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ThoughtSpot Cloud Evaluation Agreement

 

THIS THOUGHTSPOT CLOUD EVALUATION AGREEMENT, TOGETHER WITH ITS INCORPORATED TERMS AND CONDITIONS (“AGREEMENT”) FORMS A BINDING CONTRACT BETWEEN YOU INDIVIDUALLY AND THE BUSINESS ENTITY OR PUBLIC AGENCY ON BEHALF OF WHICH YOU ARE ACCEPTING THIS AGREEMENT (COLLECTIVELY, “COMPANY”) AND THOUGHTSPOT, INC. (“THOUGHTSPOT”). COMPANY MUST ACCEPT THIS AGREEMENT TO ACCESS OR USE THE THOUGHTSPOT CLOUD (DEFINED BELOW). IF COMPANY DOES NOT WISH TO ACCEPT THIS AGREEMENT, THEN DO NOT ACCESS OR SUBMIT A REQUEST TO ACCESS THE THOUGHTSPOT CLOUD.

COMPANY ACCEPTS THIS AGREEMENT BY: (1) REGISTERING TO ACCESS THE THOUGHTSPOT CLOUD; (2) INDICATING ACCEPTANCE OF THIS AGREEMENT BY CLICKING “ACCEPT,” “SUBMIT,” OR A SIMILAR BUTTON WHEN THIS AGREEMENT IS PRESENTED; OR (3) ACCESSING THE THOUGHTSPOT CLOUD. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF COMPANY REPRESENTS THAT HE OR SHE: (A) HAS THE AUTHORITY TO REPRESENT COMPANY; AND (B) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. THOUGHTSPOT ACCEPTS THIS AGREEMENT BY ISSUING AN E-MAIL ACCEPTANCE OF PARTICIPANT’S ACCESS REQUEST, TOGETHER WITH ACCESS CREDENTIALS FOR THE THOUGHTSPOT CLOUD. COMPANY AND THOUGHTSPOT ARE HEREIN EACH REFERRED TO AS A “PARTY.”

  1. Definitions.
    1. "Authorized User" means a uniquely identified individual who is authorized by Company to access and use the ThoughtSpot Cloud.
    2. "Beta Term" means the period of authorized access to and use of the ThoughtSpot Cloud, as set forth in the program enrollment acceptance email provided to Participant by ThoughtSpot and as expressly extended by email notice to Participant from ThoughtSpot.
    3. "Confidential Information" means the ThoughtSpot Cloud (including its user interfaces, features, and functionality), the fact that the parties have entered into this Agreement, information regarding either organization or any individual thereof, planning or commercial documents, the terms of this Agreement, any communications under this Agreement, including any feedback, or survey responses, and any information that, due to the nature of the information or circumstances of disclosure, the receiving party should reasonably understand to be the disclosing party’s confidential information. Confidential Information does not include information that is or becomes: (a) generally known to the public at the time of disclosure or becomes generally known through no wrongful act of receiving party; (b) rightfully in the receiving party’s possession, or otherwise rightfully known by the receiving party, at the time of disclosure by the disclosing party and not subject to a confidentiality obligation; (c) required to be disclosed by the receiving party to comply with a court order, law, or government regulations, but only if the receiving party promptly notifies disclosing party to enable the disclosing party to seek a protective order or other appropriate remedy, and takes commercially reasonable and lawful actions to avoid or minimize the extent of, and to obtain confidential treatment for, any such disclosure; or (d) independently developed by the receiving party without use of, reference to, or reliance on the disclosing party’s Confidential Information.
    4. "Data" means electronic data uploaded by or for Company or Company’s agents, employees, or contractors, and processed in the ThoughtSpot Cloud.
    5. "Documentation" means the then-current, product installation and operating instructions published for each version for use of the ThoughtSpot Cloud published by ThoughtSpot at https://docs.thoughtspot.com/ or its successor website.
    6. "Effective Date" means the date that ThoughtSpot sends to an acceptance of Company’s registration to access the ThoughtSpot Cloud to the Company email address provided in the enrollment form, or the initial date of access to the ThoughtSpot Cloud by Company or anyone from Company’s organization, whichever occurs first.
    7. “Evaluation Term” means the period of authorized access to and use of the ThoughtSpot Cloud, to be 30 days from the Effective Date unless ThoughtSpot offers a longer period in writing to Company. The Evaluation Term may be extended as expressly described in an email notice to Company from ThoughtSpot.
    8. "Intellectual Property Rights" or "IPR" means all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered.
    9. “ThoughtSpot Cloud” means the ThoughtSpot software-as-a-service offering made available to Company subject to this Agreement, including any tools, APIs, and extensions, enhancements, derivative works, and future updates and upgrades thereto.
  2. Evaluation Access. Subject to the terms and conditions of this Agreement, ThoughtSpot authorizes Company and Company’s Authorized Users to access and use the ThoughtSpot Cloud during the Evaluation Term, solely for evaluation and testing purposes in an internal non-production environment and in accordance with the Documentation.
  3. Authorized Users. Authorized Users will receive unique username and password credentials to access the ThoughtSpot Cloud. Credentials may not be shared between Authorized Users and Company must ensure that all Authorized Users keep user credentials strictly confidential. Each Authorized User’s access rights may be further specified in the Documentation. Company may permit individuals of its affiliates, contractors, and agents, to access the ThoughtSpot Cloud as Authorized Users in accordance with this Agreement, provided that Company will remain liable for the acts and omissions of its contractors and affiliates as if they were Company under this Agreement.
  4. Restrictions. Company will not (and has no license to): (a) use the ThoughtSpot Cloud or Documentation except as permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the ThoughtSpot Cloud or reconstruct any part of the ThoughtSpot Cloud, or attempt to derive or obtain any source code, structure, algorithms, processes, techniques, technologies, know-how, or ideas embodied by, underlying, or contained in the ThoughtSpot Cloud; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, host, manage for third parties, or otherwise provide a third party with access to the ThoughtSpot Cloud with the exception of Company’s affiliates, contractors, and agents, under Company’s control; (d) alter, modify, or create derivative works of the ThoughtSpot Cloud (including the underlying source code) in any way, including through customization, translation, or localization; (e) share the output of the ThoughtSpot Cloud or any testing or evaluation results with any third parties with the exception of Company’s own employees, directors, affiliates, contractors, or agents; (f) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the ThoughtSpot Cloud or Documentation; (g) use the ThoughtSpot Cloud to conduct competitive research, to develop a product that is competitive with any ThoughtSpot product offering, or otherwise use it if Company is a competitor to ThoughtSpot; (h) publicly disseminate performance information from any source related to the ThoughtSpot Cloud; (i) enable access to the ThoughtSpot Cloud for a greater number of Authorized Users than the sum quantity of subscriptions or credentials described in the enrollment acceptance email (or, if none was provided, in the Documentation); (j) reassign subscription access rights or credentials between Authorized Users so frequently as to enable a single subscription to be shared among multiple users; or (k) use it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation. Company will not cause, encourage, or permit any other person or entity under its control from taking any actions that Company is prohibited from taking under this Agreement.
  5. Support. Company acknowledges and agrees that ThoughtSpot will provide only limited technical support, software maintenance subscription services (including the provision of updates, upgrades, patches, bug fixes, or error corrections), or other support for the ThoughtSpot Cloud (“Support”) at ThoughtSpot’s sole discretion rather than as advertised on the ThoughtSpot website, and subject to the direction of ThoughtSpot for making support requests.
  6. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, THOUGHTSPOT (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS) AND THOUGHTSPOT AFFILIATES: (A) DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THOUGHTSPOT CLOUD (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THOUGHTSPOT KNOWS OR SHOULD HAVE KNOWN SUCH PURPOSE), PERFORMANCE, AND NON-INFRINGEMENT; (B) PROVIDE THE THOUGHTSPOT CLOUD “AS IS” AND “AS AVAILABLE”; AND (C) WITHOUT LIMITING THE FOREGOING CLAUSES (A) AND (B), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT THE THOUGHTSPOT CLOUD AND ANY USE THEREOF, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPATIBLE WITH ANY PARTICULAR ENVIRONMENT, OR FREE FROM DEFECTS, VIRUS, OR ERRORS (OR THAT ANY ERRORS WILL BE CORRECTED).
  7. Data. Company is solely responsible for the accuracy and content of all Data. Company represents and warrants to ThoughtSpot that: (a) Company has sufficient rights in the Data to authorize ThoughtSpot to process and display the Data as contemplated by this Agreement and the Documentation; and (b) Company’s use of the ThoughtSpot Cloud and the Data is at all times compliant with Company’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data.
    1. Protected Health Information. Company shall not upload to the ThoughtSpot Cloud or publish thereon any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended) (“HIPAA”), or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that ThoughtSpot is not a Business Associate as that term is defined in HIPAA. ThoughtSpot will have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein..
    2. Payment Card Data. Company will not upload to the ThoughtSpot Cloud or publish thereon any payment card information and Company acknowledges that the ThoughtSpot Cloud is not compliant with the Payment Card Industry Data Security Standards.
    3. Data Backup. The ThoughtSpot Cloud is not intended to act as a source of record and does not replace the need for Company to maintain regular data backups or redundant data archives. THOUGHTSPOT HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF DATA.
  8. Ownership. As between the parties, Company and its licensors will retain all right, title, and interest in and to all IPR in the Data. Company hereby grants to ThoughtSpot a royalty-free, fully-paid, non-exclusive, non-transferrable, worldwide, right and license to use the Data solely to provide and support the ThoughtSpot Cloud. As between the parties, ThoughtSpot, ThoughtSpot affiliates, and its and their suppliers and licensors own all right, title, and interest in and to all IPR in (and in all copies of) the ThoughtSpot Cloud and all extensions, enhancements, and derivative works thereto. Except for the limited licenses expressly granted in this Agreement, ThoughtSpot reserves all, and does not grant any other, rights (express, implied, by estoppel, through exhaustion, or otherwise). The ThoughtSpot Cloud is licensed and not sold. ThoughtSpot encourages Company to provide suggestions, proposals, ideas, recommendations, or other input regarding the ThoughtSpot Cloud (collectively, “Feedback”). To the extent that Company provides such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
  9. Confidential Information. For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three years after disclosure of the Confidential Information, the party receiving Confidential Information (the “receiving party”) from the other party (the “disclosing party”) will use it solely to perform the rights and obligations provided under this Agreement, and not for any other purpose without the disclosing party’s prior written consent. Subject to the exceptions in Section 1.3, the receiving party will not disclose to any third party any of the disclosing party’s Confidential Information. The receiving party will use at least the same degree of care in handling the disclosing party’s Confidential Information as it uses to protect its own Confidential Information, but no less than reasonable care. The receiving party will notify disclosing party immediately on becoming aware of any unauthorized use or release of the disclosing party’s Confidential Information. The receiving party may disclose the disclosing party’s Confidential Information to those of its affiliates, directors, advisors, employees, or contractors (collectively, “Representatives”) who have a need to know such Confidential Information to perform under or in relation to this Agreement, but only if such Representatives are subject to a binding, written agreement no less protective of disclosing party than the confidentiality terms of this Agreement. The receiving party will, at the disclosing party’s request or on termination of this Agreement, return all originals, copies, and summaries of Confidential Information and other tangible materials and devices provided to receiving party as Confidential Information, or at the disclosing party’s option, certify destruction of the same. Nothing under this Agreement or trade secret law may be construed to restrict or limit ThoughtSpot’s right to perform (or assign any personnel to perform) services for any other party or to use any information incidentally retained in the unaided memories of its personnel.
  10. Limitations of Liability. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTICIPANT NOR THOUGHTSPOT WILL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO: (A) LOSS OR INACCURACY OF, OR DAMAGE TO, DATA; (B) LOST REVENUE OR PROFITS; (C) LOSS OF BUSINESS; (D) DAMAGE TO GOODWILL; (E) WORK STOPPAGE; (F) IMPAIRMENT OF OTHER ASSETS; OR (G) INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED AND WITHOUT REGARD TO THE LEGAL THEORY UNDER WHICH THEY ARE SOUGHT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, FORESEEABLE OR NOT, AND WITHOUT REGARD TO WHETHER A PARTY HAS BEEN ADVISED SUCH DAMAGES ARE POSSIBLE. TO THE EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL, CUMULATIVE LIABILITY ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE IN AN AMOUNT NOT EXCEEDING US$ 500.00 FOR ALL CLAIMS IN THE AGGREGATE. This Section does not apply to: (i) infringement, misappropriation, or other violation by a party of the other party’s IPR; or (ii) breach by a party of its obligations under Section 9 (Confidential Information). These limitations and exclusions do, however, apply to and protect the parties’ respective suppliers and licensors.
  11. Term and Termination. This Agreement begins on the Effective Date and terminates upon expiration of the Evaluation Term unless earlier terminated as provided herein. Either party may terminate this Agreement: (a) immediately upon written notice from Company; (b) upon 5 days’ prior written notice from ThoughtSpot, or immediately upon written notice from ThoughtSpot if Company materially breaches this Agreement or if ThoughtSpot reasonably suspects that Company has breached this Agreement. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 4 (Restrictions), 6 (Disclaimer), 7 (Data), 8 (Ownership), 9 (Confidentiality), 10 (Limitations of Liability), 11 (Term and Termination), 12 (Export Compliance), and 13 (General).
  12. Export Compliance. Each party will comply with applicable local and foreign export control laws, including U.S. export control laws. The ThoughtSpot Cloud is subject to U.S. Export Administration Regulations (“EAR”) and Company will comply with EAR. Without limiting the foregoing, Company represents and warrants that: (a) it is not located in, and will not use any Software from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Company will not use the ThoughtSpot Cloud in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Company is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Company is responsible for complying with any applicable local law that may impact Company’s right to import, export, or use the ThoughtSpot Cloud.
  13. General. This Agreement and performance under it will be governed by the substantive laws of the State of California, disregarding its conflict of law rules. If federal jurisdiction exists over any suit, action, or proceeding arising out of or relating to this Agreement, the parties consent to exclusive jurisdiction and venue in San Francisco, California. If not, the parties consent to exclusive jurisdiction and venue in the California state courts sitting in Santa Clara County, California. In any such suit, action, or proceeding, the prevailing party may recover its reasonable attorneys’ fees, costs, and other expenses, including those on appeal or in a bankruptcy action. Notices sent under this Agreement must be sent in writing and in English to the address provided in the evaluation registration form or Order Form referencing this Agreement (for Company), or 910 Hermosa Ct., Sunnyvale, CA 94085, USA (for ThoughtSpot), or any update thereto provided in writing. This Agreement: (a) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous oral or written agreements, understandings, and communications regarding its subject matter; (b) may not be modified, except by mutual written agreement of the parties; (c) does not create any agency, partnership, joint development agreement, or business relationship between the parties; (d) is not made for the benefit of any third parties; (e) may be executed and delivered in counterparts (each of which will be deemed an original), including electronic signatures and email or facsimile delivery; and (f) may be imaged and stored electronically and introduced as evidence in any proceeding as if an original business record. A party’s failure to enforce any provision of this Agreement will not constitute a waiver. No presumption shall be drawn against either party based on its drafting of any provision hereof. If any provision of this Agreement is found to be unenforceable, such provision will be limited to the minimum extent necessary so that the remaining terms remain in full force and effect.