with its Documentation will be for Talend to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the Talend Software with any products, goods, services or other items furnished by anyone other than Talend (unless recommended by Talend in writing), (iv) any modification not made by or for Talend, or any use of the Talend Software by Customer in violation of the terms of this Agreement.
7.2. Services Warranty and Remedy. Talend warrants that (i) it will perform the Services in a workmanlike manner consistent with generally accepted industry standards, (ii) for a period of thirty (30) days from completion of the applicable Consulting Services, any Work Product Deliverables will perform in all material respects in accordance with any specifications therefore set forth in an applicable Statement of Work, and (iii) Learning Services will confirm with applicable course descriptions on the Talend website. In the event of a breach of the foregoing warranty, Talend’s sole obligation, and Customer’s exclusive remedy shall be for Talend to re-perform the applicable Services to correct the applicable non-conformity.
7.3. Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 7.1 AND 7.2 ABOVE, EXHIBIT A, OR THE STITCH PRODUCTS ADDENDUM, THE TALEND SOFTWARE, THE SERVICES AND THE TALEND CLOUD SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TALEND AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE TALEND SOFTWARE, DOCUMENTATION, WORK PRODUCT DELIVERABLES, MATERIALS, SERVICES OR TALEND CLOUD SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TALEND AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECT TO THE TALEND SOFTWARE, DOCUMENTATION, WORK PRODUCT DELIVERABLES, SERVICES AND TALEND CLOUD SERVICES PROVIDED BY TALEND HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, TALEND DOES NOT WARRANT RESULTS OF USE OR THAT THE TALEND SOFTWARE, LEARNING SERVICES AND/OR TALEND CLOUD SERVICES WILL BE ERROR FREE OR THAT THE CUSTOMER’S USE OF THE TALEND SOFTWARE, WORK PRODUCT DELIVERABLES, LEARNING SERVICES AND/OR TALEND CLOUD SERVICES WILL BE UNINTERRUPTED. TALEND USES A THIRD-PARTY DATA CENTER TO HOST THE TALEND CLOUD SERVICES. CUSTOMER ACKNOWLEDGES THAT TALEND DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE TALEND CLOUD SERVICES AND/OR LEARNING SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY FACILITIES. TALEND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8. Intellectual Property Infringement Claims
8.1. Obligation. Subject to the applicable conditions and limitations set forth in this Section 8, Talend will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Talend Software and/or Talend Cloud Services infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Talend Software and/or Talend Cloud Services, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Talend or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.
8.2. Remedies. If during the Term the Talend Software and/or Talend Cloud Services are, or in Talend’s reasonable opinion is likely to become, the subject of an Infringement Claim, Talend may, at its expense and option: (i) obtain the right for Customer to continue to use the Talend Software and/or Talend Cloud Services; (ii) modify the Talend Software and/or Talend Cloud Services so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s license to use the Talend Software and/or Talend Cloud Services and promptly refund to Customer any pre-paid, but unused fees paid by Customer to Talend for the Software Subscription or Cloud Subscription that was fulfilled prior to such termination.
8.3. Exclusions. Talend will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) Customer’s use of any version of the Talend Software and/or Talend Cloud Services not made available directly through Talend or an authorized Talend reseller; (ii) the failure of Customer to use an Update of the Talend Software and/or Talend Cloud Services that would avoid the infringement; (iii) a modification of the Talend Software that is not performed by Talend; (iv) the combination, operation, or use of the Talend Software and/or Talend Cloud Services with any other products, services or equipment not provided by Talend; (v) any intellectual property right owned or licensed by Customer, excluding the Software or Talend Cloud Services or (vi) any third party Open Source Software.
8.4. Conditions. The obligations of Talend in Section 8.1 are conditioned upon Customer (i) notifying Talend promptly of any threatened or pending Infringement Claim, (ii) giving Talend, reasonable assistance and information requested by Talend in connection with the defense or settlement of the Infringement Claim and (iii) tendering to Talend sole control over the defense and settlement of the Infringement Claim, except in the case of U.S. Government Customers, in which case Talend acknowledges that the U.S. Department of Justice shall represent the U.S. Government and shall control defense and settlement of all claims against the United States. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Talend, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
8.5. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF TALEND, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE TALEND SOFTWARE AND/OR THE TALEND CLOUD SERVICES.
9. Limitation of Liability
9.1. Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR TALEND OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE TALEND SOFTWARE OR THE TALEND CLOUD SERVICES, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THE TALEND CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. TALEND IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1 OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.
9.2. Damages Cap. IN NO EVENT SHALL TALEND’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY TALEND UNDER THIS AGREEMENT FOR THE TALEND SOFTWARE, SERVICES AND/OR TALEND CLOUD SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.2 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1.
9.3. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
10.1. Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Talend. Any assignment in violation of this Section 11.1 shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
10.2. Export Control. Customer acknowledges that the goods, software and technology acquired from Talend are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. Customer is now and will remain in the future compliant with all export control laws and regulations, and will not export, re-export, otherwise transfer or disclose any Talend goods, software or technology or disclose any Talend software or technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to Talend Software may in certain circumstances be considered a re-export of Talend Software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations.
10.3. Business Ethics. Talend and its customers adhere to the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, 15 U.S.C. §§ 78m(b)(2)(A) and (B)of 1977 and denounce any form of bribery and other unethical behavior in its business negotiations.
10.4. Fees. In any judicial proceeding between Customer and Talend arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
10.5. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
10.6. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California, without regard to its conflicts of law principles, except that as to U.S. Government Customers this Agreement will be governed by the federal law of contracts. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder, except those in which a U.S. Government Customer is a party, will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara County. The parties hereby irrevocably waive any and all claims and defenses (except for any U.S. Government Customer) either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. If any provision(s) hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties
10.7. Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage to the intended recipient at its address specified below the signatures on this Agreement. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 10.7.
10.8. Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
10.9. Entire Agreement. This Agreement, the License Type Addendum, Exhibit A “Talend Cloud Services,” the Stitch Products Addendum, and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. In the event of conflict or inconsistency among the License Type Addendum, Exhibit A “Talend Cloud Services,” the Stitch Products Addendum, this Agreement and an applicable Order Form, the following order of precedence shall apply: (a) the Order Form, (b) this Agreement, (c) the License Type Addendum, (d) Exhibit S “Talend Cloud Services,” (e) the Stitch Products Addendum Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be embedded within the Talend Software, except for terms regarding Open Source Software which are referenced under Section 1.4 (Open Source Software). The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer, unless the Parties execute a written agreement expressly indicating: (i) that such document shall modify this Agreement; and (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.
Talend Cloud Services
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first defined.
(a) “Cloud Subscription” means the Customer’s right to access and use the Talend Cloud Services on a subscription basis, as specified in the applicable Talend Order Form, subject to the applicable License Type restrictions.
(b) “Content” or “Customer Data” means all applications, data, data files and software (other than the Talend Software) provided by Customer or any End User of Customer that reside on, or runs on or through, the Talend Cloud Services environment. Customer agrees not to include any production data in its Content while running in the trial environment of the Talend Cloud Services.
(c) “End Users” means collectively those individuals authorized by Customer or on Customer’s behalf to use the Talend Cloud Services, as more fully described in The License Type Addendum (e.g., Web User/Studio User).
(d) “Metadata” means technical information about the services in the cloud, including logs, metrics, and audit trail events used by Talend to analyze the performance of the Talend Software and/or the Talend Cloud Services.
(e) “Talend Cloud Services” means the online services operated by Talend that is powered by Talend technology which provides a web-based interface through which a person may access features and functions of the Talend Software to design, manage and monitor integration capabilities including but not limited to data migration, data synchronization, data quality actions, or application and event based integrations.
2. Subscription Grant
Subject to the terms and conditions of this Agreement and this Exhibit A, Talend hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited right to use the Talend Cloud Services during the applicable Subscription Term, solely for Customer’s own internal business purposes. Customer may not, and may not cause or permit others to: (a) remove or modify any program or services markings or any notice of Talend’s or its licensors’ proprietary rights; (b) make the Talend Cloud Services, including any Talend programs or materials to which Customer is provided access, available in any manner to any third party; (c) use the Talend Cloud Services other than for licensed purposes, such as for the processing of Unsupported Code (other than Generated Code); (d) modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish or download any part of the Talend Cloud Services, including without limitation any restrictions on the ability to process or utilize binary code artifacts that were created using TOS (e) disclose results of any benchmark tests or performance tests of the Talend Cloud Services without Talend’s prior written consent; and (f) sublicense, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Talend Cloud Services or materials available, to any third party, except as expressly provided under this Agreement. If Customer has downloaded any Talend Software as part of the Talend Cloud Services, such Talend Software shall be licensed in accordance with the terms of this Agreement.
3. Account Access & Data
Customer will be assigned a unique user name and password to access the Talend Cloud Services. The Talend Cloud Services may be accessed by no more than the total number of End Users for which Customer has purchased a license to use such Talend Cloud Services, as set forth in the applicable Talend Order Form. Additional End Users may be purchased during the applicable Subscription Term at a prorated amount for the remainder of the then-current Subscription Term. Customer shall be responsible for identifying and authenticating all End User, for approving access by such End Users to the Talend Cloud Services, for controlling against unauthorized access by such End Users, and for maintaining the confidentiality of user names, passwords and account information. Talend is not liable for any harm caused by Customer End Users, including individuals who were not authorized to have access to the Talend Cloud Services. Customer shall be responsible for all activities that occur under Customer’s and Customer’s End Users passwords or accounts or as a result of Customers or Customer’s End Users access to the Talend Cloud Services. Furthermore, Customer agrees not to transmit or store infringing, obscene, threating, libelous, or otherwise unlawful or offensive Content, materials or information that violates the privacy rights of any person or to transmit or store material containing software virus, worms, trojan horses or other harmful computer code when using the Talend Cloud Services. Customer agree that Customer shall abide by all applicable local, state, national and international laws and regulations in connection with Customer’s use of the Talend Cloud Services, including those related to taxes, data privacy and the transmission of technical or personal data. Talend does not own or accept any responsibility for any Content, data or material that Customer processes or submits to the Talend Cloud Services in the course of Customer’s use of such services. Talend will have no access to any Customer Data until Customer transmits such data through its firewall to the Talend Cloud Services. TALEND WILL NOT STORE OR PERMANENTLY MAINTAIN ANY CUSTOMER DATA OR CONTENT ON ITS SYSTEMS OR THROUGH ITS TALEND CLOUD SERVICES EXCEPT FOR METADATA. Talend shall not be liable or responsible for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Customer shall be fully responsible for all internet access and connectivity issues to the Talend Cloud Services.
Customer retains ownership of all Content/Customer Data, materials or information used or processed through the Talend Cloud Services. Talend and its licensors retain all ownership and intellectual property rights to the Talend Cloud Services, including derivative works thereof.
5. Service Availability
Talend will use commercially reasonable efforts to make the Talend Cloud Services available 24 hours a day, 7 days a week, except for: (a) scheduled downtime or (b) any unavailability caused by circumstances beyond Talend’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or internet service provider failures or delays.
6. Services Warranty
Talend represents and warrants that it will provide the Talend Cloud Services in a manner consistent with general industry standards and that the Talend Cloud Services will perform substantially in accordance with the applicable Documentation for such Talend Cloud Services, under normal use and circumstances.
7. Customer Indemnification
To the maximum extent allowed by applicable law, Customer shall indemnify and hold Talend, its licensors and its subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Talend (a) gives written notice of the Claim promptly to You or the appropriate Customer representative; (b) gives Customer sole control of the defense and settlement of the Claim (provided that any settlement releases Talend of all liability and such settlement does not affect Talend’s business); (c) provides to Customer all available information and assistance reasonably requested; and (d) has not compromised or settled such Claim.
8. Privacy; Security; Disclosures; Penetration Testing
Unless earlier terminated in accordance with Section 5.2, upon the expiration of the Subscription Term, Customer’s Cloud Subscription will cease, unless Customer and Talend have agreed to extend the applicable Subscription Term under this Agreement. In such case, the terms and conditions of this Agreement shall remain in full force and effect throughout the duration of the extended Subscription Term.
10. Suspension of the Talend Cloud Services
In addition to its other rights under this Agreement, Talend may suspend Customer’s access to the Talend Cloud Services upon written notice to: (a) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (b) for Customer’s non-payment of the applicable fees or for (c) any unauthorized use of the Talend Cloud Services by Customer or any of its End Users. If suspended, Talend will promptly restore use of the Talend Cloud Services to Customer as soon as the event giving rise to the suspension has been resolved to Talend’s satisfaction.
Section 2 and 4 plus Sections 7-11 of this Exhibit A shall survive any termination or expiration of this Agreement.