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.
1.3. "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.
1.7. "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
2.2. 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.
3. PURCHASED 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.
4.6. 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.
5. FEES AND PAYMENT TERMS
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).
5.5. 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.
6.3. 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.
6.5. 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.
7.3. 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
8.2. 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.
9.2. 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
10.2. 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").
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.
12.8. 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.