End User License Agreement
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, if applicable, 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.
I. LICENSE GRANT AND RESTRICTIONS
1.1 LICENSE GRANT
(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.
1.2 ADDITIONAL RESTRICTIONS
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.
1.5 RESERVATION OF RIGHTS
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.
2. MAINTENANCE, SUPPORT, AND OTHER PROFESSIONAL SERVICES
2.1 NO SERVICES
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.
3. FEES AND PAYMENT
3.1 PAYMENT TERMS
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.
3.2 AUDIT RIGHTS
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.
4. DISCLAIMERS AND LIMITATIONS OF LIABILITY
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.
4.2 LIMITATION OF LIABILITY
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.
4.3 BASIS OF BARGAIN; FAILURE OF ESSENTIAL PURPOSE
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.
5. TERM AND TERMINATION
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.
5.2 TERMINATION BY CUSTOMER
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.
5.3 TERMINATION BY XCALAR
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.
5.4 EFFECT OF TERMINATION
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.
6.2 RELATIONSHIP OF PARTIES
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.
6.4 EXPORT CONTROL
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.
6.8 GOVERNING LAW
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.