Xactly Desktop Subscription Agreement
IMPORTANT – READ CAREFULLY: This Desktop Subscription 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 "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 Order, or by using or accessing the Service, you indicate your agreement to be bound by this Agreement. This Agreement governs your initial purchase of the Service and related Support Services, as well as any future purchases made by you that reference this Agreement. This Agreement includes any Orders, and any other policies and attachments referenced in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. License Grant. Subject to the terms and conditions of this Agreement, Xactly grants to Customer a non-transferable and non-exclusive license (a) to install and use the Products and related documentation, solely in support of Customer’s own internal business operations, solely during the Subscription Term described in Section 4 below, and only on the number of computers equal to the number of Authorized Users specified on the applicable Order Form, and (b) to make additional copies of the Products solely for its own archival or emergency back-up purposes, provided that no more than three copies for this purpose may be in existence under this Agreement at any time. With respect to any and all copies of the Products and related documentation, Customer shall ensure that each copy contains the same copyright, trademark and restricted rights notices that appear on and in the originals. 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 the software products identified on the applicable 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 without limitation any data sets identified on the applicable Order Form (e.g., U.S. 5-Digit ZIP Code data), including any and all updates to the Content made available to Customer by Xactly, and the term “Order Form” means an ordering document executed by the parties that specifies the Products licensed by Customer under this Agreement. Each 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 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, timesharing 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 reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of 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 Agreement commences on the Effective Date and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated. The initial Subscription Term is specified in the initial Order Form hereunder. Upon conclusion of the initial Subscription Term and any subsequent Subscription Term, the then-current Subscription Term will automatically renew for an additional Subscription Term of equal length unless either party gives written notice of its intention not to renew at least ninety (90) days prior to the expiration of the then-current Subscription Term. If Customer breaches any term or condition of this Agreement and fails to cure the breach within thirty (30) days of written notice from Xactly, 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. In the event of a Customer Default, Xactly shall have the right to: (i) Suspend Service to Customer; (ii) cease processing or accepting orders for Service; and/or (iii) terminate this DSA or any Service. If Xactly terminates this DSA due to a Customer Default, Customer shall remain liable for all charges in accordance with the Term of Subscription outlined in this section hereunder. Customer agrees to pay Xactly’s reasonable expenses (including attorney and collection agency fees) incurred in enforcing Xactly’s rights in the event of a Customer Default. Termination shall not relieve Customer of its obligation to pay any fees accrued or payable to Xactly relating to the Products and Content prior to the effective date of termination, and Customer shall immediately pay to Xactly all such fees upon the effective date of termination. The rights and obligation of the parties contained in Sections 2, 3, 4, 5, 6, 7, and 9 through 14 inclusive shall survive any termination or expiration of this Agreement.
5. Billing. All fees and charges under this Agreement will be invoiced in advance and are due net thirty (30) days from the invoice date. Customer agrees to accept invoices via email at the billing contact email address specified in the applicable Order Form, as may be updated by Customer upon written notice. Invoices shall be emailed on the day of the date of invoice. In the event that the email date is later, such later date shall apply. Customers located outside of the U.S. shall submit payment to Xactly via wire transfer. Customer is responsible for providing complete and accurate billing address and contact information to Xactly. If Customer believes a particular invoice is incorrect, Customer must contact Xactly in writing within sixty (60) days of such invoice date to be eligible to receive an adjustment or credit. Amounts not paid when due will bear a finance charge at a rate equal to the lesser of one- and-one-half percent (1.5%) per month or the highest rate permitted by law, calculated from the first day a payment is past due. If any amount is not paid when due hereunder, Xactly shall be entitled to recover from Customer the costs and expenses incurred in connection with collecting the same (including without limitation costs of investigation and attorneys’ fees). Without limiting any other remedy it may have, Xactly reserves the right to suspend or terminate access to the Products, Content and any related services in the event of non-payment. Payment obligations hereunder are non-cancelable, and fees paid are non-refundable.
6. Taxes. Xactly's fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"), and excluding taxes on Xactly’s net income or property. Customer is responsible for paying all Taxes associated with its purchases hereunder. If Xactly has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Xactly with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. 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.
8. Support and Maintenance. During the Subscription Term, Xactly will 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 that Xactly makes generally available at no additional cost to its customers during the Subscription Term.
9. Limited Warranty and Disclaimer.
A) LIMITED WARRANTY. XACTLY WARRANTS THAT FOR A PERIOD OF NINETY (90) DAYS FROM THE COMMENCEMENT OF THE SUBSCRIPTION TERM (1) THE PRODUCT WILL OPERATE IN MATERIAL CONFORMANCE WITH ITS ACCOMPANYING DOCUMENTATION, AND (2) THE PRODUCT WILL BE TESTED CONSISTENT WITH APPLICABLE INDUSTRY STANDARDS TO DETECT AND REMEDIATE VIRUSES, TROJAN HORSES, WORMS, AND OTHER MALICIOUS CODE PRIOR TO DELIVERY TO CUSTOMER.
B) DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCTS, CONTENT, AND DOCUMENTATION ARE PROVIDED "AS IS." EXCEPT AS EXPRESSLY SET FORTH HEREIN, 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.
10. 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 THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER FOR THE PRODUCTS, CONTENT OR DOCUMENTATION AT ISSUE IN THE CLAIM DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. The parties expressly agree that the allocation of risk contained in this Section is an essential basis of this Agreement.
11. Notices. All notices required hereunder shall be in writing and shall be 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.
12. 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).”
13. 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 orders 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.
14. 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). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all orders), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. 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 orders 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 and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order, the terms of such exhibit, addendum, or order 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.
IN WITNESS WHEREOF, the parties' authorized signatories have duly executed this Agreement as of the Effective Date:
Xactly Corporation
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