End User License Agreement – API Tester Free Edition

READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE TALEND SOFTWARE. BY ACCESSING AND/OR USING THE TALEND SOFTWARE, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCESS OR USE THE TALEND SOFTWARE.

This End User License Agreement (this “Agreement”) is entered into by and between the Talend entity identified in Section 9 (“Talend”) and the person accessing and using the Talend Software (“You” or “Your”) and is effective as of the date You access and use the Talend Software (the “Effective Date”). Talend and You are collectively referred to as the “Parties” and individually as a “Party”.  If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity.

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

1.1  “Documentation” means the online documentation provided with the Talend Software to You hereunder, together with any and all new documentation releases, corrections and updates furnished by Talend to You under this Agreement.

1.2  “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.

1.3  “Talend Software” means the object code version of the Talend proprietary software that You have installed via the Google Chrome Web Store.

1.4  “Google Chrome Web Store” means the Google’s online store where You can install extensions to the Google Chrome web browser including the Talend Software API Tester Free Edition.

2.1 License Grant.  Subject to the terms and conditions of this Agreement, Talend hereby grants to You, solely for Your internal business operations, a limited, non-exclusive, non-transferable right and license to access and use the Talend Software and the Documentation during the Term.  You may use the Documentation solely in support of Your authorized and licensed use of the Talend Software.  Furthermore, You understand and agree that Your license granted herein shall be limited to one (1) user interacting with a single user interface through your web browser.

2.2 Reservation of Rights; Restrictions.  Talend owns all right title and interest in and to the Talend Software and the Documentation and any derivative works thereof, and no other license to the Talend Software is granted to You by implication, estoppel or otherwise.  You agree not to: (i) prepare derivative works from, modify, reverse engineer, copy or use the Talend Software in any manner except as expressly permitted in this Agreement; (ii) sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Talend Software, in whole or in part, to any third party; (iii) use the Talend Software for providing time-sharing service, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; (iv) alter or remove any proprietary notices in the Talend Software.

2.3 Access.  You may access and use the Talend Software through the Google Chrome Web Store. Please note that by using Talend API Tester Free Edition, you agree to send certain usage statistics to Talend in order to help us improve your usage experience. These usage statistics let us better understand your workflow and your needs and are examined on an aggregate basis. See our Privacy Policy for details.

2.4 Your Obligations.  You are solely responsible for the use of the Talend Software API Tester Free Edition including, but not limited to, networks, extranets and web sites, or for any unauthorized access and use of the Talend Software API Tester Free Edition. You shall indemnify, defend and hold harmless Talend and its licensors from any liability, loss, claim and expense, including reasonable attorney’s fees, arising from Your use of the Talend Software API Tester Free Edition (a) in breach of this Agreement or (b) in violation or infringement of any third-party rights.

Talend has no obligation to provide You support for the Talend Software under this Agreement.

The Talend Software under this Agreement is provided at no charge.  However, You understand that You may be subject to fees from third-party services that You are interacting with, by using the Talend Software API Tester Free Edition.

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 You uninstall the Talend Software API Tester Free Edition from your Google Chrome web browser.

5.2 Termination.  Either Party may terminate this Agreement for any reason with ten (10) days written notice to the other Party.

5.3 Discontinuance of the Software.  Talend reserves the right to modify any features or portions thereof, or discontinue the Talend Software provided under this Agreement at any time upon prior written notice.

5.4 Post Termination, Survival.  Upon termination of this Agreement for any reason You shall promptly cease the use of the Talend Software and Documentation.  Sections 1, 2.2, 2.4, 5.2, 5.3, 5.4 and 6 – 11 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 designed 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).

6.2. Treatment of Confidential Information. Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (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.

THE TALEND SOFTWARE IS 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 OR DOCUMENTATION FURNISHED OR PROVIDED TO YOU 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-INFRINGMENT WITH RESPECT TO THE TALEND SOFTWARE ABD DOCUMENTATION 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 WILL BE ERROR FREE OR THAT THE YOU’S USE OF THE TALEND SOFTWARE WILL BE UNINTERRUPTED. 

8.1 Disclaimer of Certain Damages.  IN NO EVENT SHALL 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 DIRECT, 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, 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.  YOU ARE FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES AND THE SECURITY OF YOUR NETWORK.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY YOU OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1 & 2.2 OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.

8.2  YOU AGREE 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.

9.1  General
a)  If You have a registered office in the United States of America, South America, or Oceania (excluding Australia) then (i) You are contracting with Talend Inc., 800 Bridge Parkway, Suite 200, 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 You have a registered office in Canada then (i) You are 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 You have a 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) You are 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 You have a 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) You are 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 You have a registered office in Germany, Switzerland or Austria, then (i) You are contracting with Talend Germany GmbH, Servatiusstrasse 53, 53175 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 You have a registered office in the Netherlands, then (i) You are 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 You have a registered office in Japan, then (i) You are 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 You have a registered office in Asia, (Singapore, Malaysia, Indonesia, except Japan) then (i) You are contracting with Talend Singapore Pte. Limited, a company incorporated in Singapore, with offices located at 38 Beach Road, South Beach Tower #29-11, Singapore 189767, (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 You have a registered office in Australia, then (i) the You are contracting with Talend Australia Pty Limited (ABN 64 608 467 652), a company incorporated in Australia with offices located at Level 36, 1 Macquarie Place, 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 You have a registered office in Spain then (i) You are 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 You have a registered office in Italy then (i) You are 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 You have a registered office in India, then (i) You are contracting with Talend Data Integration Services Private Limited, 2nd Floor, A-Wing, Indiqube Alpha, Plot No.19/4 & 27, Kadubeesanahalli Village,  Varthur Hobli, Bangalore,  Karnataka — 560 103, (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.

9.2 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.

9.3 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 in writing and delivered in person or facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage to the corresponding address stated above. 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 9.3.

10.1 Assignment.  You may not assign this Agreement, in whole or in part, without the prior written consent of Talend. Any assignment in violation of this Section 10.1 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.

10.2 Applicable laws.  You acknowledge that the Talend Software is subject to U.S. export control laws and regulations. You warrant 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 Yous 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.  

10.3 Fees.  In any judicial proceeding between You 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.

10.4 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.

10.5 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.

10.6 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.

10.7 Entire Agreement.  This Agreement completely and exclusively states 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. 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 1.2 (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 You, 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.