THIS COUPA MASTER SUBSCRIPTION AGREEMENT is made by and between Coupa Software, Inc., a Delaware corporation with its principal address at 100 S. Ellsworth Avenue, San Mateo, CA 94401 (“Coupa”), and ________________, a __________ corporation with its principal address at ______________________________ (“You” or “Your”). You hereby agree to the terms and conditions set forth herein governing your use of Coupa’s online procurement service, including offline components (collectively, the “Service,” as defined below).

In the event of any conflict between this Master Subscription Agreement and the Order Form, the Order Form shall govern to the extent of such conflict.

 

1. Definitions. As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity; "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity; the “Agreement” means this Coupa Master Subscription Agreement (including all exhibits and attachments thereto), any Order Forms, whether written or submitted online (if applicable), and any materials available on the Coupa website specifically incorporated by reference herein, as such materials may be updated by Coupa from time to time in its sole discretion; “Customer Data” means any data, information or material provided or submitted by You to the Service in the course of using the Service; “Effective Date” means the contract effective date set forth in the Order Form; “Administrator(s)” means those Users designated by You who are authorized to purchase subscriptions by executing written Order Forms and to create User accounts and otherwise administer Your use of the Service; “Term” means the period(s) during which a specified number of Users are authorized to use the Service pursuant to the Order Form(s); “Order Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted in written form or online (if applicable), specifying, among other things, the number of subscriptions and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail); “Service(s)” means Coupa’s online procurement, billing, data analysis, or other services and associated content, as identified during the ordering process, developed, operated, and maintained by Coupa, and made accessible via http://www.coupa.com or another web site or IP address designated by Coupa from time to time, or ancillary online or offline products and services provided to You by Coupa, to which You are being granted access under this Agreement, “User(s)” means Your employees, representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by Coupa at Your request). All such User(s) may be identified within the Coupa application system administration area where the User(s) record is stored. All User(s) records in the Coupa application with User(s) status flag set to “active” are User(s) and You are responsible for all User’s compliance with this Agreement.

 

2. Service. (a) Provision of Service. Subject to the terms and conditions of this Agreement, Coupa will make the Service available to You (only for the number of Users for whom you have paid for subscriptions) pursuant to this Agreement and all Order Forms during a subscription term. You agree that Your purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Coupa with respect to future functionality or features. Coupa shall: (i) use commercially reasonable efforts to provide to You Silver Support for the Services at no additional charge, and/or Gold or Platinum Support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Coupa shall give at least 8 hours notice via the Services and which Coupa shall schedule to the extent practicable on Friday evenings between 6:00 p.m. Pacific time Friday to 9:00 p.m. Pacific time Friday)), or (b) any unavailability caused by circumstances beyond Coupa’s reasonable control, including without limitation, acts of God, acts of government, natural disasters, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Coupa’s employees), or Internet service provider failures or delays, and (iii) provide the Services only in accordance with applicable laws and government regulations. Upgrades are included as part of Your subscription term. For the purposes of this Agreement, “Upgrade(s)” means a new version of the Services released by Coupa that may add new and different functions to or increases the capacity of its Services, and include revisions to documentation and new training as a result of such upgrades. An “Upgrade(s)” does not include products within the Services for which Coupa requires a separate charge.

(b) Additional Users. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require use of the Service. Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Users are added.

(c) Affiliates. Affiliates may purchase and use User subscriptions subject to the terms of this Agreement by executing Order Forms hereunder.

 (d) Restrictions. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, disclose, or otherwise commercially exploit or make available to any third party in any manner the Service in any way; (ii) modify or make derivative works based upon the Service; (iii) create Internet “links” to the Service or “frame” or “mirror” the Service on any other server or wireless or Internet-based device; (iv) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, or (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent that applicable law prohibits reverse engineering restrictions), or (except as expressly permitted herein) access the Service, or copy any ideas, features, functions or graphics of the Service. You may not access the Service if You are a direct competitor of Coupa, except if You disclose such to Coupa and thereafter obtain Coupa’s prior written consent.

You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) modify, interfere with or disrupt the integrity or performance of the Service (including the data contained therein); or (v) attempt to gain or permit unauthorized access to the Service or its related systems or networks.

The Service offers integration capabilities via an application programming interface, or API. The average number of API calls made by Customers is less than 10,000 calls/day. The number of API calls You can make is limited to an aggregate maximum of 50,000 calls/day. (API calls do not include printing, faxing, and emails.) We may limit and/or modify Your API access from time to time in order to protect or preserve the integrity of the Service and we will provide You with prompt notice when we take such action. Coupa will use reasonable efforts to notify You when the average calls per day reaches approximately 90% of the maximum.

(e) Remedies. In the event of service outages that result in a failure to meet the Provision of Service goal of 99.90% uptime availability during the measurement period. Your sole and exclusive remedy shall be a refund equal to ten percent (10%) of the subscription fees for that measurement period. The measurement period is defined as three consecutive months. Coupa will credit the refund to You during the next billing cycle unless the refund is reasonably disputed by Coupa, in which case You and Coupa will work together in good faith to resolve such dispute in a timely manner. Remedies do not apply to service outages caused by Your negligence or acts, Your user(s), Your service / telco carrier providers, or their agent(s). Remedies do not apply to service outages caused by: (i) failure or malfunction of equipment or systems not belonging to or controlled by Coupa, its agents or affiliates; or (ii) acts of God, acts of government, natural disasters, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Coupa’s employees).

If there are Chronic Service Outages (as defined below) of the Service then You may terminate this Agreement including any Order Form prior to the end of the Term without any liability and shall receive a pro-rated refund of the unused portion of the annual access fee for such Service applicable to the period from the date of termination to the end of the Term. The Service shall be deemed to undergo “Chronic Service Outages” upon the occurrence of any of the following: (i) three (3) failures to meet the Service Availability Target of 90.0% Uptime within any six (6) consecutive calendar months, or (ii) four (4) failures to meet the Service Availability Target of 90.0% Uptime within any nine (9) consecutive calendar months.

 

3. Your Responsibilities. You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Coupa immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Coupa immediately and use reasonable efforts to stop immediately any use, copying, or distribution of the Service that is known or suspected by You or Your Users; and (iii) not impersonate another Coupa user or provide false identity information to gain access to or use the Service. If You purchase Coupa Integration Technology, Your use of the product may  be subject to additional terms specified in an Exhibit Aattached hereto. If You purchase Spend Optimizer, Your use of the product is subject to the additional terms specified in Exhibit B, attached hereto.

 

4. Account Information and Data. As between Coupa and You, You exclusively own all rights, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data.

 

5. Privacy Disclosure. Coupa’s privacy policy may be viewed at http://www.coupa.com. Coupa reserves the right to modify its privacy policy in its reasonable discretion from time to time. Coupa will provide notification of the material changes to this Privacy Statement through the Company’s Web site at least thirty (30) business days prior to the change taking effect. Notwithstanding the foregoing, Coupa will not materially diminish Your privacy. Coupa may occasionally notify all users of the Service of important announcements regarding the operation of the Service and other announcements related to the Service and You agree to receive such notices. You will not have the option of opting out of receiving such notices unless You terminate Your account with Coupa.

 

6. Ownership. Coupa alone (and its licensors, where applicable) shall own all right, title and interest in and to the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service. The Coupa name, the Coupa logo, and the product names associated with the Service are trademarks of Coupa or third parties, and no right or license is granted to use them. All rights not expressly granted to You are reserved by Coupa and its licensors.

 

7. Third Party Interactions. During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of suppliers, advertisers or sponsors showing or otherwise making available their goods and/or services on or through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third party. You agree that Coupa and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. Coupa provides the Service to You pursuant to the terms and conditions of this Agreement.

 

8. Charges and Payment of Fees. You shall pay all fees or charges to Your account not subject to a good faith dispute in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made when and as set forth in the original Order Form. All payment obligations are non-cancellable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered, whether or not such User licenses are used. An authorized Administrator may add licenses by executing an additional written Order Form. Added licenses will be coterminous with the then-current license term as set forth in the Order Form. Coupa will not modify its fees for the same level of service or for products and users that are currently under contract.

 

9. Excess Data Storage Fees. The maximum disk storage space provided to You at no additional charge is 50 GB as the average disk storage space used by customers is less than 5GB per year. For any storage over 50 GB Coupa will pass through the cost to You without any markup. The cost of storage can be found on the Amazon.com/aws pricing site (http://aws.amazon.com/s3/pricing). Coupa will use reasonable efforts to notify You when the average storage used reaches approximately 90% of the maximum; however, any failure by Coupa to so notify You shall not affect Your responsibility for such additional storage charges.

 

10. Billing and Renewal. Coupa charges and collects in advance for use of the Service. Coupa will issue one or more invoices to You as specified in the Order Form and You agree to pay such amounts not subject to a good faith dispute when and as specified in the Order Form. Fees for other services will be charged on an as-quoted basis.

You agree to pay Coupa in the currency specified on the order form. Coupa’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Coupa’s income.

You agree to provide Coupa with complete and accurate billing and contact information. This information includes Your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. You agree to update this information promptly upon any change to it. If the contact information You have provided is fraudulent, Coupa reserves the right to terminate Your access to the Service in addition to any other legal remedies.

If You believe Your bill is incorrect, You must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit; otherwise such dispute shall be waived.

 

11. Confidentiality. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without either use of the Confidential Information or breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure, and any information so disclosed shall continue to be treated as Confidential Information for all other purposes.

Except as expressly provided in this Agreement, if the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

Notwithstanding the foregoing, Coupa may use and report on Customer Data and other data and metrics related to Your use of the Services in an aggregate and anonymous manner to support benchmarking or similar features of the Service (“Authorized Use”) provided such Authorized Use does not result in disclosure of Your Confidential Information.

 

12. Term; Termination, Survival. The Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. User subscriptions commence on the start date specified in the relevant Order Form and continue for the subscription term specified therein. User subscriptions shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least 30 days prior to the end of the relevant subscription term. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by You, Coupa shall refund any prepaid fees covering the remainder of the subscription term after the date of termination. Termination shall not relieve You of the obligation to pay any fees accrued or payable to Coupa prior to the effective date of termination. Upon Your request within 30 days after the effective date of termination, Coupa will make available for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Coupa shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. Upon expiration or termination of the Agreement, Sections 2(d), and 4 through 21 of this Agreement shall survive.

 

13. Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and to bind the entity named below. During the Term of the Agreement, Coupa represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the documentation found, and updated, from time to time, at http://support.coupa.com/home; and (iii) the functionality of the Service will not be materially decreased during a subscription term. You represent and warrant that You have not falsely identified yourself nor provided any false information to gain access to the Service, that Your billing information is correct, that You are a business and not a consumer, and that You have all necessary rights to provide all information provided hereunder.

 

14. Indemnification. Subject to this Agreement, Coupa shall defend, indemnify and hold You harmless against any expense, liability, loss, damage or costs (including reasonable attorneys' fees), each to the extent payable to a third party, incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against You by a third party alleging that the Service as provided hereunder infringes any issued U.S. patent or U.S. copyright of such third party. Notwithstanding the foregoing if Coupa reasonably believes that Your use of any portion of the Services is likely to be enjoined by reason of any Claims then Coupa may, at its expense and in its sole discretion: (i) procure for You the right to continue using the Services; (ii) replace the same with other services of equivalent functions and efficiency that is not subject to any Claims of infringement; or (iii) modify the applicable Services so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the Services as set out herein or the applicable Order Form. If, in Coupa’s opinion, (i), (ii), and (iii) above are infeasible or commercially impracticable, Coupa may, in its sole discretion, terminate the applicable Services and refund to You the fees paid by You for the portion of the Services period that was paid by You but not rendered by Coupa. The foregoing indemnification obligation of Coupa shall not apply: (1) if the Coupa Services are modified by any party other than Coupa, but solely to the extent the alleged infringement is caused by such modification; (2) the Coupa Services are combined with other non-Coupa products, applications, or processes not authorized by Coupa, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Coupa Services; (4) to any third party deliverables or components contained within the Coupa Services that are not provided by Coupa; or (5) to any action arising as a result of the Customer Data. THIS SECTION 14 SETS FORTH coupa’s SOLE LIABILITY AND your SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

You shall defend, indemnify and hold Coupa harmless against any expense, liability, loss, damage or costs (including reasonable attorneys' fees), each to the extent payable to a third party, incurred in connection with Claims made or brought against Coupa by a third party arising from or relating to Your use of the Customer Data or Your use of the Services in violation of this Agreement, including but not limited to any third party claims associated with Section 7.

Each party's indemnity obligations are subject to the following: (i) the indemnified party shall promptly notify the indemnifier in writing of any Claims; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to any Claims (provided that the indemnifier may not settle any Claims that requires the indemnified party to admit any civil or criminal liability or incur any financial obligation without the indemnified party’s consent, which consent shall not be unreasonably withheld); and (iii) the indemnified party shall cooperate fully to the extent necessary at the indemnifier’s cost in such defense and settlement.

 

15. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COUPA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL ASSOCIATED CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COUPA AND ITS LICENSORS.

 

16. LIMITATION OF LIABILITY. IN NO EVENT SHALL COUPA’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL COUPA AND/OR ITS LICENSORS BE LIABLE UNDER THE AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICE, INCLUDING THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, IN THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

17. Local Laws and Export Control. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

 

18. Notice. Coupa may give notice by means of a notice on the Service, electronic mail to Your email address on record in Coupa’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Coupa’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email) or posting a notice on the Services. You may give notice to Coupa (such notice shall be deemed given when received by Coupa) at any time by any of the following: letter delivered by nationally recognized delivery service or first class postage prepaid mail to Coupa at the following address: 100 S. Ellsworth Avenue, San Mateo, CA 94401, in either case, addressed to the attention of: Legal.

 

19. Assignment; Change in Control. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by You, Coupa shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of such termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

20. Miscellaneous. This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service (“Dispute”) shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California (and the parties hereby consent to jurisdiction and venue in the U.S. federal courts located in the Northern District of California). Any Dispute shall be finally settled by arbitration in San Francisco, California, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (JAMS) then in effect, by one or more commercial arbitrator(s) with substantial experience in the industry and in resolving complex commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive relief.

No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Coupa as a result of the Agreement or use of the Service. The failure of a party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. The Agreement comprises the entire agreement between You and Coupa and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. The prevailing party in any dispute arising under this Agreement shall be awarded its reasonable attorney fees and costs.

 

21.Government Users. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Software and accompanying documentation provided by Coupa Software are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these terms and shall be prohibited except to the extent expressly permitted by these terms.

 

ACKNOWLEDGED AND AGREED TO:

 

 

Exhibit A

End User Terms for 3^rd Party Integration Technology

 

1.               THE BOOMI TECHNOLOGY.

1.1.            Grant of Right to Use.  The license granted to the End User of the applicable Boomi Technology shall be a non-exclusive and non-transferable right to access and use the applicable Boomi Technology in accordance with the terms agreed to by End User in its agreement with Company (“End User Agreement”), which shall be consistent with the terms set forth herein.

1.2.            No Product Support.  The End User Agreement shall not obligate Boomi to provide any support or maintenance to any End Users.  

2.               INTELLECTUAL PROPERTY.

2.1.            Boomi Technology Product Ownership.  End User shall acknowledge that (i) the Boomi Technology and the related documentation are the exclusive property of Boomi and its licensors and (ii) End User has no right to transfer, sublicense or lease the Boomi Technology.

2.2.            License Grant & Restrictions.  The End User Agreement shall permit the End User to: (a) display content from the applicable Boomi Technology solely for End User’s internal business operations, provided such operations will not include service bureau use, outsourcing, renting, or time-sharing of the applicable Boomi Technology and (b) copy and use on End User’s computer system any object code generated by the applicable Boomi Technology for use by the End User.  The End User Agreement shall expressly prohibit the End User from modifying, distributing, preparing derivative works of, reverse engineering, reverse assembling, disassembling, or decompiling the Boomi Technology, any object code generated by the Boomi Technology or any part thereof, or otherwise attempting to discover any source code, modifying the Boomi Technology in any manner or form, or using unauthorized or modified versions of the Boomi Technology.  End User must agree not to access the Boomi Technology for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.  The End User Agreement shall not convey to End User any rights or ownership in the Boomi Technology, or any source or object code generated by the Boomi Technology, or any intellectual property rights in the Boomi Technology, or any code generated by the Boomi Technology. 

2.3.            Access.  Pursuant to the End User Agreement, Company shall be required to provide End User with unique login identification and password to gain access to the Boomi Technology.  End User shall be required to keep all identification and password information strictly confidential and will only reveal such information to authorized users. 

2.4.            Confidentiality.  The End User Agreement shall require End User to maintain the confidentiality of any Boomi Confidential Information in a manner consistent with Company’s’ obligation to maintain the confidentiality of Boomi Confidential Information.  “Boomi Confidential Information” means all data and information of a confidential nature (including: the Boomi Technology; source code; documentation; technical, financial, strategic, marketing or product information, plans, and other documents; and End User’s data) provided by, or prepared for, Boomi. Confidential Information does not include information: (a) already known or independently developed by the receiving party; (b) already in the public domain through no act of the receiving party; or (c) received by the receiving party from a third party authorized to disclose such information for which the receiving party has no obligations of confidentiality. 

3.               TERM AND TERMINATION.

3.1.            Term.  The End User Agreement shall provide for term and termination provisions consistent with the term and termination provisions of the Agreement between Boomi and Company, such that the End Users’ right to use the Boomi Technology will terminate at the same time that Company’s Agreement with Boomi terminates. 

4.               DISCLAIMERS.

THE END USER AGREEMENT SHALL PROVIDE THAT THE APPLICABLE BOOMI TECHNOLOGY IS PROVIDED TO END USER WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, SUCH AS ANY WARRANTY OF ACCURACY, COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OR TITLE.  THE END USER AGREEMENT SHALL SPECIFICALLY STATE THAT COMPANY AND BOOMI DO NOT WARRANT THAT THE APPLICABLE BOOMI TECHNOLOGY WILL BE ERROR-FREE.  THE END USER AGREEMENT SHALL SPECIFICALLY STATE THAT COMPANY AND BOOMI WILL HAVE NO OBLIGATIONS TO END USER IN THE EVENT END USER: (A) DOES NOT PROPERLY MAINTAIN ALL ASSOCIATED EQUIPMENT, SOFTWARE, INTERNET ACCESS AND ENVIRONMENTAL CONDITIONS IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS AND INDUSTRY STANDARDS; (B) INTRODUCES OTHER EQUIPMENT OR SOFTWARE CREATING AN ADVERSE IMPACT ON THE BOOMI TECHNOLOGY; (C) IS IN DEFAULT OF ANY MATERIAL PROVISION SET FORTH HEREIN THIS EXHIBIT 4.  THE END USER AGREEMENT SHALL SPECIFICALLY STATE THAT THE APPLICABLE BOOMI TECHNOLOGY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT COMPANY AND BOOMI ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

5.               LIMITATION OF LIABILITY. 

THE END USER AGREEMENT SHALL PROVIDE THAT BOOMI’S COMBINED, AGGREGATE LIABILITY TO END USER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY END USER TO COMPANY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN THE CAUSE OF ACTION AROSE, AND THAT IN NO EVENT WILL BOOMI BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, SUCH AS DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

6.               END USER’S INDEMNIFICATION.

The End User Agreement shall provide that the End User will indemnify, defend and hold Boomi harmless from and against any and all losses arising out of or in connection with a claim, suit, action, or proceeding brought by any third party against Boomi that arise out of or result from a claim by a third-party: (i) alleging that the End User’s data or any use of End User’s data infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (ii) arising out of End User’s breach of the End User Agreement.

 

Exhibit B

End User Terms for Spend Optimizer

 

Your registration for and/or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the GoodData website incorporated by reference herein, including but not limited to GoodData’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Terms of Use & Restrictions: GoodData hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by GoodData and its licensors. You may not access the Service if you are a direct competitor of GoodData, except with GoodData’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

 

2. Your Responsibilities: You are responsible for all activity occurring under your accounts. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify GoodData immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to GoodData immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your user using your account and (iii) not impersonate another GoodData user or provide false identity information to gain access to or use the Service.

 

3. Privacy & Security; Disclosure: GoodData’s privacy and security policies may be viewed at http://www.gooddata.com/privacy-policy. GoodData reserves the right to modify its privacy and security policies in its discretion from time to time. Note that because the Service is a hosted, online application, GoodData occasionally may need to notify all users of important announcements regarding the operation of the Service.

 

4. Account Information and Data: GoodData does not own and shall not be responsible for any data, information or material that you submit to the Service in the course of using the Service (”Customer Data”).  GoodData's implementation, development and operations teams shall have the right to access and use Your account information, and Customer Data for the limited purpose of delivery of the Service, respond to service or technical problems, on Your request, or to provide Ancillary Services as defined below.  You, not GoodData, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and GoodData shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. GoodData reserves the right to establish or modify its general practices and limits relating to storage of Customer Data. You expressly acknowledge and agree that you shall not submit to the Service any (i) Personal Information (as defined below) nor (ii) any Protected Health Information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) (where “Protected Health Information” has the meaning set forth in HIPAA).  As used herein, “Personal Information” means an individual’s first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such individual: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account.

 

5. Intellectual Property Ownership: GoodData alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the GoodData Technology, and Deliverables (excluding Customer Deliverables, defined below) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the GoodData Technology or the Intellectual Property Rights owned by GoodData. The GoodData name, the GoodData logo, and the product names associated with the Service are trademarks of GoodData or third parties, and no right or license is granted to use them. 

 

6. Trial Period; Termination: Your use of the Service will be free as long as you are using it strictly for our Partner’s free “Powered By” Program offerings, as specified in the contract between GoodData and our partner, or as long as you are using it strictly for a free GoodData app. It is under sole discretion of GoodData to specify the list of free apps and GoodData deems the right to modify the list at any time (the list of apps and current pricing may be found at http://www.gooddata.com/apps). For all other analytics, the Service is made available to you for an initial free trial period of up to thirty (30) days from your acceptance of this Agreement.   If you use the Service for other analytics outside the Partner's “Powered By GoodData” program or do not purchase a paid subscription for the Service from GoodData prior to the conclusion of the free trial period, your account will be suspended.  If you wish to continue using the Service, you must contact GoodData and purchase a paid subscription for your continued use of such Service. You may discontinue use of the Service at any time. You agree that GoodData may at any time and for any reason terminate this Agreement and/or terminate the provision of all or any portion of the Service. You agree that GoodData shall not be liable to you and/or any third party for any modification, suspension, or termination of the Service. The following Sections shall survive the termination and/or expiration of this Agreement: Sections 5 (Intellectual Property Ownership); 9 (Representations and Warranties); 10 (Indemnification); 11 (Disclaimer of Warranties); 12 (Limitation of Liability); and 18 (General).

 

7. Ancillary Services:  “Ancillary Services” means fee based consulting or training services GoodData may perform pursuant to a statement of work (“SOW”) or Order Form issued pursuant to these Terms of Use.  A description of GoodData’s current standard Ancillary Services offerings can be found at the URL<http://www.gooddata.com/services>, which may be updated from time to time in GoodData’s sole discretion.  Each SOW or Order Form shall be deemed part of and subject to these Terms of Use, and will include, at a minimum: (i) a description of the Ancillary Services and any work product or other deliverables to be provided to You (each, a “Deliverable”); (ii) the scope of Ancillary Services; (iii) the delivery schedule; and (iv) fees and payment terms, if not elsewhere specified.  If either you or GoodData request a change in specifications, requirements, Deliverables, or scope of the Ancillary Services, the party seeking the change shall propose the applicable changes by written notice.  If agreed, GoodData will prepare a change order describing the proposed changes to the SOW and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until executed by both parties. Once executed, Change Orders shall be deemed part of and subject to these Terms of Use.

 

8. Customer Deliverables: As between GoodData and You, You own all rights, title and interest in and to any Deliverables provided as part of Ancillary Services that: (i) constitute Customer Data, or a modification, translation, abridgment, adaptation or derivative work of Customer Data, or (ii) are expressly identified as being owned by You in the applicable Order Form or SOW (“Customer Deliverables”), and GoodData hereby assigns and transfers to You any rights, title or interest GoodData may acquire in any Customer Deliverables upon receipt of payment in full from You.  Subject to these Terms of Use, and during the Term for which You have a right to use the Service, GoodData hereby grants You a limited, non-exclusive, non-transferable and terminable license to use the Deliverables, and any Tools (defined below) incorporated therein, solely in connection with Your authorized use of the Service. 

 

9. Representations & Warranties: Each party represents and warrants that it has the legal power and authority to enter into this Agreement. GoodData represents and warrants that it will provide the Service and Ancillary Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service.

 

10. Indemnification: You shall indemnify and hold GoodData, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys 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: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that GoodData (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release GoodData of all liability and such settlement does not affect GoodData’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

 

11. Disclaimer of Warranties: GOODDATA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. GOODDATA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY GOODDATA AND ITS LICENSORS.THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GOODDATA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

12. Limitation of Liability: IN NO EVENT SHALL GOODDATA’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT EXCEED FIVE HUNDRED DOLLARS ($500). IN NO EVENT SHALL GOODDATA AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF GOODDATA AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

13. Local Laws and Export Control: The Service utilizes software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. GoodData and its licensors make no representation that the Service is appropriate or available for use in other locations. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

 

14. Publicity.  GoodData may reference your name and the nature of the Services provided hereunder in GoodData marketing efforts, including on the GoodData web site.

 

15. Notice: GoodData may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in GoodData’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in GoodData’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to GoodData (such notice shall be deemed given when received by GoodData) at any time by any of the following: letter sent by confirmed facsimile to GoodData at the following fax number: +1-415-962-0521; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to GoodData at the following address: GoodData Corporation, 530 Bush Street, Suite 900, San Francisco, CA, 94108 in either case, addressed to the attention of: Chief Executive Officer.

 

 

16. Modification to Terms: GoodData reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

 

17. Assignment; Change in Control: This Agreement may not be assigned by you without the prior written approval of GoodData. The Agreement may be assigned by GoodData without notice to you and without your consent to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be null and void. Any actual or proposed change in control of you that results or would result in a direct competitor of GoodData directly or indirectly owning or controlling 50% or more of you shall entitle GoodData to terminate this Agreement for cause immediately upon written notice.

 

18. General: This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, CA. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and GoodData as a result of this agreement or use of the Service. The failure of GoodData to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by GoodData in writing. This Agreement, together with any applicable Order Form or SOW, comprises the entire agreement between you and GoodData and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

 

19. Definitions: As used in this Agreement now or hereafter associated herewith:

• “Agreement” means these online terms of use and any materials available on the GoodData website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by GoodData from time to time in its sole discretion;
• “Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
• “Customer Data” means any data, information or material provided or submitted by you to the Service in the course of using the Service;
• “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; 
• “GoodData” means GoodData Corporation, a Delaware corporation, having its principal place of business at 530 Bush Street, Suite 900, San Francisco, CA, 94108;
• “GoodData Technology” means all of GoodData’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) Content, Services, and Tools (defined below) made available to you by GoodData in providing the Service or delivering Ancillary Services, but excluding Customer Deliverables.
• “Tools” means the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by GoodData to develop Deliverables.  Neither the term “Deliverables” nor “Customer Deliverable” shall include Tools.
• “User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by GoodData at your request).