INFORMATICA LICENSE AND SERVICES AGREEMENT (“ILSA”)
BY EXECUTING ANY EXHIBIT A OR OTHER ORDER FORM THAT INCORPORATES THE TERMS OF THIS INFORMATICA LICENSE AND SERVICES AGREEMENT BY REFERENCE, OR BY COMPLETING ANY ONLINE ENROLLMENT FORM OR CLICKING THE ACCEPTANCE CHECK BOX DISPLAYED AS PART OF THE ENROLLMENT PROCESS, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS, TOGETHER WITH ANY SUCH ENROLLMENT FORM AND EXECUTED EXHIBIT(S) A SHALL BE KNOWN AS THE "AGREEMENT." THIS AGREEMENT GOVERNS YOUR USE OF THE INFORMATICA PRODUCTS. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY ("CUSTOMER"), YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BOTH USE THE PRODUCTS AND TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL ALSO INCLUDE THE CUSTOMER. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT THE ACCEPTANCE CHECK BOX AND THEREFORE YOU MAY NOT USE THE PRODUCTS. Informatica refers to Informatica LLC, a Delaware limited liability company located at 2100 Seaport Blvd., Redwood City, CA 94063, and its subsidiaries and affiliates, the owner and provider of the Products.
1. SCOPE OF USE
1.1 Customer wishes to acquire certain products and services (“Products”) from Informatica as identified in each Exhibit A or other agreed order form between the Parties (“Order”), which may include, but is not restricted to:
Software means licensed products installed by Customer on equipment owned or operated by Customer.
Cloud Services means online services made available to Customer on demand via the Internet from equipment owned or operated by Informatica.
Professional Services means consulting or training services provided by Informatica either remotely via the Internet, or in person.
Support Services means access to Informatica’s help desk, and access to updates, patches and bug fixes.
1.2 Each Order and each SOW is a separate contractual commitment and must be signed by Informatica and Customer or their respective Affiliates as provided for in section 10.3 below Affiliates shall mean any corporation or other business entity which controls, is controlled by or is under common control with a party through the ownership of more than fifty percent (50%) of the outstanding voting stock of the controlled corporation or more than fifty percent (50%) of the equity interests of a non-corporate entity.
1.3 (a) Software
Informatica grants Customer and its Affiliates a non-exclusive, non-transferable, non-sublicensable and perpetual (unless terminated as provided herein or as otherwise set out in the applicable Order) license to use, in object code format, Software and as identified in each Order any updates provided under Support Services subject to the terms, conditions and restrictions set forth herein and therein. Any references to “sale” or “purchase” of the Software in this or any other document shall be deemed to mean “license” in accordance with the terms contained in this Agreement.
For each copy of the Software licensed, Customer may only install one (1) Instance of the Software on equipment located in the country identified in the ‘Ship To’ address on the applicable Order. Customer shall inform Informatica in writing in advance of any change in the equipment upon which the Software is installed or the location of such equipment. Additional installations or quantities of the Software shall require additional licenses. Any relocation of the Software outside the “Ship To’ country shall be subject to Informatica’s international transfer policy. Except for a reasonable number of copies of the Software for back-up purposes, Customer shall have no right to copy the Software. All titles, trademarks and copyright and restricted notices shall be reproduced in such copies.
If Customer chooses to install updates to Software made available under Support Services, Customer must uninstall and cease use of all previous versions of the Software so that Customer’s use of the Software corresponds to the quantities acquired by the Customer.
1.3 (b) Cloud Services
For deployment of Cloud Services, Informatica hereby grants Customer and its Affiliates a non-exclusive, non-transferable, worldwide right to authorize individuals solely within the Customer’s and its Affiliates’ organization (“Users”) to access or exchange data via the Cloud Services during the applicable Term (as defined in Section 8 below), solely for Customer’s own internal business purposes and subject to the terms and conditions of this Agreement and terms associated with the specific Cloud Services set forth in the Order and applicable schedule(s). Informatica is not responsible for web pages or servers that are not owned or controlled by Informatica ("Third Party Webpages"), even if linked to (including via application programming interfaces) the Cloud Service. Informatica does not endorse any sites on the Internet that are linked through the Cloud Service; such links are provided to Customer and its Users only as a convenience. In addition, certain third-party providers of ancillary software, hardware or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s or its Users use of or access to such software, hardware or services. Cloud Services offerings may include a limited-use subscription to on-premise Software as described in the applicable schedule(s), and for the avoidance of doubt, use of such Software shall comply with all license terms applicable for Software. Under no circumstances may the Cloud Services be used for any illegal or illicit purpose in any geography where the Cloud Services are used. Customer shall: (i) protect the secrecy of Customer’s authorized user IDs and passwords; (ii) notify Informatica immediately of any unauthorized use of any user ID or password or any other known or suspected breach of security; and (iii) report to Informatica immediately and use reasonable efforts to stop any copying or distribution of content not authorized by Informatica that is known or suspected by Customer or its Users. Customer agrees that anyone who inputs a valid user ID and password will be deemed an appropriate User unless and until Customer notifies Informatica to the contrary in writing. Any individual User who has violated this Section may have its account suspended pending resolution of any concerns between Informatica and Customer.
1.4 Use of the Products shall be limited to the internal data processing and computing needs of Customer and its Affiliates and to the terms and conditions set forth in the Informatica Product Description Schedule current at the time of licensing, a copy of which shall be made available to Customer upon request. Customer shall not make the Products available to unauthorized third parties. The Products may not be used for outsourcing or service bureau purposes or otherwise processing third party data for the benefit of any third party. Customer may not relicense, rent or lease the Products for third-party training or commercial time-sharing. Customer shall not distribute, sell, sublicense, subcontract or otherwise transfer copies of or rights to the Products or any portion thereof, and shall not use the Products except as expressly permitted hereunder. No third-party software that is provided with the Products may be used independently from the Products. Unless otherwise mutually agreed in writing and except to the extent required to obtain interoperability with other independently created software or as specified by law, Customer further agrees not to adapt, translate, reverse engineer, decompile or otherwise derive the source code for Products or any of the related features of the Products or to allow third parties to do so. Customer may not use the Products for purposes of benchmarking or other competitive purposes.
1.5 Notwithstanding the foregoing, Customer shall have the right to sublicense the use of the Products to external service provider(s) of the Customer (“Service Provider(s)”) solely for purposes of providing outsourcing services for the benefit of the Customer and solely for the duration of such outsourcing services The rights accorded to the Service Provider shall be those as permitted in the Agreement, the Order and no duplication of the quantities of Products purchased is permitted. The Customer shall be fully responsible for the Service Provider’s use of the Products in accordance with the terms of the Agreement and accepts any and all liability for Service Provider’s use of the Products.
1.6 Customer may print a reasonable number of copies of the softbound version of the documentation provided with the Products (“Documentation”) in the form generally available and post the PDF format of the Documentation on Customer’s own intranet solely for Customer’s internal use.
1.7 Customer acknowledges that Informatica owns all proprietary rights, including all patent, copyright, trade secret, trademark and all other proprietary rights, in and to the Products and any corrections, bug fixes, enhancements, updates or other modifications and derivatives, including custom modifications, to the Software and all other deliverables. Customer agrees not to remove from view any copyright legend, trademark or confidentiality notice appearing on the Products or Products output. Informatica reserves all rights not expressly granted to Customer in this Agreement.
2. SUPPORT SERVICES
2.1 Subject to payment of the applicable annual Support Services fee (“Support Fees”), Informatica agrees to provide the support and maintenance services (“Support Services”) for the Products as set forth in the Order and the Informatica Global Customer Support Guide valid at the time of signature of the Order and available at https://network.informatica.com/docs/DOC-3015. Details of Support Services may be modified from time to time at the sole discretion of Informatica, provided however that no such modification will materially degrade the Support Services.
3. FEES, CHARGES, TAXES AND DELIVERY
3.1 Software
The total license and initial annual Support Fees as applicable shall be invoiced upon delivery of the Software. The Support Fees for subsequent years will be invoiced annually following Customer’s written acknowledgement of Informatica’s quote for Support Services (“Renewal Quote”) which will be issued approximately sixty (60) days prior to the start of each such annual Support Services term. In order to ensure continuity of Support Services, Customer shall provide Informatica acknowledgement and acceptance of the Renewal Quote prior to the end of the current Support Services term.
The initial annual Support Fees for the first year of Support Services shall be as specified on the Order. After the first year of Support Services, Informatica reserves the right to increase the annual Support Services Fees by four percent (4%) from the annualized fee paid in the prior year.
3.2 Cloud Services
Customer shall pay all Cloud Services fees and charges in advance, covering the Term set forth in the applicable Order unless otherwise specified in such Order. All payment obligations for the Term (as defined below) are non-cancelable and all amounts paid are nonrefundable except as otherwise set forth in Section 7 below. Informatica may suspend the provision of Cloud Services in the event that any invoice remains unpaid in excess of thirty days post due date.
3.3 All invoices for Products shall be due and payable within thirty (30) days of receipt. A late charge equal to the lesser of (a) one percent (1%) per month or (b) the maximum amount permitted by law will be assessed for all invoices over thirty (30) days past due, in addition to any costs incurred in collecting such late fees.
3.4 Informatica shall have the right, on at least ten (10) business days’ prior written notice and not more than once every twelve (12) months, to conduct (or to have an independent public accounting or other third party firm conduct) a software audit during Customer's normal business hours to verify Customer’s use of the Software, compliance with the terms of this Agreement and payments made to Informatica hereunder. Customer shall complete any request for information by Informatica within ten (10) days of the request. Customer shall complete all requests for information in a form and format reasonably satisfactory to Informatica. Customer hereby warrants to Informatica that all information provided in the course of the audit is true, accurate and complete. Customer agrees to immediately remit to Informatica any shortfall in payment disclosed by such software audit including any late charges applicable thereto. In addition, if any such examination discloses a shortfall in payment to Informatica of more than five percent (5%) for any year, Customer agrees to pay or reimburse Informatica for that software auditing expense upon written request by Informatica.
3.5 Customer shall pay, in addition to all fees payable, all taxes (excluding taxes based on Informatica’s net income) however designated, levied or based on the prices, terms or performance of this Agreement, including, without limitation, state and local sales and use taxes, duties and privilege and excise taxes, unless Customer furnishes appropriate evidence of exemption. Customer acknowledges and agrees that subject only to warranty remedies expressed herein, all fees are non-cancelable, non-contingent and non-refundable. Fees are owed and are to be paid in exchange for the rights granted and services made available hereunder and not based on actual use of the software or services provided.
3.6 Unless requested otherwise as set forth below, the Products, Documentation and all updates furnished under Support Services shall be delivered via electronic delivery. In the event that Customer elects to receive and Informatica agrees to deliver the Software and Documentation physically, the Software shall be shipped FOB Origin. All freight, handling and similar charges or costs incurred in connection with delivery shall be borne by Informatica.
4. CONFIDENTIALITY
4.1 For purposes of this Agreement the party disclosing Confidential Information is referred to herein as the “Disclosing Party” and the party receiving Confidential Information is referred to as the “Receiving Party”. “Confidential Information” means the Products (both object and source code versions of Software), the accompanying Documentation and all related technical and financial information (including the terms of this Agreement) and any information, technical data or know-how, including, without limitation, that which relates to computer software programs or Documentation, specifications, source code, object code, research, inventions, processes, designs, drawings, engineering, products, services, customers, company structure/ownership, markets or finances of the Disclosing Party which (i) has been marked as confidential; (ii) is identified as confidential at the time of disclosure either orally or in writing; or (iii) due to its character and nature, a reasonable person under like circumstances would understand to be confidential. All Informatica software, computer code, product development and marketing plans, and non-public financial and human resources data, materials and information are deemed to be Confidential Information.
4.2 Confidential Information shall not include information which (a) Receiving Party can demonstrate was rightfully in its possession, without confidentiality obligations, before receipt; (b) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed the Disclosing Party; (c) is disclosed to Receiving Party, without confidentiality obligations, by a third party who has the right to disclose such information; or (d) Receiving Party can demonstrate was independently developed without reliance on any Confidential Information of the Disclosing Party, provided that if only part of any Confidential Information falls within one or more of the exceptions set out in this Section 4.2, the remaining part of the Confidential Information shall continue to be subject to the restrictions set forth in this Agreement.
4.3 The parties hereby agree that: (a) Receiving Party may use Confidential Information solely for the purposes of this Agreement; (b) Receiving Party shall instruct and require all of its employees, agents, and contractors who have access to the Confidential Information of the Disclosing Party to maintain the confidentiality of the Confidential Information; (c) Receiving Party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Receiving Party would exercise to safeguard the confidentiality of Receiving Party’s own confidential property; (d) Receiving Party shall not disclose the Confidential Information, or any part or parts thereof, except on a “need to know” basis to those of its employees, agents, and contractors who are bound to confidentiality obligations at least as protective of the Confidential Information as those set forth herein; and (e) Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law, provided, however, that Receiving Party will use all reasonable efforts to notify Disclosing Party of the obligation to make such disclosure in advance of the disclosure so that Disclosing Party will have a reasonable opportunity to object to such disclosure and further provided the Receiving Party shall otherwise continue to treat such Confidential Information in accordance with this Agreement. The Receiving Party’s obligations set forth herein shall also be applicable to Confidential Information disclosed by the Disclosing Party to the Receiving Party prior to the execution of this Agreement. The Receiving Party will return any tangible materials containing Confidential Information, and any copies or reproductions thereof, to the Disclosing Party within ten (10) days after the Disclosing Party’s written request. Receiving Party agrees to undertake whatever action is reasonably necessary to remedy any breach of Receiving Party confidentiality obligations set forth herein or any other unauthorized disclosure or use of the Confidential Information by Receiving Party, its employees, its agents, or contractors. The Receiving Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction without the necessity of posting any bond.
4.4 Cloud Services – Privacy and Security
Cloud Services may use third-party data centers, which are independently audited and certified as SSAE 16 compliant. Informatica to the best of its knowledge complies with all United States laws applicable to Informatica as provider of the Cloud Services. Informatica shall process Customer Data (as defined in Section 6.2) via the Cloud Services on behalf of Customer only in accordance with the terms of this Agreement and any instructions reasonably given by Customer from time to time. Informatica shall take reasonable measures designed to protect Customer Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Informatica reserves the right to hire other companies to provide services on its behalf in connection with its provision of the Cloud Service. Informatica will prohibit such subcontractors from using Customer Data for any other purpose other than to perform services on behalf of Informatica. Informatica reserves the right to transfer Customer Data to the U.S. and other countries for processing in connection with its provision of the Cloud Service.
5. PROFESSIONAL SERVICES
5.1 Professional Services. Informatica shall provide Professional Services as further described and set forth in statements of work executed by the parties from time to time (“SOW”).
5.2 Informatica warrants that its Professional Services shall be provided in a professional manner. If at any time Customer is dissatisfied with the performance of an individual working on a Customer project, Customer shall report its dissatisfaction to Informatica in writing and may ask Informatica to replace the individual. For time and materials SOW, Informatica warrants that the Professional Services and deliverables will substantially conform to the agreed upon specifications set forth in the SOW. At no additional cost to Customer, Informatica will promptly re-perform any warrantable Professional Services or deliverables of which Informatica is notified within thirty (30) days after the delivery of such services or deliverables to Customer. For this purpose, nonconformity is a deviation from the applicable specifications set forth in the SOW to which the parties have mutually agreed in writing. Re-performance or replacement will be Customer’s sole remedy for breach under this warranty. Each SOW is separate contractual obligation and a breach by either party of a SOW is not deemed to be a breach under any other SOW or this Agreement.
5.3 Compensation of Informatica. Each SOW shall contain the charges for Informatica’s Professional Services (“Consulting Fees”) and shall be provided on a time and materials basis unless otherwise specified. Customer shall reimburse Informatica for the reasonable travel and living expenses incurred by Informatica in performing its Professional Services. Canceling or rescheduling of Professional Services must be done in writing. Informatica reserves the right to charge Customer a cancellation/rescheduling fee per consultant if the Professional Services are canceled or rescheduled less than three (3) business days prior to the scheduled visit. To cancel an engagement which is in progress, Customer must give Informatica at least two (2) weeks written notice of cancellation, and Informatica shall have the right to collect Consulting Fees for the Professional Services performed during such two (2) week period prior to the cancellation date.
5.4 Ownership. The parties acknowledge that the material delivered by Informatica hereunder may contain pre-existing material developed by Informatica under similar terms and conditions for others, and Informatica shall retain all right, title and interest in such pre-existing material. Informatica does, however, grant Customer an irrevocable, non-exclusive, world-wide royalty-free license to use, copy and authorize others to use such pre-existing material (other than commercially available Informatica products and Informatica training materials) solely as part of the project for which such material was delivered. Nothing contained in this Agreement shall restrain Informatica or its personnel in the use of the techniques and skills of computer operation, system design and programming acquired in the performance of Professional Services hereunder, and Informatica retains the unrestricted right to use, copy and authorize others to use any material developed by Informatica hereunder which is generic in nature and not specifically related to a Customer project and which does not incorporate Customer’s Confidential Information.
5.5 Insurance. Informatica shall obtain and/or maintain during the term of this Agreement insurance in an amount satisfying applicable laws. Upon request, Informatica shall provide Customer with proof of the acquisition of all of the insurance coverages required hereunder in the form of one or more certificates of Insurance.
6. WARRANTY
6.1 Software warranty
Informatica warrants that the Software will operate in conformity with the then current standard Documentation (except for minor defects or errors not material to the core functionality of the Software) for a period of ninety (90) days from the date of initial delivery of the Software (“Warranty Period”). If the Software does not perform in accordance with the foregoing warranty during the Warranty Period, upon written notice by Customer during the Warranty Period and verification of any such nonconformity, Informatica will use reasonable efforts to correct any deficiencies in the Software so that it will perform in accordance with such warranty. Customer’s sole and exclusive remedy, and Informatica’s sole obligation, in the event of nonconformity of the Software with the foregoing warranty will be the correction of the condition making it nonconforming. Customer shall provide all information reasonably requested to enable Informatica to cure the nonconformity. The above warranty specifically excludes defects resulting from accident, abuse, unauthorized repair, modifications, misapplication, or use of the Software that is otherwise materially inconsistent with the Documentation.
6.2 Cloud Services Warranty Informatica warrants that it will provide the Cloud Services in a manner consistent with the applicable Documentation under normal use and circumstances. Customer warrants that (i) it will neither falsely identify itself nor any User, nor provided any false information to gain access to the Cloud Service, nor does any data, information or material that Customer and its Users process or submit to the Cloud Services in the course of using the Cloud Services including any personally identifiable information ("Customer Data") violate the privacy rights of, or defame, any data subject or third party, (ii) it will provide any necessary notices and obtain any necessary consents from applicable data subjects as required by applicable law, rule or regulation for Informatica and Customer to process Customer Data via the Cloud Services and (iii) the billing information it provided will be correct. Informatica does not own or accept responsibility for Customer Data. Customer agrees to separately back up all Customer Data. Customer retains ownership of all Customer Data. Customer, not Informatica, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer is solely responsible for ensuring that provision of Customer Data to Informatica for processing via the Cloud Services is in compliance with all applicable laws. Customer shall not process or submit to the Cloud Services any Customer Data that includes any “protected health information,” as defined under the Health Insurance Portability and Accountability Act or Sensitive Personal Data as defined under the EU Directive 95/46/EC as enacted in the member states of the European Union. Customer will not: (i) use the Cloud Services in violation of applicable Laws; (ii) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights in connection with the Cloud Service; (iii) send or store malicious code in connection with the Cloud Service; (iv) damage, disable, overburden, impair, interfere with or disrupt the Cloud Service; (v) attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Cloud Services or in any way with the use or enjoyment of the Cloud Services by others; (vi) permit more Users to access or use the Cloud Services than are permitted in the applicable Order; (vii) allow more than one individual to use a User account; (viii) make the Cloud Services available to any third party (via a services arrangement, service bureau, lease, sale, resale, or otherwise); and, (ix) exceed any applicable bandwidth limit or storage capacity limit. Customer shall fully indemnify and defend Informatica, its agents, officers, directors, and employees against any and all fees, fines, costs, liens, judgments and expenses that any such person(s) may incur as a result of any potential or actual violation of this provision. INFORMATICA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE CLOUD SERVICES OR ANY CONTENT. INFORMATICA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE CLOUD SERVICES WILL BE ENTIRELY SECURE, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR SYSTEM NOT PRESCRIBED BY INFORMATICA, (ii) ALL ERRORS OR DEFECTS WILL BE CORRECTED, OR (iii) THE CLOUD SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. The Cloud Services may be subject to limitations, delays, inaccessibility and other problems that are inherent in the use of the Internet. Informatica is not responsible and disclaims all liability for any delays, failures or damage resulting from such problems. Customer is fully responsible for Internet access and connectivity issues.
6.3 EXCEPT AS EXPRESSLY SET FORTH ABOVE THE CLOUD SERVICES AND SOFTWARE, INCLUDING WITHOUT LIMITATION ALL INFORMATICA CONTENT, IS PROVIDED TO CUSTOMER 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, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INFORMATICA AND ITS LICENSORS.
7. INTELLECTUAL PROPERTY INDEMNIFICATION
7.1 Informatica agrees to indemnify, defend and hold Customer harmless from any third party intellectual property claim asserted against the Products, and from any claims by reason of bodily injury (including death) or damage to tangible property arising out of, as a result of Informatica’s performance of Professional Services under this Agreement, provided that: (a) Informatica is given prompt written notice of any such claim; (b) Informatica has the right to control and direct the defense and any settlement of such claim provided however that no such settlement requires admission of wrongdoing or payment of damages on the part of Customer; and (c) Customer shall reasonably cooperate with Informatica in such defense.
7.2 Informatica shall have no liability for any claim of infringement that results from: (a) any modification of the Products by Customer; (b) any failure by Customer to implement updates to the Products as supplied by Informatica under Support Services; (c) the combination, operation, or use of the Products with non-Informatica programs, data or documentation, if such infringement would have been avoided by the use of the Products without such combination, operation or use; (d) any use of the Products that is not expressly permitted under this Agreement; (e) Customer’s continued use of infringing Products after Informatica, for no additional charge, supplies or offers to supply modified or replacement non-infringing Products as contemplated under 7.3(a) below, or (f) materials developed by Informatica in accordance with Customer’s specific design instructions.
7.3 In the event the Products, in Informatica’s opinion, are likely to or do become the subject of a claim of infringement, Informatica shall have the right at its sole option and expense to: (a) modify the Products to be non-infringing while preserving substantially equivalent functionality; (b) obtain for Customer at Informatica’s expense a license to continue using the Products; or (c) terminate this Agreement and the license granted hereunder, accept return of the Products and refund to Customer a pro rata portion of the applicable fee paid to Informatica hereunder for that portion of the Products which is the subject of such infringement. For Software such refund shall be based on a straight line amortization over a five (5) year term beginning on the date of initial delivery of the Products. For Cloud Services, the refund will be prepaid and unearned fees covering the remainder of the Term (as defined in Section 8.1 below).
7.4 THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF INFORMATICA, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT BY THE SOFTWARE, OR ANY PART THEREOF, OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
8. TERM, TERMINATION; EFFECTS OF TERMINATION
8.1 Cloud Services Term - The term for each subscription to the Cloud Services (“Term”) is: (i) the time period specified in the applicable Order, commencing on the date of last signature of such Order, except as may be otherwise set forth in an applicable schedule, or (ii) for transaction-based Cloud Services, the Term shall be the validity period for processing the transactions and any renewal thereof, as set forth in the Product Description Schedule unless specifically stated in the Order. Upon the expiration of the Term, the subscription to the Cloud Services and/or the transactions in the applicable Order will terminate and Customer’s access to the Cloud Services will cease, unless both parties have signed a new Order for a renewal Term.
8.2 Either party has the right to terminate this Agreement and any and/or all rights granted hereunder upon written notice to the other party if the other party: (a) is in default of any obligation hereunder which default is incapable of being cured, or which, being capable of being cured, has not been cured within thirty (30) days after receipt of written notice of such default; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has been liquidated, voluntarily or otherwise.
8.3 Immediately upon termination, the licenses granted hereunder and rights to use shall terminate, and Customer shall cease all use of the Products. Within five (5) days after termination, Customer will de-install the Software and all copies thereof and (a) return to Informatica the Software in the form provided by Informatica and all copies in whole or in part made by Customer; or (b) upon request by Informatica destroy the Software and all copies, and certify in writing that they have been destroyed.
8.4 Termination shall not relieve Customer from paying all fees accruing prior to termination and shall not limit either party from pursuing any other available remedies.
8.5 Sections 3, 4, 5.3, 5.4, 6.3, 7.2, 7.3, 7.4 and 8 through 10 shall survive termination of this Agreement.
9. LIMITATION OF LIABILITY
9.1 THE LIABILITY OF INFORMATICA AND ITS LICENSORS OR RESELLERS TO CUSTOMER OR ANY THIRD PARTY ARISING FROM THE LICENSE OR USE OF THE SOFTWARE, OR THE PROVISION OF SUPPORT SERVICES OR, PROFESSIONAL SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL NOT EXCEED THE AMOUNT PAID FOR THE LICENSE, SUPPORT OR PROFESSIONAL SERVICE FEE ASSOCIATED WITH THE LICENSE OR SERVICE THAT GAVE RISE TO THE LIABILITY. INFORMATICA’S FINANCIAL RESPONSIBILITY FOR LIABILITY ARISING FROM THE PROVISION OF THE CLOUD SERVICES SHALL BE LIMITED TO FEES PAID FOR THAT SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE APPLICABLE LIABILITY.
9.2 EXCEPT IN THE CONTEXT OF A LIABILITY ARISING FROM A BREACH OF INFORMATICA’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF CONFIDENTIALITY, A VIOLATION OF APPLICABLE LAW, OR A PAYMENT OBLIGATION, IN NO EVENT WILL CUSTOMER OR INFORMATICA OR ITS LICENSORS OR RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Informatica disclaims all responsibility and liability with respect to any content or data that the Customer processes with the Products. Customer acknowledges and agrees that (i) the Products function only as a tool or vehicle for data processing, which data is not visible to Informatica; (ii) Informatica cannot control the jurisdiction where the data originates; and (iii) neither Informatica nor its Products is a “data controller” or similar under applicable law with respect to any Customer content or data. Customer acknowledges and agrees that, as between the parties, it is the sole “data controller” and must ensure that it is in full compliance with applicable data protection and privacy laws, especially with laws that apply to the use or transmission of sensitive information, personal information or personally identifiable information.
9.4 THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. EACH PARTY ACKNOWLEDGES THAT THE FEES, EXCLUSIONS, DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE NEGOTIATED AND AGREED UPON ESSENTIAL COMPONENTS OF THIS AGREEMENT AND NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT SUCH WARRANTY DISCLAIMERS AND LIMITATIONS ON ITS LIABILITY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THESE DISCLAIMERS AND LIMITATIONS ARE NOT UNCONSCIONABLE AND THESE DISCLAIMERS AND LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. GENERAL
10.1 Notwithstanding any provision in this Agreement to the contrary, Informatica may include Customer’s name in a public list of current customers who use Informatica’s products, provided that (a) Customer’s name is not highlighted and does not stand out in comparison to the names of Informatica’s other customers; and (b) Informatica does not and will not make any representation with respect to Customer and does not and will not attribute any endorsements to Customer without Customer’s prior written consent. Within sixty (60) days of the Effective Date of this Agreement, Informatica may issue a press release announcing Customer as a new Informatica customer. Customer will have full review and editing authority of the language in such press release prior to distribution.
10.2 This Agreement may not be amended by Customer except by a writing signed by an authorized representative of Informatica and Customer. If Customer issues a Purchase Order or other document regarding the Products provided under this Agreement, such instrument will be deemed for Customer’s internal use only, and any provisions contained therein shall have no effect whatsoever upon this Agreement.
10.3 All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. Informatica shall have the right to assign, novate or otherwise transfer its rights and obligations under this Agreement to an Affiliate or incorporate an Affiliate as a party to this Agreement or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Informatica’s assets or voting securities or for bona fide restructuring purposes. Customer may not assign or otherwise transfer by operation of law, change of control or otherwise, any of its rights under this Agreement without Informatica’s prior written consent, which shall not be unreasonably withheld
The parties acknowledge and agree that the terms of this Agreement shall be applicable to Products validly acquired by an Affiliate of Customer from Informatica or from an Affiliate of Informatica as if references to “Informatica” in the Agreement were to Informatica or the Informatica Affiliate, as applicable, and references to “Customer” in the Agreement were to such Customer Affiliate. An Affiliate shall execute an Order in the country in which it is located with the Informatica Affiliate located in such country.
10.4 This Agreement shall be governed by California law, without regard to conflict of law provisions. The application of Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. In the event that either party brings an action, proceeding or arbitration to enforce the provisions of this Agreement, the prevailing party shall be entitled to collect all reasonable attorneys’ fees and expenses incurred in connection therewith. The Parties acknowledge and agree that the Uniform Commercial Code is not applicable to transactions under this Agreement.
10.5 The waiver or failure of a party to exercise in any respect any rights provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
10.6 If Customer is a branch or agency of the U.S. Government, use, duplication or disclosure of the Products is subject to the restrictions set forth in this Agreement except that this Agreement shall be governed by federal law. Any additional rights or changes desired by the U.S. Government shall be negotiated with Informatica consistent with Section 10.2.
10.7 Except as expressly agreed in writing by Informatica, Customer may not export the Products, the Documentation or any copies thereof. In addition, Customer agrees to comply with all laws and regulations of the United States and other countries ("Export Laws") to ensure that neither the Products, nor any direct products thereof are exported, directly or indirectly, in violation of Export Laws, including the Bureau of Export Administration’s restrictions on the export of certain encryption security technology, or are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.
10.8 Each party acknowledges its obligation to comply with all applicable laws, rules, statutes and regulations, including specifically but not limited to anti-corruption legislation and represents that, to the best of it knowledge, no money or other consideration of any kind paid or payable under this Agreement or by separate agreement is, has been or will be used for unlawful purposes, including purposes violating anti-corruption laws, including making or causing to be made payments to any employee of either party or anyone acting on their behalf to assist in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage. Each party will fully indemnify and defend the other party, its Affiliates, officers, directors, agents and employees against any fees, fines, costs, expenses, liens, judgments or other liabilities that any such party may incur as a result of an actual, threatened or perceived violation of this provision.
10.9 Informatica is engaged by Customer only for the purpose and to the extent set forth in this Agreement, and its relation to Customer shall be that of an independent contractor. Informatica's personnel are not, and shall not be considered, employees or agents of Customer for any purpose whatsoever. Informatica shall be responsible for payment of all employment taxes, fees and claims with respect to such personnel, including workers' compensation and other liabilities related to Informatica's business operations.
10.10 This Agreement, the attached exhibits, the Product Description Schedule, the attached addenda and each supplemental exhibit signed by the parties constitutes the entire agreement between the parties with respect to the Products and supersedes any prior or contemporaneous understandings, oral or written, and all other communications between the parties. Customer acknowledges that it has not relied on the availability of any future version of the Products or any future product in executing this Agreement. This Agreement may be executed in one (1) or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument. This Agreement may be executed via facsimile or other electronic copy signature.
