Xactly Trial Desktop Subscription Agreement

IMPORTANT – READ CAREFULLY: This Subscription and Services Agreement (the “Agreement”) is entered into and effective by and between you and Xactly Corporation, a Delaware corporation (“Xactly,” “we” or “us”).  If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Company”, “Customer” or “you” means your company, and you are binding your company to this Agreement.  By clicking on the “I agree” (or similar) button that is presented to you at the time of your Trial Order Form, or by downloading, using or accessing the Product, you indicate your agreement to be bound by this Agreement.  This Agreement governs you’re use of the Product and related support services.  This Agreement includes any other policies and attachments referenced in this Agreement. Customer acknowledges and understands that the Agreement only applies to the trial license to the Products and that any purchase of Products will be licensed under a separately executed agreement and order form between the parties.

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Limited License Grant. Subject to the terms and conditions of this Agreement, Xactly grants to Customer a revocable, non-transferable and non-exclusive license to install and use the Products and related documentation, solely in support of Customer’s own internal business operations, solely during the Term described in Section 4 below and as described on the Trial Order Form. The original and any copies in whole or in part of the Products and documentation shall be the exclusive property of Xactly. For purposes of this Agreement, the term “Products” shall mean Xactly Alignstar for Desktop products as identified on the applicable Trial Order Form, in object code format, including all copies thereof, including any and all updates to the Products made available to Customer by Xactly. For purposes of this Agreement, the term. “Content” means the data made available to Customer by Xactly for use with the Products, including any and all updates to the Content made available to Customer by Xactly, “Authorized Users” means Company employees who are permitted to use the Products subject to the terms of this Agreement; and the term “Trial Order Form” means an ordering document executed by the parties that specifies the Products licensed by Customer under this Agreement. Each Trial Order Form shall incorporate this Agreement by reference. The Products, Content and documentation, including updates, will be made available to Customer for download. Any Products and Content received by Customer via FTP or other electronic delivery method will be governed by this Agreement even if no reference to this Agreement is made in connection with such electronic delivery.

2. Restrictions. The rights granted in Section 1 above are subject to the following restrictions: Customer and Customer’s Authorized Users shall not  (a) modify or create derivative works based in whole or in part upon the Products, Content or documentation, or permit any third party to do so; (b) copy the Products, Content or documentation, except as strictly required in order to install the Products on the number of permitted computers and as otherwise expressly permitted in Section 1 above; (c) rent, loan, lease, sublicense, resell or otherwise transfer the Products, Content and documentation (except as permitted pursuant to Section 14 below), or use the Products or Content to provide service-bureau, software rental, time‑sharing or any data services to any third party; (d) disassemble, decompile or reverse engineer the Products or otherwise attempt to derive the source code of the Products, nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable law; (e) remove any proprietary notices or labels appearing on the Product, Content or documentation; nor (f) use the Products, Content or documentation for competitive development purposes. 

3. Ownership.  The Products and Content are licensed, not sold. Except for the limited rights expressly granted to Customer hereunder, Xactly and its suppliers own and retain all right, title and interest in and to the Products, Content and documentation, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement. Xactly shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorized Users relating to the features, functionality or operation of the Products or Services.

4. Term and Termination. This term of this Agreement shall commence on the date set forth in the Trial Order Form or and shall terminate seven (7) days thereafter. Upon conclusion of the term, this Agreement shall terminate and Customer shall cease using the Products, Content and documentation and delete and destroy copies of the same in Customer’s possession or control, together with all materials, documentation, and media furnished by Xactly hereunder and any copies thereof made by Customer and/or pertaining to the Products, Content and documentation. Upon request Customer shall certify in writing that all such materials and copies have been destroyed. The rights and obligation of the parties contained in Sections 2, 3, 4, 5, and 7 through 12 inclusive shall survive any termination or expiration of this Agreement.

5. Security. Customer shall take all necessary steps to ensure that neither the Products, Content nor documentation is made available to any third party by Customer, its Authorized Users or personnel. 

6. Support and Maintenance. During the term, Xactly may, in its sole discretion, provide maintenance and support for the Products and Content in accordance with its then-current support policies. Support includes online help, error corrections, and provision of updates to the Products, Content and documentation

7. Warranty Disclaimer. THE PRODUCTS, CONTENT, AND DOCUMENTATION ARE PROVIDED "AS IS." XACTLY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, CONTENT OR DOCUMENTATION, AND XACTLY EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  BY WAY OF FURTHER EXAMPLE AND WITHOUT LIMITATION, XACTLY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT OR DOCUMENTATION. THE ENTIRE RISK AS TO THE USE OF THE PRODUCTS, CONTENT AND DOCUMENTATION IS ASSUMED BY CUSTOMER.

8. Liability. EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER A CLAIM ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT XACTLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES, IN NO EVENT SHALL XACTLY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) NOR SHALL XACTLY’S TOTAL CUMULATIVE LIABILITY HEREUNDER EXCEED $100. The parties expressly agree that the allocation of risk contained in this Section is an essential basis of this Agreement.

9. Notices.  All legal notices required hereunder shall be in writing and shall be emailed to Customer’s registered email address or sent by registered or certified (return receipt requested) mail or overnight carrier to the principal place of business of the party to whom notice is given, to the attention of such party’s General Counsel.

10. Licenses to U.S. Government. This Section applies to all acquisitions of the Products, Content or documentation by or for the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government (collectively, the “Government”).  The Government hereby agrees that the Product and the accompanying documentation are respectively “commercial computer software” and “commercial computer software documentation” within the meaning of the acquisition regulation(s) applicable to this procurement. These terms and conditions alone shall govern the Government’s use of the Product and the accompanying documentation and shall supersede any conflicting contractual terms or conditions. If these terms and conditions fail to meet the Government’s needs or is inconsistent in any respect with Federal law, the Government must return the Product and the accompanying documentation unused to XACTLY CORPORATION. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (OCT.1988).”

11. Confidentiality. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Trial Order Forms hereunder), the Products and documentation, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes.  The obligations in this Section 13 shall not apply to any information that:  (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (d) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to confidentiality obligations comparable in scope to those herein. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

12. General. Customer and its Authorized Users shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business, such as the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. The state and Federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. This Agreement, including all exhibits and addenda hereto and all Trial Order Forms hereunder, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of this Agreement shall prevail. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.