Xactly Mobile Application End User License Agreement

IMPORTANT – READ CAREFULLY: This Xactly Mobile Application End User License Agreement (the “License”) 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 License 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 installing the Mobile Service, or by using or accessing the Mobile Service, you indicate your agreement to be bound by this License.  This License governs your use the Mobile Service, as well as any future Mobile Services made by you that reference this License.  This License includes any other policies and attachments referenced herein. In order to use the Mobile Service, you must be an authorized Subscriber as that term is used in the applicable Subscription and Services Agreement between Xactly and your Company (“Service Agreement”). If you are not an authorized Subscriber you may not use the Mobile Service. If you do not agree to the terms contained in this License, do not download, install, use, or access the Mobile Service.


1.  Definitions.

1.1                   "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.

1.2                   “Mobile Application Marketplace” means the third party marketplace which is authorized to market the Mobile Service, currently limited to Apple, Inc.’s App Store or authorized Android marketplaces.

1.3                   “Mobile Service” means the mobile application, online, web-based application provided by Xactly via a Mobile Application Marketplace, and/or http://www.xactlycorp.com or other designated websites or IP addresses as communicated to Company by Xactly. The Mobile Service explicitly excludes the Service. 

1.4                   “Service” means the online, web-based application associated with the Mobile Service as set forth in the Service Agreement and provided by Xactly via http://www.xactlycorp.com or other designated websites or IP addresses as communicated to Company by Xactly. The Service explicitly excludes the Mobile Service.

1.5                   “Subscriber” means an individual employee of Company who is authorized by Company to use or access the Mobile Service and who has been supplied an identification and password by Company or at Company’s direction solely as set forth in this License or the Services Agreement. Subscriber in all cases excludes competitors of Xactly. 

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

 

2.  License and Provision of Mobile Service.  Xactly shall make the Mobile Service available to Company pursuant to this License during the Subscription Term. Subject to the terms of this License and the Service Agreement Xactly grants you a nonexclusive, royalty-free, nontransferable license, solely during the Subscription Term, to access and use the Mobile Service a mobile device that you own or control, subject to the rules and policies of the applicable Mobile Application Marketplace including but not limited to usage rules, policies and terms of service, solely for the purposes set forth herein or otherwise in the Service Agreement. The Mobile Service may not be available for all mobile devices.

You agree that this Agreement is an agreement between you and Xactly only and not with any third party who hosts, controls, or maintains a Mobile Application Marketplace or any of their affiliates (collectively “Mobile Application Marketplace Provider”) and that the Mobile Application Marketplace Provider is not responsible for the Mobile Service or the content therein.

The terms of this License will govern any updates or upgrades to the Mobile Service provided by Xactly which supplement or replace the Mobile Service, unless such updates or upgrades are accompanied by a separate license or agreement in which case the separate license or agreement will control.

You agree and acknowledge that the Mobile Application Marketplace Provider may at any time, and without notice to you, restrict, interrupt or prevent use of the Mobile Service, or delete the Mobile Service from your mobile device or require Xactly to do the same without entitling you to any refund, credit, or other compensation from Xactly, Mobile Application Marketplace Provider, or any other third party including your network connectivity provider.  

For the avoidance of doubt, the license contained herein is limited to the Mobile Service and does not include a license to the Service. The Mobile Service is not a part of the Service and is not covered by associated SLAs or support terms except as expressly referenced herein.

Except for the limited rights expressly granted to you hereunder, Xactly reserves all rights, title and interest in and to the Mobile Service, the underlying software, including all related Intellectual Property Rights inherent therein.  No rights are granted to your or your Company hereunder other than as expressly set forth in this License. For clarity, no right to distribute, sublicense, publicly display, or create derivative works is granted hereunder in or to the Mobile Service. 

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 Mobile Service hereunder and the Xactly Technology, and you hereby assign to Xactly any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Mobile 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 Mobile 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 Mobile 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 Mobile Service, including any rights to the Intellectual Property Rights in connection therewith. In addition, the names, logos and product names associated with the Mobile Application Marketplace may be trademarks of the Mobile Application Marketplace Provider and no right or license is granted to use them pursuant to this License.

3.  License Restrictions. You are responsible for all activity that occurs in your Mobile Service account and for your compliance with this License. You shall: (i) prevent unauthorized access to, or use of, the Mobile Service, and notify Xactly promptly of any such unauthorized access or use; and (iii) comply with all applicable laws in using the Mobile Service. You agree that any information submitted to the Mobile Service by you will be subject to, and governed by the terms and conditions of the Service Agreement. In the event of a conflict between this License and the Service Agreement with respect to your use of the Mobile Service this License will prevail.  

In addition, you shall not (i)  modify, copy, display, republish or create derivative works based on the Mobile Service or the underlying software; (ii)  frame, scrape, link to or mirror any content forming part of the Mobile Service; (iii) reverse engineer the Mobile Service or the underlying software; (iv) access the Mobile Service in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Mobile Service; (v) license, sublicense, sell, resell, rent, lease, transfer, assign (distribute, time share or otherwise commercially exploit or make the Mobile Service available to any third party or over a network where it could be used by multiple devices at the same time; (vi) use the Mobile Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vii) use the Mobile 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; (viii) upload to the Mobile Service or use the Mobile Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (ix) interfere with or disrupt the integrity or performance of the Mobile Service or the data contained therein; or (x) attempt to gain unauthorized access to the Mobile Service or its related systems or networks.

4.  Warranties and Disclaimers.

4.1  Warranties.  You represent and warrant that: (i) you are not located in any country subject to U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed  on any U.S. Government list of prohibited or restricted parties; and (iii) you will not export or re-export the Mobile Application or the underlying software or technology to any prohibited country, person, end user, or entity specified by the U.S. Government.

4.2  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, YOU ACKNOWLEDGE AND AGREE THAT (A) THE MOBILE SERVICE DOES NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE OR SERVICES IN ANY MANNER; (B) THE MOBILE SERVICE DOES NOT ENSURE YOUR COMPLIANCE WITH ALL APPLICABLE LABOR OR EMPLOYMENT LAWS; AND (C) YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS. THE MOBILE SERVICE IS PROVIDED “AS-IS.”

5.  Indemnity and Limitation of Liability 

5.1  Indemnification.  You shall defend Xactly and its subsidiaries, officers, directors, shareholders, agents and employees, at your expense, against any claims or allegations made or brought against Xactly arising out of (i) your conduct; (ii) your use of the Mobile Service; (iii) your breach of the terms and conditions of this License; or (iv) your violation of applicable law. Further, you 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.

5.2. Limitation of Liability.   IN NO EVENT SHALL XACTLY OR THE MOBILE APPLICATION MARKETPLACE PROVIDER OR THEIR RESPECTIVE LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100. IN NO EVENT SHALL XACTLY OR THE MOBILE APPLICATION MARKETPLACE PROVIDERS OR THEIR RESPECTIVE LICENSOR’S 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.

YOU ACKNOWLEDGE THAT THE MOBILE APPLICATION MARKETPLACE PROVIDER HAS NO OBLIGATION TO ADDRESS ANY CLAIMS MADE BY YOU OR ANY THIRD PARTY RELATING TO THE MOBILE SERVICE, OR YOUR POSSESSION AND/OR USE OF THE MOBILE SERVICE INCUDING BUT NOT LIMITED TO (I) PRODUCT LIABILITY CLAIMS; (II) INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS; (III) ANY CLAIM THAT THE MOBILE SERVICE FAILS TO CONFORM TO ANY APPLICABLE LEGAL OR REGULATORY REQUIREMENT; AND (IV) CLAIMS ARISING UNDER CONSUMER PROTECTION OR SIMILAR LEGISLATION.

IN ADDITION YOU ACKNOWLEDGE THAT XACTLY NOT MOBILE APPLICATION MARKETPLACE PROVIDER IS RESPONSIBLE FOR ADDRESSING ANY THIRD PARTY CLAIM THAT THE MOBILE SERVICE OR YOUR POSSESSION OR USE OF THE MOBILE SERVICE, INFRINGES THAT THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS AND THAT MOBILE APPLICATION MARKETPLACE PROVIDER HAS NO RESPONSIBILITY FOR THE INVESTIGATION, DEFENSE, SETTLEMENT, OR DISCHARGE OF ANY SUCH INTELLECTUAL PROPERTY INFRINGEMENT CLAIM.

6.  Term and Termination. The License is effective until terminated. Your rights under this License will terminate automatically without notice to you if you fail to comply with any provision of this License. Xactly may terminate this License or your ability to access the Mobile Service at any time in its sole discretion and without liability. Your rights under this License will also co-terminate with the termination of the Service Agreement. Upon the termination of this License, you shall cease all use of the Mobile Service and delete or otherwise destroy all copies, full or partial of the Mobile Service. Upon such termination, all provisions of this License except for the license to use the Mobile Service will survive termination and continue in effect.

7.  Support. Xactly has no obligation to provide installation, maintenance or support services to you for the Mobile Service, unless otherwise set forth in the Service Agreement. In addition, Mobile Application Marketplace Provider has no obligation to furnish any installation, maintenance, or support services with respect to the Mobile Service.

8. Privacy. You consent to Xactly’s Privacy Policy located at https://trust.xactlycorp.com/privacy-policy/ which is incorporated into this License by reference.

9. General. No failure or delay by Xactly in exercising any right under this License 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 Xactly at law or in equity. If any provision of this License 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.

Company may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise. Any attempt by Company to assign its rights or obligations under this License 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 License 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.  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.

This License 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. The parties acknowledge and agree that Mobile Application Marketplace Provider, and its subsidiaries, are third party beneficiaries of this License, and that, upon your acceptance of the terms and conditions of this License as described herein, Mobile Application Marketplace Provider will have the right (and will be deemed to have accepted the right) to enforce this License against you as a third party beneficiary hereof.

Contact Information: Questions, comments, complaints or claims relating to the Mobile Service or this License should be addressed to the correct contact found on Xactly’s website at: www.xactlycorp.com

 

Xactly Corporation

505 S. Market Street

San Jose, CA 95113

© Xactly Corporation, 2020