Subscription and Services Agreement for Trial Use

IMPORTANT – READ CAREFULLY: This Subscription and Services Agreement for Trial Use (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” 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 Form, by signing an Order Form, or by using or accessing the Service, you indicate your agreement to be bound by this Agreement.  This Agreement governs your trial use the Service and related Support Services pursuant to an Order Form, as well as any future trials made by you that reference this Agreement.  This Agreement includes any Order Forms, and any other policies and attachments referenced in this Agreement.

Whereas, Company will receive access to Xactly’s Service under this Agreement at no cost in order to test the Service in a non-production environment;

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


1.  Definitions.

 

1.1          “Order Form means an ordering document executed by the parties that specifies the Service to be provided by Xactly to Company under this Agreement. Each Order Form shall incorporate this Agreement by reference.

 

1.2          "Company Data" means all data or information submitted by or on behalf of Company to the Service, excluding Xactly Materials. Because the Service is made available solely for demonstration and internal training use, Company shall limit the Company Data to test data and in no event shall submit to the Service Confidential Information or personal or personally identifiable information of any individual.

 

1.3          “Service means the online, web-based application set forth in an Order Form and provided by Xactly via http://www.xactlycorp.com or other designated websites or IP addresses as communicated to Company by Xactly.

 

1.4          “Subscriber means an individual employee of Company who is authorized by Company to use or access the Service and who has been supplied an identification and password by Company or at Company’s direction solely for the purposes of  internal only testing the Service as set forth in this Agreement. Subscriber in all cases excludes competitors of Xactly. 

 

1.5          “Subscription Term means the period identified in the Order Form during which Company’s Subscribers are authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 8.

 

1.6          “Support Services” means those technical support services provided to Company by Xactly in Xactly’s sole discretion.

 

1.7          “Xactly Materialsmeans any materials that Xactly provides to Company as part of, or in the course of providing, the Service, including without limitation, specifications, instructions, test data and other documentation.  Company agrees that Xactly Materials are Xactly’s Confidential Information, as defined in Section 5.  Company shall use the Xactly Materials only as expressly permitted in this Agreement and the applicable Order Form.

 

2.  Service.

 

2.1  Provision of Service.  Xactly shall make the Service available to Company pursuant to this Agreement and all Order Forms during the Subscription Term, solely for Company’s internal only trial purposes as set forth herein.

 

2.2  Additional Subscribers.  Company may reassign Subscriptions from time to time to new Subscribers who replace former Subscribers who no longer use or need access to the Service.  Company, however, may not allow more than one individual Subscriber to use or otherwise share a single Subscription.

 

3.  Mutual Rights and Responsibilities.

 

3.1  Xactly’s Responsibilities.  Xactly shall: (i) not use or modify the Company Data except as otherwise set forth in this Agreement; (ii) use commercially reasonable efforts to maintain the security and integrity of the Service; and (iii) comply with all applicable laws in providing the Service. Xactly will provide notices directed to its customer base generally by means of a general notice on the Service, or by electronic mail to Company’s administrator e-mail address on record in Xactly’s account information. 

 

3.2  Company’s Responsibilities.  Company is responsible for all activity that occurs in its Subscriber accounts and for its Subscribers’ compliance with this Agreement. Company shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Company 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 and (iv) Company shall not provide Xactly with any Company 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 Company shall not provide any protected health information to Xactly.  Company acknowledges that social security numbers, government identification numbers, credit card data, and similarly sensitive information are not required for use of the Service and Company agrees not to provide Xactly with any such information.

 

4.  Proprietary Rights.

 

4.1  License.  Subject to the terms of this Agreement and the applicable Order Form, Xactly grants Company a nonexclusive, royalty-free, nontransferable license, solely during the Subscription Term, to access and use, and authorize its Subscribers to access and use, the Service and the Xactly Materials solely for the purposes of (i) internal testing purposes in a non-productive environment..

 

4.2  Reservation of Rights.  Except for the limited rights expressly granted to Company hereunder, Xactly reserves all rights, title and interest in and to the Service, the underlying software, and the Xactly Materials, including all related intellectual property rights inherent therein.  No rights are granted to Company hereunder other than as expressly set forth in this Agreement. For clarity, no right to distribute, sublicense, publicly display, or create derivative works is granted hereunder in or to the Service or Xactly Materials. 

 

4.3  Restrictions.  Company shall not (i) use the Service for incentive compensation management purposes or other production purposes, or modify, copy, display, republish or create derivative works based on the Service or the underlying software; (ii) modify, copy or create derivative works of the Service or Xactly Materials; (iii) frame, scrape, link to or mirror any content forming part of the Service, other than on Company's own intranets or otherwise for its own internal business purposes; (iv) reverse engineer the Service or the underlying software; (v) access the Service in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Service; (vi) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in 11.6), 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; (vii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) use the Service 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; (ix) 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; (x) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (xi) attempt to gain unauthorized access to the Service or its related systems or networks. Xactly may monitor Customer’s use of the Service to confirm Customer’s compliance with the terms and conditions in this Agreement.

 

4.4  Company Data. Xactly shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Company Data.

 

4.5  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.

 

4.6  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 Company by Xactly in providing the Service hereunder and the Xactly Technology, and Company hereby assigns to Xactly any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company 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 Company 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.  Company will not accrue any residual rights to the Xactly technology or the Service, including any rights to the Intellectual Property Rights in connection therewith.

 

4.7  Suggestions.  Xactly shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service and Xactly Materials any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company or its Subscribers relating to the features, functionality or operation of the Service or the Xactly Materials.

 

5.  Confidentiality.

 

5.1  Definition of Confidential Information.  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 (a) the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), (b) the Company Data, (c) the Service, (d) the Xactly Materials, (e) Xactly’s security information and reports, and (f) each party’s respective business and marketing plans, technology and technical information, product designs, and business processes.  The obligations in this Section 5 shall not apply to any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) 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; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

 

5.2  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, which are in no event less than a reasonable standard of care.   

 

5.3  Protection. 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. Upon termination of this Agreement or upon request by Disclosing Party, all Confidential Information shall be returned to the Disclosing Party or destroyed.

 

5.4  Compelled Disclosure.  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.

 

5.5  Remedies.  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.


6.  Warranties and Disclaimers.

 

6.1  Warranties.  Each party represents and warrants that it has the legal power and authority to enter into this Agreement.     

 

6.2  Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, XACTLY 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, COMPANY ACKNOWLEDGES AND AGREES THAT (A) THE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (B) THE SERVICE DOES NOT ENSURE COMPANY’S COMPLIANCE WITH ALL APPLICABLE LABOR OR EMPLOYMENT LAWS; AND (C) COMPANY IS SOLELY RESPONSIBLE FOR ITS COMPLIANCE WITH ALL APPLICABLE LAWS.

 

 

7.  Limitation of Liability 

 

7.1  Indemnification by Company.  Company shall defend Xactly, at Company’s expense, against any Claims made or brought against Xactly by a third party alleging that the Company Data, or Company’s use of the Service in violation of this Agreement, infringes or otherwise violates a third party’s property, privacy or directly infringes a U.S. patent, copyright, or trademark of a third party. Further, Company shall indemnify and hold Xactly harmless against all costs (including reasonable attorneys’ fees) finally awarded against Xactly by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Company, in connection with such Claims. Promptly upon receiving notice of a Claim, Xactly shall: (a) give Company written notice of the Claim; (b) give Company sole control of the defense and settlement of the Claim (provided that Company may not settle or defend any Claim unless it unconditionally releases Xactly of all liability); and (c) provide to Company all reasonable assistance in the defense or settlement of such Claim. Company’s indemnification obligation shall be offset to the extent its ability to defend or settle a claim is jeopardized by Xactly’s failure to comply with the preceding sentence.

 

7.2. Limitation of Liability.  EXCEPT FOR COMPANY’S BREACH OF SECTION 4.3 OR COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7.1, 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 $10,000.

 

7.3  Exclusion of Consequential and Related Damages.  EXCEPT FOR COMPANY’S BREACH OF SECTION 4.3 OR COMPANY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7.1, 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.

 

8.  Term and Termination.

 

8.1  Term of Agreement.  This Agreement commences on the Effective Date and continues until all Subscription Terms granted in accordance with this Agreement have expired or been terminated.

 

8.2  Term of Subscriptions.  Subscriptions commence on the start date specified in the relevant Order Form and unless earlier terminated as specified herein, continue for the Subscription Term specified therein. Order Forms will automatically renew for additional periods of one year each upon the expiration of the initial Subscription Term or any renewal Subscription Term, provided however, either party may terminate any Order Form for convenience at any time upon thirty (30) days’ prior written notice to the other party.  

 

8.3  Termination for Cause.  A party may terminate this Agreement or an Order Form for cause: (i) if the other party is in material breach under this Agreement and fails to cure such breach within thirty (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 sixty (60) days. This Agreement constitutes an executory contract in accordance with Section 365 of the U.S. Bankruptcy Code. If Company files or has filed against it by a third party any petition under the U.S. Bankruptcy Code, Company must either assume or reject this Agreement. Upon an assumption, Company shall comply with 11 U.S.C. § 365(b)(1); upon a rejection, all of Company’s rights hereunder will terminate. Upon any termination, Company’s right to access or use Company Data in the Service immediately ceases.

 

8.4  Surviving Provisions.  The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4.2, 4.3, 4.4, 4.5, 5, 6.2, 7, 8.3, 8.4, and 9.


9.  General Provisions.

 

9.1  Export Control.  Company and its Subscribers 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 Company accesses the Service, 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, and shall not cause Xactly to violate the same.

 

9.2  Relationship of the Parties.  The parties are independent contractors. This Agreement does not create a Companyship, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 

9.3  Notices. Except as specified in Section 3.1, all notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date it was delivered by courier, or (ii) if sent by certified mail return receipt requested, on the date received, in each case addressed to the addresses set forth above and, if to Xactly, to the attention of General Counsel, and, if to Company, to the attention of the signatory of this Agreement, or to such other address or individual as the parties may specify from time to time by written notice to the other party.


9.4  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.

 

9.5  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.

 

9.6  Assignment.  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 Order Forms and Statements of Work), 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.

 

9.7  Governing Law. 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.

 

9.8  Venue; Waiver of Jury  Trial. 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.  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.

 

9.9 Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Xactly's possession or reasonable control, and denial of service attacks (each a “Force Majeure Event”). The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch.  Either party may terminate this Agreement in the event the Force Majeure Event continues for more than forty-five (45) days.

 

9.10 Entire Agreement. This Agreement, including all exhibits and addenda thereto and all Order Forms, 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 Form, the terms of such exhibit, addendum, or Order Form 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.

 

9.11  Counterparts.  This Agreement and any Order Form executed hereunder may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.