ALTERYX SERVER SUBSCRIPTION AGREEMENT
BY CHECKING THE ACCEPTANCE BOX OR USING THE SOFTWARE, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT. IMPORTANT: IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE ALTERYX SERVER.
This Alteryx Server Subscription Agreement (“Agreement”) is between Alteryx and the customer (individual or entity) that has purchased a subscription to Alteryx Server (“Customer” or “you” or “your”). “Alteryx” means Alteryx, Inc. or the Alteryx entity designated on your Order Form (as defined below) if applicable. “Software” means the Microsoft Azure (“Azure”) hosted subscription to Alteryx Server. If you are an individual using Software on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Software through any Azure online provisioning, registration or order process or (b) the subscription date of the Alteryx Order Form referencing this Agreement. This Agreement permits the parties to (a) enter into the Azure online provisioning, registration or order process, or (b) enter into Order Forms referencing this Agreement “Order Form” means an Alteryx transactional document that is submitted pursuant to this Agreement that identifies the Software to be provided by Alteryx to Customer and the fees payable by Customer. Order Forms that reference this Agreement shall be deemed a part of this Agreement and shall only become effective when duly signed on behalf of the parties.
This Agreement applies only to the Software and does not grant Customer rights to any other Alteryx services or software (such as Alteryx Designer), which are made available under separate agreements.
From time to time, Alteryx may modify this Agreement. Unless otherwise specified by Alteryx, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. Customer may be required to click to accept the modified Agreement before using the Software in a renewal Subscription Term, and in any event continued use of the Software during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
1.1. Provision of Products. Alteryx Server is a hosted service permitting Customer to access Alteryx Server on a subscription basis for a set term designated in the online registration and order process, or in the Order Form if applicable (each, a “Subscription Term”).
1. 2. Access to Products. Subject to the terms and conditions of the Agreement, Alteryx hereby grants to Customer a limited, worldwide, non-assignable and non-exclusive license to access and use the Software in the furtherance of Customer’s business purposes during the applicable Subscription Term and limited to the capacity limits (number of cores/CPUs) identified in the Azure online provisioning, registration or order process, or Order Form if applicable.
1.3. The Software may contain or be provided with components from third parties (“Third-Party Code”), including components subject to the terms and conditions of open source software licenses (“Open Source Software”). To the extent required by the license accompanying the Third-Party Code, the terms of such licenses will apply in lieu of the terms of this Agreement with respect to such Third-Party Code only, including, without limitation, any provisions governing access to source code, modification, or reverse engineering.
1.4. Trial Use Licenses. If you receive free, trial or evaluation access to the Software (“Trial Access”), you are deemed a “Customer” under this Agreement except that you are subject to the additional restrictions and limitations set forth in this Section 1.4.
Your Trial Access is limited to evaluating the Software to determine whether to purchase a subscription from Alteryx. You may not use Trial Access for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes. Trial Access is limited to fourteen (14) days from the date you activate Trial Access, unless otherwise specified by Alteryx in an Order Form or a separate writing from Alteryx. Alteryx has the right to terminate Trial Access at any time. Unless you purchase a subscription for the Software, upon any such termination or expiration your Trial Access will cease and you will no longer have access to any Customer Data (as defined in Section 2.1 below) used in connection with Trial Access. If Customer purchases a subscription to Alteryx Server, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Software.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALTERYX WILL HAVE NO WARRANTY, SUPPORT OR OBLIGATIONS WITH RESPECT TO EVALUATION USE/ACCESS OF THE SOFTWARE.
1.5. General Restrictions. Customer shall not: (1) make derivative works, including but not limited to translations, adaptations, arrangements or any other alteration (each of which would become the property of Alteryx or its third party licensors, as applicable); (2) make copies of the Software; (3) make copies of the Software documentation; (4) exceed the capacity limitation (number of cores/CPUs) at any time for which you have paid or otherwise licensed; (5) rent, lease, sublease, sublicense, timeshare, lend or otherwise disseminate the Software; (6) make any attempt to unlock or bypass any initialization system, or encryption techniques utilized by the Software; (7) alter, remove or obscure any proprietary legend, copyright or trademark notice contained in or on the Software or online Software documentation; (8) disclose, and must hold in strict confidence any and all passwords and/or lock-codes provided under this Agreement; or (9) decode, reverse engineer or in any other way attempt to derive a source code version of the Software or any of its components, including any data incorporated therein, provided that with respect to Software used in the United Kingdom, save to the extent that applicable law permits such acts notwithstanding any contractual prohibition.
2.1 Customer Data. “Customer Data” means any business information or other data which Customer inputs to the Software, or otherwise provides to Alteryx for the Software.
2.2 Customer Obligations
(a) General. Customer shall ensure that Customer’s use of Alteryx Server and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including without limitation those related to data privacy, international communications and the importing and exporting of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Alteryx that Customer has sufficient rights in the Customer Data to authorize Alteryx to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party. Customer will indemnify, defend, save and hold harmless Alteryx, its affiliates and the respective officers, directors, employees, agents, successors, and assigns of Alteryx or any affiliate (“Alteryx Parties”) against any claims, suits and actions asserted by a third party against any of the Alteryx Parties for liabilities, damages and costs, including reasonable attorney’s fees, from any and all third party claims regarding; (1) Customer’s misuse or unauthorized alteration or application of the Software, or (2) Customer’s breach or failure to comply with Section 2 Customer Data and Customer Obligations and other rights of others or claims relating to violation of applicable law, or (3) third party claims alleging the Customer Data infringes upon copyrights, trademarks, trade dress, patents, publicity rights, or privacy rights.
(b) Health Information. Customer will not submit to the Software any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”). “HIPAA” means the Health Insurance Portability Act, as amended and supplemented. Alteryx shall have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
(c) Payment Card Data. Customer will not submit to Alteryx or the Software any payment card information.
2.3 Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Alteryx. Subject to the terms of this Agreement, Customer hereby grants to Alteryx a nonexclusive, worldwide, royalty-free right to use, process, copy, store, transmit, distribute, perform and display (including publicly), modify and create derivative works of the Customer Data solely to the extent necessary to provide the Software to Customer.
2.4 Customer Requirements. Customer is responsible for creation, updating, deletion, control, and support of Customer Data.
2.5 Storage of Customer Data. Alteryx does not provide an archiving service. Alteryx agrees only that it shall not intentionally delete any Customer Data from the Software prior to termination of Customer’s applicable subscription. Alteryx expressly disclaims all other obligations with respect to storage.
2.6 Aggregated Anonymous Data. In addition to the license rights in Section 2.3, Alteryx may aggregate Customer’s usage (of the Software) data so that the results are non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”). Customer acknowledges that Alteryx may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve the Software and (iii) to create and distribute reports and other materials regarding use of the Software. For clarity, nothing in this Section 2.6 gives Alteryx the right to publicly identify Customer as the source of any Aggregated Anonymous Data without Customer’s prior written consent.
3.1. Alteryx Technology. This is a subscription agreement for use of Alteryx Server and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use Alteryx Server on a hosted basis and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer. Customer agrees that Alteryx or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Software and any other Alteryx deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, Aggregated Anonymous Data and any other non- Customer specific data and statistical data), technology, reports and documentation and all copies, modifications and derivative works thereof (including any changes which incorporate any Feedback) (collectively, “Alteryx Technology”). Further, Customer acknowledges that the Alteryx Server is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of Alteryx Server or the code itself. Nothing in this Section 3.1 shall be deemed as granting Alteryx ownership of Customer Data or rights in any Customer Data.
3.2. Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information to Alteryx (“Feedback”). Alteryx may in connection with any of its products or services freely use, copy, disclose, license, distribute for exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
4.1. Subscription Term. Any renewals require mutual agreement and all applicable fees for such renewals will be at Alteryx’s then-current rates. If Customer’s subscription is not renewed, Customer’s access to the Software will terminate at the end of the then-current Subscription Term.
4.2. Term and Pricing. This Agreement is effective as of the delivery of the Software and expires at such time as the Subscription Term expires. For clarification, the term of your license under this Agreement may be limited for Trial Access, or designated as a fixed-term subscription license in the Azure online provisioning, registration or order process, or Order Form (if applicable) specified at the time of purchase. Customer agrees it shall pay the fees and any applicable sales and use taxes, including VAT, GST, and service tax. If Customer fails to remit payment for fees due Alteryx may, at its option, terminate Customer’s right to use the Software and/or rescind any licenses provided to Customer under this Agreement. Except as expressly set forth herein, all fees are non-refundable.
5.1. Termination for Cause. Either party may terminate this upon notice to the other party if the other party: (a) breaches any material obligation under this Agreement and fails to cure such breach within thirty (30) days from the date the other party receives notice of the breach from the non-breaching party; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days. Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.2. Effect of Termination. Upon any termination or expiration of this Agreement, Customer shall immediately cease any and all use of and access to the Software and delete (or, at Alteryx ‘s request, return) any and all copies of the documentation, any passwords or access codes and any other Alteryx Confidential Information in its possession. Customer acknowledges that following termination or expiration it shall have no further access to any Customer Data input into the Software, and that Alteryx may delete any such Customer Data.
5.3. Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 1.7 (General Restrictions), 2.2 (Customer Obligations), 2.6 (Aggregated Anonymous Data), 3 (Ownership), 4 (Subscription Term Fees and Payment), 5 (Term and Termination), 6 (Warranty Disclaimer), 8 (Limitation of Liability), 10 (Confidentiality) and 11 (General Terms).
NEITHER ALTERYX, NOR ANY OF THE PROVIDERS OF ALTERYX-SOURCED DATA (“DATA PROVIDERS”), THIRD PARTY LICENSORS OR RESELLERS (IF LICENSED PRODUCTS ARE PURCHASED THROUGH A RESELLER), MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, DATA. TOOLS OR THE RELATED MATERIALS, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BY WAY OF FURTHER EXAMPLE AND NOT LIMITATION, NEITHER ALTERYX NOR ITS DATA PROVIDERS, THIRD PARTY LICENSORS OR RESELLERS (IF LICENSED PRODUCTS ARE PURCHASED THROUGH A RESELLER) MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE SOFTWARE, DATA, TOOLS OR THE RELATED MATERIALS. THE ENTIRE RISK AS TO THE USE OF THE SOFTWARE, DATA, TOOLS AND THE RELATED MATERIALS, OR THE USE BY YOU OF ANY PRIVATE GALLERY OR THE USE BY ANY ENTITY OR PERSON TO WHICH YOU PROVIDE ACCESS TO THE PRIVATE GALLERY, IS ASSUMED BY YOU. ALTERYX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ALTERYX.
During the Subscription Term, Alteryx shall provide to Customer support in accordance with the Technical Support Guidelines and Policies available at http://community.alteryx.com/supportguidelines (the “Support Policies”). Customer shall log into the Alteryx Community prior to receiving support. It’s highly recommended that Customer use the 24/7 self-serve Alteryx Community support prior to consultation with Alteryx via email at [email protected], live chat, and/or telephone as set forth on Alteryx’s Support Webpage at http://www.alteryx.com/support to assist Customer in resolving problems Customer has encountered in the use of the Software.. The Support Webpage and Support Policies may be updated from time to time by Alteryx in its discretion.
8.1. EXCEPT AS PROVIDED IN THIS SECTION 8, IN NO EVENT SHALL YOU, ALTERYX, THE DATA PROVIDERS, OR THE THIRD PARTY LICENSORS OR RESELLERS (IF LICENSED PRODUCTS ARE PURCHASED THROUGH A RESELLER), BE LIABLE REGARDLESS OF THE CAUSE, FOR (I) THE EFFECTIVENESS, LOSS, OR ACCURACY OF THE DATA, TOOLS OR THE RELATED MATERIALS, (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NOTWITHSTANDING THE FOREGOING, YOU AND ALTERYX HEREBY AGREE THAT YOUR AND ALTERYX’S AND ANY RESELLER’S (IF LICENSED PRODUCTS ARE PURCHASED THROUGH A RESELLER) MAXIMUM LIABILITY FOR ANY CLAIM ARISING UNDER A PURCHASED LICENSE (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) SHALL NOT EXCEED, IF IN CONNECTION WITH THE SOFTWARE, THE FEES PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING PROVISION WITH RESPECT TO EXCLUDING OR LIMITING SUCH DAMAGES MAY NOT APPLY TO YOU.
FOR SOFTWARE PURCHASED IN THE UNITED KINGDOM, WITH RESPECT TO THE LIMITATIONS ON LIABILITY SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, ALTERYX’S AND ANY RESELLER’S (IF LICENSED PRODUCTS ARE PURCHASED THROUGH A RESELLER) LIABILITY (I) FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THE NEGLIGENCE OF ITS EMPLOYEES OR AGENTS; (II) FOR BREACH OF ANY CONDITION AS TO TITLE OR QUIET ENJOYMENT IMPLIED BY SECTION 12 SALE OF GOODS ACT 1979 OR SECTION 2 SUPPLY OF GOODS AND SERVICES ACT 1982; AND (III) FOR FRAUD OR FRAUDULENT MISREPRESENTATION, IN EACH OF (I)-(III) IS NOT EXCLUDED OR LIMITED BY THIS AGREEMENT OR ORDER FORM, EVEN IF ANY OTHER TERM OF THIS AGREEMENT OR ORDER FORM WOULD OTHERWISE SUGGEST THAT THIS MIGHT BE THE CASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THIS SECTION 8 LIMITATION OF LIABILITY SHALL NOT APPLY TO OR OTHERWISE LIMIT EITHER PARTY’S LIABILITY FOR BREACH OF SECTION 10 (CONFIDENTIALITY), OR YOUR BREACH OF SECTIONS 1.5, 2, 3, OR 4.
9.1. Alteryx will indemnify, defend, save and hold harmless Customer, its affiliates and the respective officers, directors, employees, agents, successors, and assigns of Customer (“Customer Parties”), against all claims, suits and actions asserted by a third party against any of the Customer Parties for liabilities, damages and costs, including reasonable attorneys’ fees, incurred in the defense of any claim brought against Customer alleging that Software infringes or misappropriates a third-party’s registered trademark, copyright or patent right (an “Infringement Claim”). Alteryx’s indemnity obligation under this Section 9.1 shall not extend to claims based on: (a) an unauthorized modification of the Software made by an Customer Party where the Software would not be infringing without such modification, (b) customized portions of the Software designed in accordance with written specifications provided by the Customer where the Software would not be infringing but for Alteryx’s compliance with such written specifications, (c) modules, analytic applications, algorithms or other applications or programming built or created by or on behalf of Customer through or as a result of use of the Software or (d) the unauthorized combination of the Software with any (non-Alteryx) products, services, or technology including any software or hardware.
9.2 Indemnification Procedures. In addition to, and not in lieu of, each party’s indemnity obligations, if an indemnified party seeks indemnification under this Agreement, the indemnified party will: (i) give prompt notice to the indemnifying party concerning the existence of the indemnifiable event; (ii) grant authority to the indemnifying party to defend or settle any related action or claim; and, (iii) provide, at the indemnifying party’s expense, such information, cooperation and assistance to the indemnifying party as may be reasonably necessary for the indemnifying party to defend or settle the claim or action. An indemnified party’s failure to give prompt notice shall not constitute a waiver of the indemnified party’s right to indemnification and shall affect indemnifying party’s indemnification obligations only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. Notwithstanding anything to the contrary set forth herein, (i) an indemnified party may participate, at its own expense, in any defense and settlement directly or through counsel of its choice, and (ii) the indemnifying party will not enter into any settlement agreement on terms that would diminish the rights provided to the indemnified party or increase the obligations assumed by the indemnified party under this Agreement, without the prior written consent of the indemnified party. If the indemnifying party elects not to defend any claim as is required under this Agreement, the indemnified party will have the right to defend or settle the claim as it may deem appropriate, at the cost and expense of the indemnifying party, and the indemnifying party will promptly reimburse the Indemnitee for all costs, expenses, settlement amounts and other damages.
9.3 If an Infringement Claim is brought or threatened, Alteryx may, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Infringement Claim without cost to Customer; (b) to modify or replace all or portions of the Software as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to Customer a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Subscription Term. The rights and remedies granted Customer under this Section 9 (Indemnification) state Alteryx’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
Each party, as a receiving party, shall refrain from disclosing the other party’s Confidential Information to third parties for five (5) years following the date that such disclosing party first discloses such Confidential Information to the receiving party; take reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information, but no less than reasonable care, to keep confidential the disclosing party’s Confidential Information; and refrain from disclosing, reproducing, summarizing, and/or distributing the disclosing party’s Confidential Information except in pursuance of the receiving party’s business relationship with the disclosing party, and only as otherwise provided hereunder. The foregoing obligations shall survive indefinitely with respect to any trade secrets disclosed by the disclosing party and for the purposes of this Agreement, trade secrets shall include the Software and its underlying code. “Confidential Information” means all information, in any form, whether or not marked or identified, whether of the disclosing party or any of its clients or affiliates, furnished or otherwise made available, directly or indirectly, by virtue of the provision of a license under this Agreement, that is not generally known outside of the disclosing party, its clients, employees or affiliates or which, in view of the nature of such information and/or the circumstances of its disclosure the receiving party knows or reasonably should know is confidential or proprietary relating to either party or such party’s parent, affiliate, or subsidiary companies, but excluding information that : (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (b is already in the possession of or known to the receiving party at the time of disclosure and is not subject to restriction; (c) is independently developed by the receiving party not in violation of this Agreement; (d) is lawfully obtained from a third party that has the right to make such disclosure; or (e) is made available without restriction by the disclosing party or as a matter of right by any other person or entity. Alteryx’s Confidential Information includes the Software. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information in accordance with a judicial or other governmental order, provided that the receiving party either (i) gives the disclosing party reasonable notice prior to such disclosure to allow the disclosing party a reasonable opportunity to seek a protective order or equivalent to the extent it is legally permitted to do so, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the disclosing party’s Confidential Information the highest level of protection afforded under applicable law or regulation.
11.1. SEVERABILITY: If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, that provision shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions.
11.3 Alteryx may identify Customer as a customer of Alteryx and use Customer’s name and logo in any of its advertising or marketing materials (excluding any press release or statement) solely in connection with such identification. Customer can retract the foregoing permission by submitting a written request via email to [email protected], requesting to be excluded from Alteryx advertising and marketing materials.
11.4 ASSIGNMENT: This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign this Agreement or any of its rights or obligations granted hereunder without the prior written consent of Alteryx. Any attempt to transfer or assign this Agreement without such written consent will be null and void. Alteryx may assign this Agreement to any Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Alteryx’s assets or voting securities.
11.5 GOVERNING LAW: This Agreement shall be governed by the laws of the State of Delaware, United States or the laws of England and Wales if you are located in the European Economic Area or Switzerland. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of (i) Delaware when the laws of Delaware apply, or (ii) London when the laws of England and Wales apply. Nothing in this section shall restrict a party’s right to bring an action (including for example a motion for injunctive relief) against the other party in the jurisdiction where a party’s place of business is located.
11.6 U.S. GOVERNMENT RESTRICTED RIGHTS: The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
11.7 RESELLER SALES: If Customer has purchased the Software through an authorized reseller, partner, or OEM of Alteryx products (“Reseller”), all references herein to obligations of payment and execution of an Order Form owed to Alteryx, shall hereby be deemed to reference Reseller. Furthermore, Customer agrees that it shall pay Reseller the fees agreed upon by Customer and Reseller and that Customer has no direct payment obligations to Alteryx for its purchase of the Software from a Reseller. Notwithstanding anything to the contrary herein (i) any agreement between Customer and a Reseller may not modify any of the terms of this Agreement and (ii) such agreement is between Customer and Reseller and is not binding on Alteryx. Alteryx reserves the right to terminate this Agreement and Customer’s use of the Software in the event Alteryx does not receive payment for Customer’s use of the Software from the Reseller.
11.8 EXPORT COMPLIANCE: Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Software and obtain any permits, licenses, and authorizations required for such compliance, and without limiting the foregoing, Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports. Additionally, Customer agrees it shall not, nor allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Software to (i) any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. government; (ii) any person or entity on any of the U.S. government’s Lists of Parties of Concern; or (iii) any known end-user or for any known end-use related to the proliferation of nuclear, chemical, or biological weapons or missiles, without first obtaining an export license or other approval that may be required by any U.S. government agency having jurisdiction with respect to the transaction.
11.9 AUDIT RIGHTS: Audit Rights. Upon Alteryx’s written request, you shall certify in a signed writing that your use of the Software is in full compliance with the terms of this Agreement including any CPU/core and user limitations. With reasonable prior notice, Alteryx may audit your use of the Software, software monitoring system and records, provided such audit is during regular business hours. If such inspections or audits disclose that you have installed, accessed or permitted access to the Software in a manner that is not permitted under this Agreement, then Alteryx may terminate this Agreement pursuant to Section 5.1 (Termination for Cause) and you are liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Alteryx may be entitled to under this Agreement and applicable law.
11.10 NOTICES: Any notice hereunder shall be in writing. If to Alteryx, such notice shall be sent to Alteryx, Inc. at 3345 Michelson Drive, Suite 400, Irvine, CA 92612 to the attention of “General Counsel”. If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
11.11 NO WAIVER: None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Alteryx, its agents, or employees, but only by an instrument in writing signed by an authorized signatory of Alteryx.
11.12 EQUITABLE RIGHTS: Licensee acknowledges that monetary damages may not be a sufficient remedy for breaches of this Agreement and that Alteryx shall be entitled to seek, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
11.13 FORCE MAJEURE: Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
11.14 ATTORNEYS’ FEES: The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.
11.15 ENTIRE AGREEMENT: This Agreement represents our entire understanding and agreement regarding the Software and supersedes any prior purchase order, communication, advertising or representation between Licensee and Alteryx and/or any Reseller (if Licensed Products are purchased through a Reseller). No provision of any purchase order or other Customer business form, including any electronic invoicing portals and vendor registration processes, employed by you will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
Customer may use the public gallery provided in the Alteryx Analytics Gallery, and Customer agrees that any use thereof shall be governed by the terms and conditions and the policies available at http://gallery.alteryx.com/#!legal (the “Gallery Terms”), provided that to the extent there is a conflict between the Gallery Terms and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail. including any instances of private Gallery use by Customer (“Private Gallery”) Any personnel authorized to use the Software, or non-personnel that are authorized to use the Private Gallery, shall be subject to the same restrictions on the use of the Software and obligations on the protection of Alteryx’s and Reseller’s (if Licensed Products are purchased through a Reseller) Confidential Information as those that bind the Customer hereunder, and Customer shall remain responsible and liable for the compliance of such personnel and non-personnel in the case of Private Gallery use, with the terms of this Agreement. Notwithstanding the foregoing, in the event Customer has entered into a separate written agreement signed by both parties, and there is a conflict between the terms of such written agreement, and this Agreement, the terms of such written agreement shall control.