BY COMPLETING THE ONLINE ENROLLMENT FORM AND CLICKING THE ACCEPTANCE CHECK BOX DISPLAYED AS PART OF THE ENROLLMENT PROCESS, OR BY EXECUTING ANY EXHIBIT A OR OTHER ORDER FORM THAT INCORPORATES THE TERMS OF THIS SUBSCRIPTION AGREEMENT BY REFERENCE, YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS, TOGETHER WITH SUCH ENROLLMENT FORM, EXECUTED EXHIBIT(S) A AND ANY UPDATES TO THESE TERMS POSTED ON THE INFORMATICA CLOUD WEBSITE (defined below), SHALL BE KNOWN AS THE "AGREEMENT." THIS AGREEMENT GOVERNS YOUR USE OF THE INFORMATICA CLOUD ONLINE SERVICE DESCRIBED MORE FULLY IN THE INFORMATICA CLOUD DESCRIPTION SCHEDULE, LOCATED AT: http://www.informaticacloud.com/products/183-cloud-description-schedule.html, (the “CDS”), AND INCORPORATED HEREIN BY THIS REFERENCE (COLLECTIVELY, THE "SERVICE"). 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 SERVICE 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 SERVICE. Informatica refers to Informatica Corporation, a Delaware corporation located at 2100 Seaport Blvd., Redwood City, CA 94063, and its subsidiaries and affiliates, the owner and provider of the Service (which includes without limitation the Content, defined below).
1. SUBSCRIPTION GRANT AND USE
Informatica hereby grants You as a duly enrolled and authorized user a non-exclusive, non-transferable, worldwide right to authorize individuals within the Customer organization to use the Service ("User") during the applicable Term (as defined below), solely for Customer's internal business purposes, subject to the terms and conditions of this Agreement and the associated License Terms associated with the specific Service set forth in the CDS. All rights not expressly granted to You are reserved by Informatica and its licensors. The Service includes all upgrades and updates during the Term which Informatica makes generally available at no additional cost to its subscribers, but does not include those upgrades containing new or different functionality for which Informatica charges its subscribers separately.
As part of the implementation process for the Service, You shall select a unique User identification name ("Userid") and password. This will enable You to access the Service at any time during the Term, by means of Your Internet browser and, if applicable an Informatica agent made available for Your download and installation as part of the Service at no additional cost, which is used to configure the Service for optimized use. You must protect Your Userid and password, and not make it available to others.
2. USER’S RESTRICTIONS AND OBLIGATIONS
You shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, or the audio, graphical and textual information, documents, Technology (as defined in Section 4), products and services contained or made available to You in the course of using the Service (collectively, "Content") in any way; (ii) modify or make derivative works based upon the Service or the Content (provided that configuring the Service within its policy parameters shall not constitute a modification or derivative work); (iii) use the Service as a paid service bureau or to provide a paid service directly or indirectly to third parties or to enable use by third parties of the Service (except for third party Users who are agents or contractors working for the benefit of Customer), provided that this clause is not intended to prevent the transfer of data processed by the Service to permitted Connectors or the processing of data provided by a third party; (iv) reverse engineer, adapt, translate, decompile, or otherwise derive the source code of any downloadable component of the Service (except in the European Union, to the extent permitted by the 2009 EU Directive 2009/24/EC on the legal protection of computer programs in order to achieve interoperability, but only after notifying Informatica and giving Informatica an opportunity to provide any necessary interoperability information), or (v) access the Service for purposes of benchmarking or competitive purposes.
You shall not: (i) interfere with, intentionally overload or disrupt the performance of the Service or the Content contained therein; (ii) attempt to gain unauthorized access to the Service or its related systems or networks; (iii) transmit or store infringing, obscene, threatening, libelous, or otherwise unlawful or offensive data or material, or data that violates the privacy rights of any person; or (iv) transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
You are responsible for all activity occurring under Your User account, and You shall abide by all applicable local, state, national and international laws, treaties and regulations in connection with use of the Service, including those related to taxes, data privacy, and the transmission of technical or personal data. You shall: (i) protect the secrecy of Your Userid and password; (ii) notify Informatica immediately of any unauthorized use of any Userid or password or any other known or suspected breach of security; (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 You; and (iv) not impersonate another Informatica customer or user or provide false identity information to gain access to or use the Service. Any individual User who has violated this Section may have its account suspended pending resolution of any concerns between Informatica and Customer.
3. ACCOUNT INFORMATION AND DATA
Informatica does not own or accept responsibility for any data, information or material that You process or submit to the Service in the course of using the Service, including any personally identifiable information ("Customer Data"). Customer retains ownership of all Customer Data. Customer, not Informatica, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer is solely responsible for ensuring that any processing of Customer Data by Informatica and Customer via the Service is in compliance with all applicable laws. Customer shall not process or submit to the Service any Customer Data that includes any “protected health information,” as defined under the Health Insurance Portability and Accountability Act. You shall provide all notices to, and obtain any consents from, applicable data subjects as required by applicable law, rule or regulation in connection with Customer and Informatica’s processing of Customer Data via the Service. You further agree to ensure that Customer Data is separately backed up.
4. INTELLECTUAL PROPERTY OWNERSHIP
Informatica (and its licensors, where applicable) shall own all right, title and interest, including all related inventions whether patented or not, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (collectively, "Intellectual Property Rights"), in and to the Content and the Service, and in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. "Technology" means all of Informatica's proprietary technology (including any downloadable components, any other software, products, processes, algorithms, user interfaces, know-how, techniques, designs, mappings, routings, templates and other tangible or intangible technical material or information), and all related Intellectual Property Rights, made available to You by Informatica in providing the Service, and constitutes part of the Content. This Agreement does not convey to You any rights of ownership in or related to the Service or the Content. The Informatica name, the Informatica logo, and the product names associated with the Service are trademarks of Informatica or third parties, and no right or license is granted to You to use or remove them.
5. PAYMENT OF FEES; BILLING AND RENEWAL
There is no charge for the free trial or for use of the Informatica Cloud Data Wizard Service.
For other offerings of the Service, Customer shall pay all Service fees and charges annually in advance, covering the Term set forth in the applicable order (Exhibit A), net 30 days from invoice date, unless otherwise specified in such Exhibit A, which must be executed by You or a person authorized by the Customer in order to subscribe to the Service. 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. If You or Customer believe that Informatica's bill is incorrect, You or Customer must contact Informatica in writing within 30 days of the invoice date to be eligible for an adjustment or credit. Customer will be billed in US dollars unless otherwise indicated in Exhibit A.
Any sales, use or value-added taxes or levies imposed by any taxing authority shall be Customer's responsibility, excluding U.S. federal and state taxes based on Informatica's income.
You agree to provide Informatica with complete and accurate billing and contact information.
6. TERM AND TERMINATION; SUSPENSION
For the free trial license, the Term shall begin when the Service is first made available to Customer and ends at the conclusion of the applicable Term, or at such other time as mutually agreed between Customer and Informatica in writing.
For the Informatica Cloud Data Wizard Service, the Term shall begin when the Service is first made available to Customer and shall end 30 days following Informatica’s notice to the Customer that the Service is being terminated. During such 30 day period, the Customer may notify Informatica that it wants to continue using the Informatica Cloud Data Wizard Service and Informatica may elect to extend the Term at its sole discretion.
For other elements of the Service, the Term is the time period specified in the applicable Exhibit A, commencing on the last date of signature of such Exhibit A.
Upon the expiration of a Term, this Agreement will terminate (except for provisions that survive termination) and Your access to the Service will cease, unless You have agreed to the then current online Subscription Agreement and a new Exhibit A has been executed by You and Informatica.
Either party may terminate this Agreement upon written notice, if the other party: (a) breaches any of its material obligations hereunder and fails to cure such breach within thirty (30) days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or has a trustee is appointed over all or a substantial portion of its assets.
Customer's failure to pay any amounts due on a timely basis will be deemed material breach of this Agreement. Accounts that have fallen into arrears are subject to interest at the rate of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less. Alternatively, without terminating the Agreement, Informatica may suspend the Service until payment in full. Customer will continue to be charged Service fees during any period of suspension. If Informatica initiates termination of this Agreement for Your breach, Customer remains obligated to pay the balance due on Your account for the remainder of the Term then in effect, computed in accordance with Exhibit A or Customer’s monthly usage-based service fees, as applicable, and will be billed for such unpaid fees. Informatica reserves the right to impose a reconnection fee in the event Your Service is suspended and You thereafter request access to the Service. If You or Customer duly terminate the Agreement for uncured material breach by Informatica, Customer shall be entitled to reimbursement on a pro-rated basis of that portion of Customer's prepayment for the Service which covers any time period beyond the termination date.
Any unauthorized use of the Service, Content or any component thereof will be deemed a material breach of this Agreement. In addition, without terminating the Agreement, Informatica, in its sole discretion, may terminate Your password(s), account(s) or use of the Service if You breach this Agreement.
Upon termination or expiration of this Agreement, in the event that Informatica has any Customer Data, You agree that Informatica has no obligation to retain the Customer Data. Upon termination of the Agreement, You shall immediately cease use of all Content and downloadable components, destroy any copies You may have made thereof and, if requested by Informatica, certify in writing that You have done so.
In the event of any expiration or termination of this Agreement, the restrictions set forth in Section 2, Section 4, any amounts unpaid under Section 5, Section 6, Sections 8-12, 14 and 16 shall survive termination.
7. WARRANTIES
Each party warrants that it has the legal power and authority to enter into this Agreement.
Informatica represents and warrants that it will provide the Service in a manner consistent with general industry standards and that the Service will perform substantially in accordance with the online Informatica help documentation that is accessible from the Service, under normal use and circumstances. You represent and warrant that (i) You have neither falsely identified Yourself, nor provided any false information to gain access to the Service, nor does any Customer Data for which You are responsible violate the privacy rights of, or defame, any data subject or third party; (ii) You have provided any necessary notices and obtained any necessary consents from any data subject as required by applicable law for You and Informatica to process Customer Data via the Service, and (iii) any billing information You have provided is correct.
8. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8 ABOVE, THE SERVICE, INCLUDING WITHOUT LIMITATION ALL INFORMATICA 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, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY INFORMATICA AND ITS LICENSORS. INFORMATICA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. INFORMATICA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE 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 SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties, so certain exclusions may not apply to You.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL INFORMATICA'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU OR CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL INFORMATICA AND/OR ITS LICENSORS BE LIABLE TO YOU OR CUSTOMER 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 THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF INFORMATICA HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to a party.
The Service 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. You are fully responsible for Internet access and connectivity issues.
10. MUTUAL INDEMNIFICATION
Informatica shall indemnify and hold You and Your 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 a third-party claim ("Claim") alleging that the Service directly infringes a third-party: (i) copyright, (ii) U.S. patent, or (iii) trademark; provided that You: (a) promptly give written notice of the Claim to Informatica; (b) give Informatica sole control of the defense and settlement of the Claim (provided that Informatica may not settle any Claim unless such settlement releases You of all liability); (c) provide to Informatica all available information and assistance; and (d) have not compromised or settled such Claim. Informatica shall have no indemnification obligation for any Claim arising from the combination of the Service with any of Your or Customer's products, services, hardware or system, if such Claim would not have arisen but for such combination, or from any misuse or unauthorized use of the Service.
You and Customer shall indemnify, defend and hold Informatica, its licensors and its 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 the Claim of a third party or data subject alleging that the Customer Data, including any processing of Customer Data by Informatica under this Agreement, or Your use of the Service has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Informatica (a) gives written notice of the Claim promptly to You or the appropriate Customer representative; (b) gives You or Customer sole control of the defense and settlement of the Claim (provided that neither You or Customer may settle any Claim unless such settlement releases Informatica of all liability and such settlement does not affect Informatica's business or Service); (c) provides to You/Customer all available information and assistance; and (d) has not compromised or settled such Claim.
Notwithstanding the foregoing, in the event the Service, in Informatica's opinion, is likely to or does become the subject of a claim of infringement, Informatica shall have the right at its sole option and expense to: (a) modify the Service to be noninfringing while preserving substantially equivalent functionality; (b) obtain for You a license to continue using the Service; or (c) terminate this Agreement and refund to You or Customer a pro rata portion of the prepaid fees paid to Informatica hereunder for that portion of the Term which is beyond the termination date. This Section 11 states Informatica's sole obligation and Your/Customer's exclusive remedy with respect to an infringement claim.
11. CONFIDENTIALITY
This section applies to all Confidential Information disclosed during the Term. "Confidential Information" consists of this Agreement (including without limitation all price information), all non-public information relating to the Service, the Content, information relating either party's business, finances, or customers. Except for the Service and any related software, Confidential Information must be marked as "Confidential" or "Proprietary."
The party receiving Confidential Information from the other party ("Receiving Party") agrees: (i) not to disclose, make public or authorize any disclosure or publication of Confidential Information during the Term and for five (5) years thereafter, except as expressly agreed to in writing by the disclosing party; (ii) to take all reasonable and necessary steps to enforce this Agreement and to assure that all principals, officers, agents, employees, representatives, consultants or any other persons affiliated in any manner with the Receiving Party do not disclose, or make public, or authorize any disclosure or publication of any Confidential Information; and (iii) not to use Confidential Information for any purpose other than the purposes related to this Agreement.
The Receiving Party may disclose the Confidential Information to its respective officers, principals and employees, attorneys and accountants only to the limited extent necessary to carry out the purpose of this Agreement. To the extent that the Receiving Party desires to make disclosure to any persons other than its officers, principals, or employees, attorneys or accountants, as a condition precedent to disclosure, such recipient must execute a confidentiality/non-use agreement in a form substantially similar to this Section before disclosure is made.
Notwithstanding the above, the Receiving Party will have no liability to the disclosing party with regard to Confidential Information which: (i) was known to the Receiving Party at the time it was disclosed as can be demonstrated by documentary evidence; (ii) is in or enters the public domain through no fault of the Receiving Party; (iii) is disclosed with the prior written approval of the disclosing party; (iv) becomes known to the Receiving Party from a source other than the disclosing party without violation of the disclosing party's rights; or (v) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the Receiving Party will provide prompt notice thereof to enable the disclosing party to seek a protective order or otherwise prevent or narrow such disclosure.
12. NOTICE
Either party may give notice by written communication sent by first class mail or pre-paid post to the other party's address on record, or by facsimile (with transmission record retained), or by renowned national or international courier service, with signature required. Such notice shall be deemed to have been duly given upon the expiration of five days after mailing or posting (if sent by first class mail or pre-paid post), on the first business day following day of receipt if by facsimile, on the day of receipt if sent by overnight courier with signature required, or 12 hours after sending if by email transmission. Informatica's fax number for notice is: +1-650-385-4424, and notice to Informatica shall be addressed to the General Counsel and sent to the address set forth above. Your fax number and address for notice are included in the enrollment form. Notwithstanding the foregoing, Informatica occasionally may need to notify Users of the Service of important announcements regarding operation of the Service, such as notice of downtime or renewal reminders, and may do this by electronic mail or online notice as a convenience to You.
13. PRIVACY & SECURITY; DISCLOSURE; COMPLIANCE
The Service uses third-party data centers that are independently audited and certified as SSAE 16 compliant. Informatica adheres to the Safe Harbor Privacy Principles published by the U.S. Department of Commerce with respect to the transfer of personal data of residents in the European Economic Area and Switzerland to the United States, and to the best of its knowledge complies with all applicable United States laws. Informatica may disclose the fact that You and Customer are customers of Informatica without Your/Customer's prior written consent. Customer shall be the data controller and Informatica shall be a data processor with respect to any Customer Data processed via the Service. Informatica shall process Customer Data via the Service 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 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 Service.
14. EXPORT CONTROL
The Technology may be subject to United States export control laws. You agree to comply with all laws and regulations of the United States and other countries where the Service is used by You ("Export Laws") to assure that the Technology is not exported, directly or indirectly, in violation of Export Laws. You acknowledge and agree that the Service shall not be used, nor the Technology transferred, in or to countries where the United States maintains an embargo, 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.
15. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may be assigned by either party without the prior written consent of the other party only to (i) an affiliate, (ii) an acquirer of substantially all of the assignor's assets, or (iii) a successor by merger or acquisition of the assignor, provided that any assignment of the Agreement by You/Customer to a competitor of Informatica shall be void unless Informatica gives its prior written consent. Any purported assignment in violation of this section shall be void.
16. GENERAL
This Agreement shall be governed by the laws applicable in California, without regard to its choice or conflicts of law provisions. The parties expressly waive any right to a jury trial regarding disputes related to this Agreement.
Except for terms in an Exhibit A which is fully executed by You and Informatica, no text or information set forth on any 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 or Customer and Informatica as a result of this 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 unless acknowledged and agreed to by such party in writing. This Agreement, together with any exhibits comprises the entire agreement between Customer and Informatica and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
