ThoughtSpot Beta Software Program Agreement

THIS THOUGHTSPOT BETA SOFTWARE PROGRAM AGREEMENT (“AGREEMENT”) FORMS A BINDING CONTRACT BETWEEN THE BUSINESS ENTITY OR PUBLIC AGENCY NAMED IN THE ENROLLMENT FORM FOR THE THOUGHTSPOT CLOUD BETA PROGRAM (“PARTICIPANT”) AND THOUGHTSPOT, INC. (“THOUGHTSPOT”). IF PARTICIPANT DOES NOT WISH TO ACCEPT THIS AGREEMENT, THEN DO NOT SUBMIT A REQUEST FOR ENROLLMENT OR ACCESS MATERIALS FROM THE THOUGHTSPOT BETA SOFTWARE PROGRAM.

PARTICIPANT ACCEPTS THIS AGREEMENT BY: (1) APPLYING FOR ENROLLMENT IN THE THOUGHTSPOT BETA SOFTWARE PROGRAM; (2) INDICATING ACCEPTANCE OF THESE TERMS BY CLICKING “ENROLL” OR A SIMILAR BUTTON; OR (3) ACCESSING ANY PROGRAM MATERIALS (INCLUDING EXERCISING OR PURPORTING TO EXERCISE ANY OF THE RIGHTS GRANTED TO PARTICIPANT UNDER THIS AGREEMENT). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF PARTICIPANT REPRESENTS THAT HE OR SHE: (A) HAS THE AUTHORITY TO REPRESENT PARTICIPANT; 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 ENROLLMENT IN THE THOUGHTSPOT BETA SOFTWARE PROGRAM.

1. Definitions.
   1. “Beta Software” means the software provided to Company for testing, including any data loading software, agents, controllers, tools, APIs, and related documentation, including any future update or upgrade thereto.
   2. “Beta Term” means from the Effective Date to 30 days thereafter.
   3. “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.
2. Beta License. Subject to the terms and conditions of this Agreement and until the expiration of this Agreement, ThoughtSpot grants to Company a temporary, limited, revocable, non-exclusive, non-sublicensable, non-transferable, worldwide license during the Beta Term to install, use, and execute one copy of the Beta Software for use solely with ThoughtSpot software, exclusively for evaluation and testing purposes in an internal non-production environment and with non-confidential, non-production data. To the extent that Company grants access to the Beta Software to any third party (including a Company affiliate), Company will be wholly responsible for compliance with this Agreement as if such third party were Company. Company acknowledges that the Beta Software is not an official product and may not be in fully functional, may contain errors, design flaws and other problems, and may be discontinued.
3. Restrictions. Company will not (and has no license to): (a) use or make multiple copies of the Beta Software except as expressly permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Beta Software or reconstruct any Beta Software, 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 Beta Software; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or provide a third party with access to the Beta Software, on a hosted basis, as a managed service provider, or otherwise; (d) alter, modify, or create derivative works of the Beta Software (including the underlying source code) in any way, including alteration or disconnection of any Beta Software call-home feature or through customization, translation, or localization; (e) share the output of the Beta Software or any testing or evaluation results with any third parties with the exception of Company’s employees, directors, affiliates, contractors, or agents; (f) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Beta Software; (g) use the Beta Software to conduct competitive research, to develop a product that is competitive with any ThoughtSpot product offering, or otherwise if Company is a competitor to ThoughtSpot; or (h) publicly disseminate any performance or security vulnerability test (including a penetration test), results, or analysis related to or derived from the Beta Software. 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.
4. 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 Beta Software (“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.
5. 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 BETA SOFTWARE (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 BETA SOFTWARE “AS IS” AND “AS AVAILABLE”; AND (C) WITHOUT LIMITING THE FOREGOING CLAUSES (A) AND (B), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT THE BETA SOFTWARE 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).
6. Ownership. 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 Beta Software, regardless of the form or media in or on which the original or other copies may subsequently exist. 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 Beta Software is licensed and not sold. ThoughtSpot encourages Company to provide suggestions, proposals, ideas, recommendations, or other input regarding the Beta Software (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.
7. Confidentiality. “Confidential Information” means the Beta Software (including its user interfaces, features, and functionality), any licensor information, planning or commercial documents, and any communications under this Agreement, including any feedback, or survey responses. Company will hold in confidence, and not disclose to any third party the Confidential Information or use the Confidential Information except solely to perform the rights and obligations provided under this Agreement, and not for any other purpose without ThoughtSpot’s prior written consent. Company will use at least the same degree of care in handling the Confidential Information as it uses to protect its own Confidential Information, but no less than reasonable care. Company will notify ThoughtSpot immediately on becoming aware of any unauthorized use or release of the Confidential Information. Company may disclose the 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. Company will, at ThoughtSpot’s request or on expiration of this Agreement, destroy all originals, copies, and summaries of Confidential Information.
8. Limitations of Liability. TO THE EXTENT PERMITTED BY LAW, NEITHER COMPANY 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 Company of ThoughtSpot’s IPR; or (ii) breach of Company’s obligations under Section 7 (Confidentiality). These limitations and exclusions do, however, apply to and protect the parties’ respective suppliers and licensors.
9. Term and Termination. This Agreement begins on the Effective Date and terminates upon expiration of the Beta 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. On termination of this Agreement for any reason: (i) all licenses granted by ThoughtSpot immediately terminate; (ii) Company will immediately discontinue use of all Beta Software; (iii) Company will destroy all copies of Beta Software in its possession, custody, or control; and (iv) if requested, Company will certify such destruction to ThoughtSpot in writing. Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 3 (Restrictions), 5 (DIsclaimer), 6 (Ownership), 7 (Confidentiality), 8 (Limitations of Liability), 9 (Term and Termination), 10 (Export Compliance), and 11 (General).
10. Export Compliance. Company will comply with all applicable export and import control laws and regulations in its use of the Beta Software including regulations of the United States Bureau of Industry and Security and other applicable agencies. Company will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of Beta Software to any country for which approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained. Without limiting the generality of the foregoing, Company agrees that it does not intend to nor will it, directly or indirectly, engage in any export or re-export: (a) to any prohibited destination under U.S. export restrictions, or to any national of any such country, wherever located; (b) to any entity or individual who Company knows or has reason to know is engaging in the design, development or production of nuclear, chemical or biological weapons, or missile technology; or (c) to any entity or individual who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government, including the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Bureau of Industry and Security.
11. 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 to the address for notice included in the signature block below or any update thereto provided in writing. This Agreement: (a) constitutes the entire agreement of the parties concerning this subject matter and supersedes all prior oral and written agreements, understandings, and communications regarding its subject matter; (b) supersedes any prior or contemporaneous written or oral agreements, understandings or representations; (c) may not be modified, except by mutual written agreement of the parties; (d) does not create any agency, partnership, joint development agreement, or business relationship between the parties; (e) is not made for the benefit of any third parties; (f) may be executed and delivered in counterparts (each of which will be deemed an original), including electronic signatures and email or facsimile delivery; and (g) 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.