TALEND, INC. MASTER END USER LICENSE AGREEMENT

READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE TALEND ORDER FORM ON WHICH THEY ARE REFERENCED (the “Order Form“), CONSITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE TALEND SOFTWARE AND THE PROVISION BY TALEND OF ASSOCIATED SUPPORT SERVICES. BY DOWNLOADING, INSTALLING AND/OR USING THE TALEND SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL OR USE THE TALEND SOFTWARE.

This Master End User License Agreement (this “Agreement“) is entered into by and between Talend USA, Inc., a Delaware corporation with offices located 800 Bridge Parkway, Suite 200, Redwood City, CA 94065 (“Talend“) and the customer, identified on an Order Form, that is purchasing a Software Subscription and Support Services (“You” or “Customer“), and is effective as of the date you download the Talend Software (the “Effective Date“).

 

 

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               “Computational Objects” means blocks of computer code written in Java Script and other programming languages, which may be provided as part of the Talend Software.

1.2             “Design Components” means the components of the Talend Software that enable users to create Generated Code Designs which when applied to the Computational Objects result in the output of Generated Code, and more generally allow users to interface with the Talend Software to perform and execute various functions.

1.3            “Documentation” means the documentation provided with the Talend Software to Customer hereunder, together with any and all new releases, corrections, updates and applicable training materials furnished by Talend to Customer under this Agreement.

1.4            “Generated Code” means an independently executable program consisting of Computational Objects configured to implement a Generated Code Design.

1.5            “Generated Code Design” means a specific sequencing of Computational Objects created using the Design Components of the Talend Software.

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, as more fully described in Exhibit A.

1.8            “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.

1.9            “Order Form” means a Talend order form, pursuant to which Customer may order Talend Software and Support Services from Talend.

1.10          “Services” means collectively the Consulting and/or Training Services as further described in Section 3 herein.

1.11            “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.

1.12          “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 Software 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.

1.13          “Software Subscription Term” means the period of time for which a Software Subscription is valid, as set forth in the applicable Order Form.  Notwithstanding the foregoing, the Software Subscription Term for any Generated Code is always perpetual.

1.14          “Support Services” means the technical support services related to the use of the Talend Software 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/us_support_policy.php, as the same may be modified by Talend from time to time.  The Support Services Policy is hereby incorporated into and made a part of this Agreement.

1.15          “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 Design Components, Computational Objects and Generated Code.

1.16           “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 customers during the term of this Agreement.

2.      Software License, Delivery, Acceptance and 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 the Talend Software to:

(a)       Use during the Software 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 in subsections (i), (iii), (iv), (v) and (vi) of Section 2.2 below;

(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 contractors 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 Exhibit A.

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) prepare derivative works from, modify, copy or use the Talend Software in any manner except as expressly permitted in this Agreement; (ii) attempt to circumvent, disable or defeat the limitations on Customer’s use of the Talend Software encoded into the Software Subscription Key, (iii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Talend Software in whole or in part (including, without limitation, Generated Code) to any third party; (iv) use the Talend Software 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; (v) alter or remove any proprietary notices in the Talend Software; or (vi) 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 and Use Manager. 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 Software 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 Software Subscription Term, be disabled automatically upon the expiration of the Software 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.      Support Services; Consulting & Training Services.

3.1            Provision of Support Services. Provided Customer has paid Talend the 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.

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 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.  All pre-paid but unused consulting hours must be consumed by Customer within one (1) year from the time of purchase, and are non-refundable.

3.3            Training Services.  Subject to the payment by Customer to Talend of applicable fees, Talend agrees to provide Customer with the 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.  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 Training Services (“Training Materials“), other than the rights of use specifically granted in this Agreement.  Customer shall be entitled to keep and use all Training 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, Training 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 Training 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.

3.4            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.

3.5            Subcontractors.  Talend reserves the right to use subcontractors to perform Services on Talend’s behalf

3.6            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.

3.7            Ownership of Work Product. In the course of performing the Consulting 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, provided that Customer is hereby granted a perpetual license to such Generated Code under Section 2.1(b) of this Agreement.   In addition, any deliverable provided by Talend to Customer that is a derivative work, modification or transformation of data provided to Talend by Customer for processing, shall be owned by Customer. 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 Consulting Services.

3.8            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 Support Services.   Customer understands and agrees that Talend’s obligations to provide Support 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 Software Subscription and if applicable, the Support Services fees stated on the Order Form.  Unless otherwise specified on an Order Form, the fees for the Software Subscription. Support Services and/or Services 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.

4.2            Payment.  Unless otherwise specified on an Order Form, all invoices will be paid in U.S 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.   All monetary amounts are specified and shall be paid in the lawful currency of the United States of America.  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 less, determined and compounded on a daily basis from the date due until the date paid.

4.3            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.

4.4            Taxes.  All amounts payable by Customer to Talend under this Agreement are exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Talend Software, the provision of Support Services, the execution or performance of this Agreement or otherwise, and including without limitation all sales, use, excise, import or export, value added, 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.  Customer may provide Talend with a certificate of exemption acceptable to the taxing authority.

4.5            Purchases through Resellers.  In the event Customer purchases licenses to the Talend Software and/or purchases the Support Services (including renewals thereof) through authorized resellers of Talend, the terms and conditions of this Agreement shall apply except for any terms and conditions herein related to delivery, pricing, payment or taxes.  Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller.

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 Software 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.      Confidentiality

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 keep in trust and 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 such Confidential Information to third parties without the other party’s prior written consent.

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; or (iv) was developed by  the receiving party without use of the Confidential Information. In addition, nothing in this Section 6 shall be deemed to prevent a party from disclosing information as required by law, regulation or a court order.

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 misuse, casualty loss, 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), 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            Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 7.1, THE SUPPORT SERVICES AND THE TALEND SOFTWARE 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, MATERIALS OR SUPPORT 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 AND SUPPORT 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 WILL BE ERROR FREE OR THAT THE CUSTOMER’S USE OF THE TALEND SOFTWARE OR DELIVERABLES WILL BE UNINTERRUPTED.

8.      Intellectual Property Infringement Claims

8.1            Obligation. Subject to the applicable conditions and limitations set forth in this Section 8 and the Support Services Policy, 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 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, 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 is, 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; (ii) modify the Talend Software 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 promptly refund to Customer any pre-paid, but unused fees paid by Customer to Talend for a Software Subscription to the  Talend Software.

8.3            Exclusions. Talend will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) Customer’s use of any version of the Talend Software not made available directly through Talend or an authorized Talend reseller; (ii) the failure of Customer to use an Update of the Talend Software; (iii) a modification of the Talend Software that is not performed by Talend; (iv) the combination, operation, or use of the Talend Software with any other products, services or equipment not provided by Talend; (v) damages attributable to the value of the use of a non-Talend product or service or (vi) any third party Open Source Software.  Customer will reimburse Talend for any expenses, costs and/or damages that result from any of the actions or situations described in 8.3(i) – (v) above.

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, at Talend’s expense, 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.

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 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.

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 OR 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 SECTIONS 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.    Miscellaneous

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 10.1 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 such export control laws and regulations, and will not export, re-export, otherwise transfer 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          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.

10.4          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.

10.5          Governing Law.  This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws 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.  A breach by either party of Section 6 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief without the requirement of posting a bond or surety. 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.

10.6          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.

10.7          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.

10.8          Entire Agreement. This Agreement, together with the Order Form executed 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.  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 products, except for terms regarding Open Source Software which are referenced under Section 1.8 (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 or confirmation or other document issued by Customer, unless the parties execute a written agreement expressly indicating: (i) that such purchase order shall modify this Agreement; or (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.

 

 

EXHIBIT A

LICENSE TYPES

1.  In accordance with Section 2.1 herein, Customer shall have a License to use the Talend Software subject to the following License Types and associated restrictions.

License Type

Description of License Type

Concurrent User A license to use the Talend Software for up to the total number of Concurrent Users for which Customer has paid the applicable fees, as specified in an Order Form. Note: A “Concurrent User” means a nominated person identified by a valid e-mail address. A single Concurrent User may only be declared in one Repository at a time.  “Repository” means an individual metadata or database repository where projects are defined and managed.

Interactive User

A license to use the Talend Software for up to the total number of Interactive Users for which Customer has paid the applicable fees, as specified in an Order Form. Note: An “Interactive User” means a Named or Concurrent User that may search, read, write and delete master data, using the native web user interface in the Talend Software, including participation in workflow processes.

Named User

A license to use the Talend Software for up to the total number of Named Users for which Customer has paid the applicable fees, as specified in an Order Form. Note: A “Named User” means a specific individual identified by a valid e-mail address.  A single Named User may be declared in more than one Repository at a time.  Named Users may be further distinguished based on access and use rights as described in the applicable Documentation.

Per Node Limitation

A license to use the Talend Software for up to the total number of Nodes for which Customer has paid the applicable fees, as specified in an Order Form (“Per Node Limitation”).  Note:  A “Node” means a Physical Machine or Virtual Machine capable of running the Talend Software.

Per Core Limitation

A license to use the Talend Software for up to the total number of Cores or Virtual Cores for which Customer has paid the applicable fees, subject to the limitations set forth herein and as specified in an Order Form, based on either Customers use within; (i) a single physical hardware system (“Physical Machine“) or (ii) a Virtual Machine (“Per Core Limitation”).  Note: “Cores” shall mean the units within the central processing unit that can read and execute program instructions. “Virtual Cores” means the virtual processing power configured to a Virtual Machine.  “Virtual Machine” means a software container that can run its own operating system and execute applications like a physical machine. Each license of the Talend Software is limited for use on a Physical Machine or Virtual Machine with up to the number of Cores or Virtual Cores specified in an Order Form.  Customer may run the Talend Software on a Physical Machine or Virtual Machine with more than the number of Cores or Virtual Cores that have been specified under an Order Form, provided however, Customer must purchase additional licenses of the Talend Software to do so.  In no event shall Customer be permitted to split a single license between a Physical Machine and a Virtual Machine.  Customer may however, be permitted to split a single license across multiple Virtual Machines, so long as Customer does not exceed the Per Core Limitation for each license.



Non-Production Runtime

A license to use the Talend Software for any non-production purpose, including use as part of a Warm Backup, use in a development environment for proof of concept, quality-assurance, or other testing purposes (“Non-Production Runtime”), for which Customer has paid the applicable fees, subject to the applicable License Type restrictions, as set forth in an Order Form.  Note “Warm Backup” means use of the Talend Software for failover purposes where the Talend Software is installed on a system that is not actively supporting production activity until activated when the primary system becomes non-operational.

Production Runtime

A license to use of the Talend Software for any production purpose in an active environment, including use as part of a Hot Backup (“Production Runtime”), for which Customer has paid the applicable fees, subject to the applicable License Type restrictions, as set forth in an Order Form.  Note “Hot Backup” means use of the Talend Software for failover purposes where the Talend Software is installed on a system that is actively supporting production activity including any two systems that can process requests simultaneously (“active-active”).

 

2. Talend Software.  The following table sets forth the Talend Software and applicable License Types.  Customer may License the then current version of the Talend Software made generally available by Talend.

Talend Software

License Type

Notes

Talend Big Data

Named User; Concurrent User
Talend Data Integration Named User; Concurrent User  
Talend ESB

Named User; Concurrent User; Per Core Limitation; Production Runtime; Non-Production Runtime

Talend Data Management Platform

Named User; Concurrent User

If Customer purchases Mission Critical Level Support for the Talend Data Management Platform, then additional Per Core Limitation fees shall apply for Production Runtime use, as set forth in an Order Form.

Talend Big Data Platform

Named User; Concurrent User

If Customer purchases Mission Critical Level Support for the Talend Big Data Platform, then additional Per Core and/or Per Node Limitation fees shall apply for Production Runtime use, as set forth in an Order Form.
Talend Data Services Platform Named User; Concurrent User; Per Core Limitation, Production Runtime; Non-Production Runtime  
Talend Real-time Big Data Platform

Named User; Concurrent User; Per Node Limitation; Per Core Limitation; Production Runtime; Non-Production Runtime.

If Customer purchases Mission Critical Level Support for the Talend Real-time Big Data Platform, then additional Per Node Limitation fees shall apply for Production Runtime use, as set forth in an Order Form.

Talend MDM Platform Named User; Interactive User; Per Core Limitation; Production Runtime; Non-Production Runtime
Talend Data Fabric

Named User; Interactive User; Per Core Limitation; Production Runtime; Non-Production Runtime

If Customer purchases Mission Critical Level Support for the Talend Data Fabric, then additional Per Node Limitation fees shall apply for Production Runtime use, as set forth in an Order Form.

Talend EULA v9.2015_federal