IMPORTANT: DO NOT DOWNLOAD OR USE THIS SOFTWARE UNTIL YOU (“USER”) HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT. BY CLICKING ON THE “I ACCEPT” BUTTON, DOWNLOADING, INSTALLING OR USING THE SOFTWARE, THE USER ACKNOWLEDGES AND AGREES THAT ALL USE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS QLIK® SENSE DESKTOP LICENSE AGREEMENT (“DELA”) AS MAY BE UPDATED FROM TIME TO TIME AND PUBLISHED AT WWW.QLIK.COM. ANY SUCH USE WILL CONSTITUTE ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT. IF THE USER IS ACCEPTING THESE TERMS ON BEHALF OF ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY, THE USER REPRESENTS AND WARRANTS THAT THE USER IS AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS AGREEMENT. DIRECT COMPETITORS AND THEIR EMPLOYEES AND AGENTS MAY NOT ACCESS THE SOFTWARE WITHOUT PRIOR WRITTEN CONSENT OF QLIK. THE SOFTWARE MAY NOT BE USED FOR PURPOSES OF BENCHMARKING, COLLECTING AND PUBLISHING SOFTWARE PERFORMANCE DATA OR ANALYSIS, OR ANY OTHER COMPETITIVE PURPOSES.
NOTICE: THE SOFTWARE CONTAINS FUNCTIONALITY INTENDED TO LIMIT THE DURATION OF ITS USE AND IS INTENDED TO COLLECT CERTAIN USAGE METRICS. THE INSTALLATION OF THIS SOFTWARE WILL INSTALL FILES NECESSARY TO OPERATE THE SOFTWARE ONTO THE USER’S COMPUTER AND OTHER SYSTEM FILES MAY BE INSTALLED OR UPDATED. AS WITH ALL INSTALLATIONS, BACK UP OF THE USER’S HARD DRIVE IS RECOMMENDED BEFORE INSTALLING THE SOFTWARE.
THIS DELA IS BETWEEN THE USER AND QLIKTECH INTERNATIONAL AB (“QLIK”) AND GOVERNS THE USE OF THE QLIK SENSE® DESKTOP SOFTWARE, RELATED SOFTWARE COMPONENTS AND DOCUMENTATION (ALL OF WHICH ARE REFERRED TO AS THE “SOFTWARE”).
2. GRANT OF LICENSE
2.1. License Grant. Subject to the terms and conditions of this DELA, Qlik grants to the User a limited, non-exclusive, non-sublicensable and non- transferable license to install and use, solely for the User’s personal or internal business use, the most current version of the Software, including any printed documentation or documentation files published by Qlik and accompanying the Qlik Sense Desktop Software (the “Documentation”).
2.2. License Restrictions. Except as otherwise expressly permitted in this DELA, User will not, directly or through other users: (i) use, copy, maintain, distribute, sell, transfer, market, sublicense, dispose of or rent the Software; (ii) reverse assemble, reverse compile, decompile, disassemble or reverse engineer (except to the extent any such restriction is expressly prohibited by applicable law) or attempt to derive the source code for any of the Software; (iii) modify, adapt, create derivative works, translate, or port any of the Software or combine or merge any part of the Software with or into any other software or documentation; (iv) offer, use, sublicense or otherwise commercially exploit any of the Software, including without limitation use of the Software as a revenue-generating (or value enhancing) product or service to any third party, for third party training, or to provide hosting, service bureau, commercial time-sharing, rental, or software as a service (SaaS) services to third parties who are not Users for the purposes of providing those persons or entities with use of the Software; (v) permit the use of the Software or Documentation by third parties or use the Software on any online collaboration platform which is not sponsored by Qlik; (vi) reproduce the Software or Documentation without Qlik’s copyright and trademark notices, (vii) use the Software for purposes of benchmarking, collecting and publishing performance data, or developing a product which is competitive with any Qlik product or services. Without limiting any of the foregoing, if a serial number, password, license key or other security device is provided to the User for use with the Software, the User may not share or transfer such security device with or to any other user of the Software or any other third party. Any other use of the Software by any third party, except as provided in this DELA, is strictly forbidden and is a breach of this DELA.
2.3. Data Security. If the Software is accessible through the internet or other networked environment, User shall maintain adequate technical and procedural access controls and system security requirements and devices, in connection with the Software, necessary forconfidentiality, authorization, authentication and virus detection and eradication.
2.4. Retention of Rights. Qlik and its Affiliates, or their respective suppliers or licensors where applicable, own and retain all right, title and interest in and to the Software, and all of Qlik’s and its Affiliates’, or their respective suppliers’ or licensors’, patents, trademarks (registered or unregistered), trade names, copyrights, trade secrets and Qlik Confidential Information. User does not acquire any right, title or interest in or to the Software, except as expressly set forth herein, and all such rights are hereby reserved. User will not register, nor attempt to register, any patent or copyright which, in whole or in part, incorporates any of Qlik’s technology or its intellectual property rights. In the event that User makes suggestions, improvements or modifications to Qlik regarding new features, functionality or performance that Qlik adopts for the Software or any of its other products or services, such new features, functionality or performance shall be deemed to be automatically assigned under this DELA to, and shall become the sole and exclusive property of, Qlik.
2.5. Copyright Statement. The Software and Documentation contain material that is protected by copyright laws and international treaty provisions. The User shall maintain at all times all copyright notices provided on the Software, Documentation and associated packaging and any copies thereof. The User shall ensure that any permitted copy of the Software is produced only for the User’s own benefit, that it is clearly marked on the copy that such copy is subject to copyright and confidentiality, and that a written list is maintained of the number of copies and place of storage. Copies of the Software constitute Qlik’s property. All the terms and conditions of this DELA shall also apply to such copies.
2.6 Third Party Materials. The Software may include links that will take the User to websites not operated by Qlik. These links are available as a convenience and for informational purposes, and do not constitute or imply an endorsement or recommendation. User agrees that Qlik is not responsible for the availability or contents of any website not operated by Qlik. Third party software components, each of which has its own copyright and its own applicable license conditions (“open source”) may be distributed, embedded, or bundled with the Software. Such open source software is separately licensed by its copyright holder. Use of the open source software must be in accordance with its license terms available at www.qlik.com/info/software-ula. Qlik makes no representation, warranty or other commitment of any kind regarding such open source software. Qlik offers no support for such open source software and shall, to the maximum extent permitted by law, have no liability associated with its use.
Qlik shall not be obligated to provide Maintenance and support services for the Software, but may elect to provide Software updates to the User at its sole discretion. The User may find the user-to-user support forums at community.qlikview.com/index or the information at http://www.qlik.com/us/services/support/public- knowledgebase helpful in addressing any issues.
To the maximum extent permitted by law, Qlik does not represent, warrant or make any commitment that: (i) the Software will meet User’s requirements; (ii) the Software will operate in combination with other hardware or software; or (iii) operation of the Software, will be uninterrupted or error free. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED „AS IS”, AND QLIK AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER EXPRESS OR IMPLIED (BY STATUTE, COMMON LAW OR OTHERWISE) INCLUDING, WITHOUT LIMITATION, AS TO THEIR ACCURACY, TIMELINESS, COMPLETENESS, RESULTS, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF QLIK HAS BEEN INFORMED OF SUCH PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES OR OTHER TERMS ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
5. LIMITATION OF LIABILITY
5.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, QLIK’S MAXIMUM AGGREGATE LIABILITY UNDER THIS DELA (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED ONE HUNDRED US DOLLARS.
5.2. No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL QLIK OR ITS RESPECTIVE LICENSORS OR AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF SAVINGS, GOODWILL, OR DATA, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE USER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
5.3. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS DELA SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SET FORTH ABOVE. ACCORDINGLY, SOME OF THE LIMITATIONS MAY NOT APPLY TO USER. TO THE EXTENT THAT QLIK MAY NOT, AS A MATTER OF MANDATORY APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF QLIK’S LIABILITY SHALL BE THE MINIMAL PERMITTED UNDER SUCH APPLICABLE LAW.
5.4. Third Party Beneficiaries. Nothing in this DELA will create any rights in favor of any third party including any rights pursuant to the UK’s Contracts (Rights of Third Parties) Act 1999 or other applicable law. This shall not affect any right or remedy of a third party that exists or is available apart from that Act or such other applicable law.
6. TERM AND TERMINATION
6.1. Term. This DELA is effective until terminated. The User may terminate this DELA for convenience at any time by uninstalling, destroying or returning to Qlik all copies of the Software and Documentation in the User’s possession or within its control. Qlik may terminate this DELA immediately upon User’s breach.
6.2. Termination. Upon termination, the license(s) to use the Software hereunder shall terminate and User agrees to promptly uninstall, destroy or return to Qlik all copies of the Software and Documentation and to certify in writing that all known copies, including backup copies, have been uninstalled, destroyed or returned to Qlik. All provisions relating to confidentiality, Qlik’s ownership and proprietary rights, limitations of liability, disclaimers of warranties, waiver, audit and governing law and jurisdiction shall survive the termination of this DELA. Termination shall not affect or prejudice either party’s rights accrued as at the date of termination.
7.1 User agrees to hold in confidence Confidential Information until User receives written notice from Qlik that the Confidential Information ceases to be confidential. User further agrees that User shall not use Confidential Information except to the extent necessary to exercise the license granted to User by Qlik hereunder. User will protect Confidential Information from unauthorized distribution and use with the same degree of care that User uses to protect its own like information, but in no event less than a reasonable degree of care. User acknowledges and agrees that, due to the unique nature of the Confidential Information, there can be no adequate remedy at law for breach of this Section 7and that such breach would cause irreparable harm to Qlik; therefore Qlik will be entitled to seek immediate injunctive relief, in addition to any remedies otherwise available at law or under this DELA.
7.2 “Confidential Information“ means any confidential or proprietary information which relates to Qlik’s trade secrets, Software, source code for the Software, the Documentation, services, deliverables, training materials, technology, research, development, pricing, product plans, marketing plans, business information, proprietary materials including visual expressions, screen formats, report formats, design features, ideas, methods, algorithms, formulae, and concepts used in the design and all future modifications and enhancements. Confidential Information shall also include third party data or information that was disclosed to User under a duty of confidentiality. Confidential Information also includes any information, in whatever form, disclosed or made available by Qlik to User that relates to or is contained within Qlik Confidential Information and that is not publicly known. Confidential Information does not include information that: (i) enters the public domain through no fault of User; (ii) is communicated to User by a third party under no obligation of confidentiality; (iii) has been independently developed by User without reference to any Confidential Information; (iv) was in User’s lawful possession prior to disclosure and had not been obtained either directly or indirectly from Qlik; and (v) is required to be disclosed by law, provided User has promptly notified Qlik in writing of such requirement and allowed Qlik a reasonable time to oppose such requirement.
8. GENERAL PROVISIONS
8.1. Audit. During the term of this DELA and for a period of one (1) year thereafter, upon Qlik’s written request, but no more frequently than once per year, Qlik or an independent and reputable agent or accounting firm chosen by Qlik will be provided reasonable access during User’s normal business hours to examine User’s records and computer equipment, at Qlik’s expense, for the purpose of auditing User’s obligations under this DELA. Qlik’s written request for audit will be submitted to User at least fifteen (15) days prior to the specified audit date. If User is not in material compliance with the terms of this DELA, then notwithstanding any rights or remedies available to Qlik in respect of such non-compliance, User shall reimburse Qlik for the expenses incurred by Qlik in conducting the audit.
8.2. Assignment. User may not assign or transfer this DELA or its rights and obligations under this DELA to any third party without the prior written consent of Qlik. Qlik is free to assign or transfer any or all of its rights or obligations under this DELA at its discretion.
8.3. Entire Agreement/Severability. This DELA constitutes the entire DELA between the parties with respect to the use of the Software, and supersedes all previous agreements, representations, warranties, statements, negotiations, understandings and undertakings, whether verbal or written, pertaining to such subject matter. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in force and effect. The User hereby represents and acknowledges that in entering into this DELA, it did not rely on any representations or warranties other than those expressly set forth in this DELA.
8.4. Compliance with Laws. User agrees at all times to comply with applicable laws and regulations in its performance of this DELA, including, without limitation, the provisions of the U.S. export control laws, the U.S. Trading With the Enemy Act, the U.S. International Emergency Economic Powers Act, the U.S. Arms Export Control Act and U.S. Department of the Treasury Office of Foreign Assets Control, the United States’ Foreign Corrupt Practices Act (“FCPA”) and the United Kingdom’s Bribery Act 2010 (“Bribery Act”). User will indemnify, defend and hold harmless Qlik and its respective officers, agents and employees from and against any and all losses, costs, claims and other liabilities arising out of, relating to or resulting from User’s failure to comply with the provisions of applicable laws or the FCPA or the Bribery Act.
8.5. Governing Law and Jurisdiction. This DELA is governed by and construed in accordance with the laws of Sweden (excluding the U.N. Convention on Contracts for the International Sale of Goods) and any dispute, controversy or claim arising out of or in connection with this DELA, or the breach, termination or invalidity thereof, shall be settled by arbitration at the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC Institute”). Where the amount in dispute clearly does not exceed EUR 100,000, the SCC Institute’s Rules for Expedited Arbitration shall apply and the arbitral tribunal shall be composed of a sole arbitrator. Where the amount in dispute clearly exceeds the amount set forth above, the Rules of the SCC Institute shall apply and the arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Lund, Sweden. The language to be used in the arbitral proceedings shall, unless otherwise agreed, be English.
8.6. Notices. All notices or other communications to Qlik shall be addressed to: Qlik International AB, Scheelevägen 24-26; SE-223 63 Lund, Sweden; ATTENTION: Legal Department with a copy to General Counsel, 150 N. Radnor Chester Rd., Suite E-220, Radnor, PA 19087.
8.7. Miscellaneous. Nothing in this DELA shall be construed to create an agency, joint venture, partnership, fiduciary relationship, joint venture or similar relationship between the Parties. If any provision of this DELA is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this DELA shall remain in full force and effect. All terms of this DELA shall be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of Qlik and User. No term of this DELA shall be deemed waived and no breach or default excused unless such waiver or excuse shall be in writing and signed by the Party issuing the same. No action, regardless of form, arising out of this DELA may be brought by User more than one (1) year after the cause of action arose.
8.8. U.S. Government Rights. If the User is a unit or agency of the United States Government, User agrees that the Software is “Commercial computer software” or “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the United States Government’s rights with respect to such Software or Documentation are limited by the terms specified in this DELA, pursuant to FAR 12.212(a) and/or DFARS 227.7202-1(a), as applicable. The Software has been developed exclusively at private expense, and has been available for license by members of the public.
9. USER REGISTRATION AND INFORMATION