Dremio Professional Services Appendix

With respect to Customer’s purchase and/or use of Dremio Professional Services, the following additional terms shall govern Customer’s access to and use of Dremio’s Professional Services. In the event a term relating to Dremio Professional Services within the Agreement conflicts with a term within this Professional Services Appendix, the terms of this Professional Services Appendix shall prevail and govern.

ADDITIONAL DEFINITIONS

“Change Order” means any change to a SOW or Order Form, as applicable, as described herein. Upon the parties’ mutual execution of a Change Order, it will be deemed incorporated by reference in the applicable SOW or in the absence of a SOW, within the Order Form, as applicable.

“Improvements” means all modifications and derivative works to Pre-Existing Works resulting from the Professional Services contemplated by this Agreement.

“Pre-Existing Work” means all rights, title and interest in and to a party’s technology and Confidential Information, including all intellectual property rights imbued to a party as of the Effective Date of this Agreement, or as applicable, the effective date of any SOW or Order Form.

“Professional Services” means any consulting, implementation, training, integration or other professional services regarding the Software that are provided to Customer under any applicable SOW or Order Form.

“SOW” means a written statement of work executed by Dremio and Customer describing Professional Services to be provided hereunder setting forth the time and materials-based objectives (unless otherwise stated as a fixed-fee) including, without limitation, project-specific activities and estimated level of effort. A SOW may be entered into, or incorporated within an Order Form, by and between Customer and Dremio, any Dremio Affiliate, or an Authorized Partner.

1. PROFESSIONAL SERVICES
   
   1. The Professional Services will be provided on a time and materials basis unless otherwise mutually agreed by the parties in writing such as in a mutually executed Order Form or SOW as applicable. Customer shall reimburse Dremio for approved expenses reasonably incurred in the performance of Professional Services, provided Dremio shall provide valid receipts and other reasonable substantiation to Customer upon request. Dremio may provide the Professional Services through its third-party contractors but, in all such cases, Dremio will remain responsible for such contractor’s performance pursuant to the terms hereunder.
      
   2. If the parties desire to make changes to an Order Form or SOW during the engagement to address changes in scope or cost, the parties will complete and execute a Change Order. Customer acknowledges that it may need to purchase additional Professional Services if not completed within any estimated time frames as presented within an Order or SOW.
      
   3. This Agreement is limited to Professional Services and does not convey any right to use Subscription Software. Any use of Subscription Software by Customer will be governed by Dremio’s Subscription Agreement or other separate agreement entered into by the parties explicitly governing such rights and obligations. Customer agrees that its purchase of Professional Services is not contingent on: (i) the delivery of any future Subscription Software functionality or features, other than any deliverables as set forth and subject to the terms of the applicable SOW or Order Form; or (ii) on any oral or written public comments by Dremio regarding future Subscription Software’s functionality or features.
      
   4. Customer hereby grants to Dremio a worldwide, non-exclusive, royalty-free, fully paid-up license, during the Term, to access, reproduce, store and process Customer Data in any manner reasonably necessary to perform Professional Services for Customer.
      
2. CUSTOMER COOPERATION
   1. Customer will reasonably cooperate and use good faith efforts with Dremio to facilitate the performance of the Professional Services which shall include, but not be limited, to the following: (i) assigning a project manager with the requisite skills and training to serve as Customer’s primary point of contact; (ii) allocating sufficient resources to ensure Customer’s ability to meet its obligations; (iii) establishing the overall project direction, including assigning and managing the Customer’s project personnel team; and (iv) providing Dremio with, or access to, such facilities (if applicable), equipment and support as are reasonably necessary for Dremio to provide Professional Services, including remote access to the hardware and systems software configuration on which Dremio supports use of the Subscription Software licensed by Dremio to Customer. Dremio will not be liable for: (i) any failure to provide the Professional Services that arises from Customer’s failure to cooperate with Dremio as set forth above; and/or (ii) Customer’s decisions to allocate purchased Professional Services hours to specific projects which may result in the need for Customer to purchase additional Professional hours.
3. ORDERING PROCESS
   1. This Appendix applies to Professional Services that Customer purchases directly from Dremio, a Dremio Affiliate, or from an Authorized Partner. Dremio will provide to Customer the Professional Services for the Fees specified in an executed Order Form or SOW, or otherwise transaction document acceptable to Dremio such as a purchase order or similar document referencing a current Dremio quote number or upon Dremio’s election to begin delivery of the applicable Professional Services. For the avoidance of doubt, in the event Customer purchases Professional Services from an Authorized Partner: (i) Dremio shall have no obligations to Customer with respect to any terms and conditions outside of this Agreement unless otherwise explicitly agreed to in writing between Customer and Dremio; and (ii) the provisions of Section 6 of the Subscription Agreement (Payment of Fees) shall not apply as all terms of payment shall be directly as between Customer and the Authorized Partner.
4. TERMINATION
   1. Either party may terminate this Appendix and/or any SOW or Order Form executed between the parties if: (i) the other party materially breaches this Appendix and does not cure the breach within thirty (30) days after written notice; or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
      
   2. Dremio may (in its sole discretion) suspend delivering Professional Service if Customer breaches the terms of Section 6 of the Subscription Agreement (Payment of Fees) until such breach is remedied.
      
   3. In the event this Agreement is terminated by Customer in accordance with Section V(A) of this Appendix, Dremio will refund to Customer a prorated amount equal to pre-paid Fees for the unused portion of Professional Services as of the termination date, if any. If this Appendix is terminated by Dremio in accordance with this Section V, Customer will pay (if applicable) any and all unpaid Fees due and payable as of the date of termination, to the extent permitted by applicable law. For the avoidance of doubt, in no event will termination relieve Customer of its obligation to pay any Fees payable to Dremio for the Professional Services performed in the period prior to the effective date of termination.
      
   4. Except as explicitly provided for herein, upon termination of this Appendix (or any SOW or Order Form as applicable) Customer shall not be entitled to any refund or credit.
5. PAYMENT OF FEES
   1. Unless otherwise stated in the applicable SOW or Order Form, Dremio will invoice Customer for Professional Services as rendered on a time and materials basis, provided any fixed fee Professional Services shall be paid upfront in full and shall be non-cancellable. Customer will pay Dremio the applicable Fees without any right of set-off or deduction. All payments will be made in accordance with the payment details stated within the applicable Order Form or SOW. If not otherwise specified, all Fees will be due and payable within thirty (30) days of Customer’s receipt of an invoice. Except as expressly set forth in this Appendix, all Fees paid or due hereunder (including prepaid amounts) are non-refundable.
6. PROPRIETARY RIGHTS
   
   1. Each party will retain all rights, title and interest in their Pre-Existing Works. Except as explicitly set forth herein each party reserves all intellectual property rights not expressly granted to the other party, and no right, title or interest in a party’s Pre-Existing Works are transferred to the other party. Further, this Agreement does not contemplate Professional Services for the provision of any Improvements to Customer’s Pre-Existing Works, and any such deliverable will be subject to separate terms and conditions as to be mutually and explicitly identified and agreed between the parties in a fully executed SOW, or other form of written agreement.
      
   2. To the extent applicable, Customer hereby grants Dremio a non-transferable, non-exclusive, world-wide and royalty free license to access, reproduce, store, process and use Customer’s Pre-Existing Works in any manner reasonably necessary to provide the Professional Services under this Agreement. To the extent Dremio Pre-Existing Works or Developments are incorporated into the Professional Services or deliverables provided under this Agreement, such Dremio Pre-Existing Works and Developments are provided to Customer in a non-transferable, non-exclusive, world-wide and royalty free license to use solely for Customer’s internal business purposes subject to the applicable license agreement(s) governing Customer’s use of Dremio’s Subscription Software, and expressly conditioned on Customer’s compliance with the terms of such agreement(s). Notwithstanding the foregoing, Customer will own the portion of any deliverable provided to Customer in tangible form consisting of written reports, analyses, architecture diagrams, project plans and similar working documents.
      
   3. For the avoidance of doubt, Dremio is not restricted from developing, implementing, marketing or selling services or deliverables for other customers or projects that are similar to the Professional Services or deliverables provided under this Agreement. Further, any Developments resulting from the provision of the Professional Services hereunder will be owned by Dremio and Customer will execute and deliver to Dremio any documents reasonably necessary to vest in Dremio all right, title and interest therein subject always to the terms of any applicable open source license.
      
7. LIMITED WARRANTY
   
   1. Dremio represents and warrants that its provision of Professional Services under an SOW or Order Form, as applicable, will be rendered in a professional and workmanlike manner. If Dremio fails to meet the foregoing warranty, upon Customer’s written notice within ninety (90) days after completion of the applicable Professional Services, Dremio will at its option and expense either: (i) re-perform and correct of the nonconforming Professional Services within thirty (30) days; or (ii) provide a plan for correcting the nonconforming Professional Services within such thirty (30) day period. If the nonconforming Professional Services are not corrected, or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Appendix, or the respective SOW, and receive a pro-rata refund for any pre-paid, unused portion of the Professional Services. The foregoing represents Customer’s sole and exclusive remedy for a breach of this Section VII.
      
   2. The warranties in this Agreement are void to the extent caused by Customer’s: (i) alteration or modification of the Professional Services not otherwise directed by Dremio or its authorized representatives in writing; (ii) failure to meet: (a) the minimum system requirements as made available by Dremio; or (b) its obligations set forth in this Appendix or an SOW including, without limitation, those set forth in Section II (Customer Cooperation) above, to enable the provision of the Professional Services.
      
   3. SECTION VII SETS FORTH DREMIO’S EXCLUSIVE WARRANTY WITH REGARD TO THE PROFESSIONAL SERVICES, AND IS IN LIEU OF ALL OTHER WARRANTIES. DREMIO DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DREMIO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
      
8. SECURITY/DATA PROTECTION
   1. Without limiting Dremio’s obligations as stated in Section 7 of the Subscription Agreement (Confidentiality), Dremio shall be responsible for establishing and maintaining a commercially reasonable information security program with regard to the delivery of Professional Services that is designed to: (i) ensure the security and confidentiality of the Customer Content; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Content; (iii) protect against unauthorized access to, or use of, the Customer Content; and (iv) ensure that all subcontractors of Dremio, if any, comply with all of the foregoing. In no case shall the safeguards of Dremio’s information security program be less stringent than the information security safeguards used by Dremio to protect its own commercially sensitive data.
      
   2. With respect to the protection of information, the Dremio Privacy Policy located here https://www.dremio.com/legal/privacy-policy/, shall apply. If this Appendix is entered into on behalf of an Enterprise, the terms of the data processing addendum at https://www.dremio.com/legal/data-processing-addendum/ (“DPA”) are hereby incorporated by reference and shall apply to the extent Customer Content includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Dremio, the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses.
      
9. MISCELLANEOUS
   
   1. All provisions of this Appendix that by their nature should survive termination will survive termination.
      
   2. This Appendix, along with any Order Form or SOW that incorporates this Appendix by reference, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Appendix. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other document will be incorporated into or form any part of this Appendix, and all such terms are void and rejected by Dremio. To the extent of a conflict as between the following documents, such conflict shall be resolved in the following order of precedence: (i) a SOW; (ii) an Order Form; (iii) this Appendix; (iv) the Subscription Agreement unless the parties explicitly agree otherwise as evidenced in a writing executed by the parties’ authorized representatives.