Talend Beta Agreement

READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY CONSITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE TALEND BETA SOFTWARE (DEFINED BELOW).  BY DOWNLOADING, INSTALLING OR RECEIVING THE TALEND BETA SOFTWARE YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS AS OF THE DATE YOU DOWNLOAD THE TALEND BETA SOFRTWARE (“EFFECTIVE DATE”). IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT DOWNLOAD, INSTALL OR RECEIVE THE TALEND BETA SOFTWARE.

This Beta Agreement (“Agreement”) is entered into by and between the Talend entity identified in Section 9 (“Talend”) and the person or entity downloading, installing or using the Talend Beta Software (hereinafter “You” or “Licensee”). Talend and Licensee 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.

RECITALS

Whereas, Talend has developed and is the owner of certain Beta Software (as defined below); and

Whereas, Licensee shall be given a limited license to such Beta Software for beta testing purposes in accordance with the terms of this Agreement.

Now Therefore, the parties hereby agree as follows:

1. DEFINITIONS

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 “Beta Software” shall mean the beta version of Talend’s software, in object form only, excluding any Open Source Software provided with such software, and the media and Documentation, if any, provided by Talend to Licensee for which Licensee is granted a use license pursuant to this Agreement.

1.2 “Documentation” shall mean the printed or online written reference material furnished to Licensee in conjunction with the Beta Software, including, without limitation, instructions, beta testing guidelines, and end user guides.

1.3 “Intellectual Property Rights” shall mean all intellectual property rights, including, without limitation, patent, copyright, trademark, and trade secret.

1.4 “Open Source Software” means various open source software components provided with the Beta Software that are licensed to you under the terms of the applicable license agreements included with such open source software components or other materials for the Beta Software.

1.5 “Updates” shall mean a modification, error correction, bug fix, new release, or other update to or for the Beta Software.

2. LICENSE GRANT, USE AND OWNERSHIP

2.1 Limited License. Subject to the terms and conditions of this Agreement, Talend grants to Licensee a non-exclusive, non-transferable license (without the right to sublicense) (i) to use the Beta Software in accordance with the Documentation solely for purposes of internal testing and evaluation, (ii) to use the Documentation provided with the Beta Software in support of Licensee’s authorized use of the Beta Software, and (iii) to copy Beta Software for archival or backup purposes, provided that all titles and trademarks, copyright, and restricted rights notices are reproduced on such copies.

2.2 Evaluation Feedback. The purpose of this limited license is the testing and evaluation of the Beta Software and Documentation. In furtherance of this purpose, Licensee shall provide feedback to Talend concerning the functionality and performance of the Beta Software from time to time as reasonably requested by Talend, including, without limitation, identifying potential errors and improvements. Such feedback will be in a manner convenient to Licensee and will be subject to reasonable availability of Licensee’s personnel. Feedback and other information which is provided by Licensee to Talend in connection with the Beta Software or this Agreement may be used by Talend to improve or enhance its products and, accordingly, Talend shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction.

2.3 Restrictions. Licensee shall not copy or use the Beta Software (including the Documentation) or disseminate Confidential Information to any third party except as expressly permitted in this Agreement. Licensee will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Beta Software or accompanying Documentation. In no event shall Licensee use the Beta Software for Licensee’s product development or any other commercial purpose. The Beta Software and all performance data and test results, including without limitation, benchmark test results (collectively “Performance Data”), relating to the Beta Software are the Confidential Information of Talend, and will be treated in accordance with the terms of Section 6 (Confidentiality) of this Agreement. Accordingly, Licensee shall not publish or disclose to any third party any Performance Data relating to the Beta Software.

2.4 Ownership. Talend shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Beta Software and any derivative works thereof, subject only to the limited license expressly set forth in Section 2(a) hereof. Licensee does not acquire any other rights, express or implied, in the Beta Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO TALEND.

3.  No Support Services. Talend is under no obligation to support the Beta Software in any way or to provide any Updates to Licensee. In the event Talend, in its sole discretion, supplies any Update to Licensee, such Update shall be deemed Beta Software hereunder and shall be subject to the terms and conditions of this Agreement.

4.  Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Beta Software. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software or in the open_source_licenses file accompanying the Beta Software.

5.  TERM AND TERMINATION

Unless otherwise terminated as specified under this Agreement, Licensee’s rights with respect to the Beta Software will terminate upon the earlier of (a) the initial commercial release by Talend of a generally available version of the Beta Software or (b) automatic expiration of the Beta Software based on the system date. Either party may terminate this Agreement at any time for any reason or no reason by providing the other party advance written notice thereof. Talend shall immediately terminate this Agreement and any Licensee rights with respect to the Beta Software without notice in the event of improper disclosure of Talend’s Beta Software as specified under Section 6 (Confidentiality) below. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will return to Talend (or, at Talend’s request, destroy), the Beta Software, Documentation, and all other tangible items in Licensee’s possession or control that are proprietary to or contain Confidential Information. The rights and obligations of the parties set forth in Sections 2, 3, 4, 5, 6, 7, 8 9 and 10 shall survive termination or expiration of this Agreement for any reason.

6. CONFIDENTIALITY

Confidential Information” shall mean all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, planned product features, functionality, performance and software source documents relating to the Beta Software, and other information provided by Talend, whether disclosed orally, in writing, or by examination or inspection, other than information which Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Talend or its suppliers. Confidential Information shall include without limitation the Beta Software, Documentation, Performance Data, any Updates, information relating to Talend products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Beta Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. In no event shall Licensee disclose any Confidential Information to any third party. Without limiting the foregoing, Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information.

7. LIMITATION OF LIABILITY

IT IS UNDERSTOOD THAT THE BETA SOFTWARE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF TALEND AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED ($100) US DOLLARS.

IN NO EVENT SHALL LICENSEE OR TALEND OR ITS LICENSORS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF TALEND AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. WARRANTY DISCLAIMER

IT IS UNDERSTOOD THAT THE BETA SOFTWARE, DOCUMENTATION, AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE BETA SOFTWARE, THE DOCUMENTATION, AND ANY UPDATES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TALEND AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Licensee acknowledges that Talend has not publicly announced the availability of the Beta Software, that Talend has not promised or guaranteed to Licensee that such Beta Software will be announced or made available to anyone in the future, that Talend has no express or implied obligation to Licensee to announce or introduce the Beta Software, and that Talend may not introduce a product similar or compatible with the Beta Software. Accordingly, Licensee acknowledges that any research or development that it performs regarding the Beta Software or any product associated with the Beta Software is done entirely at recipient’s own risk. Specifically, the Beta Software may contain features, functionality or modules that will not be included in the production version of the Beta Software, if released, or that will be marketed separately for additional fees.

9.  Contracting Party, Governing Laws, and Jurisdiction

9.1  If Licensee has its registered office in North America, South America, Asia (except in Japan, or in the Middle East)  or Oceania then (i) Licensee is contracting with Talend Inc, 800 Bridge Parkway, Suite 200, Redwood City  California  94065, United States, (ii) the agreement shall be governed by the laws of the state of California, and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the 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.

9.2  If Licensee has its registered office in Europe (except in the United Kingdom, Germany, Austria and Malta) or in Africa (except in Egypt and South Africa), then (i) Licensee is contracting with Talend SA, 9 rue Pages, 92150 Suresnes, France, (ii) the agreement shall be governed by the laws of France and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Paris courts.

9.3  If Licensee has its registered office in the United  Kingdom, in Malta or in the Middle East (Bahrein, Cyprus, Egypt, , Israel,  Jordan, Kuwait, , Northern Cyprus, Oman, Palestine, Qatar, Saudi Arabia, Turkey, United Arab Emirates,), or in South Africa, then (i) Licensee is contracting with Talend Ltd, Statesman House, Stafferton Way; Maidenhead, Berkshire SL6 1AY, United Kingdom, (ii) the agreement shall be governed by the laws of England and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the London courts.

9.4  If Licensee has its registered office in Germany, Austria, Belgium or Switzerland then (i) Licensee is contracting with Talend Germany GmbH, Servatiusstraße 53, 53175 Bonn, Germany, (ii) the agreement shall be governed by the laws of Germany and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Bonn courts.

9.5  If Licensee has its registered office in Japan, then (i) Licensee is contracting with Talend KK, 5-10-13, Minami Aoyama, 107-0062 Tokyo Minato-ku, Japan, (ii) the agreement shall be governed by the laws of Japan and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Tokyo district courts.

9.6  Governing Law and Jurisdiction. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

10.  Other Provisions.

10.1  Assignment. Licensee shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without the prior written consent of Talend. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

10.2  Export Regulations. Licensee understands that Talend is subject to regulation by the U.S. government and its agencies, which prohibit export or diversion of certain technical products and information to certain countries and individuals. Licensee warrants that it will comply in all respects with all export and re-export restrictions applicable to the technology and documentation provided hereunder.

10.3  Entire Agreement. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected. No waiver or modification of this Agreement shall be valid unless in writing signed by each party. The waiver of a breach of any term hereof shall in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement shall remain in full force and effect.

10.4  Language. The governing language of this Agreement shall be in English. Any translation of this Agreement is made for information purposes only and the English language version shall govern and control in all cases.

10.5  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.