Xactly Transform Service Agreement
IMPORTANT – READ CAREFULLY: This Xactly Transform Services Agreement (the “Agreement”) is entered into and effective by and between you and Xactly Corporation, a Delaware corporation (“Xactly,” “we” or “us”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “you” or “your” means your company, and you are binding your company to this Agreement. By clicking on the “I agree” (or similar) button that is presented to you at the time of accessing the Services, or by using interacting with or accessing the Services, you indicate your agreement to be bound by this Agreement. This Agreement governs your use of the Services. This Agreement includes any orders, and any other policies and attachments referenced in this Agreement. To the extent you have an existing agreement in place with Xactly governing the provision of Xactly software and professional services (“Subscription and Services Agreement”), (a) the Subscription and Services Agreement does not apply to the Services as defined herein, and (b) this Agreement does not apply to your provision of Xactly software and professional services as governed under the Subscription and Services Agreement.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with your company entity signing this Agreement. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Intellectual Property Right” 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.
“Services” means the Xactly Transform professional services, Xactly Value Realization services, or other professional services requested by you and provided by Xactly under this Agreement, if any, including consulting and scoping services related to Xactly’s software services.
“Xactly Materials” means any materials or deliverables Xactly provides to you as part of the Services, expressly excluding your Confidential Information incorporated therein. You agree that Xactly Materials are Xactly’s Confidential Information, as defined in Section 3, and you shall use the Xactly Materials only as expressly permitted herein.
2. Services.
2.1 Provision of Services. Xactly shall provide Services to you from time to time pursuant to this Agreement. Subject to the terms of this Agreement, Xactly grants to you a nonexclusive, royalty free, non-transferable, perpetual license to copy and use the Xactly Materials, solely for you and your Affiliates’ internal business purposes. You shall not alter or remove, or permit any third party to alter or remove, any proprietary or intellectual property incorporated in, marked on or affixed to any Xactly Materials. You consent to Xactly’s Privacy Policy located at https://trust.xactlycorp.com/privacy-policy/ which is incorporated into this agreement by reference. You shall use the Services in accordance with applicable law.
2.2 Proprietary Rights. Except for the limited rights expressly granted to you hereunder, Xactly reserves all right, title and interest in and to the Services and the Xactly Materials, including all related Intellectual Property Rights inherent therein, and the skills, know-how and methodologies used or acquired by Xactly in connection with providing the Services. No rights are granted to you hereunder other than as expressly set forth in this Agreement. Xactly alone (and its suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to all of Xactly’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) (hereafter, “Xactly Technology”) made available to you by Xactly in providing the Service, the Xactly Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Xactly Technology or the Intellectual Property Rights owned by Xactly. The Xactly name, the Xactly logo, and the Xactly product names associated with the Services are trademarks of Xactly, and unless expressly granted herein, no right or license is granted to use them. You will not accrue any residual rights to the Xactly Technology or the Services, including any rights to the Intellectual Property Rights in connection therewith.
2.3 Restrictions. You shall not (i) modify, copy, display, republish or create derivative works based on the Services or the underlying software; (ii) modify, copy or create derivative works of the Services or Xactly Materials; (iii) frame, scrape, link to or mirror any content forming part of the Services, other than on your own intranets or otherwise for your own internal business purposes; (iv) reverse engineer the Services or the underlying software; (v) access the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Services; (vi) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (vii) use the Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (viii) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (ix) upload to the Services or use the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (x) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (xi) attempt to gain unauthorized access to the Services or its related systems or networks; or (xii) conduct any platform or system level penetration testing of the Services. Xactly may monitor your use of the Services to confirm your compliance with the terms and conditions in this Agreement.
2.4 Suggestions. Xactly shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Services (“Feedback”).
2.5 Third Party Products. If you procure services, applications, or online content from a third party (“Third Party Products”) for use with the Services, or if the Services includes references to Third Party Products, any such use of Third Party Products is subject to the end-user license or other agreement you accept from or establish with such third party. Xactly has no liability with respect to your procurement or use of Third Party Products. The Services may contain or include links to third party websites that are not owned or controlled by Xactly. Xactly has no control over, and assumes no responsibility for, the content, policies or practices of third party websites.
3. Confidentiality. As used herein, "Confidential Information" means all confidential and 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 without limitation, each party’s business and marketing plans, technology and technical information, product designs, and business processes. Xactly’s Confidential Information shall include the terms and conditions of this Agreement and the Xactly Materials. A party’s obligations regarding Confidential Information shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party as demonstrated by contemporaneous evidence without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without an obligation of confidentiality and without a breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 3, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any breach of this Section 3 would cause irreparable harm to the Disclosing Party and that other available remedies available to the Disclosing Party would be inadequate.
For the avoidance of doubt, to the extent you have entered into a Subscription and Services Agreement with Xactly, any information submitted by or on behalf of Customer to Xactly for the provision of Services under this Agreement shall not be considered Customer Data (as defined in the Subscription and Services Agreement). You are hereby restricted from providing Xactly any personally identifiable information under this Agreement.
4. Warranties and Disclaimer.
4.1 Warranties. You warrant that: (a) you own or otherwise have sufficient rights in the any information provided to Xactly in the course of its provision of the Services.
4.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OR AS LIMITED BY APPLICABLE LAW YOU UNDERSTAND AND AGREE THAT THE SERVICES AND XACTLY MATERIALS ARE PROVIDED "AS IS" AND XACTLY, ITS AFFILIATES, SUPPLIERS, RESELLERS, AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT: (A) THE SERVICES DO NOT CONSTITUTE THE PROVISION OF LEGAL ADVICE IN ANY MANNER; (B) THE SERVICES DO NOT ENSURE YOUR COMPLIANCE WITH APPLICABLE LABOR OR EMPLOYMENT LAWS; AND (C) YOU ARE SOLELY RESPONSIBLE FOR YOUR COMPLIANCE WITH ALL APPLICABLE LAWS.
5. Indemnity and Limitation of Liability.
5.1 Indemnification by You. You shall defend Xactly, at your expense, against any claims, demands, suits or proceedings (“Claims”) made or brought against Xactly by a third party alleging that any information provided by you under this Agreement, or your use of the Services in violation of this Agreement, infringes or otherwise violates a third party’s property, privacy or directly infringes a patent, copyright, or trademark of a third party. Further, you shall indemnify and hold Xactly harmless against all costs (including reasonable attorneys’ fees) finally awarded against Xactly by a court of competent jurisdiction or an arbitrator or agreed to in a written settlement agreement signed by your, in connection with such Claims. Promptly upon receiving notice of a Claim, Xactly shall: (a) 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 or defend any Claim unless it unconditionally releases Xactly of all liability); and (c) provide to you all reasonable assistance in the defense or settlement of such Claim.
5.2 Limitation Liability. IN NO EVENT SHALL XACTLY’S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED $100.
5.3 Exclusion of Consequential and Related Damages. EXCEPT FOR CUSTOMER’S VIOLATION OF SECTION 2 OR SECTION 3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS LICENSORS FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term and Termination.
6.1 Term. This Agreement is effective beginning when you accept these Terms or first access, or use the Services, and ends when this Agreement is terminated as described herein. A party may terminate this Agreement at any time and for any reason. If you breach Section 2.3 or otherwise violate this Agreement, your access to the Services may be automatically terminated by Xactly and any license you have to use the Services or Xactly Materials will be immediately revoked. You also agree that Xactly may, at any time and without notice to you, suspend or revoke your access to and use of the Services and Xactly Materials: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Xactly or any third party; or (ii) in connection with any general discontinuation of the Services. Xactly also reserves the right to modify the Services at any time without notice to you. Xactly will have no liability whatsoever on account of any change to the Services or any suspension or revocation of your access to or use of the Service.
6.2 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement for any reason: Sections 2.2, 2.3, 2.4, 2.5, 3, 4.2, 5, 6, 7.
7. General Provisions.
7.1 Export Control. You shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operates or does business, such as the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, trade and economic sanctions maintained by the United States Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the United States Department of State, and shall not cause Xactly to violate the same.
7.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
7.3 Notices. All legal notices required to be sent hereunder shall be in writing and shall be deemed to have been given (a) to Xactly upon (i) the date it was delivered by courier, or (ii) if sent by certified mail return receipt requested, on the date received, in each case addressed to the address set forth above to the General Counsel, and (b) if to you, via a notice on the Services or via email on the date emailed to your registered email address.
7.4 Waiver, Cumulative Remedies & Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
7.5 Assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Xactly (not to be unreasonably withheld). Any attempt by you to assign your rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
7.6 Governing Law; Venue; Waiver of Jury Trial. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. The state and Federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
7.7 Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Xactly's possession or reasonable control, and denial of service attacks (each a “Force Majeure Event”). The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch. Either party may terminate this Agreement in the event the Force Majeure Event continues for more than forty-five (45) days.
7.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. Except as otherwise set forth herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit or addendum shall prevail. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.
7.9 Modifications to this Agreement. Xactly reserves the right to modify the terms and conditions of this Agreement, at its sole discretion. If Xactly modifies the Agreement during your Term and you object to the updated Agreement, as your exclusive remedy, you may choose to terminate this Agreement and cease using the Services.