End User Software and Subscription Agreement

The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first defined.

1.1  “Affiliate” means an entity that controls, is controlled by, or is under common control with Customer, where “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.

1.2  “Cloud Services Addendum” means those terms and conditions located at https://res.cloudinary.com/talend/image/upload/v1623806939/docs/legal/cloud-services-addendum_lfqs3n.pdf.

1.3  Documentation” means the end user manuals or documentation regarding the use of the Talend Software and/or Talend Cloud Services that are generally provided with each Talend Software and/or Talend Cloud Services product.

1.4  “Generated Code” means an independently executable program or other similar binary code artifact that is generated by the Talend Software for which Customer has purchased a Software Subscription hereunder.

1.5  “Learner” means an individual identified by Customer as an individual authorized to use or access a Learning Subscription.

1.6  “Learning Services” means the training modules available through Talend’s online training portal: https://academy.talend.com.

1.7  “Learning Subscription” means Learners’ right to unlimited access and personal use of Learning Services, on a subscription basis, as specified in the applicable Order Form, and subject to the applicable License Type restrictions for which such right has been purchased and to the remaining terms of this Agreement.

1.8  “License Type Addendum” means the License Types and their description available at https://res.cloudinary.com/talend/image/upload/v1623806921/docs/legal/license-type-addendum_b92e3d.pdf.

1.9  “Microservices Generated Code” means a type of Generated Code that is produced or derived from ESB binary code artifacts that are packaged using the Talend Software as a standalone Java executable application using the Spring Boot framework (https://spring.io/projects/spring-boot). As used in this Agreement, all terms and conditions that apply to the term “Generated Code” shall apply equally to the term “Microservices Generated Code”, except as provided in the License Type Addendum, incorporated herein by reference.

1.10  “Open Source Software” means individual software components that are provided with the Talend Software, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components.

1.11  “Order Form” means (i) a Talend order form accepted by both Parties, pursuant to which Customer may order the Talend Software, the Talend Cloud Services, and Services from Talend, or (ii) any document accepted by and between an authorized reseller of Talend pursuant to which Customer may order the Talend Software, the Talend Cloud Services, and Services from Talend.

1.12  “Software Subscription” means Customer’s right to use the applicable Talend Software, subject to the License Type restrictions for which such right has been purchased.

1.13  “Software Subscription Key” means a logical code that activates and controls a Software Subscription based on (i) the applicable License Type, (ii) the Talend Software edition for which a Software Subscription has been purchased, and (iii) the Subscription Term. A Software Subscription Key is “attached” to a specific hardware machine identified by a MAC address, and may be installed on only one machine at a time.

1.14  “Stitch Products” has the meaning ascribed to it in the Stitch Products Addendum. For the avoidance of doubt, the Stitch Products and support for the Stitch Products, as further described in the Stitch Products Addendum, are provided to Customer by Stitch Inc. (“Stitch”) on behalf of Talend. Talend remains responsible for any performance by Stitch under this Agreement.

1.15  “Stitch Products Addendum” means those terms and conditions located at https://res.cloudinary.com/talend/image/upload/v1623806921/docs/legal/stitch-products-addendum_ixadp2.pdf.

1.16  “Subscription Term” means the period of time set forth in the applicable Order Form for which a Software Subscription, Learning Subscription, Cloud Subscription or Monthly Cloud Subscription is valid. Notwithstanding the foregoing, the Subscription Term for any Generated Code is always perpetual.

1.17  “Support Services” means the technical support services related to the use of the Talend Software and/or Talend Cloud Services (excluding the Stitch Products) that are purchased by Customer, as set forth on an applicable Order Form, and as further described in Talend’s “Support Services Policy” located at https://www.talend.com/legal-agreements/. The Support Services Policy is hereby incorporated into and made part of this Agreement. Customer support for the Stitch Products shall be as set forth in the Stitch Products Addendum.

1.18  “Talend Cloud Services” and “Cloud Subscription” shall be as defined in the Cloud Services Addendum. If Customer has ordered Stitch Products pursuant to the Stitch Products Addendum, references to the Talend Cloud Services herein (Excluding the Cloud Services Addendum) shall include the Stitch Products.

1.19  “Talend Open Studio” or “TOS” means the open source only version of the Talend integration software tools available for free download and licensed under an open source license.

1.20  “Talend Software”means the object code version of the Talend proprietary software for which Customer has purchased a Software Subscription here under, as indicated on the applicable Order Form, along with any Updates thereto provided by Talend to Customer here under and including, without limitation, any Generated Code but expressly excluding Talend Open Studio or any other Talend software made available under an open source license.

1.21  “Unsupported Code” means any program or binary code artifacts created or generated through use of Talend Open Studio.

1.22  “Update” means any Major Release, Minor Release, Service Pack and/or Patch (all as defined in the Support Services Policy) of or for the Talend Software that is made generally available by Talend to its customers during the term of this Agreement.

1.23  “Services” means collectively the Consulting Services, Learning Services, Training Services, and/or Support Services.

2.1  License Grants. Talend hereby grants to Customer, solely for Customer’s and Affiliates’ internal business operations, a limited, non-exclusive, non-transferable right and license to: (a) Use the Talend Software during the Subscription Term, subject to the applicable License Type restrictions (as specified on an Order Form); (b) Use any Generated Code in perpetuity subject to the restrictions set forth below in Section 2.2; (c) Permit Affiliates or third party contractors performing services on Customer’s behalf to use the Talend Software and Documentation in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer or Affiliates; and (ii) Customer shall be responsible for all acts and omissions of such third parties and; (d) Make a reasonable number of copies of the Talend Software for backup and/or archival purposes, excluding Hot and Warm Backup purposes as such terms are defined in the License Type Addendum.

2.2  Reservation of Rights; Restrictions. Talend owns all right title and interest in and to the Talend Software and any derivative works thereof, and no other license to the Talend Software is granted to Customer by implication, estoppel or otherwise. Customer understands and agrees that Customer’s ability to use the Talend Software is determined by the Software Subscription Key provided to Customer. Customer agrees not to: (i) use the Talend Software other than for licensed purposes, such as for the processing of Unsupported Code other than Generated Code; (ii) prepare derivative works from, disassemble, reverse compile, reverse engineer, modify, copy or use the Talend Software in any manner except as expressly permitted in this Agreement; (iii) attempt to circumvent, disable or defeat the limitations on Customer’s use of the Talend Software encoded into the Software Subscription Key, including without limitation any restrictions on the ability to process or utilize binary code artifacts that were created using TOS; (iv) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Talend Software or the Generated Code in whole or in part to any third party; (v) use the Talend Software or the Generated Code for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (vi) alter or remove any proprietary notices in the Talend Software or the Generated Code; and (vii) make available to any third party any analysis of the results of operation of the Talend Software, including benchmarking results, without the prior written consent of Talend. Notwithstanding the foregoing restrictions, in the event Customer has purchased a Software Subscription license for Commercial Use (as such term is defined below), Customer shall be permitted to use the Talend Software to provide third party services in cases where such third parties access the Customer provided applications or services, but where such third parties do not have the ability to install, configure, manage or have direct access to the Talend Software. Talend hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to “internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use“). 

2.3  Delivery; Software Subscription Keys and Use Manager. The Talend Software is only available electronically via download and will not be available in any other format. Talend Software shall be deemed delivered to Customer upon Talend making available to Customer the Software Subscription Key. Customer understands and agrees that a Software Subscription Key provided by Talend is required to enable the Talend Software and that Software Subscription Keys are valid only during the Subscription Term. Customer further understands and agrees that: (i) in case of breach by Customer of the payment terms stipulated in this Agreement, Talend will have the right to suspend the Software Subscription and such suspension will not give rise to any modification of the amount of the Software Subscription fee or to any extension of the Subscription Term; (ii) the Talend Software will, in the absence of any renewal of the Subscription Term, be disabled automatically upon the expiration of the Subscription Term and (iii) the Software Subscription Key will automatically prevent the use of the Talend Software in violation of the applicable License Type restrictions, as set forth in the Order Form. Finally, Customer understands and agrees that upon activation of the Talend Software, a software module (“Use Manager”) will provide certain information to Talend regarding the system environment in which the Talend Software is operating and will monitor the use and security of the Talend Software. For example, the Use Manager uses HTTP protocol and encryption to provide information about the Operating System, amount of RAM, type and number of CPUs and MAC address, as well as the Customer name, license type, version of the Talend Software being used, start and end date of the Software Subscription, and number of active users, provided, however, that under no circumstances does the Use Manager capture or transmit to Talend any Customer data being processed by the Talend Software. 

3.1  Support Services. Subject to the payment by Customer to Talend of applicable fees, Talend will provide Customer with the Support Services specified in the Order Form. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Talend reserves the right to modify reasonably its Support Services Policy from time to time, provided that in no event will Talend materially degrade or diminish the level and quality of Support Services provided under its Support Services Policy during the term of this Agreement. Talend shall have no obligation to support versions of the Talend Software that have been modified by Customer or used to process, manipulate, or otherwise utilize Unsupported Code.

3.2  Consulting Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to make commercially reasonable efforts to provide Customer with consulting services (“Consulting Services”), if any, set forth on an applicable Order Form, or as may be further described in an applicable Statement of Work. Unless expressly specified in the applicable Order Form, Consulting Services are provided on a time and material (“T&M”) basis pursuant to the T&M rates specified in the applicable Order Form. Any hour worked during a weekend (Saturday, Sunday) or Bank/National Holiday will be charged at 1.5 times the agreed hourly rate. Any estimate of time or number of days or hours required to perform Consulting Services or any monetary amount stated in the applicable Order Form or Statement of Work for T&M Services, shall be deemed an estimate for Customer’s budgeting and Talend resource scheduling purposes.

3.3  Training Services. Subject to the payment by Customer to Talend of applicable fees, Talend agrees to provide Customer with the instructor-led training services (“Training Services”), if any, set forth on an applicable Order Form, for which Customer has purchased education credits or as may be further described in an applicable Statement of Work. Education credits may be purchased by Customer and applied towards Training Services within twelve (12) months from the date of purchase. Each day of Training Services requires fifteen (15) education credits for private courses, or four (4) education credits for public courses if available. Public courses may not be available in all countries. Private courses are restricted to eight (8) attendees, unless otherwise agreed in writing with Talend. Education credits may not be applied to Learning Services or Expenses.

3.4  Learning Services. Subject to the payment by Customer to Talend of applicable fees, Talend will provide Customer with the Learning Services specified in the Order Form. Learning Services shall be provided on an annualized subscription basis during the Subscription Term, as set forth on the applicable Order Form. All access and resources provided with a Learning Services may only be consumed during the Learning Subscription Term. Talend reserves the right to modify the contents of the Learning Services from time to time, in its sole discretion.

3.5  Cancellation and Rescheduling. Cancelling or rescheduling of Consulting or Training Services must be done in writing. Consulting or Training Services are scheduled by joint agreement between the Parties and cancelled or postponed by Customer less than five (5) business days prior to the engagement commencing shall be subject to a cancellation/rescheduling fee of $1,500 per Talend Consultant in addition, Customer shall reimburse Talend for any non-refundable travel expenses that have been incurred by Talend prior to such cancellation or postponement of the Consulting and /or Training Services by Customer.

3.6  Subcontractors. Talend reserves the right to use subcontractors to perform Services on Talend’s behalf, and Customer hereby consents to such use, provided that Talend shall remain solely responsible to Customer for the provision of all applicable Services.

3.7  Customer Policies. While on premises owned, controlled or hired by Customer, all Talend personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer.

3.8  Ownership of Work Product and Other Materials. In the course of performing the Services, Talend may create derivative works of the Talend Software, new software or other works of authorship (collectively “Work Product”). Subject to Customer’s ownership interest in, and Talend’s obligations with respect to, Customer’s Confidential Information, Talend shall own all right title and interest in and to all Work Product, including all intellectual property rights therein and thereto. Talend hereby grants to Customer a license to such Work Product under the same terms and conditions as Customer’s license to the Talend Software set forth in Section 2.1 above. Notwithstanding the foregoing, and for the avoidance of doubt, in the case of Work Product that are Generated Code, Talend shall retain ownership of the Generated Code. Nothing in this Agreement shall be deemed to prohibit Talend from using for any purpose any general knowledge, skills, techniques or methods it learns in the course of performing Services. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Talend to Customer in connection with the provision to Customer of Learning Services or Training Services(“Materials”),other than the rights of use specifically granted in this Agreement. Customer shall be entitled to keep and use all Materials provided by Talend to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Talend. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All Talend trademarks, trade names, logos and notices present on the Materials shall be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Talend trademarks without Talend’s express written authorization. The Learning Services provide Learners with ongoing access to a variety of materials and services for their personal use and are not assignable or transferrable. Providing Learning Services Materials to, or using them for the benefit of, a third party or anyone other than the applicable Learner is a material breach of the Agreement.

3.9  Customer Obligations. Customer agrees to provide Talend with such cooperation, materials, information, access and support which Talend deems to be reasonably required to allow Talend to successfully provide the Services.  Customer understands and agrees that Talend’s obligations to provide Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and support. If Customer has ordered Learning Services, Customer shall designate an individual to be assigned a unique user name and password to access and administer the Learning Subscription (“Power User”).  The Power User shall be responsible for identifying and authenticating all Learners, approving access by such Learners to the Learning Subscription (“Active Learners”), and deactivating or re-activating Learners.  Active Learners are limited to the total number of Licensed Users. Customer is solely responsible for (a) assessing each Learner’s suitability for the Learning Subscription, (b) each Learner’s enrollment in appropriate course(s), and (c) ensuring Learners maintain the confidentiality of user names, passwords and account information.

4.1  Fees. Customer agrees to pay Talend the applicable Software Subscription, Services and Cloud Subscription fees stated on the Order Form. 

4.2  Invoicing. Unless otherwise specified on an Order Form or under the Cloud Services Addendum, the fees for the Services, Software Subscription and/or Cloud Subscription shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid Purchase Order by Talend.

4.3  Payment. Unless otherwise specified on an Order Form, under the Cloud Services Addendum, or under the Stitch Products Addendum, all invoices will be paid in the official currency of the country in which the Talend entity is identified under Section 10 below and are due upon receipt and will be paid within thirty (30) days of the date of the invoice. Payments will be made without right of set-off or chargeback. Customer shall pay all amounts due under this Agreement to Talend at the address set forth herein or such other location as Talend designates in writing. Any amount not paid when due may be subject to interest at the rate of one and one-half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.

4.4  Pre-Packaged Services & Expenses. Training Services and any Consulting Services that are not provided on a T&M basis are sold as “Pre-packaged Services” with fixed prices, as set forth on an applicable Order Form. Fees for Pre-packaged Services shall be as stated on the applicable Order Form. Any Pre-packaged Services for which the applicable fees are pre-paid must be consumed by Customer within one (1) year from the time of purchase, and such fees are non-refundable. Customer shall reimburse Talend for all reasonable travel, accommodation, communications, and out-of-pocket expenses incurred in conjunction with provision of the Services (“Expenses”), provided that Talend agrees that any such reimbursement may, at Customer’s written request, be limited by Customer’s standard travel reimbursement policies. 

4.5  Taxes. All amounts payable by Customer to Talend under this Agreement are exclusive of any tax, levy, VAT or other relevant governmental charge that may be assessed by any jurisdiction (“Taxes”) and Customer agree to pay such Taxes, except for Taxes based on Talend’s income, whether based on gross revenue, the delivery, possession or use of the Talend Software, the provision of Services, the execution or performance of this Agreement or otherwise, and including without limitation all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Talend, then the amount of the payment to Talend shall be automatically increased to totally offset such tax, so that the amount actually remitted to Talend, net of all Taxes, equals the amount invoiced or otherwise due. Customer will promptly furnish Talend with the official receipt of payment of these Taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Talend with a certificate of exemption acceptable to the taxing authority.

4.6  Purchases through Resellers. In the event Customer purchases licenses to the Talend Software and/or purchases the Services (including the Talend Cloud Services and any renewals thereof) through an authorized reseller of Talend, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, payment or Taxes. Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller. In the event Customer ceases to pay the Reseller, or terminates its agreement with the Reseller, Talend shall have the right to terminate Customer’s access to the Talend Cloud Service at any time upon thirty (30) days’ prior written notice to Customer unless Customer and Talend have agreed otherwise in writing.

4.7  Pay As You Go (applicable only to Talend Cloud Pipeline Designer)

4.7.1 General.  The following terms and conditions are only applicable to Cloud Subscriptions for the Talend Cloud Pipeline Designer (“Pipeline Designer”) subscribed to by Customer, based on a consumption offering (“Pay As You Go Subscription”).

The Pay As You Go Subscription and the payment procedure for Pipeline Designer is handled by the Talend Affiliate, Stitch, Inc. (referred to as Talend for purposes of this Section 4.7). Pipeline Designer Subscription fees will be automatically charged to your payment method on file based on the actual usage in the preceding month with no upfront commitment, until you cancel the Pipeline Designer Cloud Subscription. Payment is made on a periodic basis in arrears. The applicable Subscription Term of the Pipeline Designer Cloud Subscription shall commence on the date specified on the applicable order and will be automatically renewed on each subsequent monthly anniversary date of such Cloud Subscription thereafter unless cancelled or otherwise terminated in accordance with the terms of Section 4.7.5 below. Talend reserves the right to cancel the Cloud Subscription if Talend is unable to successfully charge your payment method to renew your Cloud Subscription. All Subscription Fees are fully earned upon payment. You hereby expressly agree that Talend may submit periodic charges (e.g., monthly) without further authorization from you until Talend receives written notice from you that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before Talend could reasonably act upon such notice

4.7.2. Payment by Credit Card; Electronic Payment.  Talend uses a third-party payment processing service to process all such transactions (“Payment Processing Provider”). Customer shall provide (upon registration on the Talend Cloud platform) either a valid credit card, or other acceptable method of electronic payment as approved by Talend, to Talend’s Payment Processing Provider and shall take all necessary steps to authorize automatic payment for the Cloud Subscription fees, and the actual usage of Pipeline Designer ordered as mentioned above in section 4.7.1 ( the “Charges”), the Payment Processing Provider may, as applicable, automatically charge the associated Charges and any applicable Taxes in arrears. Customer consents to the disclosure of its billing information to such Payment Processing Provider. Customer may receive a receipt upon Talend’s receipt of payment or may obtain a receipt from the Talend Cloud Platform to track the status of its Cloud Subscription and Fees. Any failure by Customer to provide the electronic payment information within ten (10) days of the execution of an order or commencing use of the Pipeline Designer Software Subscription may result in the cancellation of the transaction by Talend. Customer hereby waives any requirement it may have to process payments under an invoice via a purchase order and agrees to pay Talend in accordance with the payment methods described in this Section. Customer agrees to promptly notify Talend of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of the Cloud Subscription Fees. Upon execution of an order and completion of the payment registration, Customer hereby authorizes Talend to automatically charge the Cloud Subscription Fees for the Pipeline Designer Cloud Subscription purchased under this Agreement and each subsequent renewal thereafter until or unless cancelled or terminated pursuant to this Agreement. Any Cloud Subscription Fee not paid when due shall be considered delinquent and Talend reserves the right to suspend or terminate Customer’s Pipeline Designer Cloud Subscription in accordance with the terms of this Agreement. Finally, Customer understands and agrees that access to or continued access to, the Talend Cloud Platform is contingent upon Talend receiving payment in full for the Cloud Subscription Fee.

4.7.3 Payment Information.  Customer will keep your contact information and billing information up to date. Changes may be made on Customer’s billing page on the Talend Cloud Platform website.

4.7.4 Suspension.  Talend may suspend the Pipeline Designer Cloud Subscription if Customer doesn’t pay the amounts due under this Agreement; if Customer doesn’t comply with the terms and conditions of the present Agreement or if Customer violates any other terms of this Agreement. If one or more of these conditions occurs, then a suspension will apply to the Pipeline Designer Cloud Subscription and will be in effect only while the condition exists. Talend will notify Customer before such suspension, except where Talend reasonably believes that the suspension needs to be done immediately. Talend will give Customer at least 30 days’ notice before any suspension for non-payment. If Customer does not remedy non-payment within 30 days following such notice, Talend will terminate the Pipeline Designer Cloud Subscription .

4.7.5 Termination.  Customer may terminate the Pipeline Designer Cloud Subscription at any time during the Cloud Subscription Term; however, Customer shall pay all the amounts due and owing before the termination is effective and no refunds will be provided.

5.1  Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.2 below, continue in force until the expiration of the applicable Subscription Term.

5.2  Termination; Post Termination. Either Party may, upon written notice to the other Party, terminate this Agreement for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that Customer intentionally breaches the scope of the license granted in Section 2.1 of this Agreement. Upon termination of this Agreement, for any reason, Customer shall promptly cease the use of the Talend Software and Documentation and destroy (and certify to Talend in writing the fact of such destruction), or return to Talend, all copies of the Talend Software and Documentation then in Customer’s possession or under Customer’s control.

5.3  Survival. All payment obligations under Section 4, plus Sections 1, 2.1(b), 3.8, 5.2, 5.3, and 6 – 12 shall survive any termination or expiration of this Agreement.

6.1  Confidential Information. Each party (“Receiving Party“) agrees to retain in confidence any information provided to it by the other party (“Disclosing Party“) that is marked, labeled or otherwise designated as confidential or proprietary or that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by Disclosing Party (“Confidential Information“). The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will at all times, both during the Term of this Agreement and thereafter, keep in trust and confidence all Confidential Information of the other party and shall only disclose Confidential Information to its employees, agents, representatives, affiliates and authorized contractors or subcontractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

7.1  Software Performance Warranty and Remedy. Talend warrants to Customer that for a period of sixty (60) days from the Effective Date (“Warranty Period”), the Talend Software will perform in all material respects in accordance with the Documentation unless a longer warranty period is foreseen by local applicable laws. Customer’s exclusive remedy and Talend’s sole obligation for any failure of the Talend Software to perform in all material respects in accordance with its Documentation will be for Talend to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the Talend Software with any products, goods, services or other items furnished by anyone other than Talend (unless recommended by Talend in writing), (iv) any modification not made by or for Talend, or any use of the Talend Software by Customer in violation of the terms of this Agreement.

7.2  Services Warranty and Remedy. Talend warrants that (i) it will perform the Services in a workmanlike manner consistent with generally accepted industry standards, (ii) for a period of thirty (30) days from completion of the applicable Consulting Services, any Work Product Deliverables will perform in all material respects in accordance with any specifications therefore set forth in an applicable Statement of Work, and (iii) Learning Services will conform with applicable course descriptions on the Talend website. In the event of a breach of the foregoing warranty, Talend’s sole obligation, and Customer’s exclusive remedy shall be for Talend to re-perform the applicable Services to correct the applicable non-conformity.

7.3 Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTIONS 7.1 OR 7.2 ABOVE, IN THE CLOUD SERVICES ADDENDUM, OR IN THE STITCH PRODUCTS ADDENDUM, THE TALEND SOFTWARE, THE SERVICES AND THE TALEND CLOUD SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TALEND AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE TALEND SOFTWARE, DOCUMENTATION, MATERIALS, SERVICES OR TALEND CLOUD SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TALEND AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT WITH RESPECT TO THE TALEND SOFTWARE, DOCUMENTATION, SERVICES AND TALEND CLOUD SERVICES PROVIDED BY TALEND HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, TALEND DOES NOT WARRANT RESULTS OF USE OR THAT THE TALEND SOFTWARE, LEARNING SERVICES AND/OR TALEND CLOUD SERVICES WILL BE ERROR FREE OR THAT THE CUSTOMER’S USE OF THE TALEND SOFTWARE, DELIVERABLES, LEARNING SERVICES AND/OR TALEND CLOUD SERVICES WILL BE UNINTERRUPTED. TALEND USES A THIRD-PARTY DATA CENTER TO HOST THE TALEND CLOUD SERVICES. CUSTOMER ACKNOWLEDGES THAT TALEND DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE TALEND CLOUD SERVICES AND/OR LEARNING SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD PARTY FACILITIES. TALEND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

8.1  Obligation. Subject to the applicable conditions and limitations set forth in this Section 8, Talend will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Talend Software and/or Talend Cloud Services infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Talend Software and/or Talend Cloud Services, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Talend or pay any damages finally awarded to such third party by a court of competent jurisdiction as the result of such Infringement Claim.

8.2  Remedies. If during the Term the Talend Software and/or Talend Cloud Services are, or in Talend’s reasonable opinion is likely to become, the subject of an Infringement Claim, Talend may, at its expense and option: (i) obtain the right for Customer to continue to use the Talend Software and/or Talend Cloud Services; (ii) modify the Talend Software and/or Talend Cloud Services so that it becomes non-infringing but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s license to use the Talend Software and/or Talend Cloud Services and promptly refund to Customer any pre-paid, but unused fees paid by Customer to Talend for the Software Subscription or Cloud Subscription that was fulfilled prior to such termination.

8.3  Exclusions. Talend will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) Customer’s use of any version of the Talend Software and/or Talend Cloud Services not made available directly through Talend or an authorized Talend reseller; (ii) the failure of Customer to use an Update of the Talend Software and/or Talend Cloud Services that would have avoided the Infringement Claim; (iii) a modification of the Talend Software that is not performed by Talend; (iv) the combination, operation, or use of the Talend Software and/or Talend Cloud Services with any other products, services or equipment not provided by Talend; (v) specifications Customer provides to Talend for any Services or Work Product Deliverables, (vi) any intellectual property right owned or licensed by Customer, excluding the Software or Talend Cloud Services or (vii) any third party Open Source Software. Customer will reimburse Talend for any expenses, costs and/or damages that result from any of the actions or situations described in 8.3(i) – (vii) above. 

8.4  Conditions. The obligations of Talend in Section 8.1 are conditioned upon Customer (i) notifying Talend promptly of any threatened or pending Infringement Claim, (ii) giving Talend, reasonable assistance and information requested by Talend in connection with the defense or settlement of the Infringement Claim and (iii) tendering to Talend sole control over the defense and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Talend, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.

8.5  THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF TALEND, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE TALEND SOFTWARE AND/OR THE TALEND CLOUD SERVICES.

9.1  Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR TALEND OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE TALEND SOFTWARE OR THE TALEND CLOUD SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TALEND WILL REMAIN LIABLE FOR DEATH AND PERSONAL INJURY IN JURISDICTIONS WHERE THIS LIABILITY MAY NOT BE RESTRICTED. THE TALEND CLOUD SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. TALEND IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1 OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.

9.2  Damages Cap. IN NO EVENT SHALL TALEND’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER PAID OR WAS REQUIRED TO PAY TALEND UNDER THIS AGREEMENT FOR THE TALEND SOFTWARE, SERVICES AND/OR TALEND CLOUD SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 

9.3  CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.

10.1  Contracting Party and Governing Law

a)  If the Customer has its registered office in the United States of America, South America, or Oceania (excluding Australia and New Zealand) then (i) Customer is contracting with Talend, Inc., 800 Bridge Parkway, Redwood City California 94065, United States, (ii) this Agreement shall be governed by the laws of the state of California, and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Federal Court for the northern district of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Santa Clara county.

b)  If the Customer has its registered office in Canada then (i) Customer is contracting with Talend (Canada) Limited, with its registered office located at Suite 1700, Park Place, 666 Burrard Street, Vancouver, BC, V6C 2X8, Canada, (ii) this Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada and the federal laws of Canada applicable therein, other than rules governing conflict of law, and the courts of the Province of British Columbia shall have jurisdiction to entertain any legal proceedings arising under this Agreement, and (iii) the parties hereby submit to the jurisdiction of the courts of the Province of British Columbia in respect of any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties.

c)  If the Customer has its registered office in Europe (except in Spain, Italy, the United Kingdom, Germany, Austria, Switzerland and Malta) or in Africa (except in Egypt and South Africa), then (i) Customer is contracting with Talend SA, 9 rue Pages, 92150 Suresnes, France, (ii) this Agreement shall be governed by the laws of France and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Paris courts.

d)  If the Customer has its registered office in the United Kingdom, Sweden, Denmark, Norway, Finland, Malta or in the Middle East (Bahrein, Cyprus, Egypt, Israel, Jordan, Kuwait, Northern Cyprus, Oman, Palestine, Qatar, Saudi Arabia, Turkey, United Arab Emirates), or in South Africa, then (i) Customer is contracting with Talend Ltd, Statesman House, Stafferton Way; Maidenhead, Berkshire SL6 1AY, United Kingdom, (ii) this Agreement shall be governed by the laws of England and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the London courts.

e)  If the Customer has its registered office in Germany, Switzerland or Austria, then (i) Customer is contracting with Talend Germany GmbH, Baunscheidtstraße 17, 53113 Bonn, Germany, (ii) this Agreement shall be governed by the laws of Germany and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Bonn courts.

f)  If the Customer has its registered office in the Netherlands, then (i) Customer is contracting with Talend Netherlands B.V., Herikerberweg 238 – 1101CM Amsterdam – The Netherlands, (ii) this Agreement shall be governed by the laws of the Netherlands and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Amsterdam courts.

g)  If the Customer has its registered office in Japan or South Korea, then (i) Customer is contracting with Talend KK, 5-10-13, Minami Aoyama, 107-0062 Tokyo Minato-ku, Japan, (ii) this Agreement shall be governed by the laws of Japan and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Tokyo district courts.

h)  If the Customer has its registered office in Asia (except India, Japan, or South Korea), then (i) Customer is contracting with Talend Singapore Pte. Limited, a company incorporated in Singapore, with offices located at 3 Harbourfront Place, #09-01, HarbourFront Tower Two, Singapore 099254, (ii) this Agreement shall be governed by the laws of Singapore, and (iii) each Party submits to the exclusive jurisdiction of the courts of Singapore, and any courts competent to hear appeals from them in relation to any dispute regarding the interpretation, conclusion, performance or termination of this Agreement which is not resolved amicably by the Parties.

i)  If the Customer has its registered office in Australia or New Zealand, then (i) the Customer is contracting with Talend Australia Pty Limited (ABN 64 608 467 652), a company incorporated in Australia with offices located at Level 1, Unit 14, 151 Clarence Street, Sydney NSW 2000, (ii) this Agreement shall be governed by the laws of New South Wales, Australia, and (iii) each party submits to the exclusive jurisdiction of the courts of New South Wales, Australia, and any courts competent to hear appeals from them in relation to any dispute regarding the interpretation, conclusion, performance or termination of this Agreement which is not resolved amicably by the Parties.

j)  If the Customer has its registered office in Spain then (i) Customer is contracting with Talend Spain S.L – Travessera de Gracia 11, 08021 Barcelona – Spain, (ii) this Agreement shall be governed by the laws of Spain and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Barcelona courts.

k)  If the Customer has its registered office in Italy then (i) Customer is contracting with Talend Italy SRL – Foro Buonaparte 70 – Milano 20121 – Italy (ii) this Agreement shall be governed by the laws of Italy and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the Milan courts.

l)  If the Customer has its registered office in India, then (i) Customer is contracting with Talend Data Integration Services Private Limited, Kalyani Solitaire, Groud and 1st Floor, 165/2, Krishna Raju Layout, Doraisanipalya, Off Bannerghatta Road, Bangalore – 560076, (ii) this Agreement shall be governed by the laws of India, and (iii) any dispute regarding the interpretation, the conclusion, the performance or the termination of this Agreement which is not resolved amicably by the Parties shall be subject to the exclusive jurisdiction of the courts in Bangalore.

10.2  Governing Law and Jurisdiction. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

10.3  Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given: (i) in writing and delivered in person; (ii) by facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice; (iii) by mail, if mailed, properly addressed and stamped with the required postage to the corresponding address stated above; (iv) by electronic mail to legal@talend.com or (v) by next day delivery, if mailed by a major commercial delivery service. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 10.3.

11.1  Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Talend. Any assignment in violation of this Section 11.1 shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.

11.2  Customer Identification. Subject to Customer’s prior written approval, Talend may identify Customer as a user of the Talend Software, Talend Cloud Services and/or the Services, as applicable, on its website, through a press release issued by Talend and in other promotional materials. Customer also agrees to cooperate with Talend in writing a case study exposing how the Talend Software, Talend Cloud Services and/or the Services are being used and the benefits the Customer is deriving from this use.

11.3  Applicable laws. Customer acknowledges that the Talend Software is subject to U.S. export control laws and regulations. Customer warrants that it is now and will remain in the future compliant with all export control laws and regulations, and will not export, re-export, otherwise transfer or disclose any Talend Software to any person contrary to such laws or regulations. Talend and its customers adhere to the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, 15 U.S.C. §§ 78m(b)(2)(A) and (B)of 1977 and the UK Anti-Bribery Act of 2010 and denounce any form of bribery and other unethical behavior in its business negotiations. 

11.4  Fees. In any judicial proceeding between Customer and Talend arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.

11.5  Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.

11.6  Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.

11.7  Language. The governing language of this Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail.

11.8  Personal Data Processing. Customer agrees that it shall not disclose any personal data, including special categories of personal information, protected health information, or any other information subject to the protections of the Applicable Data Protection Laws (collectively “Personal Data”) to Talend for processing, whether through the Talend Cloud Services or otherwise, and Customer shall indemnify Talend for any third-party claims arising from such disclosure. In the event that Customer wishes for Talend to process any Personal Data subject to the Applicable Data Protection Laws, the Parties shall enter into the Talend Data Processing Addendum, available at https://res.cloudinary.com/talend/image/upload/v1623852069/docs/legal/talend-dpa-standard-customers_u6nqjg.pdf (the “DPA”), which shall be incorporated into this Agreement by reference. In the event that Customer has elected to disclose Personal Data to Talend or process Personal Data via the Talend Cloud Services, Customer will download the DPA at the link above, sign the DPA, and return the signed copy of the DPA to legal@talend.com. “Applicable Data Protection Laws” shall mean: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) and any data protection laws in any European Union Member State including laws implementing such Regulation, and (ii) the California Consumer Privacy Act of 2018 (“CCPA”), including any regulations promulgated thereunder, as amended from time to time. The terms of this Section shall apply to Cloud Services Addendum. Notwithstanding the foregoing, with respect to any Stitch Products purchased pursuant to the Stitch Products Addendum, this Section shall be replaced by Section 15 (“European Economic Area”) of the Stitch Products Addendum.

11.9  Entire Agreement. This Agreement, including the License Type Addendum, Cloud Services Addendum, Stitch Products Addendum, and Data Protection Schedule, and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. In the event of conflict or inconsistency among the License Type Addendum, Cloud Services Addendum, Stitch Products Addendum, and Data Protection Schedule, and, this Agreement and an applicable Order Form, the following order of precedence shall apply: (a) the Order Form (b) this Agreement, (c) the License Type Addendum, (d) the Cloud Services Addendum, (e) Stitch Products Addendum, (f) the Data Protection Schedule. Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be embedded within the Talend Software, except for terms regarding Open Source Software which are referenced under Section 1.4 (“Open Source Software”). The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer, unless the Parties execute a written agreement expressly indicating: (i) that such document shall modify this Agreement; and (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.