Xactly Express Subscription Agreement

 

IMPORTANT – READ CAREFULLY: This Xactly Express Subscription Agreement (the “Agreement”) is a legal agreement between you (an individual or a single entity) and Xactly Corporation (“XACTLY”).  WHEN YOU CLICK THE “I ACCEPT” BUTTON DURING THE ORDERING PROCESS, OR IF YOU OTHERWISE ACCESS OR USE XACTLY’S ONLINE SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED HEREIN. THE AGREEMENT GOVERNS YOUR USE OF XACTLY’S ONLINE EXPRESS SERVICE DESIGNED TO BE ACCESSED AND USED IN COMBINATION WITH CERTAIN SALESFORCE.COM ONLINE SERVICES (THE “SERVICE”).  SUCH SALESFORCE.COM ONLINE SERVICES ARE PROVIDED IN CONNECTION WITH SALESFORCE.COM’S WEB-BASED ON-DEMAND PLATFORM (THE “PLATFORM”). In this Agreement, the terms “you” or “your” refer to the entity you represent. The terms “we,” “us,” “our” or “ours” refer to Xactly. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT.  Xactly, with its principal place of business located at 505 South Market Street, San Jose, CA 95113, is willing to grant you access to the Service on the condition that you accept all the terms of this Agreement. The Initial Term will be the period of time specified on the Order Form. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one year periods at Xactly’s list price at the time of renewal unless you notify us in writing forty five days prior to expiration of the Initial Term, or any successive renewal term, of your election not to renew, or unless agreed to otherwise by the parties in writing.

  1. Your Access to the Service. 1.1 Provision of the Service. Subject to the terms of this Agreement, we make the Service available to you during the Initial Term and any renewal terms (collectively, the “Subscription Term”), solely for your own internal business purposes. You agree that your purchase and use of the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Xactly with respect to future functionality or features. You download the Service from the Salesforce AppExchange and the Service will be installed in your instance of Salesforce. Notwithstanding the foregoing, you understand and agree that this Agreement is solely between you and Xactly and that you are not entering into a contractual agreement with Salesforce.com (“SFDC”). In providing the Service, we will not use or modify any hardcopy or electronic data or information you submit to the Service, including any data or information transmitted or processed from your instance of Salesforce CRM (collectively, “Your Data”) except as otherwise set forth in this Agreement and Xactly’s online user guide documentation (the “Xactly Reference Guide”).  We shall maintain Your Data in accordance with our privacy and security policies available at https://www.xactlycorp.com/notices/privacy.php.  If your use of the Service involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personal data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the data processing addendum accessible at https://www.xactlycorp.com/data-processing-addendum/ shall apply to such personal data and be incorporated into this Agreement upon the processing of such data.  You acknowledge that you are solely responsible for any of Your Data that you elect to transmit or process from your instance of Salesforce CRM. You understand and agree that (i) Salesforce.com is not responsible for the privacy or security of any of Your Data that is used outside of your instance of Salesforce CRM; and (ii) we are not responsible for the privacy or security of Your Data available in your instance of Salesforce CRM. 2 Purchase of Subscriptions. You will purchase a subscription to the Service (each, a “Subscription”) for each individual (i) you authorize to use or access the Service and to whom you have supplied an identification and password; or (ii) whose information is stored on the Service. Each individual described in the preceding sentence is referred to in this Agreement as a “Subscriber.” Subscribers may include your employees, consultants, representatives and agents. You are responsible for all activity that occurs in your Subscriber accounts and for your Subscribers’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Your Data; (ii) prevent unauthorized access to, or use of, the Service, and notify Xactly promptly of any such unauthorized access or use; and (iii) comply with all applicable laws in using the Service. You shall have sole responsibility to obtain the consent of all Subscribers to include their personal information in Your Data, and to transmit, process, and store that information through the Service. The number of Subscriptions purchased cannot be decreased during a Subscription Term. 1.3 Additional Subscribers. You may reassign subscriptions to the Service to new Subscribers that replace former Subscribers who no longer use or need access to the Service or for whom you no longer calculate, process, model or store compensation. You may not allow more than one Subscriber to use or otherwise share a single Subscription. You understand and agree that fees for Subscriptions purchased in the middle of a billing month will be prorated for that billing month and the per-Subscriber rate for any additional Subscriptions purchased will be the same as the per-Subscriber rate in effect at the time you purchase additional Subscriptions. 1.4 Use Guidelines. You shall use the Service solely for your own internal business purposes during the Subscription Term. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 10.6) , distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Subscribers or as otherwise contemplated by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violate any third-party’s privacy or intellectual property rights; (iv) upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or any data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks; or (vii) conduct any platform or system level testing of the Service. 1.5  Restrictions.  You shall not develop applications for internal use with the Service, provided that the foregoing shall not limit your ability to develop custom objects for your use of Xactly Express.  You may develop applications for internal use with SFDC online services only if such online services are purchased directly from SFDC.  You shall not extend the SFDC online services using additional custom objects.  Your use of the SFDC online services in connection with the Service is limited to the objects and functionalities included in the Service, and those functionalities of the Platform strictly necessary for the operation of the Service.  Should you wish to upgrade your SFDC online service provided to you as part of the Service to a full SFDC Force.com Edition subscription, you shall obtain such upgrade subscription directly through SFDC.  1.6 Consulting Services. In addition to Subscriptions to the Service, you may purchase consulting, implementation, technical services or additional set up services from Xactly under this Agreement (collectively “Consulting Services”). For purposes of this Agreement, Consulting Services are not included within the definition of the “Service.” Consulting Services may be described more fully in an Order Form or a separately executed statement of work (a “SOW”). The Order Form and any SOW shall be governed by and subject to the terms of this Agreement and shall incorporate this Agreement by reference.

2.  Fees and Payment. Payment terms shall be specified in a separately executed order document (“Order Form”). Except as otherwise specified herein or in an amendment hereto, all fees are quoted and payable in US dollars, payment obligations are non-cancelable, and fees paid are non-refundable. Service fees are based on Subscriptions purchased and not actual usage. You are responsible for providing complete and accurate billing, address and contact information to us and for maintaining such information in the Service. If you believe a particular charge is incorrect, you must contact us in writing within 60 days of the payment date to be eligible to receive any credit. If your account is 30 days or more overdue, then, in addition to any of our other rights or remedies, we reserve the right to suspend your access to the Service without liability to you until you pay all amounts in full. Our 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”). You are responsible for paying all Taxes associated with your purchases hereunder, excluding taxes based on Xactly’s net income or property.

 

3. Proprietary Rights. 3.1 License. In exchange for payment of the fees listed on the Order Form and subject to the terms of this Agreement and any applicable Order Form and/or SOW, we grant you a nonexclusive, royalty-free, nontransferable (except as permitted pursuant to Section 10.6) license to access and use the Service during the Subscription Term solely for your own internal business purposes. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information you or your Subscriber provide relating to the features, functionality or operation of the Service. 3.2 Reservation of Rights. You agree that this Agreement constitutes a license of rights to use the Service and is not a sale of any rights in or to the Service or the underlying software. Accordingly, you further agree that you are a licensee and not a purchaser of rights to the Service or the underlying software, other than the rights expressly granted to you in this Agreement. You agree that: (i) except for the limited rights expressly granted to you under this Agreement, Xactly reserves all rights, title and interest in and to the Service, the underlying software, the Xactly Reference Guide and all any materials we provide to you as part of, or in the course of providing the Service or any Consulting Services (collectively with the Service and the Xactly Reference Guide, the “Licensed Materials”) including all intellectual property rights inherent therein; (ii) no rights are granted to you other than as expressly set forth in this Agreement; (iii) any configuration or deployment of the Service does not affect or diminish Xactly’s or its licensors’ rights, title, and interest in and to the Licensed Materials; and (iv) nothing in this Agreement shall limit in any way Xactly’s right to develop, use, license, create derivative works of, or otherwise exploit the Licensed Materials, or to permit third parties to do so. 3.3 License Restrictions. You shall not (i) modify, copy, display, republish or create derivative works based on the Service, the underlying software or any other Licensed Material; (ii) frame, scrape, link to or mirror any content forming part of the Service, other than on your own intranets or otherwise for your own internal business purposes; (iii) reverse engineer the Service or the underlying software; or (iv) access the Service in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. 3.4 Your Data. As between Xactly and you, you exclusively own all rights, title and interest in and to all Your Data. Xactly shall not access your Subscriber accounts, including Your Data, except to provide the Service under this Agreement, to respond to service or technical problems, to confirm compliance with the terms of this Agreement, or otherwise at your direction, request or as expressly permitted. You shall not provide Xactly with any data that is personally identifying information subject to specialized security regimes, including without limitation the Health Insurance Portability and Accountability Act (“HIPAA”), the standards promulgated by the PCI Security Standards Council (“PCI”), and the requirements promulgated by IRS Publication 1075 related to Federal Tax Information data (“FTI”).  Xactly is not a “Business Associate” under HIPAA, and you shall not provide any protected health information to Xactly.  You acknowledge that social security numbers, government identification numbers, credit card data, and similarly sensitive information are not required for use of the Service and you agree not to provide Xactly with any such information. You hereby grant Xactly a nonexclusive, royalty-free license to access and use Your Data to exercise its rights and perform its obligations in accordance with the terms of this Agreement.  Neither Xactly nor Salesforce.com shall be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any of Your Data, except that, subject to all limitations set forth in this Agreement, we will be responsible or liable only to the extent that any deletion, alteration, destruction, damage, loss or failure to store Your Data is directly and proximately caused by Xactly’s actions. Xactly reserves the right to use Your Data in anonymized and aggregated form for generating “Benchmarking Statistics” relating to industry trends, provided that the anonymized data does not include information that identifies or provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.     The foregoing shall not limit, in any way, Xactly’s confidentiality obligations pursuant to Section 4 below.  3.5  Intellectual Property Rights Definition.  “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world. 3.6  Intellectual Property Rights Ownership, Use. Xactly alone (and its suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to all of Xactly’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) (hereafter, “Xactly Technology”) made available to you by Xactly in providing the Service and the Xactly Technology, and you hereby assign to Xactly any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Service or the Xactly Technology.  Xactly may use such submissions as it deems appropriate in its sole discretion.  This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Xactly Technology or the Intellectual Property Rights owned by Xactly and its suppliers. The Xactly name, the Xactly logo, and the product names associated with the Service are trademarks of Xactly or its suppliers, and unless expressly granted herein, no right or license is granted to use them.  You will not accrue any residual rights to the Xactly technology or the Service, including any rights to the Intellectual Property Rights in connection therewith.

 

4. Confidentiality. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), orally or in writing that reasonably should be understood to be confidential, including (a) the terms and conditions of this Agreement, (b) Your Data, (c) a party’s proprietary technology or computer software in all versions and forms of expression and the Service, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively, the “Proprietary Technology”), (d) the Xactly Reference Guide, other Licensed Materials, Xactly’s security information and reports, and (e) each party’s business plans, technical information and business processes. The obligations in this Section 4 shall not apply to 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 hereunder or is lawfully received from a third party by the Receiving Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality, or (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner it protects the confidentiality of its own proprietary and confidential information (but in no event using less than reasonable 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.

 

In addition, you shall permit access to the Service, the Xactly Reference Guide, and the other Licensed Materials only by Subscribers who have a need to know in connection with the license rights granted under this Agreement. You agree to secure and protect the Licensed Materials 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 Subscribers to satisfy your obligations hereunder. Except as provided for in Section 10.6, You shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the Service or any of the other Licensed Materials to others. You shall cooperate with and assist Xactly in identifying and preventing any unauthorized use, copying or disclosure of the Service or other Licensed Materials. Without limitation of the foregoing, you shall advise Xactly immediately in the event you learn or have reason to believe that any person under your direction or control has violated or intends to violate the confidentiality of the Service or other Licensed Materials 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.

 

5. Limited Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that we will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that: (a) you own or otherwise have sufficient rights in Your Data to grant Xactly the licenses you grant in this Agreement; (b) you have not falsely identified yourself nor provided any false information to gain access to the Service; (c) you have obtained appropriate consents from all Subscribers and others whose personal information is included in Your Data and transmitted, processed, and stored through the Service; and (d) all billing and contact information provided by you is true and correct.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YOU UNDERSTAND AND AGREE THAT THE SERVICE AND LICENSED MATERIALS ARE PROVIDED “AS IS” AND XACTLY, ITS AFFILIATES AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, XACTLY AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY INCLUDED CONTENT. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE AND AGREE THAT (1) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (2) THE SERVICE DOES NOT ENSURE YOUR COMPLIANCE WITH ALL APPLICABLE LABOR OR EMPLOYMENT LAWS; AND (3) YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS.

 

6. Indemnification. Provided that you comply with the procedures set forth in this Section 6, Xactly will defend and settle any claims, demands, suits or proceedings (“Claims”) made or brought against you by a third party alleging that your use of the Service as contemplated under this Agreement directly infringes a U.S. patent, copyright, or trademark of a third party or misappropriates such third party’s trade secrets.  Xactly will indemnify and hold you harmless against any damages or reasonable costs finally awarded under any Claim.  Upon receiving notice of a Claim, you must:  (a) give Xactly prompt written notice of the Claim; (b) give Xactly sole control of the defense and settlement of the Claim (provided that Xactly may not settle or defend any Claim unless the settlement unconditionally releases you of all liability); and (c) provide Xactly, at its cost, all reasonable assistance in the defense or settlement of the Claim. Xactly’s indemnification obligation will be offset to the extent its ability to defend or settle a claim is jeopardized by your failure to comply with the preceding sentence.  Xactly shall have no indemnification obligation for Claims arising from the combination of the Service with any of your products, services, hardware or business processes, or use of the Service by you other than in accordance with this Agreement or the Xactly Reference Guide. If the Service is held to be infringing, Xactly may elect, at its expense to (i) replace or modify the Service as appropriate, (ii) obtain a license for you to continue using the Service, (iii) replace the Service with a functionally equivalent service; or (iv) terminate the Service and refund any prepaid, unused fees. This Section 6 states Xactly’s entire liability and your exclusive remedy for any claim of intellectual property infringement. Provided that Xactly complies with the procedures set forth in this Section 6, you shall defend and settle any Claims made or brought against Xactly by a third party alleging that Your Data, or your use of the Service in violation of this Agreement, infringes or otherwise violates such third party’s property, privacy or other rights, or violates any applicable law. Upon receiving notice of a Claim, Xactly shall (a) give you prompt written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle or defend any Claim unless the settlement unconditionally releases Xactly of all liability); and (c) provide to you, at your cost, all reasonable assistance in the defense or settlement of such Claim. Your indemnification obligation shall be offset to the extent your ability to defend or settle a claim is jeopardized by Xactly’s failure to comply with the preceding sentence.

 

7. Limitation of Liability. EXCEPT FOR YOUR BREACH OF YOUR OBLIGATIONS UNDER SECTIONS 1.4 OR 3, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 ABOVE, IN NO EVENT SHALL EITHER PARTY’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. WITH RESPECT TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 4, IN NO EVENT SHALL EITHER PARTY’S OR ITS LICENSORS’ AGGREGATE LIABILITY EXCEED 200% OF THE AMOUNTS ACTUALLY PAID BY AND DUE FROM YOU UNDER THE APPLICABLE ORDER OR SOW IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS LICENSORS FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitations shall not apply to liability for death or personal injury to the extent that applicable law prohibits such limitation. Furthermore, certain states and jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

8. Term; Termination. 8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until the expiration or termination of all Subscriptions granted in accordance with this Agreement. 8.2 Termination for Cause. A party may terminate this Agreement for cause: (i) if the other party is in material breach under this Agreement and fails to cure such breach within 30 days of receipt of written notice of such material breach from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is not favorably resolved within 60 days. This Agreement constitutes an executory contract in accordance with Section 365 of the U.S. Bankruptcy Code. If you file or have filed against you by a third party any petition under the U.S. Bankruptcy Code, you must either assume or reject this Agreement. Upon an assumption, you shall comply with 11 U.S.C. § 365(b)(1); upon a rejection, all of your rights hereunder will terminate. Upon any termination for cause by you, Xactly shall refund to you any prepaid fees covering the remainder of the Subscription Term after the date of termination. Upon any termination for cause by Xactly, your right to access or use Your Data in the Service immediately ceases. 8.3 Return of Your Data. Upon request by you to Xactly or to SFDC, made within 30 days after the effective date of termination, Xactly or SFDC, as applicable, will make available to you for download a file of Your Data, provided, however, that Xactly shall have sole responsibility for any modifications to Your Data made in Xactly’s online Express service and Xactly shall be solely responsible for the return of Your Data, as modified. After such 30-day period, neither Xactly nor SFDC shall have any obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, be entitled to delete all of Your Data in its systems or otherwise in its possession or under its control. Upon your request and subject to your payment of applicable fees at Xactly’s then prevailing professional services rates, Xactly will download Your Data for you   8.4 Surviving Provisions. Termination shall not relieve you of your obligation to pay any fees accrued or payable to Xactly under this Agreement prior to the effective date of termination, and you shall immediately pay to Xactly all such fees upon the effective date of termination. In addition, the following provisions shall survive any termination or expiration of this Agreement: Sections 1.4, 1.5, 2, 3.2, 3.3, 3.4, 4, 6, 7, 8.3, 8.4, 9 and 10.

 

9. U.S. Government Restricted Rights. The Service is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, and involves the use 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 and other end-users acquire Subscriptions to the Service only as a “commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement.

 

10. General Provisions. 10.1 Privacy & Security; Disclosure. You agree to comply with our privacy and security policies which may be viewed at https://www.xactlycorp.com. Because the Service is a hosted, online application, we occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. We may disclose the fact that you are a customer as well as the edition of the Service that you are using. 10.2Modification to Terms. We reserve the right to modify the terms and conditions of this Agreement or our policies relating to the Service at any time, effective upon the commencement of any renewal term. You are responsible for regularly reviewing this Agreement. CONTINUED USE OF THE SERVICE AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. 10.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 10.4 Notice. For notices that are directed to you as part of Xactly’s general customer base, we may give notice by means of a general notice on the Service, by electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address listed in our account information. Such notice shall be deemed to have been given 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). All notices specifically required to be sent under this Agreement shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile; (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to your address on record in Xactly’s account information or if notice to Xactly at its principal office indicated above for the attention of VP, Finance, or to such other address or individual as the parties may specify by written notice to the other party in accordance with this Section 10.4. 10.5 Waiver and Cumulative Remedies. 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. 10.6 No Assignment. Neither party may assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining the other party’s written consent, except that each party may assign the Agreement without the other party’s consent (i) to an affiliate; or (ii) 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; provided that the assigning party provides prompt written notice to the other of such assignment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. 10.7 Severability. 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. 10.8 Governing Law. With respect to U.S. customers, this Agreement shall be governed exclusively by the laws of the state of California, without regard to conflicts of laws rules. With respect to non-U.S. customers, this Agreement shall be governed exclusively by the laws of Switzerland, without regard to conflicts of laws rules. With respect to U.S. customers, 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. With respect to Non-U.S. customers, the courts of Switzerland 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 doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 10.9 Export Control. You 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 you operate or do business. The U.S. regulations described in the preceding sentence include, without limitation, the Export Administration Regulations maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the US Department of State, and shall not cause Xactly to violate the same. 10.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions set forth on any purchase order 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.

 

Rev 082018