MASTER CLOUD SOFTWARE LICENSE AND SERVICES AGREEMENT
If you started your subscription before the version date displayed in this document, please review your terms at Alation Legacy Agreements.
Version: August 30, 2023
By accepting this Agreement through an Order or Statement of Work that incorporates it, you agree to follow and be bound by the terms and conditions as set out below. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions and, in such event, “Customer” as used in this agreement will refer to such entity.
This Master Cloud Software License and Services Agreement (“Agreement”) is entered into by and between Alation, Inc. (“Alation” or “Licensor”) and Customer and is effective as of the last signature date of an Order or Statement of Work (“Effective Date”). As used in this Agreement, “Party” means either Alation or Customer, as appropriate, and “Parties” means both Alation and Customer.
1. OVERVIEW AND USE OF THE ALATION CLOUD
1.1 Overview. This Agreement is a master agreement under which Customer may license the Alation Cloud and receive Support and Professional Services in respect of such Alation Cloud from Alation, as specifically set out in one or more Orders or Statements of Work. The capitalized terms in this Agreement are defined in Section 9 (“Definitions”) or otherwise defined in the body of this Agreement.
1.1.1 Orders and Statements of Work. Each Order and Statement of Work: (i) is subject to this Agreement; (ii) will be a part of this Agreement as if fully included within its body; and (iii) will set forth the Fees and Subscription Term for the Alation Cloud and/or Professional Services, and certain other terms applicable to such Alation Cloud and Professional Services. Absent the execution of an Order or a Statement of Work, this Agreement does not, in and of itself, represent a commitment by Customer to order any products or services from Alation. To become effective, an Order or a Statement of Work, and any modifications or amendments thereto, must be signed by an authorized representative of each Party.
1.2 License Grant. Subject to Customer’s compliance with this Agreement, including the timely payment of all applicable Fees, Alation hereby grants to Customer a limited, non-perpetual, non-exclusive, revocable, non-transferable license to Use the Alation Cloud together with the Documentation generally provided with it during the Subscription Term described in each Order, solely for Customer’s internal use and business purposes and subject to the Documentation (the “License”). The License includes Customer’s optional installation on computers owned or controlled by Customer of the Alation Agent.
1.3 Accountability. Customer is responsible for any activity occurring under its Named User accounts and will ensure that it and its Named Users abide by all local, state, national and foreign laws, treaties, and regulations applicable to Customer’s use of the Alation Cloud. Customer is solely responsible for any decisions made or actions taken in connection with its usage of the Alation Technology. Customer will: (i) not share (and will instruct each Named User not to share) such credentials with any other person or entity or otherwise permit any other person or entity to access or use the Alation Cloud; (ii) notify Alation promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) notify Alation promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Alation Cloud that is known or suspected by Customer or its Named Users; or (iv) not impersonate another Alation user or provide false identity information to gain access to or use the Alation Cloud. During the Subscription Term, Alation hosts software for the cloud service and the Customer has no contractual right, or otherwise, to take possession of the software or the right of software hosting at any time.
1.4 Restrictions; Usage Limits and Monitoring.
a) Restrictions. Customer and its Named Users will not and will not allow any third party contractors delivering information technology services to Customer (“Third Party Agents”) to: (i) decompile, disassemble, decode, redesign, reverse engineer, or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of; (ii) translate, adapt, modify or create derivative works from; (iii) write or develop any program based upon; (iv) use for benchmarking or ‘service bureau’ purposes or in a manner that overburdens or that threatens the integrity, performance, or availability of, the Alation Cloud; (v) sell, sublicense, transfer, or otherwise assign or grant to any third party any rights in; (vi) allow access to unauthorized persons to; or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Alation Technology. Customer is fully responsible for its Third Party Agents’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by Customer.
b) Additional Users and User Reassignment. Each individual will be assigned a unique Named User identification that cannot be shared or used by more than one person. The number of Named Users and their user level will be specified in the applicable Order. Additional Named Users may be purchased pursuant to the Parties signing an Order and unless otherwise specified in the relevant Order, the Subscription Term of additional Named Users shall be coterminous with the Subscription Term in effect at the time the additional Named Users are added. Named User subscriptions may be reassigned to new Named Users replacing former Named Users who no longer require use of the Alation Cloud and unless otherwise specified in the relevant Order, the replacement Named User shall be under the same Subscription Term of the original Named User.
c) Usage Monitoring. Alation reserves the right to periodically review the number of Named Users, number of connectors, apps, objects, and Customer usage. Customer may have certain usage limits as specified in the applicable Order, which, if exceeded, will subject Customer to increased Fees. Without limiting the foregoing and with two (2) days prior written notice, Alation has the right to remove any unauthorized users to the Alation Technology that Alation finds to be in violation of the number of Named Users specified under the applicable Order.
1.5 Proprietary Rights.
a) Alation Intellectual Property. The Alation Technology is licensed and not sold. As between Alation and Customer, Alation hereby retains all right, title, and interest, including all intellectual property rights, in and to the Alation Technology, all copies and portions thereof, and all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights therein. As a condition of the License, Customer must retain all proprietary, copyright and other attribution legends on all copies of the Alation Technology. Customer agrees that Alation has the right to use in any manner and for any legal purpose any feedback or suggestions which Customer may choose to provide to Alation.
b) Customer Data. As between Customer and Alation, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will have all rights and consents necessary to allow Alation to use all such data as contemplated by this Agreement. Customer hereby grants to Alation a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth herein), non-sub-licensable, worldwide right to use and process Customer Data to provide Customer the Alation Cloud and any other activities expressly agreed to by Customer.
1.6 Security and Data Privacy. Alation will maintain a written information security program of policies, procedures, and controls governing the Alation Cloud and the processing, storage, transmission, and security of Customer Data, as described in Exhibit A: Security Policy (“Security Program”). Alation may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein. Alation will process Personal Data on Customer’s behalf according to the terms of the Alation Data Privacy Addendum available here: https://www.alation.com/online-dpa/ and incorporated by reference, as applicable.
1.7 Audit Report. During the Subscription Term, except as stated otherwise on the Order, Alation will engage, at its expense, an independent accounting firm to conduct an audit of Alation’s operations with respect to the Alation Cloud in accordance with the Statement on Standards for Attestation Engagements No. 18 (the “SSAE 18”), and have such accounting firm issue a SSAE 18 SOC 2 Type 2 report (or substantially similar report of a successor auditing standard in the event the SSAE 18 auditing standard is no longer an industry standard).
1.8 Usage Data. Alation may access and utilize log files and metadata derived from Customer’s use of the Alation Cloud to maintain and improve the Alation Technology, provided that such data is aggregated or otherwise anonymized and the Named Users will not be identified.
2. SUPPORT; PROFESSIONAL SERVICES; SERVICE LEVEL
2.1 Support. Subject to Customer’s timely payment of all applicable Fees, during the Subscription Term Alation will provide Customer with the support services described at https://alation.com/tscs/support (“Support”).
2.2 Professional Services. Subject to Customer’s timely payment of all applicable Fees, Alation will provide to Customer the Professional Services, if any, identified on one or more Statement of Work or Order. Except as set out in an Order or in an Statement of Work, Customer is solely responsible for integrating the Alation Cloud with Customer’s systems and any other platform, add-on, service, code or product not provided by Alation. Nothing in this Agreement shall be understood to prevent Alation from providing similar Professional Services to other customers, as those Professional Services do not constitute ‘work for hire’ and instead are a derivative of the Alation Technology.
Together, Support and Professional Services are referred to as “Services”.
2.3 Service Level. During the Subscription Term, the Alation Cloud will be subject to the SLA as described in Exhibit B. Alation reserves the right to modify the SLA to reflect new practices, updates or improved features, so long as such modifications do not materially decrease Alations overall obligations during the applicable Subscription Term.
3. FEES; PAYMENT
3.1 Fees. Customer will pay Alation the non-refundable and non-recoupable (except as otherwise provided for herein): (i) fees for the Alation Cloud and Support set forth in any Order or Statement of Work (“Subscription Fees”); (ii) fees for the Professional Services set forth in any Order or Statement ofWork (“Professional Services Fees”); and (iii) all other mutually agreed upon fees set forth in any Order or Statement of Work (“Other Fees”), collectively the “Fees”. Failure to use the Alation Cloud or Services does not constitute a basis for refusing to pay any Fees.
3.2 Payment Term, Currency, Interest Rates. Payment term and currency will be as set out in the applicable Order or Statement of Work. For past due undisputed Fees, interest accrues from the payment due date at the greater of a rate of 1.5% per month or the highest rate allowed by law.
3.3. Dispute. Where the Customer disputes any amount invoiced in good faith, it will: (i) notify Alation as soon as reasonably practicable, however, not later than five (5) business days after receipt of the relevant invoice; (ii) pay the balance of the invoice that is not in dispute by the due date; and (iii) pay the balance and any interest as set out in Clause 3.2 above on sums found or agreed to be due within five (5) business days after resolution of the dispute.
3.4 Taxes. Alation’s Fees do not include any local, state or federal sales, use, excise, personal property, VAT, or other similar taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, which shall be borne and paid by Customer) (collectively, “Taxes”). Customer must pay all Taxes or other similar fees or duties arising out of this Agreement other than taxes based on Alation’s net income and will indemnify Alation for all expenses incurred as a result of Customer’s failure to timely pay such taxes. It is Customer’s responsibility to submit any relevant tax documents, including without limitation tax exemption certificates, at the time of execution of the applicable Order or Statement of Work and in any event no later than seven (7) days following such execution, in order for Alation to bill taxes accordingly.
3.5 Affiliate Orders. The Parties agree that Affiliates of Customer may execute its own Order or Orders with Alation, as mutually agreed by the parties. This will create a separate agreement between Alation and the Affiliate incorporating the terms of this Agreement whereby the Affiliate shall be deemed “Customer”. Neither Customer nor Customer’s Affiliate shall have any rights under each other’s agreement with Alation and a breach or termination of any such agreement will not result in a breach or termination of any other agreement.
4. TERM AND TERMINATION
4.1 Term. This Agreement will start on the Effective Date and will continue until terminated pursuant to Section 4.2 or 6.1(iv) below.
4.2 Termination. Either Party may terminate this Agreement by written notice if: (i) the other Party is in material breach of this Agreement (including non-payment), which is not cured within thirty (30) days after written notice of such breach is received; (ii) the other Party ceases to operate without a successor; (iii) the other Party seeks protection under bankruptcy or comparable proceedings; or (iv) the other Party makes an assignment for the benefit of its creditors, or takes similar actions.
4.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, Customer must cease use of the Alation Technology and: (i) all outstanding Orders, Statements of Work and the corresponding Licenses shall automatically and immediately terminate, Alation may disable access keys, and Customer will have no further rights to the Alation Technology; (ii) all outstanding payment obligations of Customer immediately become due and payable; and (iii) each Party must promptly return or certify the destruction of all tangible embodiments of the other Party’s Confidential Information. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.4(a) (Restrictions), 1.5 (Proprietary Rights), 3 (Fees; Payment), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Indemnification), 7 (Warranty Disclaimer), 8 (Exclusion of Certain Damages; Limitation of Liability), and 10 (General Provisions), as well as any other provisions which by their nature or context survive the termination of the Agreement.
5. CONFIDENTIALITY
5.1 Definition. “Confidential Information” means: (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as ‘confidential’, or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Alation Technology and the terms (but not the existence) of this Agreement are the Confidential Information of Alation. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
5.2 Limited Use; Protection. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to an obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party and will take at least those measures that it takes to protect its own most highly categorized confidential information.
5.3 Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, where permitted by law, promptly notify the Disclosing Party in writing and will, where permitted by law, reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy at the Disclosing Party’s expense. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
6. INDEMNIFICATION
6.1 IP Indemnification. Alation will indemnify, defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Alation Technology, as delivered to Customer and used as authorized in this Agreement and Documentation, infringes or misappropriates any U.S. patent, copyright or trade secret of any third party (“Infringement Claim”), and pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Alation; provided that Customer provides Alation: (a) prompt written notice of the Infringement Claim; (b) sole control over the defense and settlement of the Infringement Claim; and (c) all information and assistance reasonably requested by Alation in connection with the defense or settlement of, any such Infringement Claim. If any Infringement Claim is brought or, in Alation’s judgment, may be threatened, Alation may, at its sole option and expense: (i) procure for Customer the right to continue to use the applicable Alation Technology; (ii) modify the Alation Technology to make it non-infringing; (iii) replace the Alation Technology with non-infringing technology that is functionally equivalent to the Alation Technology; or (iv) if none of the foregoing is commercially practicable, terminate this Agreement upon written notice to Customer, and refund a pro rata portion of unused and pre-paid Fees for the outstanding balance of the then current Subscription Term.
6.2 Limitations. Notwithstanding Section 6.1, Alation will have no liability to Customer for any Infringement Claim arising out of or based upon: (i) use of the Alation Technology in combination with software, products, or services not provided by Alation; (ii) any modification of the Alation Technology not made or authorized in writing by Alation; (iii) Customer’s failure to use the Alation Technology in accordance with this Agreement or Documentation, or otherwise using the Alation Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Alation Cloud after Alation notifies Customer that continued use of such release may subject Customer to an Infringement Claim, if Alation provides a replacement release.
6.3 Disclaimer. This Section 6 states the entire liability and obligations of Alation and the sole and exclusive remedy of Customer with respect to any actual or alleged Infringement Claim.
6.4 Indemnification by Customer. Customer will (i) indemnify, defend, or at its option settle, and hold Alation and its affiliates harmless against any and all claims brought against Alation and its affiliates by a third party relating to (a) Alation’s processing of the Customer Data and/or (b) Customer’s use of the Alation Technology other than pursuant to this Agreement and the Documentation; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Alation provides Customer: (x) prompt written notice of any such claim; (y) sole control over the defense and settlement of (except that Customer may not settle any claim against Alation unless it unconditionally releases Alation of all liability); and (z) all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such claim.
7. WARRANTY DISCLAIMER
7.1 Warranty. Alation represents and warrants to Customer that: (i) subject to the SLA, the Alation Cloud will function materially in accordance with the applicable Documentation; and (ii) the Services will be conducted in accordance with generally accepted industry standards.
7.2 Disclaimer. Except as expressly set forth in this Agreement, the Alation Cloud, Alation Agent, Documentation, Support and Professional Services are provided ‘as-is’ without representation or warranty of any kind, whether express, implied or statutory. Alation hereby disclaims any and all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from conduct or course of dealing. Without limiting its obligations under Section 2 (Support; Professional Services; Service Level), Alation does not warrant that the Alation Technology will be error-free or will work without interruptions, and Customer relies on the Alation Technology at Customer’s own risk. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances and, accordingly, the limitations set forth above apply to the maximum extent permitted by applicable law.
7.3 Beta Versions and Trials. Alation may invite Customer to participate in Trials and to access any Beta Versions and Customer may, at its own discretion, accept or decline participation in any such Trial or access to Beta Versions. Trials and Beta Versions are for evaluation purposes only and not for production use and may be subject to additional terms. Alation is under no obligation to maintain, support, update, or provide error corrections for the Trials or Beta Versions. Any and all Trials and Beta Versions that Alation makes available to Customer are provided wholly “AS-IS” and Alation disclaims any and all warranties, liabilities, claims, losses and/or damages arising out of or in connection with Customer’s Trials or use of Beta Versions. Alation’s liability for Trials and Beta Versions will not exceed 50 USD (fifty United States dollars).
8. EXCLUSION OF CERTAIN DAMAGES; LIMITATION OF LIABILITY
8.1 No Consequential Damages. In no event will either Party be liable for any indirect, special, incidental, exemplary, punitive, treble or consequential damages (including, without limitation, loss of business, revenue, profits, goodwill, data or other economic advantage) arising out of or relating to this Agreement, however caused and based on any theory of liability, whether breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if the other Party is advised of the possibility of such damages.
8.2 Liability Cap. Each Party’s total liability (including attorneys’ fees) arising out of or related to this Agreement will not exceed the amount paid by Customer to Alation under this Agreement during the twelve (12) month period prior to the date the claim arose.
8.3 Excluded Claims. The foregoing limitations under this Section do not apply to (i) Customer’s breach of sections 1.2 (License Grant) or 1.4(a) (Restrictions); (ii) Alation’s indemnification obligations under Section 6.1 or Customer’s indemnification obligations under Section 6.4; (ii) damages arising out of a breach of the other party’s intellectual property rights; (iii) damages arising out of a Party’s gross negligence or willful misconduct; (iv) breach of applicable laws; or (v) any other liability that cannot be excluded under applicable law.
8.4 Further Limitations. The limitations under this Section 8 will apply regardless of the form or action and even if any limited or exclusive remedy in this Agreement fails of its essential purpose. Neither Party may bring a claim or action regardless of form, arising out of this Agreement, more than twelve (12) months after the claim or cause of action arose.
9. DEFINITIONS
These words and expressions will mean the following:
“Agreement” means this Master Services Agreement together with any applicable Orders, Statements of Work and any exhibits, appendices, schedules, or attachments, and any amendments attached hereto or hereafter attached by mutual written agreement of the parties (all of which are incorporated herein by reference).
“Affiliate” means any entity directly or indirectly controlled or owned by a party where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Alation Agent” means the software package to connect Customer’s on-premises data sources to the Alation Cloud.
“Alation Cloud” means the then available Alation software-as-a-service data intelligence platform identified in the relevant Order, as updated from time to time, with the features and functionality described in the Documentation. The Alation Cloud excludes any platform, add-on, service, code or product not provided by Alation.
“Alation Technology” means, collectively, the Alation Cloud, Documentation, Alation Agent and Alation’s Confidential Information (as defined in Section 5), as applicable.
“Beta Versions” mean Alation’s services or functionality that are not generally made available which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Creator” means a Named User that may generate content, curate data elements, run queries, configure the Alation Cloud, and manage other Named User accounts.
“Customer Data” means any data that the Customer or its Named Users submit to the Alation Cloud.
“Documentation” means, without limitation, the end user manuals, operation instructions, installation guides, release notes and online help files regarding use of the Alation Cloud, as provided to Customer and which may be revised from time to time.
“Explorer” means a Named User that may do everything a “Viewer” can do, use query forms in Alation Cloud, and use Connected Sheets to search, browse, filter and download data.
“Named User” means a specific Customer’s employee or contractor authorized by Customer to use the Alation Cloud, regardless of whether such Named User is using the Alation Cloud at any given moment, and includes Creators, Explorers and Viewers.
“Order” or “Statement of Work” means an ordering document specifying the products and services to be provided hereunder that is entered into between Customer and Alation or any of their Affiliates, including any addenda and supplements thereto.
“Personal Data” means any information relating to an identified or identifiable natural person, as further defined in applicable laws.
“Professional Services” means the professional services provided by Alation to assist Customer in Using the Alation Cloud, as identified in an Order or Statement of Work.
“SLA” means the Alation Service Level Agreement, the current version of which is attached hereto as Exhibit B. “Subscription Term” means the term of the License as described in the Order.
“Trial” means Customer’s internal evaluation of Alation Cloud functionalities made available by Alation during the period designated by Alation (or, if silent, fifteen (15) days). “Updates” means, without limitation, updates, bug fixes, version improvements and error corrections for the Services to the same extent it does so for its customers generally.
“Use” means that Customer may access, utilize or otherwise interact with the Alation Cloud by up to the number of Named Users to which Alation provides license keys.
“Viewer” means a Named User that may benefit from the occasional ability to search and browse datasets and collaborate through the Alation Cloud.
10. GENERAL PROVISIONS
10.1 Notices. Any required notice must be given in writing by customary means with receipt confirmed at the address of each Party indicated in the Order or Statement of Work or by electronic transmission. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, three days after deposit in the Party’s local mail, or upon acknowledgment of receipt of electronic transmission.
10.2 Entire Agreement. This Agreement (together with the Exhibits, Orders and Statements of Work hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The headings herein are inserted for convenience and will not affect the interpretation of this Agreement. In the case of conflict, the following order of precedence applies: first, this Agreement, second, Order(s) and third, Statements of Work, provided that if an Order or an Statement of Work, by its explicit terms, states that it is intended to supersede an identified provision of this Agreement, it then shall so supersede.
10.3 Amendments. Except as otherwise provided herein, any amendment to this Agreement will only be valid if it is in writing and signed by a duly authorized representative of each Party. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Alation to object to such terms.
10.4 Assignment. Neither Party will assign or transfer any part of this Agreement without the prior written consent of the other Party, except in the case of an assignment due to corporate reorganization, change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions by either Party, which may occur without written consent. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
10.5 Waiver; Severability. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable, or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.
10.6 Relationship of the Parties. The relationship between the Parties is of independent contractors. The Agreement doesn’t create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.7 Publicity. Alation may reference Customer’s name, branding, and logo in Alation’s marketing materials and as part of its sales presentations to other potential customers.
10.8 Force Majeure. Except for the obligation to pay Fees, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, pandemics, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts including restrictions, epidemics, pandemics, hacker attack, or failure of the Internet (each a “Force Majeure Event”). The Party suffering a Force Majeure Event will give the other Party written notice of such a Force Majeure Event and will use reasonable efforts to mitigate against the effects of such Force Majeure Event. In the event a Party suffers a Force Majeure Event that lasts longer than ninety (90) continuous days, the other Party may terminate the Agreement or an Order Form immediately upon written notice.
10.9 Open Source. The Alation Cloud may incorporate third-party open source software (“OSS”), as set out in the Documentation or provided upon request. Customer’s use of the Alation Cloud in compliance with the terms of this Agreement will not require Customer to comply with the terms of the OSS licenses.
10.10 Compliance with Laws and Export Control. Each Party will comply with all applicable laws and government regulations, including, if applicable, the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using Alation Technology. Without limiting the foregoing, (i) each Party represents that is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that Named Users do not, violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement.
10.10.1 Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restrictions.
10.11 Governing Law. This Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Mateo County and the federal courts located in the City and County of San Francisco, California. If either Party breaches or threatens to breach the provisions of Sections 1.2, 1.3, 1.4 or 5, each Party agrees that the non-breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
EXHIBIT A: SECURITY POLICY
1. Data Security Procedures.
Alation shall maintain reasonable operating standards and security procedures and shall use their best efforts to secure Personal Data and Confidential Information (collectively, “Confidential Data”) through the use of appropriate administrative, physical, and technical safeguards including, but not limited to, appropriate network security and encryption technologies. Such security measures shall also include the following:
(i) Implementation of controls to manage access to Confidential Data, including:
(a) Restricting access privileges to only those Alation personnel that must access Confidential Data to deliver the Alation Cloud;
(b) Immediately terminating access privileges to Confidential Data for any Alation personnel that no longer need such access, and conducting quarterly reviews of access lists to ensure that access privileges have been appropriately provisioned and terminated;
(c) Requiring the use of multi-factor authentication to access Confidential Data; and
(d) Providing regular training on data security to all Alation personnel that may have access to Confidential Data.
(ii) Maintenance of firewalls to segregate Alation’s internal networks from the internet, and employing appropriate intrusion detection, monitoring, and logging capabilities to enable detecting and responding to potential security breach attempts;
(iii) Conducting of regular vulnerability assessments;
(iv) Application of all manufacturer-recommended security updates to all systems, devices, or applications storing, processing or transiting Confidential Data in a timely manner that aligns with industry best practices.
(v) Maintenance and enforcement of policies and procedures to ensure that all of the following requirements are met:
(a) up-to-date virus protection software shall be installed on all computer systems attached to Alation’s networks;
(b) access to Alation’s computer resources and networks (including wireless networking and remote access) shall be limited to approved configurations utilizing appropriate identification and authentication methods, including the following minimum password requirements, which shall be automatically enforced by the operating system used by Alation:
(1) passwords shall be a minimum of eight (8) characters in length, and shall contain characters from four (4) of the following four categories: uppercase letters, lowercase letters, numeric (0-9), and special (!@#$%^&*);
(2) the operating system shall enable a dictionary check to reject commonly used passwords, and shall lock out the user account for fifteen (15) minutes upon ten (10) failed authentication attempts; and
(3) Alation shall implement measures to ensure that credentials are not shared between users and accounts; where shared credentials are necessary, the shared password shall be updated every thirty (30) days, and the new password may not be any of the previous ten (10) passwords used for that account.
Alation shall implement such additional password requirements as may be communicated to Alation by Customer from time to time.
(c) Confidential Data shall be stored only on devices located within Alation’s secure facilities, shall only be used for the purposes of performing Alation’s obligations under this Agreement, and shall not be distributed, repurposed, or shared with third parties or Alation’s business units without Customer’s prior written approval;
(d) Confidential Data shall at all times be encrypted in accordance with the Encryption Standards described below, regardless of whether such Confidential Data is at rest or in transit;
(e) All encryption shall be accomplished with AES 256-bit or stronger key, or RSA with a 2048-bit or stronger key, and in accordance with industry standards for secure key and protocol negotiation and key management (collectively, the “Encryption Standards”);
(f) Confidential Data shall not be transmitted outside of Alation’s secure facilities (which include its cloud hosting environment), transmitted on networks other than those owned by Customer or Alation, or stored on any portable storage device, including but not limited to laptops, tablets, smartphones, flash drives, or removable media, unless, in each instance such information has been encrypted in accordance with the Encryption Standards;
(g) All documents and electronic media containing Confidential Data shall be protected in accordance with Alation’s obligations under Section 5 (Confidentiality) of the Agreement, and if disposal is permitted by the Agreement, shall be disposed of in a secure manner;
(vii) Ensuring that all electronic mail (email) communications pertaining to the Services or any Confidential Data are conducted to and from an email domain that is owned by Alation, and, upon Alation’s request, providing Alation with domain registration documents or other documentation as reasonably required to confirm Alation’s ownership of such email domain;
If requested by Customer at any time during the Term of the Agreement, Alation shall provide Customer with a copy of the then-current information security policy maintained by Alation.
2. Information Security Breach; Other Investigations. Alation shall promptly notify Customer if Alation knows or has reason to believe there has been any misuse, compromise, loss, or unauthorized disclosure or acquisition of, or access to, Confidential Data (“Information Security Breach”). Upon any discovery of an Information Security Breach, Alation will notify the Customer of the Information Security Breach, investigate, remediate, and mitigate the effects of the Information Security Breach, and provide Customer with assurances that such Information Security Breach will not recur. Alation shall provide at Customer’s request information related to any such Information Security Breach, including but not limited to, vulnerabilities or flaws, start or end date, date of discovery, and specific actions taken to contain and/or mitigate. If any Information Security Breach occurs as a result of an act or omission of Alation, Alation will, at Alation’s sole expense (but subject to Section 8 of the Agreement), undertake remedial measures (including notice, credit monitoring services, fraud insurance, reputation loss, and the establishment of a call center to respond to customer inquiries) in accordance with Customer’s instructions.
3. Assistance. Alation shall provide Customer with reasonable assistance and support and shall act solely at Customer’s direction in (i) responding to an investigation or cooperation request by a data protection regulator or similar authority; (ii) providing notice of an Information Security Breach to any third party where required or requested by Customer; (iii) conducting legally required privacy, security, or data protection impact assessments; and (iv) consulting with the relevant authorities when required in relation to such impact assessments.
4. Return or Destruction of Confidential Data. Upon termination of this Agreement for any reason, Alation shall promptly contact Customer for instructions regarding the secure return, destruction or other appropriate action with regard to Confidential Data. Upon termination of this Agreement for any reason, or at any time at the request of Customer, Alation shall: (i) return all Confidential Data to Customer, including but not limited to all paper and electronic files, materials, documentation, notes, plans, drawings, and all copies thereof, and ensure that all electronic copies of such Confidential Data are rendered unrecoverable from Alation’s (and where applicable, its Subcontractors’) systems; or (ii) if requested by Customer in writing, promptly destroy, delete and render unrecoverable all tangible and electronic instances of Confidential Data from Alation’s (and where applicable, its Subcontractors’) systems, all in accordance with the National Institute of Standards and Technology (NIST) Guidelines for Media Sanitization. If requested by Customer, Alation shall provide Customer with written confirmation of its compliance with the requirements of this Section.
5. Notification of Non-Compliance. If Alation is unable to comply with the obligations stated in this Exhibit, Alation shall promptly notify Customer, and Customer may take any one or more of the following actions: (i) suspend the transfer of Confidential Data to Alation; (ii) require Alation to cease processing Confidential Data; (iii) demand the secure return or destruction of Confidential Data; and/or (iv) immediately terminate this Agreement.
6. Verification. Alation shall make available to Customer such information reasonably necessary to demonstrate compliance with the obligations of this Exhibit A and all applicable laws, regulations, and international accords or treaties pertaining to Personal Data.
EXHIBIT B: SERVICE LEVEL AGREEMENT
Alation Cloud Target Uptime
Alation will use commercially reasonable efforts to make the Alation Cloud available with a target uptime of 99.5% during each calendar month for all production environments that have been paid for (“Target Availability”). The Target Availability will be calculated as follows:
(x - y - z) x = total number of minutes in a calendar month
___________________ x 100 y = downtime that is not excluded in minutes
z = exclusions from target availability in minutes
(x - z)
Exclusions from Target Availability
Alation will have no liability for payment of Service Credits (as defined below) or a failure to meet the Target Availability to the extent arising from:
Customer’s use of the Alation Cloud in a manner not authorized in the Agreement or the Documentation;
General internet problems or any events that are outside Alation’s control, including Force Majeure Events as described in Section 10.8 of the Agreement.
Issues impacting Customer’s equipment, including but not limited to software, connectivity, or any other infrastructure under Customer’s control;
Third party acts, or services and/or systems not provided by Alation;
Planned Maintenance or any maintenance required in an emergency situation.
“Planned Maintenance” is defined as any routinely scheduled maintenance Alation needs to perform on the Alation Cloud. Planned Maintenance will not exceed twenty (20) hours in any single calendar month. Alation will notify the Customer at least five (5) days before performing the Planned Maintenance and will use commercially reasonable efforts to perform the Planned Maintenance in blocks of six (6) hours or less, outside of business hours of the region the Alation Cloud is hosted in.
Service Credits
If there is a verified failure of the Alation Cloud to meet the Target Availability detailed above in any particular month and the Customer makes a request for a service credit within twenty (20) days after the end of the particular month in which the Alation Cloud failed to meet the Target Availability, Customer will be entitled to a credit based on the monthly portion of the annual fees due for the affected Alation Cloud services in such month (“Service Credit”) as Customer’s sole and exclusive remedy and Alations sole and exclusive liability for Alation’s failure to meet the Target Availability. The Service Credit will be calculated in accordance with the following table:
Uptime % | Service Credit (% of monthly fees) |
99.00% - 99.49% | 1% |
95.00% - 98.99% | 3% |
90.00% - 94.99% | 5% |
Upon verification of the Service Credit request, Alation will apply the verified Service Credit to Customer on the next invoice, provided that Customer does not have any outstanding undisputed Fees owed to Alation. Service Credits not claimed by Customer within twenty (20) days, as detailed above, will not be refunded to Customer. In the event Customer is entitled to a verified Service Credit and Customer is not renewing its subscription to the Alation Cloud, Alation will issue a refund equal to the value of the verified Service Credit. Service Credits in any month will not exceed 8% of the monthly Fees.
Non-production environments, including Trials, proof of concepts, Beta Versions, test or development environments, whether paid for or not, are not subject to this Service Level Agreement and do not have a target uptime against which Service Credits can be sought.
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MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
If you started your subscription before the version date displayed in this document, please review your terms at Alation Legacy Agreements.
Version: August 30, 2023
By accepting this Agreement through an Order or Statement of Work that incorporates it, you agree to follow and be bound by the terms and conditions as set out below. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions and, in such event, “Customer” as used in this agreement will refer to such entity.
This Master Software License and Services Agreement (“Agreement”) is entered into by and between Alation, Inc. (“Alation” or “Licensor”) and Customer and is effective as of the last signature date of an Order or Statement of Work (“Effective Date”). As used in this Agreement, “Party” means either Alation or Customer, as appropriate, and “Parties” means both Alation and Customer.
1.OVERVIEW AND USE OF THE ALATION SOFTWARE
1.1 Overview. This Agreement is a master agreement under which Customer may license the Alation Software and receive Support and Professional Services in respect of such Alation Software from Alation, as specifically set out in one or more Orders or Statements of Work. The capitalized terms in this Agreement are defined in Section 9 (“Definitions”) or otherwise defined in the body of this Agreement.
1.1.1 Orders and Statements of Work. Each Order and Statement of Work: (i) is subject to this Agreement; (ii) will be a part of this Agreement as if fully included within its body; and (iii) will set forth the Fees and Subscription Term for the Alation Software and/or Professional Services, and certain other terms applicable to such Alation Software and Professional Services. Absent the execution of an Order or a Statement of Work, this Agreement does not, in and of itself, represent a commitment by Customer to order any products or services from Alation. To become effective, an Order or a Statement of Work, and any modifications or amendments thereto, must be signed by an authorized representative of each Party.
1.2 License Grant. Subject to Customer’s compliance with this Agreement, including the timely payment of all applicable Fees, Alation hereby grants to Customer a limited, non-perpetual, non-exclusive, revocable, non-transferable license to Use the Alation Software together with the Documentation generally provided with it during the Subscription Term described in each Order, solely for Customer’s internal use and business purposes and subject to the Documentation (the “License”). The License includes Customer’s optional installation on computers owned or controlled by Customer of the Alation Agent.
1.3 Accountability. Customer is responsible for any activity occurring under its Named User accounts and will ensure that it and its Named Users abide by all local, state, national and foreign laws, treaties, and regulations applicable to Customer’s use of the Alation Software. Customer is solely responsible for any decisions made or actions taken in connection with its usage of the Alation Technology. Customer will: (i) not share (and will instruct each Named User not to share) such credentials with any other person or entity or otherwise permit any other person or entity to access or use the Alation Software; (ii) notify Alation promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) notify Alation promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Alation Software that is known or suspected by Customer or its Named Users; or (iv) not impersonate another Alation user or provide false identity information to gain access to or use the Alation Software.
1.4 Restrictions; Usage Limits and Monitoring.
a) Restrictions. Customer and its Named Users will not and will not allow any third party contractors delivering information technology services to Customer (“Third Party Agents”) to: (i) decompile, disassemble, decode, redesign, reverse engineer, or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of; (ii) translate, adapt, modify or create derivative works from; (iii) write or develop any program based upon; (iv) use for benchmarking or ‘service bureau’ purposes or in a manner that overburdens or that threatens the integrity, performance, or availability of, the Alation Software; (v) sell, sublicense, transfer, or otherwise assign or grant to any third party any rights in; (vi) allow access to unauthorized persons to; or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Alation Technology. Customer is fully responsible for its Third Party Agents’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by Customer.
b) Additional Users and User Reassignment. Each individual will be assigned a unique Named User identification that cannot be shared or used by more than one person. The number of Named Users and their user level will be specified in the applicable Order. Additional Named Users may be purchased pursuant to the Parties signing an Order and unless otherwise specified in the relevant Order, the Subscription Term of additional Named Users shall be coterminous with the Subscription Term in effect at the time the additional Named Users are added. Named User subscriptions may be reassigned to new Named Users replacing former Named Users who no longer require use of the Alation Software and unless otherwise specified in the relevant Order, the replacement Named User shall be under the same Subscription Term of the original Named User.
c) Usage Monitoring. Alation reserves the right to audit the number of Named Users and Customer usage on a quarterly basis. Customer agrees to provide reasonable assistance with such audits, which shall be as minimally invasive as possible. Customer may have certain usage limits as specified in the applicable Order, which, if exceeded, will subject Customer to increased Fees. Without limiting the foregoing and with two (2) days prior written notice, Alation has the right to remove any unauthorized users to the Alation Technology that Alation finds to be in violation of the number of Named Users specified under the applicable Order.
1.5 Proprietary Rights; Alation Intellectual Property. The Alation Technology is licensed and not sold. As between Alation and Customer, Alation hereby retains all right, title, and interest, including all intellectual property rights, in and to the Alation Technology, all copies and portions thereof, and all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights therein. As a condition of the License, Customer must retain all proprietary, copyright and other attribution legends on all copies of the Alation Technology. Customer agrees that Alation has the right to use in any manner and for any legal purpose any feedback or suggestions which Customer may choose to provide to Alation.
1.6 Personal Data. To the extent Alation processes any Personal Data on Customer’s behalf, it will do so according to the terms of the Alation Data Privacy Addendum available here: https://www.alation.com/online-dpa/ and incorporated by reference.
1.7. Usage Data. Alation may access and utilize log files and metadata derived from Customer’s use of the Alation Software to maintain and improve the Alation Technology, provided that such data is aggregated or otherwise anonymized and the Named Users will not be identified.
2. SUPPORT; PROFESSIONAL SERVICES
2.1 Support. Subject to Customer’s timely payment of all applicable Fees, during the Subscription Term Alation will provide Customer with the support services described at https://alation.com/tscs/support (“Support”).
2.2 Professional Services. Subject to Customer’s timely payment of all applicable Fees, Alation will provide to Customer the Professional Services, if any, identified on one or more Statement of Work or Order. Except as set out in an Order or in an Statement of Work, Customer is solely responsible for integrating the Alation Software with Customer’s systems and any other platform, add-on, service, code or product not provided by Alation. Nothing in this Agreement shall be understood to prevent Alation from providing similar Professional Services to other customers, as those Professional Services do not constitute ‘work for hire’ and instead are a derivative of the Alation Technology.
Together, Support and Professional Services are referred to as “Services”.
3. FEES; PAYMENT
3.1 Fees. Customer will pay Alation the non-refundable and non-recoupable (except as otherwise provided for herein): (i) fees for the Alation Software and Support set forth in any Order or Statement of Work (“Subscription Fees”); (ii) fees for the Professional Services set forth in any Order or Statement ofWork (“Professional Services Fees”); and (iii) all other mutually agreed upon fees set forth in any Order or Statement of Work (“Other Fees”), collectively the “Fees”. Failure to use the Alation Software or Services does not constitute a basis for refusing to pay any Fees.
3.2 Payment Term, Currency, Interest Rates. Payment term and currency will be as set out in the applicable Order or Statement of Work. For past due undisputed Fees, interest accrues from the payment due date at the greater of a rate of 1.5% per month or the highest rate allowed by law.
3.3. Dispute. Where the Customer disputes any amount invoiced in good faith, it will: (i) notify Alation as soon as reasonably practicable, however, not later than five (5) business days after receipt of the relevant invoice; (ii) pay the balance of the invoice that is not in dispute by the due date; and (iii) pay the balance and any interest as set out in Clause 3.2 above on sums found or agreed to be due within five (5) business days after resolution of the dispute.
3.4 Taxes. Alation’s Fees do not include any local, state or federal sales, use, excise, personal property, VAT, or other similar taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, which shall be borne and paid by Customer) (collectively, “Taxes”). Customer must pay all Taxes or other similar fees or duties arising out of this Agreement other than taxes based on Alation’s net income and will indemnify Alation for all expenses incurred as a result of Customer’s failure to timely pay such taxes. It is Customer’s responsibility to submit any relevant tax documents, including without limitation tax exemption certificates, at the time of execution of the applicable Order or Statement of Work and in any event no later than seven (7) days following such execution, in order for Alation to bill taxes accordingly.
3.5 Affiliate Orders. The Parties agree that Affiliates of Customer may execute its own Order or Orders with Alation, as mutually agreed by the parties. This will create a separate agreement between Alation and the Affiliate incorporating the terms of this Agreement whereby the Affiliate shall be deemed “Customer”. Neither Customer nor Customer’s Affiliate shall have any rights under each other’s agreement with Alation and a breach or termination of any such agreement will not result in a breach or termination of any other agreement.
4. TERM AND TERMINATION
4.1 Term. This Agreement will start on the Effective Date and will continue until terminated pursuant to Section 4.2 or 6.1(iv) below.
4.2 Termination. Either Party may terminate this Agreement by written notice if: (i) the other Party is in material breach of this Agreement (including non-payment), which is not cured within thirty (30) days after written notice of such breach is received; (ii) the other Party ceases to operate without a successor; (iii) the other Party seeks protection under bankruptcy or comparable proceedings; or (iv) the other Party makes an assignment for the benefit of its creditors, or takes similar actions.
4.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, Customer must cease use of the Alation Technology and: (i) all outstanding Orders, Statements of Work and the corresponding Licenses shall automatically and immediately terminate, Alation may disable access keys, and Customer will have no further rights to the Alation Technology; (ii) all outstanding payment obligations of Customer immediately become due and payable; and (iii) each Party must promptly return or certify the destruction of all tangible embodiments of the other Party’s Confidential Information. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.4(a) (Restrictions), 1.5 (Proprietary Rights), 3 (Fees; Payment), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Indemnification), 7 (Warranty Disclaimer), 8 (Exclusion of Certain Damages; Limitation of Liability), and 10 (General Provisions), as well as any other provisions which by their nature or context survive the termination of the Agreement.
5. CONFIDENTIALITY
5.1 Definition. “Confidential Information” means: (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as ‘confidential’, or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Alation Technology and the terms (but not the existence) of this Agreement are the Confidential Information of Alation. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
5.2 Limited Use; Protection. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to an obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party and will take at least those measures that it takes to protect its own most highly categorized confidential information.
5.3 Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, where permitted by law, promptly notify the Disclosing Party in writing and will, where permitted by law, reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy at the Disclosing Party’s expense. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
6. INDEMNIFICATION
6.1 IP Indemnification. Alation will indemnify, defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Alation Technology, as delivered to Customer and used as authorized in this Agreement and Documentation, infringes or misappropriates any U.S. patent, copyright or trade secret of any third party (“Infringement Claim”), and pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Alation; provided that Customer provides Alation: (a) prompt written notice of the Infringement Claim; (b) sole control over the defense and settlement of the Infringement Claim; and (c) all information and assistance reasonably requested by Alation in connection with the defense or settlement of, any such Infringement Claim. If any Infringement Claim is brought or, in Alation’s judgment, may be threatened, Alation may, at its sole option and expense: (i) procure for Customer the right to continue to use the applicable Alation Technology; (ii) modify the Alation Technology to make it non-infringing; (iii) replace the Alation Technology with non-infringing technology that is functionally equivalent to the Alation Technology; or (iv) if none of the foregoing is commercially practicable, terminate this Agreement upon written notice to Customer, and refund a pro rata portion of unused and pre-paid Fees for the outstanding balance of the then current Subscription Term.
6.2 Limitations. Notwithstanding Section 6.1, Alation will have no liability to Customer for any Infringement Claim arising out of or based upon: (i) use of the Alation Technology in combination with software, products, or services not provided by Alation; (ii) any modification of the Alation Technology not made or authorized in writing by Alation; (iii) Customer’s failure to use the Alation Technology in accordance with this Agreement or Documentation, or otherwise using the Alation Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Alation Software after Alation notifies Customer that continued use of such release may subject Customer to an Infringement Claim, if Alation provides a replacement release.
6.3 Disclaimer. This Section 6 states the entire liability and obligations of Alation and the sole and exclusive remedy of Customer with respect to any actual or alleged Infringement Claim.
6.4 Indemnification by Customer. Customer will: (i) indemnify, defend, or at its option settle, and hold Alation and its affiliates harmless against any and all claims brought against Alation and its affiliates by a third party relating to (a) any data provided or made available by or on behalf of Customer; and (b) Customer’s use of the Alation Technology other than pursuant to this Agreement; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Alation provides Customer: (x) prompt written notice of; (y) sole control over the defense and settlement of (except that Customer may not settle any claim against Alation unless it unconditionally releases Alation of all liability); and (z) all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such claim.
7. WARRANTY DISCLAIMER
7.1 Warranty. Alation represents and warrants to Customer that for a period of sixty (60) days following delivery of the respective license keys for the Alation Software, the Alation Software will materially function in accordance with the applicable Documentation (“Software Warranty”). Customer’s sole and exclusive remedy for breach of this Software Warranty will be for Alation to provide the Support in accordance with Section 2.1. above; provided however in the event of a Severity P1 or P2 error, if Alation fails to actively provide Support to solve for the error for a consecutive thirty (30) day period (where such failure to provide active Support is not caused in whole or in part by the actions or inactions of the Customer or a third-party), Customer’s sole and exclusive remedy and Alation’s sole and exclusive liability will be to terminate this Agreement and Alation will refund a pro-rata portion of unused and pre-paid Subscription Fees for the outstanding balance of the Term.
7.2 Disclaimer. Except as expressly set forth in this Agreement, the Alation Software, Documentation, Support and Professional Services are provided “as-is” without representation or warranty of any kind, whether express, implied or statutory. Alation hereby disclaims any and all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from conduct or course of dealing. Alation does not warrant that the Alation Technology will be error-free or will work without interruptions, and Customer relies on the Alation Technology at Customer’s own risk. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances and, accordingly, the limitations set forth above apply to the maximum extent permitted by applicable law.
7.3 Beta Versions and Trials. Alation may invite Customer to participate in Trials and to access any Beta Versions and Customer may, at its own discretion, accept or decline participation in any such Trial or access to Beta Versions. Trials and Beta Versions are for evaluation purposes only and not for production use and may be subject to additional terms. Alation is under no obligation to maintain, support, update, or provide error corrections for the Trials or Beta Versions. Any and all Trials and Beta Versions that Alation makes available to Customer are provided wholly “AS-IS” and Alation disclaims any and all warranties, liabilities, claims, losses and/or damages arising out of or in connection with Customer’s Trials or use of Beta Versions. Alation’s liability for Trials and Beta Versions will not exceed 50 USD (fifty United States dollars).
8. EXCLUSION OF CERTAIN DAMAGES; LIMITATION OF LIABILITY
8.1 No Consequential Damages. In no event will either Party be liable for any indirect, special, incidental, exemplary, punitive, treble or consequential damages (including, without limitation, loss of business, revenue, profits, goodwill, data or other economic advantage) arising out of or relating to this Agreement, however caused and based on any theory of liability, whether breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if the other Party is advised of the possibility of such damages.
8.2 Liability Cap. Each Party’s total liability (including attorneys’ fees) arising out of or related to this Agreement will not exceed the amount paid by Customer to Alation under this Agreement during the twelve (12) month period prior to the date the claim arose.
8.3 Excluded Claims. The foregoing limitations under this Section do not apply to (i) Customer’s breach of sections 1.2 (License Grant) or 1.4(a) (Restrictions); (ii) Alation’s indemnification obligations under Section 6.1 or Customer’s indemnification obligations under Section 6.4; (ii) damages arising out of a breach of the other party’s intellectual property rights; (iii) damages arising out of a Party’s gross negligence or willful misconduct; (iv) breach of applicable laws; or (v) any other liability that cannot be excluded under applicable law.
8.4 Further Limitations. The limitations under this Section 8 will apply regardless of the form or action and even if any limited or exclusive remedy in this Agreement fails of its essential purpose. Neither Party may bring a claim or action regardless of form, arising out of this Agreement, more than twelve (12) months after the claim or cause of action arose.
9. DEFINITIONS
These words and expressions will mean the following:
“Agreement” means this Master Services Agreement together with any applicable Orders, Statements of Work and any exhibits, appendices, schedules, or attachments, and any amendments attached hereto or hereafter attached by mutual written agreement of the parties (all of which are incorporated herein by reference).
“Affiliate” means any entity directly or indirectly controlled or owned by a party where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Alation Software” means the then available Alation data intelligence on-premises software identified in the relevant Order, as updated from time to time, with the features and functionality described in the Documentation. The Alation Software excludes any platform, add-on, service, code or product not provided by Alation.
“Alation Technology” means, collectively, the Alation Software, Documentation, Alation Agent and Alation’s Confidential Information (as defined in Section 5), as applicable.
“Beta Versions” mean Alation’s services or functionality that are not generally made available which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Creator” means a Named User that may generate content, curate data elements, run queries, configure the Alation Software, and manage other Named User accounts.
“Documentation” means, without limitation, the end user manuals, operation instructions, installation guides, release notes and online help files regarding use of the Alation Software, as provided to Customer and which may be revised from time to time.
“Explorer” means a Named User that may do everything a “Viewer” can do, use query forms in Alation Software, and use Connected Sheets to search, browse, filter and download data.
“Named User” means a specific Customer’s employee or contractor authorized by Customer to use the Alation Software, regardless of whether such Named User is using the Alation Software at any given moment, and includes Creators, Explorers and Viewers.
“Order” or “Statement of Work” means an ordering document specifying the products and services to be provided hereunder that is entered into between Customer and Alation or any of their Affiliates, including any addenda and supplements thereto.
“Personal Data” means any information relating to an identified or identifiable natural person, as further defined in applicable laws.
“Professional Services” means the professional services provided by Alation to assist Customer in Using the Alation Software, as identified in an Order or Statement of Work. “Subscription Term” means the term of the License as described in the Order.
“Trial” means Customer’s internal evaluation of Alation Software functionalities made available by Alation during the period designated by Alation (or, if silent, fifteen (15) days). “Updates” means, without limitation, updates, bug fixes, version improvements and error corrections for the Services to the same extent it does so for its customers generally.
“Use” means that Customer may install on computers owned or controlled by Customer, run, access or otherwise interact with one each of production, backup, test and development instances of the Alation Software in accordance with the Documentation, by up to the number of Named Users to which Alation provides license keys.
“Viewer” means a Named User that may benefit from the occasional ability to search and browse datasets and collaborate through the Alation Software.
10. GENERAL PROVISIONS
10.1 Notices. Any required notice must be given in writing by customary means with receipt confirmed at the address of each Party indicated in the Order or Statement of Work or by electronic transmission. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, three days after deposit in the Party’s local mail, or upon acknowledgment of receipt of electronic transmission.
10.2 Entire Agreement. This Agreement (together with the Exhibits, Orders and Statements of Work hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The headings herein are inserted for convenience and will not affect the interpretation of this Agreement. In the case of conflict, the following order of precedence applies: first, this Agreement, second, Order(s) and third, Statements of Work, provided that if an Order or an Statement of Work, by its explicit terms, states that it is intended to supersede an identified provision of this Agreement, it then shall so supersede.
10.3 Amendments. Except as otherwise provided herein, any amendment to this Agreement will only be valid if it is in writing and signed by a duly authorized representative of each Party. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Alation to object to such terms.
10.4 Assignment. Neither Party will assign or transfer any part of this Agreement without the prior written consent of the other Party, except in the case of an assignment due to corporate reorganization, change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions by either Party, which may occur without written consent. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
10.5 Waiver; Severability. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable, or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.
10.6 Relationship of the Parties. The relationship between the Parties is of independent contractors. The Agreement doesn’t create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.7 Publicity. Alation may reference Customer’s name, branding, and logo in Alation’s marketing materials and as part of its sales presentations to other potential customers.
10.8 Force Majeure. Except for the obligation to pay Fees, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, pandemics, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts including restrictions, epidemics, pandemics, hacker attack, or failure of the Internet (each a “Force Majeure Event”). The Party suffering a Force Majeure Event will give the other Party written notice of such a Force Majeure Event and will use reasonable efforts to mitigate against the effects of such Force Majeure Event. In the event a Party suffers a Force Majeure Event that lasts longer than ninety (90) continuous days, the other Party may terminate the Agreement or an Order Form immediately upon written notice.
10.9 Open Source. The Alation Software may incorporate third-party open source software (“OSS”), as set out in the Documentation or provided upon request. Customer’s use of the Alation Software in compliance with the terms of this Agreement will not require Customer to comply with the terms of the OSS licenses.
10.10 Compliance with Laws and Export Control. Each Party will comply with all applicable laws and government regulations, including, if applicable, the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using Alation Technology. Without limiting the foregoing, (i) each Party represents that is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that Named Users do not, violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement.
10.10.1 Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restrictions.
10.11 Governing Law. This Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Mateo County and the federal courts located in the City and County of San Francisco, California. If either Party breaches or threatens to breach the provisions of Sections 1.2, 1.3, 1.4 or 5, each Party agrees that the non-breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
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