BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ENROLLMENT PROCESS, BY USING ANY INFORMATICA LLC WEB SERVICE, OR BY EXECUTING ANY EXHIBIT A OR OTHER ORDER FORM THAT INCORPORATES THE TERMS OF THIS INFORMATICA LLC TECHNOLOGY LICENSE AGREEMENT BY REFERENCE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS, TOGETHER WITH SUCH EXECUTED EXHIBIT(S) A AND ANY UPDATES TO THESE TERMS POSTED ON THE INFORMATICA LLC WEBSITE, SHALL BE KNOWN AS THE "AGREEMENT." THIS AGREEMENT GOVERNS YOUR USE OF THE INFORMATICA LLC TECHNOLOGY, INCLUDING DOWNLOADABLE COMPONENTS, IF ANY. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BOTH USE THE INFORMATICA LLC TECHNOLOGY AND TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO INCLUDE THE CUSTOMER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE INFORMATICA LLC TECHNOLOGY. Informatica LLC, located at 2100 Seaport Blvd., Redwood City, CA 94063, and its subsidiaries and affiliates, is the owner and provider of the Informatica LLC Technology.
1. Informatica LLC Technology License.
1.1 “Informatica LLC Technology” as used in this Agreement means the data exchange technology and services made available by Informatica LLC to Customer under this Agreement, which consist of the web services and a data exchange platform through which Informatica LLC makes such web services available for access by Customer, but excludes any data and information that are accessed or delivered through or derived from such technology and services. Subject to the terms and conditions of this Agreement, Informatica LLC grants Customer a non-exclusive, non-transferable, non-sublicensable license under Informatica LLC’s rights in the Informatica LLC Technology to use the data exchange platform made available by Informatica LLC in order to access, use and integrate into any application, system, wireless device or web site for which Customer has paid the applicable subscription fee during the term of this Agreement, in each case solely for Customer’s internal business purposes and expressly not for any redistribution or use by any third party. Customer acknowledges that the Informatica LLC Technology will be made available to Customer by providing Customer access to one or more uniform resource locators and that no software (object code or source code) shall be provided to Customer. Customer acknowledges that Informatica LLC may change the Informatica LLC Technology at any time while maintaining substantially similar functionality, which shall continue to be governed by the terms and conditions of this Agreement.
1.2 Except as expressly authorized in this Agreement, Customer shall not, and shall not allow third parties to (i) use, copy, modify, translate, create derivative works of, distribute, disclose, sublicense, transfer, display, provide access to, rent, sell, lease or unbundle any of the Informatica LLC Technology, (ii) reverse engineer, decompile, disassemble or attempt in any way to reconstruct or discover the source code for any Informatica LLC Technology, (iii) remove, alter, or obscure any proprietary notices of Informatica LLC or its suppliers, or (iv) disclose the results of any performance benchmarks of the Informatica LLC Technology to any third party without Informatica LLC’s prior written consent.
1.3 Customer acknowledges that Informatica LLC is the sole owner of all right, title and interest in and to the Informatica LLC Technology and all software, hardware, systems, processes, methods, methodologies, tools, solutions, know-how and related technology, and all inventions, works of authorship, trade secrets, domain names, uniform resource locators, logos, trade dress, trademarks and service marks, existing as of the date of this Agreement and any and all additions, modifications, derivative works and improvements thereto, in each case that are utilized, generated or developed by Informatica LLC in making the Informatica LLC Technology available to Customer, including all intellectual property and other proprietary rights therein. Informatica LLC reserves all rights in the Informatica LLC Technology not expressly granted to Customer hereunder, and in the event that any such rights vest in Customer or any of its representatives, Customer hereby irrevocably and unconditionally assigns, and shall cause all such representatives to irrevocably and unconditionally assign, to Informatica LLC all those rights. No right, license or transfer of ownership under any intellectual property or otherwise is granted or shall be granted by implication. For clarity, the Informatica LLC Technology is being made available on a non-exclusive basis, and nothing in this Agreement shall restrict Informatica LLC from re-using any Informatica LLC Technology or data or information of Informatica LLC and its licensors that are accessed or delivered through or derived from the Informatica LLC Technology hereunder.
2. Usage Policies and Limitations.
2.1 Customer will receive one or more passwords for Customer’s users of the subscriptions to the Informatica LLC Technology. Customer is solely liable for any and all activities that occur on Customer’s account, including activities resulting from any failure by Customer to maintain the confidentiality of such passwords. Customer will promptly notify Informatica LLC of any loss of password or any breach of Section 2 herein known to Customer.
2.2 Customer will not use the Informatica LLC Technology or any data or information that is accessed or delivered through or derived therefrom to take any action, or assist others in taking any action, that (i) is unlawful, harassing, invasive of another’s privacy, abusive, threatening, harmful, obscene, defamatory, libelous or fraudulent, (ii) violates the personal privacy rights of others, (iii) victimizes, harasses, degrades, or intimidates any individual or group of individuals, (iv) constitutes unauthorized or unsolicited transmission of advertising, junk or bulk email, or other form of unauthorized solicitation or spam; (v) constitutes an attempt to impersonate any person or entity, (vi) is intended to omit, delete, forge, or misrepresent transmission information, (vii) is intended to cloak the identity or contact information of Customer or others, (viii) infringes or misappropriates any intellectual property of any third party, or (ix) interferes with or disrupts the use of the Informatica LLC Technology by Informatica LLC or others. Customer further will not upload to or otherwise process via the Informatica LLC Technology any data, content or materials that contain viruses, spyware, adware or any other harmful code. Customer acknowledges that Informatica LLC neither endorses the content of any communications made under Customer’s account nor assumes responsibility for any material contained therein.
2.3 Customer agrees to comply with all applicable laws and regulations (including applicable laws regarding taxes, the transmission of technical data, privacy, encryption of software, export of technology, transmission of obscenity or permissible uses of intellectual property) and all then-current requirements, procedures, policies, and regulations related to the Informatica LLC Technology. Customer shall provide any notices to, and obtain any consents from, third parties as required by applicable law, rule or regulation in connection with Customer’s use of the Informatica LLC Technology.
2.4 Informatica LLC reserves the right to deny access to the Informatica LLC Technology to Customer or any user of Customer that violates any of the terms and conditions set forth herein.
3. Operation of Data Exchange Platform.
3.1 Unless otherwise agreed in writing by the parties, Customer will have sole responsibility for and bear all risks associated with acquiring and operating the technology environment it uses to access and use the Informatica LLC Technology, including but not limited to computers, digital certificates (if required), operating systems, servers, Internet access, local area networks, and wide area networks and shall pay any fees associated with such access and use.
3.2 Customer acknowledges that certain web services and data and information that are accessed or delivered through the Informatica LLC Technology are accessed or delivered under agreements between Informatica LLC and third party data providers and accordingly are subject to certain restrictions. Customer shall comply with all restrictions relevant to the Informatica LLC Technology, which will be made available to Customer upon request. Without limiting the foregoing, Customer shall not store or maintain data or information that are accessed or delivered through or derived from the Informatica LLC Technology except solely on Customer’s internal systems.
3.3 In order for Informatica LLC to make the Informatica LLC Technology available, Informatica LLC may collect certain information about Customer’s use of the Informatica LLC Technology for purposes of understanding how the Informatica LLC Technology is being used, including without limitation information about frequency and duration of usage (“Usage Data”). Informatica LLC reserves the right to use and disclose Usage Data in a form that does not reasonably identify Customer or any individual. As between the parties, Informatica LLC shall own all right, title, and interest in and to all intellectual property rights in all materials developed by or on behalf of Informatica LLC based on or including as a component thereof any Usage Data and all generalized knowledge, skill, know-how and expertise relating to such information.
4. Subscription Terms; Fees; Support.
4.1 Customer may choose either a monthly, quarterly, semi-annual or annual subscription, as detailed during the registration process. Subscriptions are renewed automatically unless prior written notification of Customer’s intent to cancel (via email addressed to email@example.com ) is received by Informatica LLC i) at least fourteen (14) days prior to the next renewal date for monthly subscriptions, or ii) at least thirty (30) days prior to the next renewal date for other subscriptions. Rate increases may occur on the renewal date of any subscription. If Customer exceeds the usage limits set forth in the applicable subscription, Customer will be billed the overage rate for each transaction in excess of the subscription amount.
4.2 Customer shall pay Informatica LLC the fees and other amounts for the applicable term. Except as otherwise set forth during the registration process or in any applicable Exhibit A, any amounts due under this Agreement will be due and payable within thirty (30) days of Customer’s receipt of Informatica LLC’s invoice, or otherwise will be charged to Customer’s credit card if such option is chosen by Customer during the registration process. Monthly and quarterly subscriptions that do not exceed a subscription fee of $750 per month or quarter, respectively, must be paid by credit card. If Customer and Informatica LLC specifically agree that payment is to be made by wire transfer, Customer agrees to pay all wire transfer fees in addition to the subscription fees.
4.3 Monthly subscriptions. At the time of purchase, Customer’s credit card will be charged for one full month’s service and the hit count is set to the total number of hits purchased. Customer’s anniversary date is set to the same date every month (i.e., if Customer purchased March 13, Customer’s first anniversary would be April 13). On the monthly anniversary date, Customer’s credit card is charged again, and the hit count is reset.
4.4 Quarterly, Semi-annual and Annual subscriptions. At the time of purchase, Customers paying by credit card will have the credit card charged for the applicable subscription term. If Customer chooses to pay by invoice, Informatica LLC will generate the invoice which will be due and payable within thirty (30) days of receipt.
4.5 If Informatica LLC terminates Customer’s subscription for failure to make any payment when due, any remaining amount Customer’s subscription fee will immediately become due and payable upon receipt of an invoice from Informatica LLC.
4.6 Support for the Informatica LLC Technology is provided either in moderated forums, or by telephone or email for specific support requests depending on Customer’s service subscription level, as further described at http://www.informatica.com/daas-support-policy .
5.1 Informatica LLC warrants that the Informatica LLC Technology will substantially conform in all material respects with the description set forth on the Product Description Schedule current at the time of licensing, a copy of which is available upon request. If the Informatica LLC Technology in whole or in part does not comply with this warranty, Customer’s sole remedy and Informatica LLC’s sole obligation will be to use commercially reasonable efforts to correct the problem or, if such correction is not practicable, Informatica LLC may terminate this Agreement either in its entirety or as to the affected Informatica LLC Technology upon written notice to Customer, and refund any prepaid unearned fees paid by Customer for the affected Informatica LLC Technology.
5.2 Customer represents and warrants that neither Customer nor any of its users are (i) located in, under the control of, or a national or resident of any country specifically designated by applicable export laws or regulations, and (ii) on any list of prohibited persons or entities under such laws and regulations.
6. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE INFORMATICA LLC TECHNOLOGY AND any data and information that are accessed or delivered through or derived THEREfrom ARE PROVIDED “AS IS”, AND INFORMATICA LLC SHALL HAVE NO LIABILITY FOR ANY ERRORS OR OMISSIONS THEREIN OR ANY OTHER ASPECTS THEREOF. INFORMATICA LLC HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR SYSTEM INTEGRATION, WITH RESPECT TO THE INFORMATICA LLC TECHNOLOGY AND any data OR information that are accessed or delivered through or derived THEREfrom, INCLUDING ANY REPRESENTATIONS OR WARRANTIES CONCERNING RESULTS OBTAINED FROM CUSTOMER’S USE THEREOF. INFORMATICA LLC DOES NOT REPRESENT OR WARRANT THAT THE INFORMATICA LLC TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT OPERATION OR USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE. Customer will bear all risk associated with any use of the Internet OR OTHER MEANS OF data transmission by or on behalf of Customer under THIS AGREEMENT, and Informatica LLC disclaims all responsibility and liability IN CONNECTION WITH SUCH USE. Informatica LLC does not make any representations or warranties with respect to any materials, PRODUCTS, data, information or content provided by any third party. CUSTOMER ACKNOWLEDGES THAT ANY USE OF DATA OR INFORMATION that IS accessed or delivered through or derived FROM THE INFORMATICA LLC TECHNOLOGY OR SERVICES IS DONE AT CUSTOMER’S SOLE DISCRETION AND RISK. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to Customer. To the extent that Informatica LLC may not disclaim any warranty as a matter of law, the scope and duration of such warranty will be the minimum permissible under applicable law.
7. Limitation of Liability. In no EVENT WILL INFORMATICA LLC OR ITS AFFILIATES, OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE IN CONNECTION WITH this agreement for any incidental, indirect, exemplary, punitive, special or consequential damages, including without limitation loss of use, LOSS OF DATA OR loss of profits, even if Informatica LLC has been advised of the possibility of such damages. IN NO EVENT WILL THE LIABILITY OF INFORMATICA LLC OR ITS AFFILIATES, OR ITS OR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR LICENSORS IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID HEREUNDER BY CUSTOMER TO INFORMATICA LLC IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. No action, regardless of form, arising out of this Agreement may be brought by Customer more than two (2) years after the cause of action has arisen. thE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CLAIMS, WHETHER ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1 Customer will defend, indemnify and hold harmless Informatica LLC and its affiliates, and its and their respective officers, directors, employees, and agents, from and against any costs, losses, liabilities, claims or expenses (including reasonable attorneys’ fees) associated with third party claims arising out of or resulting from: (i) Customer’s use of the Informatica LLC Technology or any data or information that are accessed or delivered through or derived from such technology or services in breach of the terms of this Agreement, except to the extent result from the breach of this Agreement by Informatica LLC; (ii) the possession, transmission or use by Informatica LLC or its suppliers of any material, data, information or content that have been transmitted or provided under Customer’s account or otherwise provided by Customer in connection with its use of the Informatica LLC Technology; or (iii) any breach of Section 2.2, 2.3 or 5.2 herein.
8.2 Informatica LLC shall indemnify and hold Customer and Customer’s subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a third-party claim alleging that the Informatica LLC Technology directly infringes a third-party: (i) copyright, (ii) U.S. patent, or (iii) trademark (“Claim”); provided that Customer: (a) promptly gives written notice of the Claim to Informatica LLC; (b) gives Informatica LLC sole control of the defense and settlement of the Claim (provided that Informatica LLC may not settle any Claim unless such settlement releases Customer of all liability); (c) provides to Informatica LLC all available information and reasonable cooperation and assistance; and (d) has not compromised or settled such Claim. Informatica LLC shall have no indemnification obligation for any Claim arising from: (i) the combination of the Informatica LLC Technology with any of Customer’s products, services, hardware or system, if such Claim would not have arisen but for such combination, or (ii) any misuse or unauthorized use of the Informatica LLC Technology. In the event the Informatica LLC Technology, in Informatica LLC’s opinion, is likely to or does become the subject of a claim of infringement, Informatica LLC shall have the right at its sole option and expense to: (a) modify the Informatica LLC Technology to be noninfringing while preserving substantially equivalent functionality; (b) obtain for Customer a license to continue using the Informatica LLC Technology; or (c) terminate this Agreement and refund to Customer a pro rata portion of the prepaid fees paid to Informatica LLC hereunder for that portion of the Term which is beyond the termination date. This Section 8.2 states Informatica LLC’s sole obligation and Customer’s exclusive remedy with respect to any infringement or claims of infringement.
9. Term and Termination. Unless earlier terminated in accordance with the provisions of this Agreement, (i) t his Agreement will remain in effect for the period of the subscription term selected by Customer as part of the registration process or set forth in any applicable Exhibit A, and (ii) thereafter the term of this Agreement will automatically renew for additional periods in accordance with the period of the subscription term. Either party may terminate this Agreement early upon thirty (30) days’ written notice. Should a Informatica LLC web service to which Customer has subscribed become permanently unavailable prior to Customer’s subscription renewal date, Informatica LLC will refund Customer for the prorated amount based on the lesser of hits remaining, time remaining before Customer’s subscription renewal date, or the last day the service is available for use. Informatica LLC may terminate this Agreement with no refund of fees immediately upon written notice if (a) Customer violates any of the terms set forth in Sections 1 or 2 of this Agreement, or (b) any payment owed by Customer is ten (10) or more days late. Upon the termination of this Agreement, all license and other rights granted to Customer under this Agreement will immediately cease, and Customer will promptly discontinue use of all Informatica LLC Technology. Termination of this Agreement will not relieve either party of any obligation accruing to such party prior to such termination or result in the waiver of any right or remedy by a party hereto accruing to such party prior to such termination. Sections 1.2, 1.3, 2.3, 2.4, 3.3, 4, 6, 7, 8, 10, 11 and 12 will survive termination or expiration of this Agreement.
10.1 For purposes of this Agreement the party disclosing Confidential Information is referred to herein as the “Disclosing Party” and the party receiving Confidential Information is referred to as the “Receiving Party”. Confidential Information disclosed by any Affiliate of a party shall be covered by this Agreement. “Confidential Information” means any information, technical data or know-how, including, without limitation, that which relates to computer software programs or documentation, specifications, source code, object code, research, inventions, processes, designs, drawings, engineering, products, services, customers, markets or finances of the Disclosing Party which (i) has been marked as confidential or proprietary; (ii) is identified as confidential at the time of disclosure either orally or in writing; or (iii) due to its character and nature, a reasonable person under like circumstances would understand to be confidential. In addition, Confidential Information of Informatica LLC includes the Informatica LLC Technology, the accompanying Documentation and all related technical and financial information (including the terms of this Agreement).
10.2 Confidential Information shall not include information which (a) Receiving Party can demonstrate was rightfully in its possession, without confidentiality obligations, before receipt; (b) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed the Disclosing Party; (c) is disclosed to Receiving Party, without confidentiality obligations, by a third party who has the right to disclose such information; or (d) Receiving Party can demonstrate was independently developed without reliance on any Confidential Information of the Disclosing Party, provided that if only part of any Confidential Information falls within one or more of the exceptions set out in this Section 10.2, the remaining part of the Confidential Information shall continue to be subject to the restrictions set forth in this Agreement.
10.3 The parties hereby agree that: (a) Receiving Party may use Confidential Information solely for the purposes of this Agreement; (b) Receiving Party shall instruct and require all of its employees, agents, and contractors who have access to the Confidential Information of the Disclosing Party to maintain the confidentiality of the Confidential Information; (c) Receiving Party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Receiving Party would exercise to safeguard the confidentiality of Receiving Party’s own confidential property; (d) Receiving Party shall not disclose the Confidential Information, or any part or parts thereof, except on a “need to know” basis to those of its employees, agents, and contractors who are bound to confidentiality obligations at least as protective of the Confidential Information as those set forth herein; and (e) Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law, provided, however, that Receiving Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure and further provided the Receiving Party shall otherwise continue to treat such Confidential Information in accordance with this Agreement. The Receiving Party’s obligations set forth herein shall also be applicable to Confidential Information disclosed by the Disclosing Party to the Receiving Party prior to the execution of this Agreement. The Receiving Party will return any tangible materials containing Confidential Information, and any copies or reproductions thereof, to the Disclosing Party within ten (10) days after the Disclosing Party’s written request. Receiving Party agrees to undertake whatever action is reasonably necessary to remedy any breach of Receiving Party confidentiality obligations set forth herein or any other unauthorized disclosure or use of the Confidential Information by Receiving Party, its employees, its agents, or contractors. The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction without the necessity of posting any bond.
11. Taxes. Customer shall pay, in addition to any applicable subscription fees, all taxes (excluding taxes based on Informatica LLC’s net income) however designated, levied or based on the prices, terms or performance of this Agreement, including, without limitation, state and local sales and use taxes, duties and privilege and excise taxes, unless Customer furnishes appropriate evidence of exemption.
12. General. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous related communications between the parties. This Agreement may only be amended or any of its provisions waived by an instrument in writing signed by authorized representatives of both parties. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. The parties are acting as independent contractors under this Agreement. Neither party will be liable to the other party for any delay or failure in performance under this Agreement resulting directly or indirectly from Force Majeure or any other causes beyond its reasonable control. Customer may not assign this Agreement or any rights or obligations under this Agreement by operation of law or otherwise, without the prior written consent of Informatica LLC, and any attempt without such consent shall be null and void. This Agreement shall be binding upon, and is for the sole benefit of, the parties and their successors and permitted assigns. This Agreement will be governed by the substantive laws of the state of California without regard to any conflict of law provisions, and the UN Convention on the International Sale of Goods shall not apply. In the event that any action, suit, proceeding or arbitration is instituted concerning or arising out of this Agreement, the prevailing party shall be entitled to recover all of such party’s costs and reasonable attorneys’ fees incurred by reason of any of such action, suit, proceeding or arbitration. If Customer is a United States government entity, the Informatica LLC Technology is deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to DFAR Section 252.227-7013 and FAR 12.212 (or their successor regulations), as applicable, and any use, modification, reproduction, release, performance, display or disclosure of the Informatica LLC Technology the United States government or any of its agencies shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Any notices under this Agreement shall be in writing by nationally recognized overnight courier with delivery confirmation and shall be deemed delivered upon receipt by the party to whom such communication is directed. If to Informatica LLC, such notices shall be addressed to Informatica LLC, c/o Informatica Legal Department, 2100 Seaport Blvd., Redwood City, CA 94063. If to Customer, such notices shall be addressed to the electronic or mailing address specified during Customer’s registration process, or such other address as either party may give the other by notice as provided in this Section 12.