Xcalar End User
License Agreement for Hosting Service Marketplaces
- Please
read this document carefully before proceeding. By clicking on the “I Accept”
or “Agree” button or accessing or using the Xcalar software, you are agreeing
to the terms of this end user license agreement (“Agreement”).
This is a legal
agreement between you (either an individual or a single legal entity) (“Customer”) and Xcalar, Inc., a Delaware corporation with offices at 3031 Tisch Way,
Suite 450, San Jose, California 95128 (“Xcalar”). If you are entering into
this Agreement on behalf of an entity (such as your employer), then you
represent and warrant that you have the authority to bind that entity to this
Agreement. As used herein, each of Xcalar and Customer may
be referred to as a “Party” and
collectively as the “Parties.”
This Agreement together with the
associated Order Form, governs your
use of Xcalar’s big data analysis and reporting software product (the “Solution”) as made available by Xcalar
through third-party marketplaces like Amazon Web Services, Microsoft Azure, or
Google Cloud Platform (each a “Hosting
Service”). If Customer wishes to receive additional services, warranties,
or other terms not provided by this Agreement, Customer must negotiate a
separate written agreement with Xcalar regarding such terms.
- (A)
Subject to the terms and conditions of this Agreement and the an accepted Order
Form, including payment of all amounts charged by Xcalar (through the Hosting
Service or otherwise) for use of the Solution, Xcalar hereby grants to Customer
a non-exclusive, non-sublicensable, non-assignable license to use the computer
software programs comprising the Solution, in object code form, as provided to
Customer through the Hosting Service (the “Licensed
Software”), solely as provided by the Hosting Service on the infrastructure
provided by the Hosting Service, and solely for Customer’s own internal
business purposes (which, for the avoidance of doubt, shall not include
redistributing or otherwise allowing any third parties to access or use the
Licensed Software). (B) In conjunction with this Agreement, Customer shall
complete an Order Form to include the following information: (i) Customer name
and address, (ii) the Solution (including number of licenses) requested by
Customer, (iii) license term(s) for each Solution requested by Customer, and
(iv) Service options for each Solution requested by Customer. Xcalar shall use
commercially reasonable efforts to signify its acceptance or rejection of
Customer’s requests contained in the Order Form and the pricing for the
Solution(s) and any Services requested by Customer, within five (5) business
days of Xcalar’s receipt of the Order Form. Xcalar’s acceptance of an Order
Form shall be conditional upon Customer agreeing to the terms of this
Agreement.
- The
Licensed Software may allow Customer to generate code, query language, schemas,
or similar information or data structures (“Generated Code”) which result from the unique operation of the
Licensed Software. Customer agrees not to use or permit any third party to use any
Generated Code, other than in connection with use of the Licensed Software in
accordance with this Agreement. Additionally, Customer shall not, and shall not
permit any third party, including any parent, subsidiary, affiliate, or agent
of Customer, to:
(a) assign,
sell, lease, distribute, license, sublicense or otherwise transfer or attempt
to transfer rights to the Licensed Software;
(b) extract, reverse
engineer, decompile, disassemble or otherwise attempt to derive source code or
algorithms from the Licensed Software, except to the extent expressly permitted
by applicable law notwithstanding this restriction;
(c) modify,
translate, or create derivative works, adaptations or compilations of, or based
on, any part of the Licensed Software;
(d) remove or
otherwise interfere with any part of the Licensed Software designed to monitor
Customer’s compliance with this Agreement;
(e) use the
Licensed Software on behalf of, or to perform any services for, any third party,
or include the Licensed Software in any services or products provided by
Customer to any third party;
(f) provide,
disclose, divulge or make available to, or permit use of the Licensed Software
by any third party without Xcalar’s prior written consent;
(g) make the
Licensed Software available to third parties on a service bureau, rental, lease,
or application service provider basis;
(h) copy the
Licensed Software, in whole or in part, except as specifically authorized by
this Agreement; or
remove any proprietary
notices or labels on or in any of the Licensed Software.
(i) remove any
proprietary notices or labels on or in any of the Licensed Software.
- Customer
may make a reasonable number of machine-readable copies of the Licensed
Software only as is reasonably necessary in connection with administration of
infrastructure provided by the Hosting Service, such as for backup or archival
purposes. Customer shall maintain accurate and up-to-date records of the number
and location of all copies of the Licensed Software and inform Xcalar in
writing of such location upon Xcalar’s request. All copies of the Licensed
Software will be subject to all terms and conditions of this Agreement.
- Customer
may provide feedback to Xcalar concerning the functionality of, and
enhancements and changes to, the Licensed Software from time to time, including
without limitation identifying errors and potential improvements (“Feedback”). Such Feedback includes any
comments or content posted by Customer on Xcalar websites regarding the
Licensed Software or provided to Xcalar personnel. Customer hereby grants to Xcalar
a worldwide, irrevocable, assignable, perpetual, royalty-free license to use
and otherwise exploit such Feedback without restriction. The Parties
acknowledge and agree that notwithstanding anything to the contrary herein,
such Feedback shall not be deemed to be the confidential information of
Customer, and Xcalar has the right to modify, disclose and/or remove from
display any such Feedback in its sole discretion.
- Except
for the limited rights granted in Section 2.1, Xcalar retains all
right, title and interest in and to the Licensed Software, and all intellectual
property rights therein and thereto. Nothing in this Agreement shall constitute
a transfer of any ownership rights by Xcalar to Customer in the Licensed
Software or otherwise. All rights in the Licensed Software not expressly
granted hereunder are reserved by Xcalar and its licensors. Notwithstanding the
foregoing, if and to the extent that the Licensed Software contains any open
source software components, such components are licensed to Customer under the
terms of the applicable open source license, and this Agreement is not intended
to limit any rights granted to Customer under such open source license.
- Xcalar
is not obligated to provide any maintenance, support, and other professional
services (“Services”) under this
Agreement. If Customer wishes to procure Services from Xcalar, then Customer shall
request the Services options using the Order Form and the parties will enter
into a separate written agreement concerning such Services.
- Customer
agrees to pay all fees specified by Xcalar for use of the Solution as set forth
in Xcalar’s response to an accepted Order Form or the Hosting Service website. Customer
may not use the Solution without paying such fees to Xcalar.
- Xcalar
may implement mechanisms in the Licensed Software (such as through the use of
license keys) to audit Customer’s use of the Licensed Software. Additionally, upon
five (5) days’ written notice, but no more frequently than once per calendar
quarter, Xcalar may require that Customer provide Xcalar with such information
and assistance as is reasonably necessary for Xcalar to verify Customer’s compliance
with this Agreement, including, without limitation, verification regarding any
restrictions on use of the Licensed Software.
- THE
LICENSED SOFTWARE IS PROVIDED THROUGH THE HOSTING SERVICE ON AN “AS-IS” BASIS,
AND XCALAR MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY
REGARDING OR RELATING TO THE LICENSED SOFTWARE OR ANY MATERIALS OR SERVICES
FURNISHED OR PROVIDED TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT. XCALAR
HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT WITH RESPECT TO THE LICENSED SOFTWARE
AND ANY OTHER MATERIALS AND SERVICES FURNISHED OR PROVIDED UNDER OR IN
CONNECTION WITH THIS AGREEMENT, AND WITH RESPECT TO THE USE OF ANY OF THE
FOREGOING. XCALAR DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE
ERROR-FREE OR SECURE, OR THAT THE LICENSED SOFTWARE WILL WORK WITHOUT
INTERRUPTIONS.
- IN
NO EVENT WILL XCALAR BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE
FURNISHING, PERFORMANCE, OR USE OF THE LICENSED SOFTWARE OR ANY SERVICES,
WHETHER ALLEGED AS A BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY
OTHER CLAIM OR CAUSE OF ACTION, EVEN IF XCALAR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. XCALAR’S LIABILITY UNDER THIS AGREEMENT FOR
DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE
LICENSED SOFTWARE DURING THE SIX (6) MONTHS PRECEDING THE EVENTS WHICH GAVE
RISE TO THE DAMAGES.
- Customer
acknowledges that Xcalar offers the Licensed Software through the Hosting
Service and set its prices and entered into this Agreement in reliance upon the
limitations of liability and the disclaimers of warranties and damages set
forth herein, and that the same form an essential basis of the bargain between
the Parties. The Parties agree that the limitations of liability and
disclaimers set forth in this Agreement will survive and apply even if found to
have failed of their essential purpose.
- This
Agreement shall commence on the Effective Date and will remain in force for the
Term set forth in Xcalar’s response to an accepted Order Form, unless
terminated in accordance with this Agreement.
- This
Agreement may be terminated by Customer at any time, with or without cause,
provided that no such termination will entitle Customer to a refund of any prepaid
fees.
- Xcalar
may, by providing written notice to Customer, terminate this Agreement during
the Term if Customer is in material breach of any term, condition or provision
of this Agreement, which breach, if capable of being cured, is not cured within
thirty (30) days after Xcalar provides Customer with written notice of such
breach.
- Termination
of this Agreement will become effective immediately or on the date set forth in
the written notice of termination. Upon termination of this Agreement for any
reason, the license granted to Customer in Section 2.1 will immediately cease and Customer will have no
further rights to use the Licensed Software.
- The
following provisions will survive any termination of this Agreement: Sections 1, 2.2, 2.4, 2.5, 4, 5, 6.4, 6.5 and 7.
- Neither
this Agreement nor any rights under this Agreement may be assigned or otherwise
transferred by Customer, in whole or in part, whether voluntarily or by
operation of law, including by way of sale of assets, merger, or consolidation,
without the prior written consent of Xcalar. Any attempted assignment without
such consent will be null and void. Xcalar may freely assign or transfer this
Agreement, in whole or in part, whether voluntarily or by operation of law,
including by way of sale of assets, merger, or consolidation. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the Parties and their respective successors and assigns.
- Nothing
contained in this Agreement shall be construed as creating any agency,
partnership or other form of joint enterprise between the Parties. The
relationship between the Parties shall at all times be that of independent
contractors. Neither Party shall have the authority to contract for or bind the
other in any manner whatsoever. This Agreement confers no rights upon either
Party except those expressly granted herein.
- Any
notice to Xcalar required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b)
sent by first class registered mail, or air mail, as appropriate or (c) sent by
overnight air courier, in each case properly posted and fully prepaid to the
appropriate address first set forth above.
- Customer
agrees to comply with all applicable export control laws and regulations. Customer
shall not sell, export, reexport, transfer, divert or otherwise dispose of,
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 which may be imposed by the U.S.
Government and any country or organization of nations within whose jurisdiction
Customer operates or does business.
- Any
waiver of the provisions of this Agreement or of a Party’s rights or remedies
under this Agreement must be in writing to be effective. Failure, neglect or
delay by a Party to enforce the provisions of this Agreement or its rights or
remedies at any time will not be construed as, and will not be deemed to be, a
waiver of such Party’s rights under this Agreement, and will not in any way
affect the validity of the whole or any part of this Agreement or prejudice
such Party’s right to take subsequent action. No exercise or enforcement by
either Party of any right or remedy under this Agreement will preclude the enforcement
by such Party of any other right or remedy under this Agreement or any other
right or remedy that such Party is entitled by law to enforce.
- If
any term, condition or provision in this Agreement is found to be invalid,
unlawful or unenforceable to any extent, such invalid term, condition or
provision will be severed from the remaining terms, conditions and provisions,
which will continue to be valid and enforceable to the fullest extent permitted
by law.
- This
Agreement contains the entire agreement of the Parties with respect to the
subject matter of this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the Parties with respect to said subject matter. This Agreement may not be
amended, except by a writing signed by both Parties.
- This
Agreement will be interpreted and construed in accordance with the laws of the
State of California and the United States of America, without regard to
conflict of law principles. The Parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to this Agreement. Any judicial action or proceeding
arising hereunder or relating hereto shall be brought in, and the Parties
hereby consent to the exclusive personal jurisdiction of, the state and federal
courts located in Santa Clara County, California.
