Terms of Use

THESE TERMS OF USE ("TERMS OF USE") WITH GOODDATA CORPORATION, A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 530 BUSH STREET, SAN FRANCISCO, CA 94108 ("GOODDATA") GOVERN ALL TRIAL, PURCHASE AND ONGOING USE OF SERVICES (AS DEFINED BELOW). BY ACCEPTING THESE TERMS OF USE BY AND THROUGH THE DULY AUTHORIZED REPRESENTATIVE EXECUTING THE ORDER FORM WHICH INCORPORATES BY REFERENCE THESE TERMS OF USE, THE CUSTOMER ("CUSTOMER") AGREES TO BE BOUND BY ALL TERMS HEREOF.

These Terms of Use were last updated on November 1, 2011.

 

1. DEFINITIONS.

1.1. "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2. "Ancillary Services" means fee-based consulting or training services GoodData may perform pursuant to a statement of work ("SOW") issued pursuant to these Terms of Use.

1.3. "Customer Data" means all data submitted, stored, posted, displayed, transmitted or otherwise used together with the Subscription Services.

1.4. "Documentation" means the online user instructions and help files made available by GoodData as part of the user interface for the Subscription Services, as updated from time to time.

1.5. "GoodData Applications" means the data analytics and reporting applications supplied by GoodData for access by Customer for use in conjunction with the Subscription Services, including any optional modules, custom or standard enhancements developed by GoodData, updates and upgrades, including associated offline components, but excluding Third Party Offerings.

1.6. "Order Form" means the ordering documents for Services purchased from GoodData that are executed hereunder by the parties from time to time. Order Forms shall be deemed incorporated herein. Customer Affiliates may purchase subscriptions and use the Application subject to the terms of these Terms of Use by executing Order Forms hereunder.

1.7. "Subscription Services" means the online, web-based GoodData Applications provided by GoodData via the URL www.GoodData.com and/or other designated websites as described in the Documentation, that are ordered by Customer as part of any trial or under an Order Form, including associated support and maintenance activities related to the foregoing.

1.8. "Services" means the Subscription Services and/or any Ancillary Services.

1.9. "Third Party Offerings" means services performed by third parties independently of GoodData related to the Subscription Services, or other online, Web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, and that interoperate with the Subscription Services.

1.10. "User" means individuals who are authorized by Customer to access and use the GoodData Applications, and who have been supplied user identifications and passwords for the purpose of accessing the Subscription Services. Users may include but are not limited to Customer's or its Affiliates' employees, consultants, contractors and agents, or Customer's or its Affiliates' clients and their employees, consultants, contractors and agents.

2. FREE SERVICES

2.1. Free Service Subscription Term. Customer may access the Subscription Services on either (i) a temporary trial basis ("Trial Services") or (ii) as a value-added component of a Third Party Offering provided by a partner of GoodData participating in a "Powered By" or similar program, in either case on a functionally –limited and no-cost basis (either form of access referred to as "Free Services"). Customer's access to Free Services will commence on the date made available to Customer by GoodData and continue until (a) the then-current Trial Services period offered by GoodData, as posted on its website, unless otherwise extended by GoodData in its discretion, or (b) the start date of any paid Services ordered by Customer, (c) the date on which GoodData elects in its sole discretion to terminate Customer's access to Free Services, or (d) the date on which Customer's access to the Third Party Offerings provided by GoodData's "Powered By" program ceases ("Free Services Term"). These Terms of Use shall apply to Customer's use or receipt of the Subscription Services during the Free Services Term except as set forth in this Section 2. Customer acknowledges and agrees that if Customer exceeds the eligibility requirements for Free Services (for example, a particular number of projects, or enhanced or premium functionality), Customer may be required to pay fees for such excess usage as a condition to retaining Customer's eligibility to receive Free Services. Additional trial terms and conditions may appear on the registration web page for the Free Services. Any such additional terms and conditions are incorporated into these Terms of Use by reference and are legally binding and will govern in the event of a conflict with these Terms of Use.

2.2. Customer Data for Trial Services. ANY CUSTOMER DATA ENTERED INTO THE GOODDATA APPLICATIONS DURING THE TRIAL SERVICES, AND ANY CHANGES MADE TO THE CUSTOMER DATA BY OR FOR CUSTOMER DURING THE TRIAL SERVICES TERM MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED DURING THE TRIAL SERVICES, PURCHASES UPGRADED SERVICES, OR EXPORTS ITS CUSTOMER DATA BEFORE THE END OF THE TRIAL SERVICES.

2.3. AS-IS USE. NOTWITHSTANDING SECTION 8.1 OF THIS AGREEMENT, DURING THE FREE SERVICES TERM, THE FREE SERVICES ARE PROVIDED EXCLUSIVELY "AS-IS" WITHOUT ANY WARRANTY, SUPPORT OR INDEMNITIES OF ANY KIND AND THE WARRANTY DISCLAIMERS IN SECTION 8.2 and 8.3 SHALL SPECIFICALLY APPLY TO THE FREE SERVICES.

2.4. Purchase of Ancillary Services During Trial. Customer's purchase, if any, of Ancillary Services to be performed during the Free Services Term are governed by Section 3.2 below and these Terms of Use.

3. PURCHASED SERVICES

3.1. Provision of Purchased Subscription Services. GoodData will make any purchased Subscription Services available to Customer pursuant to these Terms of Use and the relevant Order Forms during a Subscription Term. Customer agrees that its purchases under these Terms of Use and each Order Form are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by GoodData regarding future functionality or features. Customer's use of the Subscription Services includes the right to access all functionality available in the purchased subscriptions for the specific GoodData Applications included with the Subscription Services as of the date of the Order Form. Subsequent enhancements to the Subscription Services made generally-available to all subscribing customers will be made available to Customer at no additional charge. However, the availability of new GoodData Applications, or enhancements to the Subscriptions may require the payment of additional fees, and GoodData will determine at its sole discretion whether access to any other such new GoodData Applications or enhancements will require an additional fee. Unless otherwise set forth in an Order Form, these Terms of Use will apply to any updates, upgrades and new modules or offerings subsequently provided by GoodData to Customer as part of any purchased Subscription Services.

3.2. Ancillary Services. A description of GoodData's current standard Ancillary Services offerings can be found at the URL http://www.gooddata.com/pricing/our-services, which may be updated from time to time in GoodData's sole discretion. Standard Ancillary Services may be identified in an Order Form without need for issuance of a SOW. For any non-standard Ancillary Services, GoodData will provide Customer with Ancillary Services as set forth in the applicable SOW mutually executed by GoodData and Customer. Each SOW will include, at a minimum: (i) a description of the Ancillary Services and any work product or other deliverables to be developed and/or provided to Customer (each, a "Deliverable"); (ii) the scope of Ancillary Services; (iii) the schedule for the provision of such Ancillary Services; and (iv) the applicable fees and payment terms for such Ancillary Services, if not elsewhere specified. All SOWs shall be deemed part of and subject to these Terms of Use. If either Customer or GoodData request a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Ancillary Services described in any SOW, the party seeking the change shall propose the applicable changes by written notice. Promptly following receipt of the written notice, each party's project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. GoodData will prepare a change order describing the proposed changes to the SOW and the applicable change in fees and expenses, if any (each, a "Change Order"). Change Orders are not binding unless and until they are executed by both parties. Executed Change Orders shall be deemed part of, and subject to, these Terms of Use. In the event that the parties disagree about the proposed changes, the parties shall promptly escalate the change request to their respective senior management officers for resolution.

4. TERMS OF USE OF SUBSCRIPTION SERVICES

4.1. Provision of Subscription Services. GoodData will: (i) provide to Customer basic email support (available at support@GoodData.com) for the purchased Subscription Services at no additional charge during normal business hours, , and/or upgraded support if made available by GoodData and purchased by Customer separately; (ii) use commercially reasonable efforts to make the purchased Subscription Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime (of which GoodData will endeavor to provide at least 48 hours notice in advance of the maintenance time, except for routine maintenance time currently scheduled for every Wednesday 10:00pm – Thursday 2am Pacific Time), or (b) any unavailability caused by circumstances beyond GoodData's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving GoodData's employees), Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings; (iii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data (the same as GoodData uses to protect its data); and (iv) provide the Services in accordance with applicable laws and government regulations.

4.2. Provisioning of GoodData Applications. GoodData will host relevant GoodData Applications (except for off-line components or applications) and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing mission to improve the Subscription Services and customers' use of the Subscription Services. Certain GoodData Applications or portions of the Subscription Services may be subject to other limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.

4.3. Content License. Subject to the terms and conditions of these Terms of Use, including GoodData's confidentiality obligations, Customer hereby grants GoodData a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for GoodData to provide the Services to Customer. To the extent that receipt of the Customer Data requires that GoodData utilize any account information from a third party service provider (such as Salesforcece.com), Customer shall be responsible for obtaining and providing such passwords, and GoodData hereby agrees to access and use the Customer Data solely for Customer's benefit and as set forth in this Section and these Terms of Use. As between GoodData and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. GoodData's privacy and security policies may be viewed at http://www.gooddata.com/privacy-policy. GoodData reserves the right to modify its privacy and security policies in its discretion from time to time. Note that because the Subscription Service is a hosted, online application, GoodData occasionally may need to notify all Users of important announcements regarding the operation of the Subscription Service.

4.4. Customer's Responsibilities. Customer is responsible for its Users' compliance with these Terms of Use and for its Users' use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names. Customer agrees that it will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services or any GoodData Application available to any third party, other than to Users or as otherwise contemplated by these Terms of Use; (ii) use the Subscription Services to collect, transmit or process (a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) any data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or 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: Social Security number, driver's license number or state-issued identification card number, 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; (c) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (iii) interfere with or disrupt the integrity or performance of the Subscription Services; or (iv) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (vi) access the Subscription Services or download an GoodData Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Subscription Services; (vii) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the GoodData Applications or Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the GoodData Applications or Subscription Services.

4.5. Temporary Suspension. GoodData monitors all use of the Subscription Services for security and operational purposes. GoodData may temporarily suspend Customer's or its Users' access to the Subscriptions Services or any GoodData Application in the event that either Customer or its User is engaged in, or GoodData in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of these Terms of Use, any applicable law or third party right, including the terms of any Third Party Offering on which Customer's use of the Subscription Services relies). GoodData will attempt to contact Customer prior to or contemporaneously to such suspension, provided, however, that GoodData's exercise of the suspension rights herein shall not be conditioned upon Customer's receipt of any notification. Customer agrees to (i) notify GoodData immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Subscription Services; (ii) report to GoodData immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Data that is known or suspected by Customer or its User as being unlawful or unauthorized; and (iii) not impersonate another User or provide false identity information to gain access to or use the Subscription Services or GoodData Application. A suspension may take effect for Customer's entire account and Customer understands that such suspension would therefore include Affiliate and/or User sub-accounts. Customer agrees that GoodData will not be liable to Customer or to any Affiliate or User or any other third party if GoodData exercises its suspension rights as permitted by this Section.

4.6. Third-Party Web Sites, Products and Services. The Subscription Services may rely on or require that Customer access Third Party Offerings. Customer's or its User's use of outside websites must at all times comply with the terms of service governing such websites. Customer understands and agrees that the availability of the GoodData Applications, or certain features and functions of the GoodData Applications, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. GoodData will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability the GoodData Applications or any feature or function of the GoodData Applications. GoodData may also refer Customer to third party service providers that offer Third Party Offerings. GoodData does not warrant any such Third Party Offerings, whether or not such Third Party Offerings or services are designated by GoodData as "certified," "approved", "recommended" or otherwise, or the services are provided by a third party referred by GoodData or that is a member of an GoodData partner program. To the extent that GoodData requires that Customer grant GoodData authorizations, passwords or other user credentials to a Third Party Offering ("GoodData Access Codes") to retrieve Customer Data or interoperate with the Subscription Service, Customer shall promptly provide such GoodData Access Codes. GoodData shall not share, reassign, divulge or disclose any GoodData Access Codes, nor permit or allow any third party to share, reassign, divulge, disclose or use any GoodData Access Codes, except to GoodData employees or authorized contractors specifically engaged in the performance of the Services and solely for that purpose. GoodData Access Codes shall constitute Customer's Confidential Information under this Agreement.

4.7. Accuracy of Customer's Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for GoodData to communicate with Customer from time to time regarding the Services, issue invoices, accept payment, or other account-related purposes. Therefore, Customer agrees to keep any online account information current and inform us of any other changes in Customer's legal business name, address, email address and phone number. Customer agrees to accept emails from GoodData at the e-mail address specified by its Users for login purposes. GoodData may provide any and all notices, statements, and other communications to Customer through either e-mail, posting on the Subscription Services (or other electronic transmission) or by mail or express delivery service. In addition, Customer agrees that GoodData may rely and act on all information and instructions provided to GoodData by Users from the above-specified e-mail address.

4.8. Federal Government End User Provisions. If Customer or any User is the US Federal Government, GoodData provides the Services, including related software and technology, in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms of Use. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with GoodData to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.

5. FEES AND PAYMENT TERMS

5.1. Fees. Customer agrees to pay all fees specified in all Order Forms using one of the payment methods GoodData supports. Except as otherwise specified in these Terms of Use or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased, (iii) payment obligations are non-cancelable as of the applicable due date and fees paid are non-refundable, and (iv) the subscriptions purchased cannot be decreased during the relevant Subscription Term on the Order Form. All amounts payable under these Terms of Use will be made without setoff or counterclaim, and without any deduction or withholding.

5.2. Invoices and Payment. All Subscription Service fees will be invoiced in advance and in accordance with the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW and/or Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.

5.3. Overdue Charges. If GoodData does not receive fees by the due date, then at GoodData's discretion, (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and/or (ii) GoodData may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoices and Payment).

5.4. Suspension of Service and Acceleration. If any amounts Customer owes under these Terms of Use for the Services are 60 or more days overdue, GoodData may, without limiting GoodData's other rights and remedies suspend Customer's and its Users' access to the Services or use of any GoodData Application until such amounts are paid in full.

5.5. Payment Disputes. GoodData agrees that it will not exercise its rights under Section 5.4 (Overdue Charges) or 5.5 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.

5.6. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, "Taxes") arising from GoodData's provision of the GoodData Applications and/or Services hereunder, except any taxes assessed upon GoodData's net income. If GoodData is required to directly pay Taxes related to Customer's use of the GoodData Applications or receipt of any Services hereunder, Customer agrees to promptly reimburse GoodData for any amounts paid by GoodData.

6. PROPRIETARY RIGHTS

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, GoodData reserve all rights, title and interest in and to the GoodData Applications, and the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Neither Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of GoodData, if any, appearing on any GoodData Application or Documentation.

6.2. Customer Data. As between GoodData and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data are deemed Confidential Information under these Terms of Use.

6.3. Suggestions. GoodData shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the GoodData Applications and/or Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Users relating to the GoodData Applications or the Services. Customer acknowledges and agrees that any GoodData Application or Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of GoodData and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon GoodData pursuant to Section 7 below.

6.4. Deliverables. As between GoodData and Customer, Customer exclusively owns all right, title and interest in and to any Deliverables that constitute a Customer Data or a modification, translation, abridgment, adaptation or other derivative work of the Customer Data, or any other Deliverable expressly identified as being owned by Customer in the applicable SOW ("Customer Deliverables"), and GoodData hereby assigns and transfers to Customer any right, title or interest that GoodData may acquire in or to any Customer Deliverables upon receipt of payment in full from Customer. Except for Customer Deliverables, GoodData shall own all rights, title and interest in and to all other Deliverables, and related intellectual property rights. Subject to terms and conditions of these Terms of Use, and during the Subscription Term, GoodData hereby grants Customer a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 12.6 of the Agreement) and terminable license to use the Deliverables solely in connection with Customer's authorized use of the Subscription Service, GoodData Applications or Third Party Offerings. Notwithstanding any other provision of these Terms of Use: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ("Tools") used by GoodData to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) neither the term "Deliverables" or "Customer Deliverable" shall include the Tools.

6.5. Statistical Information. Notwithstanding anything else in the Agreement or otherwise, GoodData may monitor Customer's use of the Services and use data related to Customer's use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that GoodData may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. GoodData retains all intellectual property rights in such information.

7. CONFIDENTIALITY

7.1. "Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of these Terms of Use, (including pricing and other terms set forth in all Order Forms hereunder), business information, specifications, research, software (including but not limited to, the GoodData Applications, flow of screens, and Documentation), trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a Party.

7.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of these Terms of Use, except with the Disclosing Party's permission.

7.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.

7.4. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

8. WARRANTIES; DISCLAIMERS

8.1. Warranties. Each party warrants that it has the power to enter into these Terms of Use. GoodData warrants to Customer that (i) the GoodData Applications will perform in all material respects with the Documentation, (ii) Ancillary Services provided to Customer under a SOW will be performed in a competent and workmanlike manner in conformance with generally accepted industry standards.

8.2. General Disclaimers. THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY GOODDATA. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, GOODDATA AND ITS LICENSORS MAKE NO OTHER REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CUSTOMER DATA. GOODDATA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER'S 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 CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER'S 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 CUSTOMER DATA IS PROVIDED TO CUSTOMER 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 GOODDATA AND ITS LICENSORS.THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GOODDATA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Subscription Service and GoodData Application Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, GOODDATA DOES NOT WARRANT THAT THE GOODDATA APPLICATION OR SUBSCRIPTION SERVICES WILL MEET CUSTOMER'S OR ITS USERS SPECIFIC NEEDS, ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, THAT IS ERROR FREE, THAT CUSTOMER OUR ITS USERS OR CONSUMERS WILL BE ABLE TO ACCESS OR USE THE GOODDATA APPLICATION WITHOUT PROBLEMS OR INTERRUPTIONS, OR THAT THE GOODDATA SITE AND OFFERPOR APPLICATIONS ARE NOT SUSCEPTIBLE TO INTRUSION, ATTACK OR COMPUTER VIRUS INFECTION.

9. INDEMNIFICATION

9.1. Indemnification by GoodData. GoodData, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys' fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer's use of the GoodData Application or Subscription Services in accordance with the terms and conditions of these Terms of Use infringes a third party's United States copyright or patent issued as of the Effective Date. The foregoing obligation shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer's use of infringing Customer Data (ii) use of the GoodData Application or Subscription Services in combination with any software, hardware, network or system not supplied by GoodData where the alleged infringement relates to such combination, (iii) any modification or alteration of the Subscription Services or GoodData Application (other than by GoodData), (iv) if Customer continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) Customer's violation of applicable law. If any claim which GoodData is obligated to defend has occurred, or in GoodData's determination is likely to occur, GoodData may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to either Customer or the third party issuing paying to GoodData for Customer's account fees received by GoodData for the infringing items in an amount pro-rated to reflect the period of time between the date Customer was unable to use the GoodData Application or Subscription Service due to such claim and the remaining days in the current Term.

9.2. Indemnification by Customer. Customer, at Customer's expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date of any third party; (ii) or arising from occurrence of the conditions set forth in Section 9.1(i)-(v) above.

9.3. Conditions. The parties' obligations under this Section are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section are subject to the limitations and exclusions set forth in Section 10 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR FOR ANY FREE SERVICES, $500, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT RECEIVED BY GOODDATA HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, OR WITH RESPECT TO FREE SERVICES, $1,000. THE FOREGOING SHALL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT TERMS).

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL GOODDATA AND/OR ITS LICENSORS 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 SERVICES, OR FOR ANY CUSTOMER DATA OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CUSTOMER DATA, EVEN IF GOODDATA AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.

11. TERM AND TERMINATION

11.1. Term of Subscriptions. Customer's subscription to use the GoodData Application and/or access the Subscription Services begins on the start date specified in the Order Form and continues for the period set forth therein (each a "Subscription Term").

11.2. Termination for Cause. These Terms of Use may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of these Terms of Use and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. GoodData may temporarily cease performance of its obligations during any cure period.

11.3. Effect of Termination. Termination or expiration of an Order Form incorporating these Terms of Use by reference will automatically terminate these Terms of Use, and the subscription granted under such Order Form shall terminate immediately. In the event of termination of an Order Form or these Terms of Use, upon Customer's request made within 30 days after the effective date of applicable termination, GoodData shall make available to Customer for download Customer's Customer Data in the current format in which it is stored in the GoodData Application. After such 30-day period, GoodData shall have no obligation to maintain or provide any Customer Data and may thereafter unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In the event of termination of a project set forth in an applicable SOW (other than termination as a result of GoodData's breach), Customer agree to pay GoodData all fees due, and unreimbursed out-of-pocket expenses incurred by GoodData up to the date of termination or expiration of such SOW.

11.4. Survival. Except to the extent expressly provided to the contrary herein, Sections 6 through 12 shall survive the termination of these Terms of Use.

12. GENERAL

12.1. Relationship. The relationship between the parties created by these Terms of Use is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement.

12.2. Entire Understanding. These Terms of Use (including any ordering documents or URLs incorporated by reference herein) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of these Terms of Use. To the extent of any conflict or inconsistency between the provisions in the body of these Terms of Use and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer's purchase order or in any other ordering documentation (excluding Order Forms) shall be incorporated into or form any part of these Terms of Use, and all such terms or conditions shall be null and void.

12.3. Modification and Waiver. Except for GoodData's modification or update of the Documentation, the Subscription Services or GoodData Application, or any pricing or other policies referenced by a URL herein, or as necessary to comply with applicable law, rules, regulations, no modification of these Terms of Use, and no waiver of any breach of these Terms of Use, shall be effective unless in writing and signed by both parties. No waiver of any breach of these Terms of Use, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of these Terms of Use. A determination that any provision of these Terms of Use is invalid or unenforceable shall not affect the other provisions of these Terms of Use.

12.4. Governing Law and Venue. These Terms of Use shall be governed by and construed under the laws of the United States and the State of California excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms of Use. The state and federal courts located in San Francisco, California, will have exclusive jurisdiction to adjudicate any dispute relating to these Terms of Use. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.

12.5. Publicity. GoodData may reference Customer's name and the nature of the Services provided hereunder in GoodData business development and marketing efforts, including without limitation its web site.

12.6. Assignment. Either party may assign these Terms of Use in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of these Terms of Use upon written notice to the assigning party. In the event of such a termination, GoodData shall refund to Customer any prepaid fees covering the remainder of the Subscription Terms after the effective date of termination. Subject to the foregoing, these Terms of Use shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to these Terms of Use.

12.7. Notices. GoodData may give notice by means of a general notice on the Subscription Services, electronic mail to Customer's e-mail address on record in GoodData's account information, or by written communication sent by first class mail or pre-paid post to your address on record in GoodData's account information. Customer may give notice to GoodData (such notice shall be deemed given when received by GoodData) at any time by any of the following: letter sent by confirmed facsimile to GoodData at the following fax number: +1-415-962-0521; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to GoodData at the following address: GoodData Corporation, 530 Bush Street, Suite 900, San Francisco, CA, 94108 in either case, addressed to the attention of: Chief Executive Officer. 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). All communications and notices to be made or given pursuant to these Terms of Use shall be in the English language.

12.8. Export. The Services utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Subscription 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 Subscription Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The GoodData Applications 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. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. GoodData and its licensors make no representation that the Service is appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, 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.

12.9. Staffing. GoodData shall be responsible for staffing decisions with respect to its personnel and the provision of any services under these Terms of Use, and shall have the right to remove or replace any of its personnel assigned to perform any Services under these Terms of Use.

12.10. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under these Terms of Use for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.

Terms of Use 20111101
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