The lawyers said we had to.
Last Updated: April 6, 2023
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity, and any employees, contractors, or agents authorized by you to access and use the Products pursuant to the terms of this Agreement (“Authorized Users”).
The Services are available only to individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 13, you may use the Services only with the consent of your parent or guardian.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, without notice and without reason.
2. DESCRIPTION OF THE PRODUCTS; ACCOUNTS
Our proprietary software can either be deployed on your premises (the “On Prem Product”) or you can access the Product as a service through our Website (“SaaS Product”).
If you have purchased (or arranged for use on a Free Trial basis) the On Prem Product, you will need to provide Bigeye your Amazon account ID so that you can access a copy of the On Prem Product. Bigeye will then assist you with deploying the On Prem Product in your environment. The On Prem Product will function entirely in your environment and Bigeye will not have access to any data run through the On Prem Product.
To access either Product, your account administrator must create an account (“Account Administrator”). Once the Account Administrator creates an account, the Account Administrator may grant permission to you and/or other Authorized Users to create an account. To create an account you will be asked to provide an email address (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist us in authenticating your identity when you log in in the future (“Unique Identifiers”). The account you create to access the On Prem Product will be within your internal systems and Bigeye will not have any access to such account information, including any Sign-In Name, Password, or Unique Identifiers. The account you create to access the SaaS Product will be through Bigeye’s Website, which Bigeye will have access to. Each account can be used by only one user. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, and for any use, misuse, or communications entered through the Products using one or more of them. You are entirely responsible for any individual you grant the right to access the Product, and acknowledge that Bigeye has no control over who is granted access rights to the Product. We will not be liable for any loss or damage caused by any unauthorized use of your account.
If you are using the SaaS Product, your Account Administrator has the capability to deactivate a Password or Sign-In Name or change any Unique Identifier. To the extent the Account Administrator is unable to deactivate an account or change account information, you will promptly inform us of any need to take such action on our end. Please note that if you use the On Prem Product Bigeye will not have the capability to deactivate or change any Authorized User’s account and such power will only reside with the Account Administrator, and as such you must notify the Account Administrator if there is a need to deactivate or change your account. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier on the SaaS Product at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. Bigeye is under no obligation to accept any individual or entity as an account holder for the SaaS Product, and may accept or reject any registrations in our sole and complete discretion.
3. COMMUNITY GUIDELINES
Bigeye’s community, like any community, functions best when its users follow a few simple rules. By accessing the Services, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
• You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;
• You will not access or use the Services to collect any market research for a competing business;
• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
• You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content (as defined below), data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
• You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;
• You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services;
• You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the Content protections in the Services;
• You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express, written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the public portions of the Website for the sole purpose of, and solely to the extent necessary for, creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and
• You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
• You will retain all copyright and other proprietary notices contained in the original Content.
• You will not, unless otherwise provided herein, sell, transfer, assign, license, sublicense, modify, or adapt the Content or Services, or reproduce, copy, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content or Services in any way for any public or commercial purpose.
If you find something that violates our Community Guidelines, please let us know, and we’ll review it. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Products using your or any of your Authorized Users’ access credentials.
4. INTELLECTUAL PROPERTY; LICENSE
The Services contain materials, such as software, text, graphics, images, and other material provided by or on behalf of Bigeye (collectively referred to as the “Content”). The Content does not include User Analytics (defined below). The Content may be owned by us or third parties. The Content and the Services protected under both United States and foreign laws. Unauthorized use of the Content or Services may violate copyright, trademark, and other laws.
Bigeye grants you a limited, nonexclusive, non-transferable license without the right to grant sublicenses, to access and use the Content and Services solely for your internal use, and no other use is permitted without the prior written consent of Bigeye. Bigeye and its licensors retain all right, title, and interest, including all intellectual property rights, in and to the Content and Services, and all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein. We reserve the right to remove Content from our Services at any time for any reason without any notice to you.
If you violate any part of this Agreement, your permission to access the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Bigeye (the “Bigeye Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Bigeye. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Bigeye Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Bigeye Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content or Services may be retransmitted without our express, written consent for each and every instance.
Bigeye is permitted to put Customer’s logo on its website. Customer and Bigeye will cooperate for mutually agreed marketing including customer references, a case study, analyst interviews, customer quotes, product reviews, and other logo use.
5. USER DATA AND USER ANALYTICS; AGGREGATE DATA
5.1. User Data and User Analytics. All right, title, and interest in and to the data, media, and other materials that you submit or upload to the Products or permit the Products to access and query pursuant to this Agreement (“User Data”), and any and all reproductions, visualizations, analyses, automations, scales, and other reports output by the Products based on such User Data (“User Analytics”) will be and remain your sole and exclusive property. Subject to the terms and conditions of this Agreement, you hereby grant Bigeye a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the User Data and User Analytics solely for the purpose of providing you with access to and usage of the Products hereunder.
6. SERVICE LEVELS AND SUPPORT
Bigeye, or our contractors, shall host the SaaS Product, periodically monitor the SaaS Product to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. You may request support assistance with respect to the Products by emailing questions to firstname.lastname@example.org; Bigeye uses commercially reasonable efforts to respond to support questions.
7. FREE TRIAL
Bigeye offers a free trial (“Free Trials”) for people who are interested in trying our Products before committing to purchasing them on a long term basis. To learn more about Free Trial benefits and limitations, please email us at email@example.com. Bigeye may, in its sole discretion, terminate a Free Trial at any time and/or impose restrictions on the use of a Free Trial. We will not charge you any fees unless and until you purchase the Product. Upon termination of the Free Trial you will no longer have access to the Products unless you purchase the Products. All of the terms of this Agreement shall apply during any Free Trial period.
8. PURCHASE TERMS
Bigeye reserves the right to refuse to permit you to purchase the Products or any other services or cancel a purchase for any reason. Verification of information may be required prior to the acceptance of a purchase. Prices for the Products are subject to change without notice. Where applicable, you shall pay all purchase prices, taxes, and other fees in connection with a purchase in the manner specified by Bigeye.
9. COMMUNICATIONS WITH US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us (whether oral or written), including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
10. NO WARRANTIES; LIMITATION OF LIABILITY
THE SERVICES, CONTENT, AND USER ANALYTICS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICES, CONTENT, OR USER ANALYTICS WILL OPERATE ERROR-FREE OR THAT THE SERVICES, ITS SERVERS, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
Bigeye IS NOT LIABLE FOR ANY COSTS OR FEES ASSOCIATED WITH YOUR USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COSTS INCURRED FROM AMAZON WEB SERVICES OR SIMILAR PROVIDERS FOR INCREASED LOAD.
Bigeye’S PRODUCTS ONLY QUERY DATA SETS YOU SUBMIT TO THE PRODUCTS AND IDENTIFY ISSUES WITHIN THE DATA SETS SPECIFIED BY YOU. Bigeye DOES NOT FIX OR RESOLVE ANY ISSUES IDENTIFIED. Bigeye SHALL NOT BE LIABLE FOR FAILURE TO REMEDIATE ANY IDENTIFIED OR UNIDENTIFIED ISSUES.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, THE CONTENT, OR THE USER ANALYTICS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES, THE CONTENT, OR THE USER ANALYTICS SHALL BE LIMITED TO THE GREATER OF (I) MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM, OR (II) ONE HUNDRED US DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
11. EXTERNAL SITES
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content, Services, or User Analytics; and/or (iii) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
13. COMPLIANCE WITH APPLICABLE LAWS
The Services are based in the United States. We make no claims concerning whether the Services, Content, or User Analytics may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services, the Content, or the User Analytics from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. CHANGES TO THE AGREEMENT
15. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. Sections 4-21 shall survive the termination of this Agreement.
16. CONTROLLING LAW
This Agreement and any action related thereto will be governed by the laws of the State of New York without regard to its conflict of laws provisions.
17. BINDING ARBITRATION
In the event of a dispute arising under or relating to this Agreement, the Content, the User Analytics, or the Services (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 19 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
18. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
19. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. All claims or disputes arising out of or in connection with this Agreement shall be heard exclusively by any of the federal or state courts of competent jurisdiction located in the State of New York.
20. EXPORT LAWS
You shall not export or re-export, either directly or indirectly, the Products or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you shall not permit any third party to access or use the Products in violation of any United States export embargo, prohibition, or restriction. By using the Products, you represent and warrant that you are not located in, under control of, or a national or resident of any country subject to U.S. economic sanctions or other trade controls applicable to the Products, and are not on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Denied Persons List, Unverified Parties List, Entities List, or the U.S. State Department’s list of Debarred Parties.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Master Software Agreement for Bigeye Alation Edition Customers
Last Updated: November 5, 2021
This Master Software Agreement for Bigeye-Alation Edition Customers is made between Toro Data Labs, Inc. dba Bigeye (“Bigeye”), a Delaware corporation and the party (“Customer”) that purchased a subscription to the below-defined Product from Alation,Inc. (Bigeye and Customer are the “Parties” and each is a “Party”). The parties agree as follows:
The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. “Applicable Laws” means all applicable laws, statutes, ordinances, regulations, rules, and self-regulatory guidelines.
1.2. “Authorized User” means Customer’s employees or contractors who Customer authorizes to access and use the Product; provided, however, that any contractors’ access to and use of the Product will be limited to their provision or receipt of services to or from Customer. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Product using any of Customer’s or its Authorized Users’ access credentials.
1.3. “Confidential Information” means: (i) with respect to Bigeye, the Product, the Improvements, and any and all source code relating to any of the foregoing, and any other non-public information or material regarding Bigeye’s legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to Customer, the Customer Content, Customer Analytics, and any other non-public information or material regarding Customer’s legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party from a third party free to disclose such information without restriction.
1.4. “Customer Analytics” means any and all reproductions, visualizations, analyses, automations, scales, and other reports output by the Products based on such Customer Content.
1.5. “Customer Content” means any data, media, and other materials that Customer and its Authorized Users submit or upload to the Product pursuant to this Agreement.
1.6. “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Product to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Product, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
1.7. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Product, as may be provided or made available by Bigeye to Customer, whether in a written or electronic form or through the Website.
1.8. “Event” means each discrete capture of a metric describing Customer’s data that is stored in Bigeye’s back-end database.
1.9. “Fees” means, as applicable, (i) the fees for the SaaS Product set forth on the applicable Order Form, (ii) the fee for the Professional Services set forth in the applicable Order Form, and (iii) any other applicable fees provide for in this Agreement, on the Website, or in an Order Form.
1.10. “Improvements” means all modifications, improvements, enhancements, extensions, new versions, new modules, and other changes to the Product developed by Bigeye, which may be made available by Bigeye to its customers from time to time. Customer may purchase Improvements under an Order Form.
1.11. “Order Form” means an order form for the Product and/or any Professional Services mutually executed by the Customer and the Alation, Inc. Order Forms shall specify the term for the applicable Product and/or Professional Services. Bigeye is a third-party beneficiary to the Order Form.
1.12. “Product” and “Saas Product” mean Bigeye’s proprietary software made accessible through Bigeye’s Website and hosted by Bigeye that Customer may access and use pursuant to the terms and conditions of this Agreement, applicable Order Form, and any Updates that Bigeye makes available to Customer from time to time.
1.13. “Professional Services” means the professional services ordered by Customer pursuant to an Order Form. Such Professional Services may include, without limitation, onboarding and implementation assistance and Product training.
1.14. “Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to Bigeye in Bigeye’s sole, but reasonable, discretion.
1.15. “Updates” means any corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the Product that Bigeye provides in connection with this Agreement. All version numbers shall be reasonably determined by Bigeye in accordance with normal industry practice.
1.16. “Website” means Bigeye’s website located at https://www.bigeye.com/.
2.1. License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, Bigeye hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable license (except as expressly provided in Section 11.1), without the right to grant sublicenses, to authorize Authorized Users to access and use the Products and Documentation solely for Customer’s internal use. This license is limited to the Customer’s use of the Product on only those tables that are catalogued in Customer’s production instance of Alation’s software within Customer’s subscription to Alation’s software.
2.2. Modifications. Bigeye may modify the Products from time to time to improve the user experience; provided, however, that during any Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Products.
2.3. Service Levels and Support. Customer may request support assistance with respect to the Product; Bigeye uses commercially reasonable efforts to respond to support questions. Bigeye, or its contractors, shall host the SaaS Product, periodically monitor the SaaS Product to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond Bigeye’s reasonable control, as provided in Section 11.8 below.
2.4. Professional Services. Customer may elect to order Professional Services pursuant to one or more Order Forms agreed on by the Parties.
2.5. Unused Events. Unless otherwise expressly provided for in this Agreement, on the Website, or the applicable Order Form, (i) all Fees are based on SaaS Product usage levels, and not on actual use; and (ii) no unused Events on the Customer’s Order can rollover to another period.
3. TERMINATION AND SUSPENSION
3.1. Term. The term of this Agreement commences on the Order Form’s Start Date and ends at the conclusion of the Subscription Term (the “Term”). The Agreement renews only upon the written agreement of the Customer, Alation, Inc., and Bigeye.
3.2. Termination. Either Party may terminate this Agreement on thirty (30) day’s written notice to the other Party. In addition, either Party may terminate this Agreement: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Bigeye, in its sole discretion and upon written notice to Customer and Alation, Inc., may terminate or suspend this Agreement and any pending Order Form (at least as to the Product) if Customer is more than 15 days overdue in paying Alation, Inc. the Fees for the Product. Bigeye may also terminate this Agreement upon written notice to Customer under the limited circumstances set forth in Section 10.3 below.
3.3. Effect of Termination. Upon termination of this Agreement as set forth in Section 3.2: (i) any Order Form in effect is automatically terminated at least as to the Product, Customer will stop all access to and use of the Product; (ii) Customer will promptly pay all unpaid Fees and applicable Taxes due through the effective date of termination; and (iii) upon written request, each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.
3.4. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 3.3 (“Effect of Termination”), this Section 3.4 (“Survival”), Section 4 (“Confidentiality; Feedback”), Section 5 (“Intellectual Property”), Section 8.4 (“Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), and Section 11 (“General Provisions”).
4.1. Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, advisers, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
4.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 4.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 4.1, the Disclosing Party may be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 4.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
4.3. Feedback. During the Term, Customer may elect to provide Bigeye with feedback, comments, and suggestions with respect to the Product, the Improvements, or the Professional Services (“Feedback”). Customer agrees that Bigeye will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.
5. INTELLECTUAL PROPERTY.
All right, title, and interest in and to the Product, the Documentation, the Usage Data, the Aggregate Data, Improvements, Updates, and any other materials that Bigeye provides in connection with this Agreement, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein, will be and remain the sole and exclusive property of Bigeye and its licensors. Except as otherwise provided in this Agreement or in an Order Form, all right, title, and interest in and to the Customer Content and Customer Analytics, and all proprietary rights therein, will be and remain Customer’s sole and exclusive property.
6. RESTRICTIONS ON USE;COMPLICANCE.
6.1. Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any Authorized User or third party to): (i) allow anyone other than Authorized Users to access and use the Product; (ii) allow an Authorized User to share his or her access credentials with other Representatives of the Customer or any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Product; (iv) modify, adapt, or translate the Product; (v) make any copies of the Product; (vi) resell, distribute, or sublicense the Product or use any of the foregoing for the benefit of anyone other than Customer or the Authorized Users, without authorization from Bigeye; (vii) save, store, or archive any portion of the Product (including, without limitation, any data contained therein) outside the Product other than those outputs generated through the intended functionality of the Product as set forth in the Documentation without the prior, written permission of Bigeye in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Product; (ix) use the Product in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Product any Prohibited Content; (xi) circumvent any processes, procedures, or technologies that Bigeye has put in place to safeguard the Product; or (xii) interfere with or attempt to interrupt the proper operation of the Product. Upon Bigeye’s request, Customer will use commercially reasonable efforts to assist Bigeye in preventing and enforcing these restrictions. Customer will ensure that its Authorized Users comply with these restrictions and Customer will be fully liable for any Authorized User’s failure to do so.
6.2. Compliance. Bigeye has the right, but not the obligation, to monitor Customer’s and its Authorized Users’ compliance with this Agreement. If any such monitoring reveals that Customer or its Authorized Users are not using the Product in compliance with this Agreement, then Customer will remedy any such non-compliance within five (5) business days of receiving notice from Bigeye, including, if applicable, through the payment of additional Fees.
6.3. Agreement as Precondition. Customer’s consent to this Agreement is a precondition to Customer’s license of and access to the Product.
7. CUSTOMER CONTENT AND CUSTOMER ANALYTICS;AGGREGATE DATA.
7.1. Customer Content and Customer Analytics. Subject to the terms and conditions of this Agreement, Customer grants Bigeye a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to Bigeye (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Content and Customer Analytics solely for the purpose of providing Customer with access to and usage of the Products hereunder.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Order Forms; (ii) the execution, delivery, and performance of this Agreement and Order Forms and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
8.2. Bigeye’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 8.1, Bigeye represents and warrants to Customer that (i) the Professional Services will be performed in a professional and workmanlike manner; and (ii) Bigeye will comply with all Applicable Laws in performing its obligations hereunder.
8.3. Customer’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 8.1, Customer represents and warrants to Bigeye that: (i) the Customer Content contains no Prohibited Content; (ii) Customer has the right to provide and use the Customer Content in accordance with this Agreement; and (iii) Customer’s authorized use of the Product pursuant to the terms of this Agreement - including, without limitation, the submission and any processing of the Customer Content - complies with all Applicable Laws.
8.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 AND SECTION 8.2, THE PRODUCT, ANY UPDATES, ANY IMPROVEMENTS, THEIR COMPONENTS, ANY DOCUMENTATION, CUSTOMER ANALYTICS, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BIGEYE MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
9. LIMITATION OF LIABILITY.
EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, CUSTOMER’S BREACH OF SECTION 6.1, OR CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR ANY ORDER FORM WILL NOT EXCEED THE FEES PAID TO BIGEYE BY ALATION, INC. FURTHER TO SUCH ORDER FORMS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (“LIABILITY CAP”). CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY; (B) THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BIGEYE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN; AND (C) BIGEYE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE PRODUCT.
10.1. Indemnification by Bigeye. Subject to Section 10.2, Bigeye will defend, indemnify, and hold Customer and its Representatives harmless from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding alleging that Customer’s access to and use of the Product in accordance with this Agreement infringes or misappropriates any United States patents, copyrights, or trade secrets (each, a “Claim”); provided, however, that the foregoing obligation will be subject to Customer: (i) promptly notifying Bigeye of the Claim (provided that failure to provide prompt written notice to Bigeye of the Claim will not alleviate Bigeye of its obligations under this Section 10.1 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Bigeye, at Bigeye’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Bigeye with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Bigeye may not make any settlement or admission of liability on Customer’s behalf without Customer’s prior written approval.
10.2. Exceptions to Bigeye’s Indemnification Obligations. Bigeye is not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any Claim to the extent: (i) the Claim arises from or is based upon Customer or its Authorized Users’ use of: (a) the Product not in accordance with the Documentation, this Agreement, or an Order Form; or (b) any unauthorized modifications, alterations, or implementations of the Product made by Customer or at Customer’s request (other than by Bigeye); (ii) the Claim arises from use of the Product in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Claim arises from any use of the Product for which it was not designed.
10.3. Infringement Claims. In the event that Bigeye reasonably determines that the Products or any portion thereof is likely to be the subject of a Claim, Bigeye will have the right (but not the obligation), at its own expense, to: (i) procure for Customer the right to continue to use the Product as provided in this Agreement and any applicable Order Form; (ii) replace the infringing components of the Product with other components with equivalent functionality; or (iii) suitably modify the Product so that it is non-infringing and functionally equivalent. If none of the foregoing options is available to Bigeye on commercially reasonable terms, Bigeye may terminate this Agreement and/or any applicable Order Form without further liability to Customer and refund Customer a pro-rated portion of any pre-paid Fees. This Section 10.3, together with the indemnity provided under Section 10.1, states Customer’s sole and exclusive remedy, and Bigeye’s sole and exclusive liability, regarding any Claim.
10.4. Indemnification by Customer. Customer will defend, indemnify, and hold harmless Bigeye, its licensors, its hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents from any and all Losses incurred by such parties in connection with any Claim: (a) alleging that the Customer Content infringes or misappropriates any United States patents, copyrights, or trade secrets, or (b) arising from or in connection with Customer’s or any of its Authorized Users’ breach or violation of this Agreement, any Order Form, or Applicable Law; provided, however, that the foregoing obligation will be subject to Bigeye: (i) promptly notifying Customer of the Claim (provided that failure to provide prompt written notice to Customer of the Claim will not alleviate Customer of its obligations under this Section 10.4 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Customer, at its expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Customer with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Customer may not make any settlement or admission of liability on Bigeye’s behalf without Bigeye’s prior written approval.
11. GENERAL PROVISIONS.
11.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement or any Order Form without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement or any Order Form in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement and any Order Form will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
11.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
11.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard for choice of law provisions thereof.
11.4. Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement or any Order Form and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suits, actions, or proceedings.
11.5. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section 3.2 which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the applicable Order Form. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 3.2, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.
11.6. Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
11.7. Severability. If any provision of this Agreement or any Order Form is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement or Order Form will remain in full force and effect. Any provision of this Agreement or any Order Form which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
11.8. Force Majeure. Except for Customer’s obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement or any Order Form for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, quarantine or other similar governmental action, mass disease, epidemic or pandemic (e.g. COVID-19), public health requirement unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (each, a “Force Majeure Event”).
11.9. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement, including Alation, Inc.
11.10. Publicity. Customer hereby expressly consents to Bigeye’s use of Customer’s name and logos solely in order to refer to Customer as a customer of Bigeye in marketing materials, on the Website, and in information provided to investors and prospective investors. Bigeye’s use of Customer’s name and logos shall comply with any branding guidelines and other instructions provided to Bigeye by Customer in writing. Bigeye will cease use of Customer’s name and logos upon the termination of this Agreement. Neither Party shall directly or indirectly obtain or attempt to obtain during the Term hereof or at any time thereafter, any right, title or interest in or to the other Party’s names, trade names, trademarks, service marks, or logos.
11.11. Export. Customer will not export or re-export, either directly or indirectly, the Product or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit Authorized Users or any third parties to access or use the Product in violation of any United States export embargo, prohibition, or restriction.
11.12. Complete Understanding. This Agreement, and all executed Order Forms and addenda thereto, constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties and/or Alation, Inc., whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. To the extent of any conflict or inconsistency between this Agreement and any term contained in an Order Form, the terms of this Agreement will govern, unless such Order Form includes the section numbers of this Agreement that the Parties expressly agree no longer govern or are modified for the matters covered thereby. No term included in any confirmation, acceptance, purchase order, or any other similar document from Customer will change this Agreement or any Order Form or have any force or effect.