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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 any entity identified on an Order Form for Dremio’s Software and/or Services (“Customer”).
Please read this Agreement carefully before downloading, installing or using the Software.
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.
The terms of this Agreement apply to the Software licensed to Customer and to the Support Services provided by Dremio to Customer under an Order Form. 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 version of the Dremio software products identified in an Order Form and provided to Customer by Dremio or its authorized reseller, 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 shall incorporate this Agreement by reference and should include, where applicable, (i) the 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 this Agreement shall control.
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, nonexclusive, 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 (“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 to 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 shall be subject to the terms and conditions of this Agreement. The 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 3.1 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 advanced 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.
3. Maintenance and Support and Services.
To the extent purchased and paid for by Customer, as set forth in the applicable Order Form, Dremio will provide maintenance and support services pursuant to its then-current Support Policy during the License Term and any training and deployment and implementation assistance specified in the applicable Order Form (collectively, “Support Services”).
4. 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; and (c) without any Support Services of any kind. Dremio shall specify the duration of time for the evaluation. Following the end of the evaluation period, Customer will cease using and will delete any such trial Software from its computer systems.
5. Proprietary Rights.
5.1 Proprietary Rights. Customer acknowledges and agrees that: (a) except for the licenses 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 by
Dremio in the course of performing Support Services; (b) any configuration or deployment of the Software shall not affect or diminish Dremio’s or its licensors’ rights, title, and interest in and to the Software; and (c) nothing in this Agreement shall limit in any way Dremio’s right to develop, use, license, create derivative works of, or otherwise exploit the Software, 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, systems, performance, use or functionality of the Software.
5.2 Feedback. If Customer recommends to Dremio or its authorized reseller additional features, functionality or performance or other are changes that Customer believes will improve the Software, then Customer hereby (a) grants Dremio a worldwide, non-exclusive, royalty-free, perpetual and irrevocable right and license to freely use and incorporate such recommendations into the Software (or other Dremio software), 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.
6. Payment; Taxes; Usage Review.
6.1 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”). All Fees are nonrefundable, except as otherwise provided in this Agreement or the applicable Order Form. All payments shall 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 shall have been pre-approved by Customer.
6.2 Taxes. The Fees do not include taxes, duties or fees. 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 shall not apply to taxes based on Dremio’s or its reseller’s net income or payroll taxes.
6.3 Usage Review. Dremio or its designated agent may audit Customer’s use of the Software, upon notice to Customer, for purposes of ensuring compliance with this Agreement. Dremio shall provide a written notice of such audit in writing at least ten (10) days prior to the audit. Customer
agrees to cooperate with any such audit, which shall 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.
7. Open Source Software.
7.1 Third Party Open Source Components. The Software may contain or be provided together with certain open source software components (“Open Source Components”). Customer acknowledges that the Open Source Components are provided pursuant to various open source licenses (as may be identified to Customer by Dremio from time to time), and Customer’s use of each such Open Source Component is pursuant to its own applicable license terms, which can be found either in the Software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the copyright holders indicated in the documentation or the applicable help, notices, about or source files. 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, 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).
7.2 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 a case, the license grants and restrictions in this Agreement will not be construed to limit Customer’s independently granted rights in such portions of the Software, taken separately from the remainder of the Software.
8. Term and Termination.
8.1 Term. Unless earlier terminated as set forth herein, this Agreement will commence as of the effective date set forth on the Order Form, and
will continue in full force and effect for the license term set forth in the applicable Order Form (the (“License Term”).
8.2 Termination. Either party may terminate this Agreement or the 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.
8.3 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 shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall 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 5, 6.3, 8.3, 9.2, 10, 11, 12 and 13 will survive termination of this Agreement.
9. Warranties; Disclaimer; Exclusive Remedies.
9.1 Warranties. Dremio warrants that (a) for thirty (30) days from the date on which the Software is first delivered to Customer, that the Software will perform in all material respects the functions described in the Documentation when operated in accordance with the Documentation; and (b) any Support Services performed by Dremio pursuant to this Agreement will be performed in a professional and workmanlike manner.
9.2 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. Notwithstanding any provision
to the contrary, the Documentation is distributed “AS IS.” The warranties set forth in section 9.1 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, title, non-infringement 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.
9.3 Exclusive Remedies. The customer must report in writing any breach of the limited warranties contained in Section 9.1 to Dremio during the relevant warranty period. Customer’s sole and exclusive remedy and Dremio’s entire liability for any breach of the warranty in Section 9.1(a) shall be to use commercially reasonable efforts to correct or provide a workaround for reproducible Software errors that cause a breach of this warranty, or, if Dremio is unable to make the Software operate as warranted within a reasonable time considering the severity of the error and its impact on Customer, Customer shall be entitled to return the Software to Dremio and recover the unused fees pre-paid by Customer to Dremio for the license to the non-conforming Software. Customer’s sole and exclusive remedy and Dremio’s entire liability for any breach of the warranty in Section 9.1(b) shall be re-performance of the Support Services, or if Dremio is unable to perform the Support Services as warranted, Customer shall be entitled to recover the fees pre-paid to Dremio for the nonconforming Support Services.
10.1 Indemnification. If a third party makes a claim against Customer that the Software directly infringes any U.S. patent, copyright or trademark or misappropriate 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. Notwithstanding the foregoing, Dremio shall have no liability for any claim of infringement 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, (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 shall have the option, at its expense, to (a) replace or modify the Software to be non-infringing, or (b) 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 10 states Dremio’s entire liability and Customer’s exclusive remedy for any claim of infringement.
10.2 Exclusions; Remedies. Notwithstanding the foregoing, Dremio shall have no liability for any claim of infringement 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, (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 shall 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 10 states Dremio’s entire liability and Customer’s exclusive remedy for any claim of infringement.
11. 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 or any claim based upon a third party claim, or 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 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 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 the customer.
“Confidential Information” means the Software and any non-public information of Dremio provided or made available to the customer. The 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. The customer shall not use any Confidential Information for purposes other than those expressly licensed under this Agreement. The 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 13.2 (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 shall be in addition to, and not in lieu of any other remedies available to Dremio, including but not limited to monetary damages.
13. General Terms.
13.1 Assignment. The customer may not assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of Dremio. This Agreement shall be binding upon and inure to the successors and permitted assigns of both parties.
13.2 Governing Law; Venue. This Agreement and all matters arising out of or relating to this Agreement 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 and both parties hereby consent to exclusive personal jurisdiction in such courts.
13.3 Force Majeure. Except for the obligation to make all payments due under this Agreement on a timely basis, neither party shall be liable in damages 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.
13.4 Publicity. Dremio may publicize its licensing of the Software to Customer in its marketing and advertising material, and may reproduce Customer’s company name, logo, trademark, trade name, service mark, or other commercial or product designations in such materials. In addition, Dremio may refer to Customer as a customer of Dremio and include Customer’s name in a list of its customers that it publicizes in standard marketing materials and on its web site.
13.5 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.
13.6 Government Users. The Software contains commercial computer software and commercial computer software documentation. In accordance with FAR 12.212 and DFARS 227.7202, use, duplication or disclosure is subject to restrictions under paragraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013, and further restricted by this Agreement.
13.7 Entire Agreement; Severability. This Agreement, together with the attached exhibits 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.
13.8 Amendment; Waiver of Contractual Right. No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment manually signed by authorized representatives of Dremio and Customer. Waiver of any provision under this Agreement shall not be deemed a future waiver of that or any other provision herein, nor shall 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.
13.9 Notices. All notices given pursuant to this Agreement shall be in writing and may be hand delivered, or shall be deemed received within five
(5) business days after mailing if sent by registered or certified mail, return receipt requested to the address set forth in the Order Form or as either party may otherwise specify in writing to the other party from time to time.
13.10 Relationship between the Parties. Dremio is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.