ThoughtSpot Channel Sales Program Agreement

THIS THOUGHTSPOT CHANNEL SALES PROGRAM AGREEMENT (TOGETHER WITH ITS APPENDICES AND INCORPORATED TERMS, “AGREEMENT”) FORMS A BINDING CONTRACT BETWEEN THE ENTITY IDENTIFIED IN THE THOUGHTSPOT CHANNEL SALES PROGRAM APPLICATION OR, IF PRESENT, IN THE ELECTRONIC SIGNATURE INFORMATION AT THE END OF THIS DOCUMENT (“PARTICIPANT”) AND THOUGHTSPOT, INC. (“THOUGHTSPOT”). IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, THEN DO NOT APPLY FOR ENROLLMENT, REGISTER WITH, ACCESS MATERIALS OF, OR OTHERWISE PARTICIPATE IN THE THOUGHTSPOT CHANNEL SALES PROGRAM.

PARTICIPANT ACCEPTS THIS AGREEMENT BY: (1) APPLYING FOR ENROLLMENT IN THE THOUGHTSPOT CHANNEL SALES PROGRAM; (2) INDICATING ACCEPTANCE OF THESE TERMS; OR (3) ACCESSING ANY PROGRAM BENEFIT (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, IF APPLICABLE, COMMIT FUNDS ON ITS BEHALF; AND (B) HAS READ AND UNDERSTANDS ALL THE PROVISIONS OF THIS AGREEMENT. THOUGHTSPOT ACCEPTS THIS AGREEMENT BY ISSUING AN APPOINTMENT CONFIRMATION.

Participant and ThoughtSpot each shall be referred to as a “party” and collectively as the “parties.”

1. Definitions.
   1. “Affiliate” means, with respect to a party, any legal entity (such as a corporation, partnership, or other legal entity) that controls, is controlled by, or under common control with such party. For purposes of this definition, “control” means the legal power to direct or cause direction of the general management of the corporation, partnership, or other legal entity. Affiliates of Participant are “Participant Affiliates” and Affiliates of ThoughtSpot are “ThoughtSpot Affiliates.”
   2. “Appointment Confirmation” means an electronic communication issued by ThoughtSpot confirming Participant’s appointment to the Program.
   3. “Collateral” means ThoughtSpot sales, marketing and advertising materials made available to or provided to Participant under this Agreement, in printed or electronic format, pertaining to a Program, as may be further described in the Guide.
   4. “Confidential Information” means: (a) the Software (which is ThoughtSpot’s Confidential Information); (b) any information of a party or its Affiliates that is disclosed in writing or orally and designated confidential at time of disclosure (and, for oral disclosures, summarized in writing within 30 days of initial disclosure and delivered in written summary form to receiving party), or that, due to the nature of the information or circumstances of disclosure, receiving party should reasonably understand to be confidential information; (c) information of a confidential or proprietary nature obtained from ThoughtSpot related to any Customer, regardless of whether it is marked as such, including information supplied by a Customer during its use of the Software or to receive Professional Services; and (d) the terms of this Agreement, any Order Form, and any amendment or attachment to any of these (which will be deemed Confidential Information of both parties).
   5. “Customer” is a customer of ThoughtSpot with current access to a purchased production license to the Software.
   6. “Documentation” means the then-current, published installation and operating instructions, user manuals, and help files made available by ThoughtSpot to Participant intended for use in connection with the Software.
   7. “Effective Date” means, with respect to this Agreement, the date that the Appointment Confirmation is sent to Participant.
   8. “Guide” means the most current ThoughtSpot Channel Sales Program Guide together with its attached and referenced documents, as updated from time to time and provided by ThoughtSpot to Participant.
   9. “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.
   10. “Law” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, and requirements of any government authority (federal, state, local, or international) having jurisdiction.
   11. “License Term” means the period of authorized use of Software as set forth in an Order Form.
   12. “Opportunity Registration Terms” means the Opportunity Registration Terms and Conditions, as updated from time to time and provided by ThoughtSpot.
   13. “Order Form” means an ordering document signed by the authorized representatives of Participant and ThoughtSpot that specifies: (a) Software licenses purchased, their prices, and their License Term; or (b) the scope and price of Professional Services purchased.
   14. “Partner Code of Conduct” means the most current policy documentation addressing business practices and conduct requirements applicable to Participant’s activities under this Agreement, as updated from time to time and provided by ThoughtSpot.
   15. “Partner Portal” means standard web portal(s) for communication with Program participants, as well as deal registration, marketing resources, and other enablement information, for which login credentials are provided by ThoughtSpot to Participant under this Agreement, including any related or successor sites.
   16. “Pre-Release Software” means Software provided by ThoughtSpot to Participant under this Agreement that has not yet been made generally available by ThoughtSpot.
   17. “Professional Services” means consulting, implementation, configuration, integration, or training services provided by ThoughtSpot to a Customer.
   18. “Program” means the ThoughtSpot Channel Sales Program described herein and in the Guide.
   19. “Program Software” means a generally available version of the Software deployed to Participant for non-production purposes pursuant to this Agreement.
   20. “Program Terms” means the terms and conditions applicable to particular parts of the Program, as specified in appendices to this Agreement or as otherwise agreed in a separate document signed by both parties. Each of the Program Terms is a part of this Agreement but is not effective unless and until Participant receives an Appointment Confirmation applicable to the Program identified in such Program Terms.
   21. “Software” means any computer code provided by ThoughtSpot to Participant or to a Customer and any derivative work, configuration, modification, or extensions thereof, however made.
   22. “Territory” means the geographic location(s) or other markets displayed in Participant’s partner account profile page in the Partner Portal, in which Participant may conduct the activities specified in certain Program Terms.
   23. “Trademarks” means a party’s logos, service marks, trademarks and certification marks. “ThoughtSpot Trademarks” means Trademarks owned by ThoughtSpot that ThoughtSpot expressly authorizes Participant to use in connection with this Agreement. “Participant Trademarks” means Trademarks owned by Participant that Participant expressly authorizes ThoughtSpot to use in connection with this Agreement.
2. Program Overview.
   1. Appointment. Participant will accept the terms of this Agreement upon submitting its application for participation in the Program; however, Participant will be deemed enrolled in the Program and any sub-type thereof, subject to the terms of this Agreement, and this Agreement will be binding on the parties, solely upon Participant’s receipt of an Appointment Confirmation accepting Participant into the Program and any applicable sub-types. ThoughtSpot may decline to admit Participant into the Program or any sub-type for any reason or no reason, including missing or inaccurate application information or lack of apparent authority of the individual purporting to accept this Agreement on behalf of Participant. At the time of acceptance of this Agreement or any time during its term, Participant may request appointment to one or more additional sub-types of the Channel Sales Program, as designated by the Program Terms to this Agreement. Appointment to the Program or any sub-type is nonexclusive.
   2. Benefits. Upon appointment to the Program, Participant may access certain Software and Collateral, including one or more Program Software licenses, all subject to and in accordance with the licenses and use authorizations granted under Section 5 (Licenses to Participant) below and the other terms of this Agreement. Referral, resale, and subcontracting rights are subject to (and the parties shall comply with) the applicable Program Terms, which delineate corresponding benefits, requirements and other terms and conditions
   3. Program Changes. ThoughtSpot may, from time to time in its sole discretion upon 60 days’ notice to Participant, amend Program Terms or a Guide on a going-forward and non-discriminatory basis. If Participant does not agree to such amendments, Participant’s sole recourse will be to terminate this Agreement in accordance with Section 3.2 (Termination for Convenience).
3. Term and Termination.
   1. Term. The term of this Agreement commences on the Effective Date and thereafter automatically renew for successive one (1) year renewal periods unless either party gives notice to the other of its intention not to renew at least 60 days before the expiration of the then-current term.
   2. Termination for Convenience. Participant may, within 60 days after receiving notice of amendment to the Program Terms pursuant to Section 2.5 or Partner Code of Conduct, either terminate the applicable Program Terms or this Agreement immediately upon notice to ThoughtSpot.
   3. Termination for Cause. Either party may immediately terminate this Agreement or any Program Terms upon written notice to the other party if the other party materially breaches its obligations under this Agreement, the applicable Program Terms, Guide, Opportunity Registration Terms, or the Partner Code of Conduct and fails to cure such breach within 30 days following receipt of notice from the non-breaching party. Either party may terminate this Agreement and all Program Terms hereunder immediately in the event the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency or any assignment for the benefit of creditors. Either party may immediately terminate this Agreement upon notice if the other party breaches the provisions of Section 11 (Proper Conduct).
   4. No Reliance. The parties agree that no expectation of future income or reliance is created by this Agreement and the rights of termination or expiration hereunder are absolute. A party who permits the Agreement to expire, or who exercises its rights hereunder to terminate this Agreement, will have no liability whatsoever (including indemnification obligations) for any compensation, reimbursement, damage, loss or expense of any kind, whether consequential, indirect or direct, suffered or incurred by the other party arising from or incident to the termination or expiration of this Agreement including loss of goodwill, prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or other commitments, whether or not such party is aware of any such damage, loss or expense. Participant waives any right it may have to receive any compensation or reparations on termination of this Agreement or any Program Terms by operation of law or otherwise, other than as expressly provided in this Agreement. This Section does not affect liabilities arising through breach of other obligations provided herein.
   5. Effect of Termination of Program Terms. Unless otherwise specified in the applicable Program Terms, upon the termination of any Program Terms: (a) Participant’s appointment to the applicable Program automatically terminates; (b) all licenses and other rights granted to Participant under the Program Terms will immediately terminate and Participant shall cease use of and access to Program Software and other benefits provided under the applicable Program; (c) all Order Forms signed and provided by ThoughtSpot under the Program Terms that, at the time of such expiration or termination, remain unsigned by Participant shall be null and void; and (d) all Confidential Information provided under the Program Terms must be returned or destroyed in accordance with Section 8.1 (Use of Confidential Information) subject to any continuing rights or licenses hereunder.
   6. Effect of Termination of Agreement. Upon expiration or termination of this Agreement: (a) all Program Terms hereunder will terminate subject to Section 3.5 (Effect of Termination of Program Terms); (b) all licenses and other rights granted to Participant hereunder will immediately terminate except as provided below; (c) each party shall cease use of the other party’s Trademarks and Collateral; and (d) all Confidential Information provided under the Agreement will be returned or destroyed in accordance with Section 8.1 (Use of Confidential Information). Notwithstanding the foregoing, no liability of either party arising before expiration or termination of this Agreement, including liability for payments due, will be affected. Sections 1 (Definitions), 3.4 (Absolute Rights of Termination), 4.4 (Invoices and Payment), 4.5 (Taxes), 5.8 (Certain Limitations), 6 (Trademarks) (but excluding Sections 6.2 and 6.3), 7 (Intellectual Property), 8 (Confidentiality), 9 (Third-Party Claims) (but only for a period of two years), 10 (Limitations of Liability), and 12 (General), and any sections of the ThoughtSpot Evaluation License Agreement applicable to Participant’s use of Program Software that survive termination of that agreement, will survive expiration or termination of this Agreement for any reason.
4. Orders.
   1. Prices Charged to Participant. Benefits available to Participant under the Program will be listed in the Guide, which will specify the fee, if any, for the benefit. Unless otherwise provided in the Guide, a specified discount will be construed as a discount relative to the prices on ThoughtSpot’s standard price list, as updated from time to time. Any discounts cited in a Guide, the Opportunity Registration Terms or related partner documentation are in lieu of, and may not be combined with, any other discounts offered by ThoughtSpot, contractually or through special promotions.
   2. Order Forms. To the extent permitted under the applicable Program Terms, Participant may initiate a purchase of Software or Professional Services by entering into an Order Form with ThoughtSpot. ThoughtSpot may accept or reject any Order Form for any reason. Upon execution by the parties, each Order Form is non-cancellable, non-refundable and not contingent upon resale or acceptance by a Customer. Prices stated in each Order Form are final. All Order Forms are governed exclusively by the terms and conditions of this Agreement except for Order Forms that expressly reference a Master Ordering Agreement, Master Customer Agreement, or other agreement signed by the parties that governs Participant’s own production use of the Software or Professional Services.
   3. Price Updates. ThoughtSpot may from time to time update its price lists and discount schedules. Changes to prices or discounts do not apply to, amend or modify any Order Form signed by the parties, regardless of whether Participant had notice of the changes when ThoughtSpot provided the Order Form for signature. It is Participant’s responsibility to confirm before signing an Order Form that the Order Form reflects the current prices and discounts to which Participant may be entitled, and Participant should request from ThoughtSpot a revised Order Form if necessary. Neither party is obligated to provide any refund, credit or revised pricing for an Order Form that contains prices or discounts different from those to which Participant is eligible at the time of issue or signature of the Order Form.
   4. Invoices and Payment. ThoughtSpot will issue the initial invoice to Participant corresponding with each Order Form upon the later of: (a) when ThoughtSpot notifies Participant that the Software is available for download; or (b) such Software is actually available for download. Alternatively, if an Order Form is for the purchase of Software and hardware, invoicing terms may differ and are provided in the Order Form. Each License Term is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire License Term. Unless otherwise indicated in an Order Form, fees for Professional Services are invoiced on a time and materials basis, monthly in arrears. Participant will pay each invoice in full, within 30 days after the invoice date. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum, whichever is lower. ThoughtSpot may suspend the delivery of Professional Services while any payment is delinquent. Participant will make payments free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by ThoughtSpot. Participant may not reduce any amount payable to ThoughtSpot under this Agreement due to any counterclaim, set-off, adjustment, or other claim Participant might have against ThoughtSpot, any other party, or otherwise. All terms of this Section 4 apply except as may be expressly stated otherwise in the applicable Order Form, or elsewhere in this Agreement.
   5. Taxes. All payments, fees, and other charges payable by Participant to ThoughtSpot under this Agreement are exclusive of all federal, state, local, and foreign taxes, levies, tariffs, duties, value-added taxes, export and import fees, withholding, and all other taxes or government assessments (collectively, “Taxes”). Participant will pay all Taxes arising out of the transactions contemplated by this Agreement (except Taxes based on ThoughtSpot’s net income) or will provide ThoughtSpot with a tax exemption certificate acceptable to the applicable taxing authorities. Amounts paid by Participant to ThoughtSpot must be increased to offset any non-refundable withholding tax imposed by a foreign government on amounts payable under this Agreement.
5. Licenses to Participant.
   1. Program Software License. Subject to the terms and conditions of this Agreement, upon Participant’s acceptance into the Program ThoughtSpot grants to Participant a limited, revocable, non-exclusive, non-sublicensable, non-transferable, worldwide license to use and execute the Program Software only to the extent expressly specified in the Guide (including with regard to number of copies of the Program Software and permitted memory cache), solely during the term of this Agreement in a non-production environment: (a) on a hardware device authorized by ThoughtSpot in the Documentation; and (b) for Participant’s demonstration to third-party customer prospects (provided that no credentials or administrative rights are provided for access by a third party), internal testing, and internal training purposes. In addition to the foregoing, the terms and conditions of Participant’s license will be as described in the ThoughtSpot Evaluation License Agreement available at https://www.thoughtspot.com/legal/ at the time the Software is downloaded (“Evaluation Agreement”). To the extent that Participant grants access to the Program Software to any third party (including any Participant Affiliate), Participant will be wholly responsible for compliance with this Agreement as if such third party were Participant.
   2. Pre-Release Software. At Participant’s voluntary request, and subject to availability and ThoughtSpot’s approval, subject to the terms of this Agreement ThoughtSpot may provide Participant with limited access to Pre-Release Software. Pre-Release Software is Program Software except that it must be maintained by Participant as strictly confidential and may not be demonstrated to any third party. If ThoughtSpot provides Participant with access to Pre-Release Software, then ThoughtSpot grants to Participant a limited, non-exclusive, right and license to: (a) access and use the Pre-Release Software (if any) that is provided by ThoughtSpot as software-as-a-service, solely to internally evaluate the Pre-Release Software in a non-production environment and with non-confidential, non-production data; and (b) install and execute Pre-Release Software made available to Participant as on premise software, solely on hardware operated by or for Participant for internal evaluation. Participant acknowledges and agrees that the Pre-Release Software including its features and functionality: (i) is not an official product and has not been commercially released; (ii) may not be in final form or be fully functional; (iii) may contain errors, design flaws or other problems; (iv) may generate or produce inaccurate information or unexpected or incorrect results; (v) may cause loss of data or communications, project delays or other unpredictable damage or loss; (vi) may never be released as a commercial version; (vii) may include or be provided with software that is licensed under open source or third-party license agreements; and (viii) may be discontinued by ThoughtSpot in whole or in part, at any time and without any obligation or liability to Participant. The right and license to Pre-Release Software will expire and it will be inaccessible to Participant at a date specified by ThoughtSpot to Participant, or if no date is specified, then the earlier of 30 days following the date of general release of Pre-Release Software, or 60 days from the date the Pre-Release Software was provided to Participant. This Section 5.2 will apply to Pre-Release Software notwithstanding any contrary provision in this Agreement. ThoughtSpot may terminate this license at any time upon written notice to Participant, in ThoughtSpot’s sole discretion, whereupon Participant shall immediately cease use of such Pre-Release Software. In addition to the provisions of Section 8 (Confidentiality), Participant shall not: (1) demonstrate any Pre-Release Software, its contents or its related documentation to third parties notwithstanding any provision herein to the contrary; (2) download any portion of a Pre-Release Software that is made available to Participant as software-as-a-service; (3) take screen captures or otherwise record any of a Pre-Release Software’s user interfaces, duplicate interfaces, features or functionality; or (4) issue any press release or public announcement referencing or disclosing any information pertaining to a Pre-Release Software.
   3. Marketing Collateral. Subject to the terms of this Agreement, upon Participant’s acceptance into the Program ThoughtSpot grants to Participant a limited, royalty-free, revocable, non-transferable, non-sublicensable, non-exclusive, worldwide license during the term of this Agreement to reproduce, publicly display, publicly perform, distribute and transmit (all without modification) Collateral designated for use with the Program, solely for the purposes of marketing and advertising ThoughtSpot products and services and Participant’s appointment to the Program, and as otherwise permitted by the Guide.
6. Trademarks.
   1. Trademark Ownership. ThoughtSpot acknowledges that Participant owns all Participant Trademarks and any goodwill derived from the use of Participant Trademarks by ThoughtSpot under this Agreement inures solely to the benefit of Participant. Participant acknowledges that ThoughtSpot owns all ThoughtSpot Trademarks and any goodwill derived from the use of the ThoughtSpot Trademarks by Participant under this Agreement inures solely to the benefit of ThoughtSpot.
   2. Trademark License to Participant. ThoughtSpot may from time to time publish trademark usage guidelines (“Trademark Guidelines”) for Program participants. The Trademark Guidelines and the Guide may designate certain ThoughtSpot Trademarks for use by Participants along with guidelines for using those marks. Subject to Participant’s compliance with this Agreement, including the restrictions set forth in this Section 6, ThoughtSpot grants to Participant a limited, personal, revocable, non-sublicensable, non-transferable (except as provided in Section 12.2 (Assignment)), non-exclusive license in the Territory to use ThoughtSpot Trademarks solely to promote its participation in the Program. Participant’s use of ThoughtSpot Trademarks must conform to the Trademark Guidelines and any other applicable requirements set forth in this Agreement or the applicable Guide. ThoughtSpot may terminate the foregoing license for any reason upon reasonable written notice provided to Participant.
   3. Trademark License to ThoughtSpot. Participant grants to ThoughtSpot a limited, personal, revocable, non-sublicensable, non-transferable (except as provided in Section 12.2 (Assignment)), non-exclusive, royalty-free, worldwide license to use Participant Trademarks subject to Participant’s trademark and logo usage guidelines, if any, provided by Participant to ThoughtSpot, to promote and advertise Participant’s participation in a Program to which Participant is appointed. Participant may terminate the foregoing license for any reason upon reasonable written notice provided to ThoughtSpot.
   4. Cooperation. Each party licensed hereunder to use the other party’s Trademarks must: (a) cooperate with the licensor in facilitating monitoring and control of the licensee’s use of the licensed Trademark, including with respect to the nature and quality of the materials in which the Trademark is used; (b) upon request, provide the licensor with specimens of the licensed use of the Trademark; and (c) comply with any instructions by the licensor in relation to such use, including, if so requested, submitting any proposed use of the Trademark to the licensor for review and approval prior to public use or dissemination of materials using the Trademark. Each party hereby assigns to the other all right, title and interest in the other party’s Trademarks that may accrue to such party by operation of law, together with all goodwill attaching thereto that may inure to such party in connection with this Agreement or from its use of the other party’s Trademarks.
   5. Trademark Use Restrictions. Except as otherwise set forth in this Agreement, each party is expressly prohibited from any use of the other party’s Trademarks. Neither party shall use the other party’s Trademarks in any way that is likely to cause confusion, disparage the other party or its products or services, injure its reputation as a company providing high quality products and services or otherwise diminish or damage its goodwill in its Trademarks. Participant may not use the ThoughtSpot Trademarks in any manner that would indicate, or could be interpreted as, endorsement or sponsorship by ThoughtSpot of any product or service offered by Participant or any third party. Neither party shall incorporate or combine the other party’s licensed Trademarks into its own trademarks, service marks or certification marks, or mutilate or otherwise modify the other party’s licensed Trademarks.
   6. No Contest. Participant shall at no time contest or aid in contesting the validity or ownership of the ThoughtSpot Trademarks or any other marks owned by ThoughtSpot or take any action in derogation of ThoughtSpot’s rights therein. Participant shall not adopt or register in any jurisdiction, whether as a corporate name, domain name, trademark, service mark or indication of origin, any of the ThoughtSpot Trademarks or other marks owned by ThoughtSpot, or any word or mark confusingly similar thereto.
   7. Publicity. Participant expressly agrees that ThoughtSpot may reference Participant as a member of the Program and feature Participant on its website and related Program promotional materials. Subject to the foregoing, neither party will issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement or referencing the other party without the other party’s prior written approval.
7. Intellectual Property.
   1. 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 Software and Documentation, 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 Software is licensed and not sold.
   2. Feedback. ThoughtSpot encourages its partners to provide suggestions, proposals, ideas, recommendations, or other input regarding the Software (collectively, “Feedback”). To the extent that Participant provides such voluntary Feedback to ThoughtSpot, ThoughtSpot may use it for any purpose without obligation of any kind.
8. Confidentiality.
   1. Use of Confidential Information. For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three (3) 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 Section 8.3 (Exceptions), the receiving party will hold in confidence, and 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 except with regard to source code (if any is received) and Pre-Release Software, which must be kept in strict confidence. 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 same (although nothing in this sentence may be construed to require ThoughtSpot to purge archived backup media). 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) Professional Services for any other party or to use any information incidentally retained in the unaided memories of its personnel providing Professional Services.
   2. Customer Information. Participant agrees to hold in confidence and treat as Confidential Information of ThoughtSpot any information of a confidential or proprietary nature obtained from ThoughtSpot related to a Customer, regardless of whether it is marked as such.
   3. Exceptions. The receiving party’s obligations under this Section 8 will not apply, and the receiving party will have no further obligations, with respect to any of the disclosing party’s Confidential Information that is: (a) generally known to the public at 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 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 the Law, 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.
9. Third-Party Claims.
   1. ThoughtSpot Obligation. As used in this Section 9, “Participant” and “ThoughtSpot,” when used in the context of a party entitled to defense, shall include that party’s shareholders, directors, officers, employees and subcontractors. “Claim” means any suit, claim, action or demand made by an unaffiliated third party. Subject to the limitations in this Section 9, ThoughtSpot shall: (a) defend Participant against any Claim (including by paying litigation costs and reasonable attorneys’ fees) solely to the extent alleging: (i) that Participant’s use of Program Software pursuant to and in accordance with the license grants of Section 5.1 (Program Software License) directly infringes any valid patent, copyright or trademark of a third party; (ii) unpaid employee wages, compensation, awards, group insurance or other employment benefits by ThoughtSpot to its employees, agents and contractors, any challenge of ThoughtSpot’s right to dismiss its personnel, and any allegation that any employee, agent and contractor of ThoughtSpot is entitled to participate in or receive benefits under any Participant employee benefit plan, program or policy, or is in any way an employee of Participant; or (iii) breach by ThoughtSpot of its obligations under Section 11 (Proper Conduct); and (b) pay any settlement or any adverse final judgment to the extent arising from the Claim.
   2. Participant Obligation. Subject to the limitations in this Section 9, Participant shall: (a) defend ThoughtSpot against any Claim solely to the extent alleging: (i) Participant’s implementation or other professional services, or any software provided by Participant to a Customer for use with the Software, directly infringes any valid patent, copyright or trademark of a third party; (ii) breach by Participant of representations, warranties, obligations, or other terms created between Participant and a Customer that are inconsistent with Participant’s obligations under this Agreement; (iii) breach of any representation or warranty made by Participant to a Customer; (iii) negligence of Participant that results in bodily injury, death or damage to real or tangible personal property; (iv) unpaid Taxes owed by Participant, including any fees or penalties relating thereto; (v) unpaid employee wages, compensation, awards, group insurance or other employment benefits by Participant to its employees, agents and contractors, any challenge of Participant’s right to dismiss its personnel, and any allegation that any employee, agent and contractor of Participant is entitled to participate in or receive benefits under any ThoughtSpot employee benefit plan, program or policy, or is in any way an employee of ThoughtSpot; or (vi) breach by Participant of its obligations under Section 11 (Proper Conduct); and (b) pay any settlement or any adverse final judgment to the extent arising from the Claim.
   3. Mitigation. If any Claim alleges any part of the Software infringes any third-party IPR, ThoughtSpot may: (a) contest the Claim; (b) obtain permission from the claimant for Participant’s continued Software use; (c) avoid such Claim by replacing or modifying the Software with a substantially similar Software; or (d) terminate Participant’s license to the affected Software immediately upon written notice to Participant.
   4. Limitations. Notwithstanding the above, ThoughtSpot will have no obligation or liability for any Claim to the extent arising in whole or in part from: (a) any Software that: (i) is or was modified in accordance with a Customer’s or Participant’s written specifications or instructions, and such Customer or Participant specifications or instructions are the source of the alleged infringement; (ii) was modified by any party other than ThoughtSpot (including Participant or a Customer), if the alleged infringement relates to such modification; (iii) is or was combined or integrated with other products (hardware or software), processes, or materials (including other products provided by Participant or any third party) where the alleged infringement relates to, and would not have arisen but for, such combination; or (iv) is an unsupported version; (b) a Customer’s continued use of the Software after expiration or termination of the corresponding Order Form or Participant’s continued use of the Software after expiration or termination of the agreement under which use was permitted (or continued use by a Customer or Participant of the original Software after ThoughtSpot’s provision of a replacement software under Section 9.3(c) (Mitigation)); or (c) a claim based on IPR owned by Participant or its Affiliates.
   5. Process. Each party’s obligations under this Section 9 are expressly conditioned on the party claiming protection against a Claim: (a) notifying the other party promptly of any actual or threatened Claim; (b) giving the other party sole control of the defense of such Claim and any related settlement negotiations; and (c) cooperating and, at the other party’s reasonable request and expense, assisting in such defense. Neither party will stipulate, acknowledge, or admit fault or liability on the other party’s behalf, or publicize any settlement, without the other party’s prior written consent (which will not be unreasonably withheld or delayed). This Section 9 (Third-Party Claims) states each party’s entire liability and the other party’s exclusive remedy for third-party claims and third-party actions.
10. Limitations of Liability.
    1. Limitation of Liability. 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, FOR ANY GIVEN CLAIM, THE AMOUNTS PAID OR PAYABLE BY PARTICIPANT UNDER THIS AGREEMENT FOR THE SOFTWARE GIVING RISE TO THE CLAIM DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE MOST RECENT EVENT GIVING RISE TO THE LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
    2. Exclusions. TO THE EXTENT PERMITTED BY LAW, NEITHER THOUGHTSPOT NOR PARTICIPANT 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.
    3. Applicability. The provisions of Sections 10.1 (Limitation of Liability) and 10.2 (Exclusions) do not apply to: (a) payment obligations under Section 4.4 (Invoices and Payment); (b) infringement, misappropriation, or other violation by a party of the other party’s IPR; (c) breach by a party of its obligations under Section 8 (Confidentiality); or (d) payments to a third party arising from obligations under Section 9 (Third-Party Claims). These limitations and exclusions do, however, apply to and protect ThoughtSpot Affiliates and their suppliers and licensors.
    4. Gross Negligence; Willful Misconduct. As provided by Law, nothing in this Agreement is intended or may be construed to limit a party’s liability in an action in tort (separate and distinct from a cause of action for a breach of this Agreement) for a party’s gross negligence or willful misconduct.
11. Proper Conduct.
    1. Partner Code of Conduct. Participant acknowledges that it has read, understands and will abide by the Partner Code of Conduct, which is hereby incorporated into this Agreement by this reference. ThoughtSpot may, from time to time upon 30 days’ notice to Participant, amend the Partner Code of Conduct on a going forward and non-discriminatory basis, in ThoughtSpot’s sole discretion. If Participant does not agree to an amendment, its recourse will be to terminate this Agreement in accordance with Section 3.2 (Termination for Convenience).
    2. Participating Affiliates. Participant may list in the signature block certain Affiliates that will conduct business under this Agreement. Subject to the terms and conditions of this Agreement, the licenses, access and rights granted to Participant under this Agreement shall also be granted to the Participant Affiliates listed in the signature block as “Participating Affiliates.” Participant agrees to be jointly and severally liable for all obligations, acts, and omissions of each listed Participant Affiliate (if any) as if such Participant Affiliate were Participant.
    3. Compliance with Law. Each party will comply with all Law in its performance of this Agreement. In particular, neither party will make any payments or transfers of value which have the purpose or effect of public or commercial bribery, acceptance or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business in violation of law, including the U.S. Foreign Corrupt Practices Act, the U.S. Federal Anti-Kickback Statute or other law that prohibits the giving, accepting, soliciting (i.e., asking for) or arranging items of value in any form (e.g., gifts, certain discounts or cross-referrals between parties), either directly or indirectly for the purpose of inducing or rewarding another party for referrals of services paid for by a government program, or in violation of any other statutes, regulation or law that would render any arrangement under this Agreement illegal.
    4. Export Compliance. Each party will comply with local and foreign export control Law, including U.S. export control Law. The Software is subject to U.S. Export Administration Regulations (“EAR”) and Participant will comply with EAR. Without limiting the foregoing, Participant 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) Participant will not use the Software 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) Participant is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Participant is responsible for complying with any local Law that may impact Participant’s right to import, export, or use the Software or any of them.
12. General.
    1. Waiver; Amendment. No delay or failure by either party to exercise any right under this Agreement will waive that or any other right. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
    2. Assignment. Neither party will assign, delegate, or otherwise transfer this Agreement, or any of its rights or duties under it, to a third party without the other’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any purported transaction in breach of this Section 12.2 is material and is void. Each party is, however, deemed to have consented to any such assignment, delegation, or transfer to: (a) an Affiliate; or (b) any entity that acquires all or substantially all of its capital stock or assets related to this Agreement through purchase, merger, consolidation, or otherwise, but only if such entity is not a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement will bind and benefit the parties, their successors, and permitted assigns.
    3. Compliance Review. Participant shall retain records of its activities under this Agreement for at least four years in accordance with its customary and reasonable business practices. During the term of this Agreement and for one year thereafter, ThoughtSpot will have the right to audit Participant’s records relating to its performance under this Agreement and to verify that Participant has fulfilled its obligations under this Agreement. Any such audit will be conducted during normal business hours on a date mutually acceptable to both parties, and ThoughtSpot must provide at least ten business days’ prior notice. Participant agrees to review the audit results with ThoughtSpot and, if any underpayments are owed, pay such amounts upon receipt of an invoice from ThoughtSpot as described herein. The audit will be conducted at ThoughtSpot’s expense, unless the audit reveals that Participant has materially breached its obligations hereunder, in which case Participant shall promptly reimburse ThoughtSpot for its reasonable expenses incurred in connection with such audit. Such audits will be conducted no more than once in any period of twelve consecutive months, or twice during the same time period in the event that an audit reveals a material breach of Participant’s obligations hereunder.
    4. Notices. All notices and other communications under this Agreement will be: (a) in writing; (b) in English; and (c) deemed given when delivered (or the first business day after delivery with confirmation of receipt, for notices permitted by email). Notices under this Agreement will be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service with tracking capabilities; (iii) mailed by certified or registered mail, return receipt requested, to a party at the address stated in this Agreement (or at such address as the recipient has notified the other party of, before notice was sent); or (iv) sent via email, if the recipient’s email address is provided in this Agreement (but email will not be sufficient for notices regarding a Claim or alleged breach). All notices except for ordinary business communications will be cc’d to the address stated in this Agreement.
    5. Dispute Resolution. 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.
    6. Force Majeure. Neither party will be responsible for any delay or failure in its performance of any obligation under this Agreement (other than payment) due to causes beyond its reasonable control, but only if the party invoking this Section 12.6 promptly notifies the other party and resumes performance promptly when conditions allow it to do so.
    7. Relationship. The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf, or to represent that it has such right or authority. Participant agrees that it is not entitled to any benefits ThoughtSpot may offer to its employees, such as group insurance or other employment benefits. Participant is solely responsible for filing all its tax returns and submitting all tax payments as required by the applicable taxing authorities arising from any payments to Participant under this Agreement. There are no third-party beneficiaries to this Agreement. ThoughtSpot’s licensors will have no liability of any kind under this Agreement. ThoughtSpot’s liability with respect to any third-party software embedded in the Software will be subject to Section 10 (Limitations of Liability).
    8. Severability. If any part of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that part will be deemed reformed to effectuate the parties’ intentions, and the rest of this Agreement will remain in full force and effect.
    9. Construction. Section headings are intended solely for convenience and will not affect the meaning of this Agreement. This Agreement will be interpreted according to its plain meaning without presuming it should favor either party. Unless stated or context requires otherwise: (a) all internal references are to this Agreement and its parties; (b) first-level section references (e.g., “as provided in Section 1”) include all subordinate subsections (e.g., 1.1, 1.2, etc.) within that section; (c) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (d) “days” means calendar days; (e) “may” means that the applicable party has a right, but not a concomitant duty; (f) “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership; (g) “notify” means to give notice under (and “notice” means a notice that complies with) Section 12.4 (Notices); (h) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured; (i) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (j) lists of examples following “including”, “e.g.”, “such as”, “excludes”, “for example”, or similar words are deemed to include “without limitation”; (k) the word “or” is deemed to be an inclusive “or”; and (l) a party’s choices under this Agreement are in its sole discretion. Any translation of the English-language version of this Agreement is for convenience only, and the English-language version will govern. If Participant is domiciled in Canada, the parties expressly wish to execute this Agreement and any associated documentation in English.
    10. Entire Agreement. This Agreement sets forth the complete and exclusive agreement between the parties relating to its subject matter and supersedes all prior oral and written agreements, understandings, and communications (including any requests for quote, requests for information, requests for proposal, or the like), regarding its subject matter. This Agreement incorporates by this reference all of the numbered sections herein (“Main Body”) as well as the terms and conditions of all Order Forms, the Program Terms, the Guide, the Opportunity Registration Terms, and the Code of Conduct. In the event of any conflict between terms and conditions in this Agreement, the following order of precedence will apply: (1) any Order Form (solely with respect to that Order); (2) the ThoughtSpot Evaluation Agreement referenced in Section 5.1 (Program Software License) (solely with respect to Participant’s use of the Program Software); (3) the Main Body of this Agreement; (4) the Code of Conduct; (5) the Guide; (6) the Opportunity Registration Terms; and (7) any other document incorporated by reference into either the main body of this Agreement, the Program Terms or the Guide. Purchase orders issued by Participant will be effective solely to specify the quantities of Software and Professional Services ordered, and, to the extent such purchase orders are based on ThoughtSpot’s Order Forms, the price. Participant agrees that any terms and conditions in any purchase order submitted by Participant to ThoughtSpot are superseded and replaced by the terms and conditions of this Agreement, and such purchase order terms and conditions will have no force or effect. Invoices issued by ThoughtSpot will be effective solely to specify the charges for the Software and Professional Services. All other terms and conditions printed or included on, or referenced in, such purchase orders, invoices, and other ordering documents or correspondence, that purport to add to or modify the terms of this Agreement are expressly rejected by the parties and will be of no force or effect.