DREMIO SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS DREMIO SOFTWARE LICENSE AND SERVICES AGREEMENT (this “Agreement”) is made and entered into between DREMIO CORPORATION, a Delaware corporation, with its principal place of business at 3970 Freedom Circle #110, Santa Clara, CA 95054, USA (“Dremio”) and the entity identified on the Order Form for Dremio’s Software (“Customer”).
By executing an Order Form or other agreement referencing and incorporating the terms and conditions of this Agreement, by installing or using the Software, or by taking other action (e.g., clicking “I Agree” below) manifesting assent to the terms and conditions of this Agreement, Customer is agreeing to the terms and conditions of this Agreement. Customer’s right to install and use the Software is expressly conditioned on Customer’s acceptance of this Agreement. If Customer does not agree to any of the terms of this Agreement, Customer may not install or use the Software or any part thereof. Notwithstanding the foregoing, if Customer and Dremio have entered into a master agreement governing the license of the Software, then this Agreement is without prejudice to Customer’s rights under such master agreement.
1. APPLICABILITY OF AGREEMENT
This Agreement governs Customer’s use of the Software and the Support Services provided by Dremio to Customer. If Customer has issued or executed a purchase order or any other document for the license of the Software or acquisition of Support Services, such purchase order or other document is expressly conditioned on Customer’s assent to the terms of this Agreement, to the exclusion of all additional, different or conflicting terms in such purchase order or other document. As used herein, “Software” means, collectively, (a) the object code form of the Dremio software products identified in an Order Form or otherwise made available to Customer pursuant to this Agreement, and (b) any updates, upgrades and/or new releases thereto that Dremio or its authorized reseller may provide to Customer for purposes of supplying modifications, error corrections, bug fixes, or new or different functionality (but only to the extent such updates, upgrades and/or new releases are not provided under conflicting license terms); and “Order Form” means a document by which Customer orders node licenses to the Software and is executed by Customer and either Dremio or an authorized reseller of the Software. Each Order Form will incorporate this Agreement by reference and should include, where applicable, (i) the term of the license during which Customer is authorized to use the Software pursuant to the terms set forth in this Agreement (“License Term”); (ii) the particular Software licensed; and (iii) the number of Nodes Customer may install the Software on. To the extent any terms and conditions contained in this Agreement conflict or are inconsistent with the terms and conditions of an Order Form, the terms and conditions of the Order Form will prevail.
2. LICENSE
2.1 Grant of License to Customer. Subject to the terms and conditions of this Agreement and Customer’s payment of the Fees as set forth in the applicable Order Form, Dremio hereby grants Customer, during the License Term, a limited, non-exclusive, non-sublicensable and non-transferable license, solely for its own internal business operations, to: (a) use and display the Software on the number of Nodes specified in the Order Form, in accordance with Dremio’s then-current end-user documentation for the Software as made available to Customer from time to time (or published by Dremio at https://docs.dremio.com/) (“Documentation”); (b) use the Documentation and any materials provided by Dremio in the course of performing Support Services solely for the purpose of using the Software in accordance with this Agreement; (c) install, integrate and implement the Software or have third parties do so for Customer; (d) copy the Software and Documentation as reasonably necessary to support the number of licensed Nodes; and (e) make a reasonable number of additional copies of the Software and Documentation solely for archival and emergency back-up purposes. With respect to any and all copies of the Software and Documentation, Customer shall ensure that each copy contains all trademarks and copyright or other proprietary rights notices. All such copies will be subject to the terms and conditions of this Agreement. Customer will comply with all applicable laws and regulations in connection with its use of the Software. As used herein, “Node” means a physical or virtual machine that has up to 128 GB of RAM allocated to the Software. If more than 128 GB of RAM is allocated to the Software, the number of Nodes will increase proportionally (e.g., Customer will purchase two (2) Nodes if Customer allocates 256 GB of RAM to the Software).
2.2 License Restrictions. The Software is licensed to Customer for internal use only and must be used only on servers owned or controlled by Customer (including, for avoidance of doubt, virtual servers that are provisioned by cloud providers, if Customer exercises virtual control over such servers). Customer shall not (and the rights granted in Section 2.1 are subject to Customer’s agreement that it shall not): (a) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Software (except to the extent this restriction is expressly prohibited by applicable law or the applicable open source licenses (with respect to the respective Open Source Components governed thereby) and then only upon advance written notice to Dremio); (b) sublicense or use the Software for commercial time-sharing, rental, outsourcing or service bureau use; (c) publish or otherwise disclose the results of benchmark tests of the Software to third parties without Dremio’s prior written consent; (d) attempt to circumvent any use limitations built into the Software; or (e) use the Software to develop a competing product or service. In the event Customer violates the terms set forth in this Section 2, Dremio will have the right immediately to terminate the license granted to Customer under this Agreement upon written notice to Customer.
3. EVALUATION OF THE SOFTWARE
If Dremio provides Customer any Software for evaluation purposes, Customer may use such Software, during an evaluation period of 30 days following delivery of the Software (or such other period specified by Dremio or otherwise set forth in the Order Form), solely for trial non-production purposes, in order to determine whether Customer wishes to obtain a commercial license to the Software. Customer’s right to use such Software will be: (a) subject to the terms of this Agreement (and the applicable Order Form); (b) on an “AS IS” basis, without warranties of any kind (including to the extent permitted by applicable laws, any warranties implied by statute or otherwise); and (c) without any Support Services of any kind (unless otherwise expressly provided in the Order Form). Upon the end of the evaluation period, Customer will cease using and will delete any such trial Software from its computer systems.
4. PROPRIETARY RIGHTS
4.1 Proprietary Rights. Customer acknowledges and agrees that: (a) except for the license specifically granted to Customer under this Agreement, Dremio and its licensors retain all rights, title and interest in and to the Software, Documentation and all materials developed or provided by Dremio in the course of performing Support Services; (b) any configuration or deployment of the Software will not affect or diminish Dremio’s or its licensors’ rights, title and interest in and to the Software, Documentation or any materials developed or provided by Dremio in the course of performing Support Services; and (c) nothing in this Agreement will limit in any way Dremio's right to develop, use, license, create derivative works of, or otherwise exploit the Software, Documentation or any materials developed or provided by Dremio in the course of performing Support Services, or to permit third parties to do so. Provided it does not identify Customer, Dremio will be free to use for development, diagnostic and corrective purposes any data and information it collects from Customer relating to diagnosis, problems, performance, use or functionality of the Software.
4.2 Feedback. If Customer recommends to Dremio or its authorized reseller additional features, functionality or performance or other changes or additions that Customer believes will improve the Software, then Customer agrees that (a) Dremio will be free to use and incorporate such recommendations into the Software (or other Dremio software), without any obligation to account to Customer, and (b) acknowledges that the Software (or other Dremio software) incorporating such new features, functionality or performance will be the sole and exclusive property of Dremio.
5. PAYMENT; TAXES; USAGE REVIEW
5.1 Payment. In consideration of the licenses granted and the Support Services provided under this Agreement, Customer shall pay all fees set forth in the Order Forms (“Fees”) to Dremio or its authorized reseller (as appropriate). All Fees are nonrefundable, except as otherwise provided in this Agreement or the applicable Order Form. All payments will be due and payable in accordance with the terms set forth in the applicable Order Form. Customer will reimburse Dremio for all reasonable travel and other related expenses incurred by Dremio in its performance of Support Services, provided, however, that such expenses will have been pre-approved by Customer.
5.2 Taxes. The Fees do not include, and Customer will be responsible for and pay (or, if applicable, reimburse Dremio for) any tax payable with respect to the Fees, or any payment or other transaction contemplated by this Agreement, including, without limitation, any goods and services tax, value-added tax, customs duty, sales tax, excise duty, stamp duty, other duty, governmental charge, fee, levy or impost (together with any fine, penalty or interest payable because of a default of Customer). This Section will not apply to taxes based on Dremio’s or its reseller's net income or payroll taxes.
5.3 Usage Review. Dremio or its designated agent may audit Customer’s use of the Software for purposes of ensuring compliance with this Agreement. Dremio shall provide a written notice of such audit at least ten (10) days prior to the audit. Customer agrees to cooperate with any such audit, including by providing access to its relevant systems, records and personnel. The audit will be conducted during Customer’s regular business hours. If an audit reveals that Customer has underpaid fees to Dremio as a result of Customer’s use of the Software that was not specified in the applicable Order Form, Customer shall promptly pay to Dremio such fees at the prices previously agreed to for such Software commencing on the date set forth in the Order Form for the properly licensed Software, as well as fully reimburse Dremio for the cost of performing the audit.
6. OPEN SOURCE AND THIRD PARTY SOFTWARE
6.1 Open Source and Third Party Components. The Software may contain or be provided together with certain third party software components, including open source software components (“Open Source Components”), as set forth at https://docs.dremio.com/software/release-notes/dependencies/) (“Dependencies List”) (collectively, “Third Party Code”). Copyrights to any Third Party Code are held by the copyright holders indicated in the Dependencies List, Documentation or the applicable license, help, notice, “about” or source files. Third Party Code may be subject to additional or different license terms, as set forth in the Dependencies List. Any fees charged by Dremio in connection with the Software do not apply to any Open Source Components for which fees may not be charged under their applicable open source licenses. With respect to each Open Source Component, (a) to the extent there are any conflicts between any terms of this Agreement and any terms of the respective open source license (as may be found either in the Software documentation or the applicable help, notices, “about” or source files), which the open source license does not permit, such conflicting terms of this Agreement will not apply; (b) to the extent expressly required by the respective open source license, the terms of such open source license will apply to such Open Source Component in lieu of the terms of this Agreement; and (c) to the extent the terms of the respective open source license entitle the Customer to receive a copy of the source code of such Open Source Component, that source code may be available from Dremio upon Customer’s request (a nominal fee may be charged by Dremio for processing such request).
6.2 Dremio Open Source Components. Dremio may, in its sole discretion, designate any portion of the Software as licensed by Dremio under an open source license. In such case, the license grants and restrictions in this Agreement will not be construed to limit Customer’s independently granted rights in such portion of the Software, taken separately from the remainder of the Software.
7. TERM AND TERMINATION
7.1 Term. Unless earlier terminated as set forth herein, this Agreement will commence as of the Effective Date, and will continue in full force and effect for so long as there is any Order Form in effect. The term of each Order Form (and the corresponding License Term) will be as set forth in the applicable Order Form.
7.2 Termination. Either party may terminate this Agreement or an applicable Order Form upon written notice if the other party materially breaches this Agreement or the Order Form and fails to cure such breach within thirty (30) days following receipt of written notice from the other party specifying the breach in detail.
7.3 Effect of Termination. Upon any termination or expiration, Customer shall immediately cease all use of all Software and return or destroy all copies of all Software and all portions thereof and so certify to Dremio. Termination of this Agreement or any Order Form will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer of its obligation to pay all Fees that have accrued or are otherwise owed by Customer under this Agreement. The parties’ rights and obligations under Sections 4 (Proprietary Rights), 5.3 (Usage Review), 7.3 (Effect of Termination), 8.2 (Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality) and 12 (General Terms) will survive termination of this Agreement.
8. SUPPORT SERVICES; DISCLAIMER
8.1 Maintenance and Support Services. To the extent set forth in the applicable Order Form, Dremio will provide to Customer (a) maintenance and support services pursuant to Dremio’s then-current support policy (available at www.dremio.com/support-policy) (“Support Policy”) during the License Term, and (b) any training and deployment and implementation assistance specified in the applicable Order Form (collectively, “Support Services”). Dremio warrants that any Support Services performed by Dremio pursuant to this Agreement will be performed in a professional and workmanlike manner.
8.2 Disclaimer. Dremio does not warrant that (a) the Software will meet Customer’s requirements, (b) the Software will operate in combinations with other hardware, software, systems or data not provided by Dremio (except as expressly specified in writing by Dremio in the Documentation), (c) the operation of the Software will be uninterrupted or error-free, or (d) all Software errors will be corrected. The warranties set forth in section 8.1 above are exclusive and in lieu of all other warranties, whether express, implied or statutory, and Dremio and its licensors hereby disclaim all implied warranties, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, title, and quality of service, whether such warranty is alleged to arise by operation of law, by reason of custom or usage in the trade or by course of dealing. Each party acknowledges that it has not relied on any other term, condition, representation or warranty, matter, statement or conduct in entering this agreement.
9. INDEMNIFICATION
9.1 Indemnification. If a third party makes a claim against Customer that the Software directly infringes any U.S. patent, copyright or trademark or misappropriates any trade secret (“IP Claim”), Dremio will (a) defend Customer against the IP Claim at Dremio’s cost and expense, and (b) pay all damages, costs and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Dremio arising out of such IP Claim; provided that: (i) Customer promptly notifies Dremio in writing after Customer’s receipt of notification of a claim (or potential claim); (ii) Customer allows Dremio to assume sole control of the defense of such IP Claim and all related settlement negotiations; and (iii) Customer provides Dremio, at Dremio’s request and expense, with the assistance, information and authority necessary to perform Dremio’s obligations under this Section.
9.2 Exclusions; Remedies. Notwithstanding the foregoing, Dremio will have no liability for any IP Claim based on (a) the use of a superseded or altered release of Software if the infringement would have been avoided by the use of a current or unaltered release of the Software, (b) the modification of the Software other than by Dremio, (c) the use of the Software other than in accordance with the Documentation and this Agreement, or (d) use of the Software in combination with products or services not provided by Dremio. If the Software is held to infringe, or Dremio believes it is likely the Software will infringe a third party’s intellectual property rights, Dremio will have the option, at its expense, to (i) replace or modify the Software to be non-infringing, or (ii) obtain for Customer a license to continue using the Software. If it is not commercially reasonable to perform either of the options specified in the preceding sentence, then Dremio may terminate the license for the infringing Software and, upon return of the Software by Customer, give Customer a refund of the prepaid, unused Fees applicable to the remaining portion of the License Term following the effective date of termination. This Section 9 states Dremio’s entire liability and Customer’s sole and exclusive remedy for any claim of infringement.
10. LIMITATION OF LIABILITY
In no event will Dremio or its licensors be liable for any loss of profits, loss of revenue, loss of business, loss of goodwill, loss of or damage to reputation, loss of management time, loss of or damage to any property or materials, loss of savings, loss of data, or any claim based upon a third party claim, or for any indirect, incidental, punitive, special or consequential damages, however caused, under any cause of action and regardless of the theory of liability, whether under breach of contract, tort (including negligence), breach of warranty, strict liability, breach of statute or otherwise, or whether arising out of the use of or inability to use the Software, the Support Services or otherwise and even if Dremio or its licensors or authorized resellers have been advised of the possibility of such damages. In no event will Dremio’s or its licensors’ aggregate liability for damages hereunder, whether in contract (including indemnity) or tort (including negligence), under statute or otherwise, exceed the total fees paid by Customer in the twelve-month period immediately preceding the event giving rise to the liability. Some jurisdictions do not allow the limitation or exclusion of incidental, consequential or other types of damages, so some of the above limitations may not apply to Customer.
11. CONFIDENTIALITY; DATA PROTECTION
11.1 Confidential Information. “Confidential Information” means the Software and any non-public information of Dremio provided or made available to Customer. Customer shall protect all Confidential Information from unauthorized dissemination and use with the same degree of care that it uses to protect its own information of similar nature. Customer shall not use any Confidential Information for purposes other than those expressly licensed under this Agreement. Customer shall not disclose the Confidential Information to third parties without the prior written consent of Dremio. Customer acknowledges that Confidential Information is unique and valuable to Dremio and that the unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to Dremio, for which monetary damages alone would not be an adequate remedy. Accordingly, and notwithstanding Section 12.2 (Governing Law; Venue) below, Customer agrees that in the event of a breach or threatened breach of this Section, Dremio will be entitled to seek specific performance and injunctive or other equitable relief as a remedy for such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to, and not in lieu of any other remedies available to Dremio, including but not limited to monetary damages.
11.2 Data Protection. In the event that Dremio processes Personal Data (as defined in the DPA) originating from the EU, as a processor on behalf of Customer, in the course of performing its obligations under this Agreement, the parties acknowledge and agree that Dremio’s Data Processing Addendum (“DPA”), as made available to Customer and updated from time to time, will apply to such Personal Data.
12. GENERAL TERMS
12.1 Assignment. Customer may not assign, novate or otherwise transfer, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of Dremio. Dremio may assign, novate or otherwise transfer this Agreement to an affiliate or in connection with a re-organization, merger, sale of all or substantially all of Dremio’s assets, or a similar corporate transaction, and Customer shall take any step(s) and execute any document(s) reasonably required by Dremio for the purpose of the assignment, novation or transfer of Dremio’s rights or obligations under this Agreement. Any attempted or purported assignment, novation or other transfer not complying with the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the successors and permitted assigns of both parties.
12.2 Governing Law; Venue. This Agreement and all matters arising out of or relating to this Agreement (including non-contractual disputes or claims) will be governed by the laws of the State of California, excluding conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The federal or state courts located in Santa Clara County, California, will have exclusive jurisdiction to hear any dispute under this Agreement (including non-contractual disputes or claims) and both parties hereby consent to exclusive personal jurisdiction in such courts.
12.3 Force Majeure. Except for the obligation to make all payments due under this Agreement on a timely basis, neither party will be liable in damages or otherwise, or have the right to terminate this Agreement, for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, without limitation, acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections or any other cause beyond the reasonable control of the party whose performance is affected.
12.4 Publicity. Unless otherwise instructed by Customer in writing, Dremio may refer to Customer as a customer of Dremio and include Customer’s name and logo in a list of its customers that it publicizes in standard marketing materials and on its web site.
12.5 Export Controls. Customer agrees to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”). Without limiting the generality of the foregoing, Customer expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software, Documentation or any direct product thereof to any destination, company or person restricted or prohibited by Export Controls.
12.6 Government Users. The Software is a “commercial item,” as defined at 48 C.F.R. §2.101, and constitutes “commercial computer software,” as defined in 48 C.F.R. §252.227-7014(a)(1) and as used in 48 C.F.R. §12.212 and §227.7202. This commercial computer software and related documentation are provided to end users for use on Customer’s behalf, with only those rights as are granted pursuant to the terms and conditions set forth in this Agreement. The terms of this Agreement apply to Customer except to the limited extent Customer is prohibited by the laws of Customer’s jurisdiction from accepting such terms.
12.7 Entire Agreement; Severability. This Agreement, together with the attached exhibits (if any) that are incorporated by reference, constitutes the entire agreement of the parties and supersedes all prior or contemporaneous communications, understandings and agreements relating to the subject matter hereof, whether oral or written, except in the event the parties have signed a master agreement that governs the subject matter hereof. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired by such holding and the parties shall negotiate in good faith a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
12.8 Amendment; Waiver of Contractual Right. No modification or claimed waiver of any provision of this Agreement will be valid except by written amendment signed manually or by way of electronic signature by authorized representatives of Dremio and Customer. Waiver of any provision under this Agreement will not be deemed a future waiver of that or any other provision herein, nor will waiver of any breach of this Agreement be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
12.9 Notices. All notices given pursuant to this Agreement must be in writing and will be deemed to have been duly given when: hand delivered, sent by email (with written confirmation of receipt), or when received by the addressee (with written confirmation of receipt) in each case to the appropriate address set forth below or in the applicable Order Form (or to such other address or e-mail address as a party may designate by notice from time to time).
If to Dremio, to:
Dremio Corporation
3970 Freedom Circle #110
Santa Clara, CA 95054 USA
Attention: Legal Department
Email: [email protected]
If to Customer, to the address specified in the Order Form or otherwise provided by Customer to Dremio.
12.10 Relationship between the Parties. Dremio is an independent contractor; nothing in this Agreement shall be construed to create a relationship of employer and employee, partnership, joint venture or agency relationship between the parties.
12.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.
