IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS XACTLY REWARDS™ SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE XACTLY REWARDS™ APPLICATION. XACTLY CORPORATION, A DELAWARE CORPORATION HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 35 S. MARKET STREET, SAN JOSE, CA 95113 (“XACTLY”) IS WILLING TO PERMIT ACCESS TO AND USE OF THE XACTLY REWARDS™ APPLICATION (HEREINAFTER “REWARDS”) TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING REWARDS (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS OF THIS AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND XACTLY. BY DOWNLOADING REWARDS, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU ALSO REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THE COMPANY TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, XACTLY DOES NOT LICENSE REWARDS TO YOU AND YOU SHOULD NOT DOWNLOAD REWARDS.
1. XACTLY’S LICENSE GRANT AND RESTRICTIONS. Subject to the terms and conditions of this Agreement, Xactly hereby grants You the following, nonexclusive and non-transferable license, solely for Your own internal business operations and solely until December 1, 2008: to access and use Rewards, made available at http://www.salesforce.com/appexchange/detail_overview.jsp?id=a0330000005liuc, via Your use of the Salesforce.com AppExchange. You are responsible for all activity that occurs in Your Subscriber accounts and for Subscribers’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, Rewards, and notify Xactly promptly of any such unauthorized access or use; and (iii) comply with all applicable laws in using Rewards. You may not (1) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of Rewards; (2) assign, sublicense, lease, encumber or otherwise transfer or attempt to transfer Rewards or any portion thereof to any third party; (3) use Rewards for commercial time-sharing, rental, outsourcing, or service bureau use, or for training purposes; or (4) publish or otherwise disclose the results of benchmark tests of Rewards to third parties. You may not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make available to any third party Rewards, other than to Subscribers or as otherwise contemplated by this Agreement; (ii) use Rewards to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use Rewards to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iv) use Rewards to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of Rewards or the data contained therein; or (vi) attempt to gain unauthorized access to Rewards or its related systems or networks. “Subscriber” as used in this Agreement shall mean individuals who are (i) authorized by You to use or access Rewards and who have been supplied subscriber identifications and passwords by You (or by Xactly at Your request); and/or (ii) whose information is stored on Rewards. Subscribers may include but are not limited to Your employees, consultants, representatives and agents.
2. THIRD PARTY INTERACTIONS. While You use Rewards, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through Rewards. Any such activity and any terms, conditions, warranties or representations associated with such activity are solely between You and the applicable third party. In addition, Xactly shall not be liable for any taxes related to the purchase of such goods and/or services. Xactly and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third party. Xactly does not endorse any sites on the Internet that are linked through Rewards. Xactly provides these links to You only as a matter of convenience, and in no event shall Xactly or its licensors be responsible for any content, products, or other materials on or available from such sites. Xactly provides Rewards to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services.
3. INTELLECTUAL PROPERTY RIGHTS AND DATA OWNERSHIP. You hereby acknowledge and agree that this Agreement constitutes a license of rights to use Rewards and not a sale of any rights in or to Rewards. Accordingly, You further acknowledge and agree that You are a licensee and not a purchaser of rights to Rewards, and that Xactly and its licensors reserve all rights not expressly granted to You in this Agreement. Without limiting the generality of the foregoing, You acknowledge and agree that: (i) Xactly and its suppliers retain all rights, title and interest in and to Rewards, and You do not acquire any right, title, or interest in or to Rewards other than the licenses set forth herein; (ii) any configuration or deployment of Rewards shall not affect or diminish Xactly’s or its suppliers’ rights, title, and interest in and to Rewards; and (iii) nothing in this Agreement shall limit in any way Xactly's right to develop, use, license, create derivative works of, or otherwise exploit Rewards, or to permit third parties to do so. You shall not (i) modify, copy or create derivative works based on Rewards; (ii) modify, copy or create derivative works of Rewards; (iii) frame or mirror any content forming part of Rewards, other than on Your own intranet or otherwise for Your own internal business purposes; (iv) reverse engineer Rewards; or (v) access Rewards in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of Rewards, or (C) copy any ideas, features, functions or graphics of Rewards.
4. CUSTOMER DATA. As between Xactly and You, You exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. Xactly shall not access Your Customer Data, except to respond to service or technical problems or otherwise at Your request. Xactly shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. "Customer Data" as used in this Agreement means all electronic data or information submitted by You to Rewards.
5. CONFIDENTIALITY. You hereby acknowledge and agree that Rewards is the confidential and proprietary information of Xactly. Accordingly, You agree to maintain the confidentiality of Rewards using the same care You use to maintain the confidentiality of Your own most confidential information. You shall permit access to Rewards only by employees who have a need to know in connection with the license rights granted under this Agreement. You agree to secure and protect Rewards in a manner consistent with the maintenance of Xactly’s rights therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with Your employees who are permitted access to Rewards to satisfy Your obligations hereunder. You shall cooperate with and assist Xactly in identifying and preventing any unauthorized use, copying or disclosure of Rewards. Without limitation of the foregoing, You shall advise Xactly immediately in the event You learn or have reason to believe that any person has violated or intends to violate the confidentiality of Rewards or Xactly’s proprietary rights, and You will, at Your expense, cooperate with Xactly in seeking injunctive or other equitable relief in the name of, at Xactly’s sole discretion, either You or Xactly, against any such person. You acknowledge that (i) the disclosure of any aspect of Rewards or any other confidential information referred to herein, or any information which at law or equity ought to remain confidential, will immediately cause Xactly continuing irreparable injury that would not adequately be compensable in damages at law, and (ii) Xactly shall be entitled to immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. As a result, You hereby consent to the obtaining of such injunctive relief.
6. NO WARRANTIES. XACTLY EXPRESSLY DISCLAIMS ANY WARRANTY FOR REWARDS. REWARDS IS PROVIDED “AS IS” AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND XACTLY AND ITS LICENSORS HEREBY DISCLAIM ALL IMPLIED WARRANTIES, DUTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM DEFECTS, LACK OF VIRUSES, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, NONINFRINGEMENT, QUALITY OF SERVICE, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, WORKMANLIKE EFFORT AND LACK OF NEGLIGENCE, WHETHER SUCH WARRANTY, DUTY OR CONDITION IS ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF REWARDS REMAINS WITH YOU. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE YOU FIRST DOWNLOAD REWARDS.
7. LIMITATION AND EXCLUSION OF DAMAGES. IN NO EVENT SHALL XACTLY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO REPUTATION, LOSS OF MANAGEMENT TIME, LOSS OF OR DAMAGE TO YOUR MATERIALS, LOSS OF SAVINGS OR ANY CLAIM BASED UPON A THIRD PARTY CLAIM, OR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, UNDER ANY CAUSE OF ACTION AND REGARDLESS OF THE THEORY OF LIABILITY GIVING RISE TO SUCH LOSSES OR DAMAGES, WHETHER UNDER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE REWARDS OR OTHERWISE, AND EVEN IF XACTLY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL XACTLY OR ITS SUPPLIERS’ AGGREGATE LIABILITY FOR DAMAGES HEREUNDER EXCEED ONE HUNDRED US DOLLARS (US$100), WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. TERM AND TERMINATION. This Agreement and the license granted herein shall remain effective until December 1, 2008. You may terminate this Agreement at any time. Your rights under this Agreement will terminate immediately without notice from Xactly if You fail to comply with any provision of this Agreement. Upon termination, You shall cease using Rewards immediately. Any confidentiality obligations and all limitations of liability and disclaimers and restrictions of warranty set forth in this Agreement shall survive the termination of this Agreement for any reason.
9. EXPORT CONTROLS. You agree to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”). Without limiting the generality of the foregoing, You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer Rewards to any destination, company or person restricted or prohibited by Export Controls.
10. GOVERNING LAW AND ARBITRATION. Except for matters involving the breach or potential breach of Section 6 (“Confidential Information”) of this Agreement, You and Xactly agree that any and all disputes arising out of or any way relating to this Agreement shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) in San Francisco, California and pursuant to the then existing arbitration rules at JAMS. You and Xactly hereby consent to jurisdiction in California and before JAMS for the resolution of any and all such disputes. In the event of a breach or alleged breach of Section 6 (“Confidential Information”) of this Agreement, Xactly shall be entitled to seek injunctive in a state or federal court located in Santa Clara County, California.
11. U.S. GOVERNMENT END-USERS. Rewards is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202‑1 through 227.7202‑4, all United States Government Subscribers acquire Rewards only as a “commercial item” and only with those rights that are granted to all other subscribers pursuant to the terms and conditions of this Agreement.
12. GENERAL TERMS. This Agreement constitutes the entire agreement of the parties and supersedes all prior communications, understandings and agreements relating to Rewards, whether oral or written. No modification or waiver of any provision of this Agreement shall be valid except by written amendment manually signed by authorized representatives of both parties. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired by such holding and the parties shall negotiate in good faith a substitute, valid and enforceable provision that most nearly effects the parties’ intent in entering into this Agreement. You may not assign, without Xactly’s prior written consent, Your rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed void. Xactly may assign this Agreement. You shall comply with all applicable local, state, national and foreign laws, treaties, regulations, guidelines and conventions in connection with Your use of Rewards, including without limitation those related to data privacy and international communications. This Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and upon their permitted successors and assigns.
