GoodData Cloud Terms of Service

Last Updated: July 18, 2022

BY USING THE SERVICES OR CLICKING THAT YOU AGREE OR ACCEPT THIS AGREEMENT, THE ENTITY IDENTIFIED DURING THE REGISTRATION PROCESS FOR THE SERVICES ("COMPANY") AGREES TO BE BOUND BY THE TERMS OF THIS GOODDATA CLOUD TERMS OF SERVICE (THIS “AGREEMENT“) AND ALL OTHER SUPPLEMENTAL TERMS ATTACHED HERETO OR REFERENCED HEREIN. IF YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, OR IF THE COMPANY DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, NEITHER YOU NOR THE COMPANY MAY USE THE SERVICES, AS DEFINED BELOW.

1. Definitions.

(b) “Professional Services” means implementation, training or other consulting services performed by GoodData, as may be requested from time to time and as described in a statement of work (“SOW”).

(c) "Applicable Data Protection Law" means all applicable international, federal, national and state privacy and data protection laws that apply to the processing of Personal Data that is the subject matter of the Agreement (including, where applicable, European Data Protection Law and the CCPA).

(d) “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq.

(e) “Customer” means any entity that accesses or uses the Data Service (i) with whom Company has a legal agreement directly (including any of a customer’s affiliates covered by such agreement) ("Direct Customer"), or (ii) who is a customer of a such a customer, with a legal agreement between them to that effect, in sequence and in perpetuity (i.e., Company’s customer through multiple tiers) (“Indirect Customer”). References to “Company’s Customers” or “Customers” will include Direct Customers and Indirect Customers collectively.

(f) “Customer Data” means any and all data and information that is entered or loaded into the hosted version of the Services by or for Company or a Customer. Customer Data excludes data once it has been exported from the Services and Usage Data.

(g) “Data Service” means Company’s product or service offering integrating or embedding the Services, which at all times represents a significant functional and value enhancement to the Services such that the primary reason for a user to use the Data Service is other than the right to receive a license or access to the functionality of the Services available via the Data Service. “Data Service” includes all modifications and derivative works thereof, however made, including a Customer’s product or service which integrates with or embeds the Company’s Data Service.

(h) “Deliverables” means the guides, configurations, code (including SQL queries) or other deliverables that GoodData provides to Company in connection with Professional Services. For clarity, GoodData may use compilers, assemblers, interpreters and similar tools to develop Deliverables. The term “Deliverables” do not include such tools.

(i) “Documentation” means the online product documentation, user instructions and help files made available to Company by GoodData.

(j) “European Data Protection Law” means the EU General Data Protection Regulation 2016/679 ("GDPR") and any applicable national laws made under the GDPR.

(k) “GoodData” means the entity specified in the relevant Order.

(l) “GoodData Technology” means the Services, Development Tools, Trial Services, Previews, Deliverables, Usage Data, Documentation, and all derivatives thereof.

(m) “License Key” means a serial number that enables Company to activate and use on-premise versions of the Services.

(n) "Order(s)" means the mutually executed document that describes the Services and/or Professional Services that Company licenses or purchases from GoodData in accordance with the terms and conditions of this Agreement.

(o) "Personal Data" means Customer Data that is “personal data,” “personal information,” “personally identifiable information,” or an equivalent term, as defined by Applicable Data Protection Law.

(p) "Product Specific Terms” means product entitlements descriptions and related terms available at https://www.gooddata.com/legal/product-specific-terms/cloud, as may be updated from time to time.

(q) “Security Breach” means an unlawful or unauthorized use or acquisition of Personal Data due to GoodData’s failure to comply with the GoodData Security Program. The term Security Breach excludes: (a) unsuccessful attempts to penetrate computer networks or servers maintained by or for GoodData; (b) immaterial incidents that occur on a routine basis, such as general “pinging” or “denial of service” attacks; and (c) GoodData’s good-faith receipt of Highly Sensitive Personal Data or PHI in violation of Section 4(c) (Restrictions on Personal Data Processing).

(r) “Services” means the GoodData Cloud offering provided to Company by GoodData as specified in an Order. GoodData Cloud is made available as a hosted offering, which may be integrated with a Data Service and as on-premise software, which may be embedded within a Data Service (also known as GoodData.CN).

(s) “Third Party Applications” means separate services or applications (and other consulting services related thereto), procured by Company from a party other than GoodData that can be used in connection with the Services.

(t) “Usage Data” means anonymized, de-identified or aggregated information collected or generated by or on behalf of GoodData which GoodData may use pursuant to Section 3(e).

(u) “User(s)” means an employee, consultant, contractor, or agent who is authorized to access and use the Services by Company, a Direct Customer or an Indirect Customer, and who is bound by applicable terms and conditions meeting the requirements set forth in this Agreement. References to “Company’s Users” or “Users” will include all users collectively, including users authorized by Company, Direct Customers, and Indirect Customers.

2. Access and Licenses.

3. Intellectual Property Rights.

4. Company’s Obligations; Restrictions.

5. Confidential Information.

(c) Time Limit. Upon any termination or expiration of this Agreement, the receiving party will continue to maintain the confidentiality of the disclosing party's Confidential Information for three years from date of receipt, except that source code will be held in confidence in perpetuity and Customer Data will be held in confidence for so long as it is in GoodData’s possession.

6. Fees and Payment.

7. Security.

8. Indemnification.

9. Warranties; Disclaimers.

10. Limitation of Liability.

(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (ii) COST OF REPLACEMENT GOODS OR SERVICES; OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, RELATING TO GOODWILL OR REPUTATION, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) EACH PARTY’S AGGREGATE LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY COMPANY FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. GOODDATA’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH TRIAL SERVICES WILL NOT EXCEED $100 USD.

(c) Exceptions. Notwithstanding Sections 10(a) and 10(b), nothing in this Agreement limits or excludes the liability or obligations of party for: (i) death or personal injury caused by such party or its gross negligence, willful misconduct, fraud, or fraudulent misrepresentation; (ii) each party’s indemnity obligations hereunder; (iii) a violation of GoodData’s or its licensor’s intellectual property rights (including breach of the licenses and rights granted herein); or (iv) Company’s express payment obligations.

11. Suspension and Termination.

(a) Term. This Agreement will commence on the Effective Date set forth in the initial Order and shall remain in effect until expiration of all Services or until terminated in accordance with Section 11(b) (“Term”).

(b) Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within 30 days following written notice specifying the breach. Either party may terminate an Order or SOW upon written notice if the other party materially breaches this Agreement or the applicable Order or SOW and fails to cure the breach within 30 days following written notice specifying the breach. Professional Services are separately ordered from the Services and are not required for the Services. A breach by a party of its obligations with respect to Professional Services will not by itself constitute a breach by that party of its obligations with respect to the Services even if enumerated in the same Order.

(c) Effect of Termination. Upon termination or expiration of this Agreement all rights and licenses granted to Company hereunder, will immediately cease and each party will return or destroy (or in the case of electronic information, render practicably inaccessible) the Confidential Information of the other. Additionally, each party will cease using the other party’s Marks. GoodData will make Customer Data available to Company for a period of thirty (30) days after termination in the current format that it is stored in the Services. Thereafter, GoodData will have no obligation to maintain or provide Company with copies of Customer Data. Termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will such termination relieve any obligation to pay all fees that have accrued or are otherwise owed under this Agreement. The parties’ rights and obligations under Sections 1, 3, 5, 6, 7 (to the extent GoodData retains any Customer Data), and 8-12 will survive the expiration or earlier termination of this Agreement.

(d) Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, GoodData reserves the right to suspend provision of the Services (i) if Company has received notice of overdue payment and the payment remains overdue thirty (30) days or more after receiving such notice; (ii) if Company or a Customer breach Sections 3 (Intellectual Property Rights) or 4 (Company Obligations; Restrictions); (iii) if GoodData reasonably determines suspension is necessary to avoid material harm to Company or Customers, including if the Services is experiencing attacks or disruptions outside of GoodData’s control; or (iv) as required by law or at the request of governmental entities.

12. General.

(a) Disputes, and Arbitration. This Section 12(a) will only apply to Company if the GoodData entity which is a party to this Agreement is GoodData Corporation per the relevant Order. Subject to Section 12(c) (Injunctive Relief and IP Claims), any dispute, claim or controversy arising out of or relating to this Agreement (including all SOWs and Orders) or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by arbitration in San Francisco, California, before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party (as defined by California Civil Code Section 1717). Company may only resolve disputes with GoodData on an individual basis and will not bring a claim in a class, consolidated, or representative action.

(b) Contracting Entity Governing Law. The parties agree to first seek to amicably manage and resolve misunderstandings or disputes by escalating the same to their respective executives for timely consideration. “GoodData” as a party to this Agreement will mean the GoodData contracting entity specified in the relevant Order. In the case of Trial Services, GoodData Corporation will be the contracting entity. This Agreement and all relations, disputes, claims and other matters arising hereunder (including non-contractual disputes or claims) will be governed exclusively by, and construed exclusively in accordance with, the laws of the jurisdictions set forth in the following table, as determined by the GoodData contracting entity (as indicated in the first column), without regard to conflicts of laws provisions. To the extent permitted by law, choice of laws rules and the United Nations Convention on Contracts for the International Sale of Goods will not apply. For the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement, the parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any national or provincial court of competent jurisdiction located in the venue indicated in the table corresponding to GoodData contracting entity (subject to Section 12(a) (Disputes and Arbitration)). The prevailing party in any claim or dispute between the parties under this Agreement will be entitled to reimbursement of its reasonable attorneys’ fees and costs.

(c) Injunctive Relief and IP Claims. Any breach of the confidentiality provisions herein or one party’s breach of the other party’s intellectual property rights will result in harm and economic loss to the other party not compensable by monetary damages. Either party will be entitled to seek an injunction against such breach or threatened breach from a court of law, in addition to other legal or equitable remedies, and without the need to post a bond or other financial security for such injunctive relief or the necessity of proving that other available remedies may be inadequate. Notwithstanding anything to the contrary in Section 12(a), either party may bring a lawsuit in a court of law for claims of intellectual property rights infringement.

(f) Assignment. Neither party may transfer or assign its rights under this Agreement without the prior consent of the other party. Notwithstanding the foregoing, a party may assign this Agreement in connection with the sale, merger or other corporate combination involving all or substantially all of the assets of the assigning party to a third party provided that the assignee assumes all of the assigning party’s obligations and liabilities hereunder. Any attempted assignment in violation of this paragraph is void. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(g) Severability. If any provision or part of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable, the parties intend that the court will modify the provision to the minimum extent necessary to make it valid and enforceable, or if it cannot be made valid and enforceable, the parties intend that the court will sever and delete the illegal, invalid, or unenforceable provision or part from this Agreement. Any change to or deletion of a provision or part of this Agreement under this Section will not affect the validity or enforceability of the remaining provisions of this Agreement, which will continue in full force and effect.

(h) Waiver of Breach. No delay or omission by either party to exercise any right or power arising upon the other party’s nonperformance or breach will impair that right or power or be construed as a waiver of it. Any waiver must be in writing and signed by the waiving party. A waiver on one occasion will not be construed as a waiver of any subsequent event of nonperformance or breach.

(i) Force Majeure. Except for the obligation to make payments, performance under this Agreement will be postponed automatically to the extent that either party is prevented from meeting its obligations by causes beyond its reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.

(j) Notices and Consent to Electronic Communication. Company will receive electronic communications and notifications from GoodData in connection with the products and services to be provided hereunder and the Agreement generally. Company agrees that any such communication will satisfy any applicable legal communication requirements, including that such communications be in writing. GoodData may provide Company with notices by email to the email address that Company registered with (and/or other alternate email address associated with Company’s account if provided), or by regular mail. Company will be deemed to have received any email sent to the email address then associated with Company’s account when GoodData sends the email. All notices and requests in connection with this Agreement required to be given by Company to GoodData will be sent via email to legal@gooddata.com.

(k) No Agency. Neither party has the right to bind or act for the other in any capacity. The relationship under this Agreement will not create any legal partnership, franchise relationship, distributor relationship, or other form of legal association between the parties that would impose a liability between the parties or to third parties.

(l) Records. During the Term of this Agreement and for one year thereafter, Company will retain records of Company’s activities under this Agreement sufficient to show Company’s compliance with this Agreement. During this period, GoodData will have the right to audit Company’s records relating to Company’s performance under this Agreement and to verify that Company has fulfilled Company’s obligations under this Agreement, and Company will reasonably cooperate with GoodData or its third-party auditor (provided such auditor is subject to a confidentiality agreement). Any such audit will be conducted during normal business hours on a date mutually acceptable to both parties, will not unreasonably interfere with Company’s business activities, and GoodData will provide at least ten (10) business days’ prior notice. The audit will be conducted at GoodData’s expense, unless the audit reveals that Company has materially breached Company’s obligations under Section 2(b)-(c), the audit reveals that Company has underpaid GoodData by more than 5% for the Services fees payable by Company for the period audited, or that Company has materially failed to maintain accurate records. If Company has underpaid GoodData any sums, Company will promptly pay GoodData the outstanding amounts due plus interest at a monthly effective rate of 2% for the period of the underpayment. In the event that Company self-discloses such underpayment, and the disclosure is not immediately after the notification of an audit, all interest will be waived, and Company’s obligation will be limited to the underpayment. Such audits will not be conducted more than once in any period of 12 consecutive months, or twice during the same time period in the event that an audit reveals a material breach of Company’s obligations hereunder.

(m) Entire Agreement. This Agreement, including all exhibits and attachments, together with any Orders and SOWs, contains the complete and exclusive statement of the agreement between the parties with respect to the subject matter herein. Company has not relied on any statement, promise or representation made or given by or on behalf of GoodData that is not set out in this Agreement. Company’s Orders are not contingent on, and Company has not relied on, the delivery of any future functionality regardless of any verbal or written communication about GoodData’s future plans. If there is any conflict of inconsistency, the following order will apply: Order, SOW, the Agreement. The terms of this Agreement apply to the exclusion of any other terms that Company may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Any purchase order submitted by Company is for Company’s internal purposes only and its terms and conditions are superseded and replaced by this Agreement.

(n) Changes to this Agreement. GoodData reserves the right to revise this Agreement from time to time. GoodData will date and post the most current version of this Agreement on the GoodData Legal Center, available at https://www.gooddata.com/legal. Any changes will be effective upon posting the revised version of this Agreement (or such later effective date as may be indicated at the top of the revised Agreement). If, in GoodData's sole discretion, GoodData deems a revision to this Agreement to be material, GoodData may notify Company via the Services. Notice of other changes may be provided via the GoodData Legal Center. Company’s continued access or use of any portion of the Services constitutes Company’s acceptance of such changes. If Company does not agree to any of the changes, GoodData is not obligated to continue providing the Services, and Company must stop using the Services. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless it specifically references this Agreement, explicitly expresses a desire to amend this Agreement, is set forth in writing and is signed by the parties.

(o) Counterparts. This Agreement may be signed in counterparts and electronically, each of which will be considered an original document, but together which will constitute one complete document.

(p) Controlling Language. This Agreement has been prepared and executed in the English language only, which language will be controlling in all respects. Any translations of the provisions of this Agreement into any other language are for reference only and will have no legal or other effect. Any notice that is required or permitted to be given by one party to the other under this Agreement must be in the English language and in writing. All proceedings related to this Agreement will be conducted in the English language. Les parties aux présentes ont formellement demandé à ce que la présente convention et tous les documents auxquels celui-ci réfère soient rédigés et signés en langue anglaise.

(q) US Government Rights. GoodData Technology is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If software is licensed or the services are acquired by or on behalf of a civilian agency, GoodData provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, GoodData provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data.

(r) Third Party Disputes. If Company obtains access to the Services through a GoodData authorized partner (“Partner”) as part of such Partner’s product or service or otherwise through such Partner, GoodData will not be responsible for its Partner dealings. In the event that Company has a dispute with a Partner (except in the case where a dispute arises as a result of GoodData’s willful misconduct or gross negligence) Company releases GoodData and its affiliates from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Company will not be deemed a third-party beneficiary to any agreement or dealings between GoodData and any Partner. For the avoidance of doubt, this Agreement will directly supersede anything to the contrary set forth in the Uniform Commercial Code which would otherwise enable Company to seek direct recourse from GoodData for such disputes.