Agreement for Terms of Use

Last Updated: June 28, 2010

YOU MUST REVIEW THE TERMS AND CONDITIONS OF THIS AGREEMENT (AS SUCH TERM IS DEFINED BELOW) BEFORE EXECUTING A PURCHASE ORDER. UPON EXECUTION OF THE ORDER FORM REFERENCING THIS AGREEMENT BY YOU (“You” or “Your”) AND GOODDATACORPORATION (“We”, “Us” or “Our”), YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. Definitions: As used in this Agreement now or hereafter associated herewith:
   
   “Agreement” means this Agreement for Terms of Use, which includes Our privacy and security policies located here;
   
   “Content” means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service;
   
   “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;
   
   “GoodData Technology” means all of Our proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by Us in providing the Service;
   
   “Service” means Our online service;
   
   “User(s)” means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by Us at Your request);
   
   “Your Data” means any data, information or material provided or submitted by You to the Service in the course of using the Service;
    
2. License Grant & Restrictions: We hereby grant You a non-exclusive, non-transferable, worldwide right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by Us and Our licensors. For the avoidance of doubt, You own all right, title and interest in and to any and all reports or documents regarding Your business generated via the Service, and the use of such reports or documents is within Your complete discretion.
   
   You and Your Users may not access the Service if You or any of Your Users is Our direct competitor, except with Our prior written consent. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
   
   In addition, You may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device, other than copying or framing on Your own intranet or otherwise for your own internal business purposes; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User identifications cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
   
   You may use the Service only for Your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
    
3. Fees and Payment: You will pay Us the fees and other amounts due under this Agreement, plus applicable sales, use, excise or other taxes, as specified in the applicable Order Form, attached hereto and incorporated into this Agreement. All amounts will be paid in US Dollars. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is lower, from the date due until the date paid. You will be responsible for all costs and expenses (including reasonable attorneys’ fees) We incur in collecting unpaid amounts. You are responsible for all taxes, duties and other governmental charges (collectively “Taxes”) arising under or in connection with this Agreement, exclusive of Taxes based on Our income. Payment of Taxes is in addition to all amounts required to be paid under this Agreement.
    
4. Your Responsibilities: You are responsible for all activity occurring under Your accounts. You shall abide by all applicable laws, treaties and regulations in connection with Your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Us immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or Your User using Your account and (iii) not impersonate another user or provide false identity information to gain access to or use the Service.
    
5. Privacy & Security; Disclosure: Our privacy and security policies may be viewed at http://gooddata.andculture.cc/privacy-policy and s,uch policies are incorporated herein by reference. We reserve the right to modify Our privacy and security policies in Our discretion from time to time and shall provide You prior notice via email of any material modification. Note that because the Service is a hosted, online application, We occasionally may need to notify all Users of the Service of important announcements regarding the operation of the Service.
    
6. Account Information and Data: We do not own and shall not be responsible for any data, information or material that You submit to the Service in the course of using the Service (”Your Data”). We agree to use best industry practices when deploying services related to data integrity, backup, security, and retention. However, notwithstanding the foregoing sentence or any other provision, express or implied, in this Agreement, You, not We, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Your Data. You acknowledge that We work with only a copy of Your Data to provide business analytics and intelligence, and that You are responsible for maintaining the original and all duplicate copies of Your Data. We reserve the right to establish or modify Our general practices and limits relating to storage of Your Data and shall provide You prior notice via email of any material modification. You expressly acknowledge and agree that you shall not submit to the Service any (i) Personal Information (as defined below) nor (ii) any Protected Health Information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) (where “Protected Health Information” has the meaning set forth in HIPAA). As used herein, “Personal Information” means an individual’s first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such individual: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account.
    
7. Intellectual Property Ownership: We alone (and Our licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the GoodData Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the GoodData Technology or the Intellectual Property Rights owned by Us. The GoodData name, the GoodData logo, and the product names associated with the Service are trademarks owned by Us or third parties, and no right or license is granted to use them.
    
8. Term and Termination:
   
   8.1 Term: The term of the Service purchased on the applicable Order Form continues for the initial term specified therein. Except as otherwise specified in an Order Form, the initial term shall automatically renew for additional periods equal to the expiring term or one year (whichever is greater), unless either party gives the other notice on non-renewal at least 30 days before the end of the then-current initial or any renewal term. The pricing may be increased for any subsequent term before the end of the then-current term. Any such price increase shall not exceed 7% per year over the pricing for the relevant Service in the immediately preceding year, unless the pricing in such preceding year was designated in the relevant Order Form as promotional or one-time.
   
   8.2 Termination: Either party may terminate this Agreement for cause: (i) upon not less than 30 days prior written notice to the other party of a material breach if such breach is not cured within the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. You agree that We shall not be liable to You and/or any third party for any modification, suspension, or termination of the Service. We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
   
   8.3 Effect of Termination: Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. In the event this Agreement is terminated after a specific term because We are no longer providing the Service, We will provide notice and make available to You for download a file of Your Data in comma separated value (.csv) format. After such 30-day period We shall have no obligation to maintain or provide any of Your Data.
   
   8.4 Survival: The following Sections shall survive the termination and/or expiration of this Agreement: Sections 3 (Fees and Payment); 7 (Intellectual Property Ownership); 8 (Term and Termination); 9 (Representations and Warranties); 10 (Indemnification); 11 (Disclaimer of Warranties); 12 (Limitation of Liability); 14 (Notice); 17 (Confidentiality) and 18 (General).
    
9. Representations & Warranties: Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that We will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service.
    
10. Indemnification:
    
    10.1. Indemnification by Us: We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
    
    10.2. Indemnification by You: You shall defend Us against any Claim, enforcement action and/or legal or regulatory investigation made or brought against Us by a third party (including a state or federal regulator) (i) resulting from an allegation that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law; and/or (ii) arising out of Section 6 of this Agreement (including, without limitation, Your breach of Section 6), and shall indemnify Us for any damages, fines, penalties finally awarded and/or assessed against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
    
    10.3 Exclusive Remedy: This Section 9 states the indemnifying party’s sole liability and the indemnified party’s exclusive remedy for, intellectual property infringement claims.
     
11. Disclaimer of Warranties: WE AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. WE AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR, EXCEPT AS OTHERWISE SET FORTH ON THIS PAGE, OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND OUR LICENSORS.
    
    THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
     
12. Limitation of Liability: EXCEPT FOR LIABILITY ARISING UNDER OR OUT OF THE BREACH OF SECTION 2, 6, 10.1 OR 10.2 OR YOUR PAYMENT OBLIGATIONS, AS APPLICABLE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HEREUNDER FOR THE TWELVE MONTH PERIOD PRIOR TO THE DATE ON WHICH THE LEGAL ACTION ASSERTING THE FIRST OF ANY SUCH CLAIMS WAS FILED. EXCEPT FOR LIABILITY ARISING UNDER OR OUT OF THE BREACH OF SECTION 2, 6, 10.1 OR 10.2 AS APPLICABLE, IN NO EVENT SHALL WE AND/OR OUR LICENSORS OR YOU BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF WE AND/OR OUR LICENSORS OR YOU HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
    
    Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Us or to You.
     
13. Local Laws and Export Control: The Service utilizes software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
    
    We and Our licensors make no representation that the Service is appropriate or available for use in other locations. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
     
14. Notice: We may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Your account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Us (such notice shall be deemed given when received by Us) at any time by any of the following: letter sent by confirmed facsimile to Us at the following fax number: +1-415-962-0521; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Us at the following address: GoodData Corporation, 530 Bush Street, Suite 900, San Francisco, CA 94108, addressed to the attention of: Chief Executive Officer.
     
15. Modification of Policies: We reserve the right to modify Our policies relating to the Service at any time, effective upon posting of an updated version of policies on Our website, and will provide You notice via email of any material modifications. You are responsible for regularly reviewing our website. Continued use of the Service after any such changes shall constitute Your consent to such changes.
     
16. Assignment; Change in Control: This Agreement may not be assigned by either party without the prior written approval of the other, except that either party may, upon written notice to the other party, assign all of its rights and obligations under this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be null and void. Notwithstanding the foregoing, any actual or proposed change in Your control that results or would result in a direct competitor of Ours directly or indirectly owning or controlling 50% or more of You shall entitle Us to terminate this Agreement for cause immediately upon written notice.
     
17. Confidentiality: “Confidential Information” means data and information of a proprietary or confidential nature disclosed by You (“Disclosing Party”) to Us (“Receiving Party”) or Us (“Disclosing Party”) to You (“Receiving Party”) under or relating to this Agreement, including, but not limited to, trade secrets, computer programs, product plans, business strategies, proprietary tools, methodologies, software, and User passwords. Confidential Information shall not include (or shall cease to include) data or information that (i) is or becomes generally known to the public on or after the effective date of the first Order Form entered into between the parties, other than as a result of any act or omission of the Receiving Party; (ii) was rightfully known to the Receiving Party prior to its receipt from the Disclosing Party; (iii) is rightfully furnished to the Receiving Party by a third party without restriction as to use or disclosure; (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (v) is disclosed with the prior written consent of the Disclosing Party. Data and information shall be considered to be Confidential Information if (i) designated as such by the Disclosing Party orally, in writing, or in any other form before the disclosure, or (ii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat it as secret and confidential. We and You agree (i) to hold the other Disclosing Party’s Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties, except for employees and independent contractors who have a “need to know” and who have signed agreements containing disclosure and use restrictions no less stringent than those set forth herein; and (iii) not to use any Confidential Information for any purpose except as required to perform under this Agreement. This provision shall not prohibit the Receiving Party from disclosing information to the extent reasonably required by law; provided that the Receiving Party required to disclose such information shall provide prior notice to the Disclosing Party of such required disclosure and the opportunity to obtain an appropriate protective or other court order. The Receiving Party agrees that monetary damages alone are not a sufficient remedy in the event of Receiving Party’s breach of this Section 17, and therefore, in addition to any other rights and remedies available to Disclosing Party at law or in equity, Disclosing Party shall have the right to obtain immediate injunctive or other equitable relief in any court of competent jurisdiction without the necessity of posting a bond or other guarantee.
     
18. General: This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Other than as provided in the immediately following sentence, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the immediately preceding sentence, either party may seek immediate injunctive or other equitable relief in order to protect its confidential or proprietary interests in any court of competent jurisdiction. No text or information set forth on any other purchase order, check or other form or payment, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Us as a result of this Agreement or use of the Service. Our failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Us in writing. This Agreement comprises the entire agreement between You and Us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, and may only be modified in a writing signed by both parties.