DREMIO SUBSCRIPTION AGREEMENT

This Dremio Subscription Agreement (this “Agreement”) is made and entered into between Dremio Corporation, a Delaware corporation, with its principal place of business at 3970 Freedom Circle #110, Santa Clara, CA 95054, USA (“Dremio”) and the individual or entity signing or electronically accepting this Agreement, or any Order that references this Agreement (“Customer”). This Agreement is entered into on the earlier of, (a) Customer clicking “Agree” or “Yes” to the terms of this Agreement to gain initial access to, or use of, the Software, (b) Dremio and Customer agreeing to an Order Form referencing this Agreement, or (c) Customer is given access to the Software (“Effective Date”).

1. DEFINITIONS

“Acceptable Use Policy” means the acceptable use policy governing use of the Software, made available at https://www.dremio.com/legal, as may be updated by Dremio from time-to-time.

“Acceptance” of an Order Form shall occur at the earliest of the following: (a) execution of an Order Form, (b) reference to an Order Form Quote No. within a purchase order or similar document, or (c) the use of Software.

“Additional Terms” are separate terms and conditions governing Customer’s access to and use of certain (a) features in the Software or (b) Support Services available for purchase, including those attached hereto as an Appendix(ces).

“Affiliate” means any entity(ies) controlling, controlled by, and/or under common control with a party hereto, where “control” means the legal power to direct or cause the direction of the general management of the entity or the ownership of more than 50% of the voting securities in such entity.

“Appendix” are inclusions in this Agreement that state the terms by which Software is offered to Customer. The Appendices shall be considered part of the Agreement.

“Authorized Partner” is a reseller or distributor that is enabled and authorized to sell Software and/or Professional Services.

“Authorized Users” means Customer’s employees and authorized agents and service providers, in each case who are permitted to access and use the Software on behalf of Customer in accordance with this Agreement.

“Community Edition Software” means the publicly available, community-developed open-source software and components which may be provided with the Software. Community Edition Software is provided as Free Software (as defined herein).

“Contractors” are defined as third parties that Customer has engaged to manage, or otherwise use the Software, solely on behalf of Customer.

“Controlled Subject Matter” is the Software or any software or anything related thereto or any direct product thereof, collectively.

“Customer Content” means all Customer Data and Customer Results.

“Customer Data” means the data residing in Customer’s data lakes or otherwise Customer’s control and made available by Customer or its Authorized Users for processing within Dremio Cloud or in connection with Support Services or Professional Services.

“Customer Records” collectively means books, records, contracts and accounts relating to the payments due to Dremio under this Agreement.

“Customer Support” means technical support of the Software provided by Dremio.

“Dependencies List” means the list available at https://docs.dremio.com/software/release-notes/dependencies/ of third-party software found in the Software. 

“Designated National” is any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.

“Documentation” means end-user documentation for the Software as made available to Customer, or as published by Dremio at https://docs.dremio.com/, as may be updated from time-to-time. 

“Effective Price” means the actual price paid by Customer (List Price minus any applicable discount(s)) as set forth on an Order Form.

“Embargoed Countries” refers collectively to countries to which the United States maintains an embargo. 

“Enterprise” means the organization, company, corporation and/or other type of entity which procures the Software to be used on its behalf pursuant to the terms of this Agreement.

“Fees” are those fees set forth within the Order Form.

“Free Software” means a feature-limited version of Software provided to a Customer, User, end user, partner, or any other third party at no (or a greatly reduced cost) including but not limited to, the lowest and middle (Community Edition or “CE”) tier offering of Software as made available by Dremio.

“Individual” means a person who uses the Software on their own behalf, and not an Enterprise. An Individual must be over the age of thirteen (13) years old.

“List Price” means the list price of the Dremio Software excluding (if applicable) any discount(s) set forth in an Order Form.

“Order Form” is a transactional document agreed to between the parties which states the node licenses to the Software and/or Support Services being purchased, term of use, price, and other applicable transaction details. For the avoidance of doubt, the parties acknowledge and agree the terms and conditions stated within this Agreement and an executed Order Form shall govern with respect to all matters contemplated herein.

“Purchase Order” is a Customer’s processing document, or similar record, which is used by Customer to demonstrate internal approval and /or record of a purchase. Any terms stated within a Purchase Order shall be null and void and are expressly rejected by the parties.

“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 partner, and (b) any updates, upgrades and/or new releases thereto that Dremio or its authorized partner 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).

“Subscription” refers to the applicable services, support and function(s) of the Software as provided.

“Subscription Start Date” is, unless otherwise agreed to in writing, the start date stated on an Order Form, or, the date in which Customer is given access to the Software (whichever is later), regardless if such purchase is direct with Dremio or via an Authorized Partner.

“Subscription Term” is the term of the license during which Customer is authorized to use the Software pursuant to the terms set forth in this Agreement, which shall begin on the Subscription Start Date and continue for twelve (12) months, unless the term length is otherwise agreed to in an Order Form.

“Support Policy” means Dremio’s then-current support policy available at www.dremio.com/support-policy. 

“Support Services” means additional capacity, functionality, storage and/or other elements that Customer may procure separately for additional Fees. Support Services may be purchased by Order Form. Support Services will be: (i) provided as a separate line item in an Order Form, and (ii) co-termed to the underlying Subscription Term if not purchased on the Subscription Start Date.

“System” means any application, operating systems, computer or storage device, or network.

“Third-Party Code” means certain third-party software components, including Open-Source Components, as set forth in the Dependencies List.

“Updates” means error corrections, bug fixes, enhancements, upgrades, updates, improvements, modification, extensions and other changes that Dremio may, from time to time, develop and implement into the Software.

“Usage Data” means usage, telemetry and other data relating to the provision, use and performance of various aspects of the Software (including, without limitation, information concerning queries entered by Authorized Users; but excluding, for the avoidance of doubt Customer Content) that Dremio may collect and analyze.

“Website” means Dremio’s website located at www.Dremio.com and all subdomains, and all content, services, documentation provided on the Website.

2. SCOPE OF AGREEMENT; ADDITIONAL TERMS

2.1 This Agreement establishes a framework that will enable Dremio to provide Customer with the Software. Software is provided as part of a Subscription. As applicable: (i) Software provided as a managed offering (Dremio Cloud), shall be subject to the attached Dremio Cloud Appendix, in addition to the terms contained herein; and/or (ii) Software provided as a self-managed solution, shall be subject to the attached Dremio Software Appendix, in addition to the terms contained herein.

2.2 Additional Terms will apply to certain features or Support Services that Customer accesses, uses, enables or otherwise purchases, including the provision of artificial intelligence functionality. If there is any conflict between this Agreement and Additional Terms with respect to such features or Support Services, the Additional Terms will control.

2.3 Subject in each case to Dremio’s approval, the benefits and the rights granted to Customer under this Agreement may be extended by Customer to its Affiliates; provided that Customer and each Affiliate will be jointly and severally responsible and liable for the actions and omissions of the Affiliate (including, without limitation, any payment obligation).  Without limiting the foregoing, Dremio reserves the right to refuse to execute an Order Form with any Affiliate of Customer, in Dremio’s reasonable discretion, including based on the Affiliate’s creditworthiness or financial capabilities.

3. ORDERING PROCESS

3.1 This Agreement applies to Software that Customer licenses directly from Dremio, a Dremio Affiliate, or from an Authorized Partner. For the avoidance of doubt, in the event Customer purchases from an Authorized Partner, Dremio shall have no obligations to Customer with respect to any terms and conditions outside of this Agreement, unless otherwise agreed to in writing between Customer and Dremio.

3.2 Unless otherwise agreed to between Customer and Dremio in writing, the terms of this Agreement shall govern any and all use of the Software. Purchases of Software may take place by either executing an Order Form with Dremio or a Dremio Affiliate; or purchase from an Authorized Partner.

3.3 Dremio and Customer acknowledge and agree that Free Software may be: (i) modified and/or updated, without notice, and (ii) limited in functionality, features, maintenance, support and contain other limitations not present in other versions of the Software. NOTWITHSTANDING THE “WARRANTY” AND “INDEMNIFICATION” SECTIONS BELOW, FREE SOFTWARE AND SOFTWARE OFFERED ON A TRIAL BASIS (AS STATED IN AN ORDER FORM) ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND DREMIO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO SUCH FREE SOFTWARE UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE DREMIO’S LIABILITY WITH RESPECT TO SUCH FREE SOFTWARE SHALL NOT EXCEED ONE THOUSAND DOLLARS AND 00/100 ($1,000.00) USD.

4. TERM AND TERMINATION

4.1 The Agreement commences on the Effective Date and continues in full force and effect for so long as there is any Order Form in effect, or until otherwise terminated in accordance with this Section 4.

4.2 A Subscription Term shall begin as of the Subscription Start Date and remain in effect for the term length as indicated on the Order Form (the “Initial Term”) and automatically renew for successive terms of the same length as the Initial Term (each a “Renewal Term”) and for the same number of Software licenses and Support deployed by Customer at the end of the most recent Subscription Term, unless either party gives notice of its intention not to renew at least thirty (30) calendar days prior to the expiration of the current Subscription Term, or as otherwise agreed to between the parties. 

4.3 Either party may terminate this Agreement and any Order Form executed between the parties if: (a) the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after written notice; or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

4.4 If: (i) Customer breaches the terms of Section 6, (Payment of Fees); or (ii) Dremio reasonably believes that Customer is infringing on Dremio’s Intellectual Property, Dremio may, in its sole discretion: (a) suspend delivering Subscriptions until the breach is remedied; or (b) avail itself of any other remedy under this Agreement, including terminating this Agreement under Section 4.3.

4.5 Unless otherwise stated herein, termination of this Agreement shall not affect any Subscriptions currently being delivered and this Agreement shall remain in full force and effect until the expiration of the then-current Subscription Term. In the event this Agreement is terminated by Customer in accordance with Section 4.3, Dremio will refund Customer any prepaid Fees for the prorated portion of unused Subscription Term. If this Agreement is terminated by Dremio in accordance with this Section 4.3, Customer will pay (if applicable) any unpaid Fees covering the remainder of the Subscription Term of all Order Forms, which, for the avoidance of doubt, shall include any additional periods in a multi-year deal, to the extent permitted by applicable law. For the avoidance of doubt, in no event will termination limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer of its obligation to pay any Fees payable to Dremio for the period prior to the effective date of termination. The terms and conditions of this Agreement will apply to any Renewal Term(s) provided that, unless otherwise set forth in an Order Form or other written agreement between the Parties, Dremio’s then-current List Price will apply to any such Renewal Term(s). Dremio reserves the right to increase fees for any Renewal Term(s) (including on auto-renewals) with respect to its products and services, including the Software and Support Services.

4.6 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 in writing to Dremio. In addition to any rights that accrued prior to termination, the provisions of Sections 3.3, and 5 through 15 shall survive any termination of this Agreement.

5. RESTRICTIONS AND RESPONSIBILITIES

5.1 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 will not, and will not permit any third party to:

5.2 Customer will comply with all applicable data privacy and security laws and shall have appropriate technological, administrative, and physical controls in place to ensure compliance with same. Customer acknowledges that Dremio may develop and implement Updates, which will be deemed part of the Software.

5.3 In accordance with this Agreement, Dremio has the right to verify electronically (or otherwise), and generate, or require Customer to generate and provide, reports related to Customer’s installation of, access to, and use of the Software throughout the term of the Agreement to ensure compliance with the terms of this Agreement. Customer shall maintain Customer Records during the term of this Agreement and for two (2) years thereafter. Dremio may, upon ten (10) business days’ prior written notice to Customer and during Customer’s normal business hours and subject to industry-standard confidentiality obligations, designate an auditor to audit the Customer Records only to verify the amounts payable under this Agreement with respect to Customer usage of the Software. If an audit reveals underpayment, Customer shall promptly pay: (i) the deficiency to Dremio at the prices previously agreed to for such Software commencing on the date set forth in the Order Form for the properly licensed Software; (ii) late fees pursuant to Section 6; and (iii) the reasonable costs of performing the audit.

5.4 Customer will be responsible for the following:

5.5 Subject to this Agreement and the applicable Order Form, Dremio will provide Customer Support to Customer for the Subscription, during the Subscription Term. Details regarding Customer Support can be found at https://support.dremio.com/hc/en-us, as updated from time to time.

5.6 The Software may contain or be provided together with Third-Party Code. Copyrights to any Third-Party Code are held by the copyright holders indicated in the Dependencies List, Documentation or the applicable license, help, notice, “about” or source files.  Third Party Code may be subject to additional or different license terms, as set forth in the Dependencies List. Any fees charged by Dremio in connection with the Software do not apply to any Open-Source Components for which fees may not be charged under their applicable open-source licenses.  With respect to each Open-Source Component, (a) to the extent there are any conflicts between any terms of this Agreement and any terms of the respective open source license (as may be found either in the Software documentation or the applicable help, notices, “about” or source files), which the open source license does not permit, such conflicting terms of this Agreement will not apply; (b) to the extent expressly required by the respective open source license, the terms of such open source license will apply to such Open Source Component in lieu of the terms of this Agreement; and (c) to the extent the terms of the respective open source license entitle the Customer to receive a copy of the source code of such Open Source Component, that source code may be available from Dremio upon Customer’s request (a nominal fee may be charged by Dremio for processing such request). Dremio may, in its sole discretion, designate any portion of the Software as licensed by Dremio under an open-source license. In such case, the license grants and restrictions in this Agreement shall not be construed to limit Customer’s independently granted rights in such portion of the Software, taken separately from the remainder of the Software.

5.7 Customer acknowledges and agrees that Dremio reserves the right to remove, rename, or close inactive accounts at its discretion. In the event Customer violates the terms set forth in this Section 5, upon written notice to Customer, Dremio shall have the right to immediately terminate the Subscription and this Agreement.

5.8 To the extent set forth in the applicable Order Form, Dremio will provide Customer with maintenance and support services pursuant to Dremio’s then-current Support Policy during the License Term specified in the applicable Order Form. Customer acknowledges that the successful and timely provision of the Support Services requires the Customer’s compliance and adherence to the requirements included in this Agreement, the Documentation, or applicable Order Form, as well as its good faith cooperation, including by making available such personnel and information as may be reasonably requested by Dremio.  Dremio will not be liable for any failure to provide the Support Services that arises from Customer’s failure to cooperate with Dremio as set forth above. Customer acknowledges and agrees that the service levels included in the Support Policy are performance targets only and any failure of Dremio to meet any service level will not result in any breach of this Agreement or any payment or liability of Dremio to Customer.

6. PAYMENT OF FEES

6.1 With respect to purchases direct from Dremio, the Order Form shall: (i) reference this Agreement; (ii) state the Subscription Term(s) and Subscription(s) that are being purchased; and (iii) state the Fees due for the applicable Subscription(s).

6.2 With respect to purchases direct from Dremio, such Order Form is hereby incorporated into this Agreement by reference. The parties hereby agree to the terms and conditions stated within this Agreement and those found within an Order Form to the exclusion of all other terms. The parties agree that: (i) all terms stated within a Purchase Order, or other similar document, shall be null and void and are expressly rejected by Dremio; and (ii) the issuance of a Purchase Order shall be without limitation to Dremio’s right to collect Fees owing hereunder.

6.3 With respect to purchases direct from Dremio, Customer will pay Dremio the applicable Fees without any right of set-off or deduction. Customer will reimburse Dremio for all reasonable travel and other related expenses incurred by Dremio in its performance of Support Services, provided, however, that such expenses will have been pre-approved by Customer. All payments will be made in accordance with the payment details stated within the applicable Order Form. If not otherwise specified: (i) Dremio (or applicable Dremio Affiliate) will invoice Customer for the Fees upon the Acceptance of an Order Form; and (ii) all Fees will be due and payable within thirty (30) days of Customer’s receipt of an invoice. Except as expressly set forth in this Agreement, all Fees paid or due hereunder (including prepaid amounts) are non-refundable, and no credit will be due, including without limitation if this Agreement is terminated in accordance with Section 4 herein.

6.4 If Customer believes that Dremio has billed Customer incorrectly, Customer must contact Dremio in writing no later than thirty (30) days after receipt of the first billing statement in which the alleged error or problem appeared. Should Dremio, in its’ sole discretion, determine that Customer was billed incorrectly, Dremio shall issue Customer an adjustment or credit to correct the issue. Any unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of any and all taxes or duties, now or hereafter imposed by any governmental authority, including, but not limited to any national, state or provincial tax, sales tax, value-added tax, property and similar taxes, if any. Fees under this Agreement shall be paid without any withholding or deduction. In the case of any deduction or withholding requirements, Customer will pay any required withholding itself and will not reduce the amount to be paid to Dremio on account thereof.

7. CONFIDENTIALITY

7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information”). Such Confidential Information shall be either: (i) identified as confidential at the time of disclosure; or (ii) the nature of such information and/or the manner of disclosure are such that a reasonable person would understand it to be confidential. Without limiting the foregoing, and subject to applicable open-source license(s), the Software is considered Dremio Confidential Information.

7.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information; (ii) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement; and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.

7.3 The Disclosing Party agrees that Section 7.2 will not apply with respect to any information for which the Receiving Party can document: (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

7.4 The parties’ obligations with respect to the protection of Confidential Information shall remain in force for a period two (2) years following the receipt of such Confidential Information and shall survive any termination or expiration of this Agreement.

7.5 Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party, when legally possible, reasonable prior notice of such disclosure to allow the Disclosing Party, at Disclosing Party’s cost, a reasonable opportunity to request confidential treatment or a protective order pertaining thereto prior to Receiving Party making such disclosure.

7.6 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of this Section 7 and that such party will be entitled to seek specific performance or injunctive relief (without the necessity of posting a bond) in the event of any such breach. Any such relief will be in addition to, and not in lieu of, any other remedies available to Dremio, including, but not limited to, monetary damages.

7.7 Both parties will have the right to disclose Confidential Information in connection with: (i) a required filing to a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order), or (ii) disclosures made to potential investors or acquirers, provided that at all times the Confidential Information shall be protected in a manner no less stringent as set forth in this Section 7.

7.8 Dremio may collect and analyze Usage Data from the Customer. Dremio will be free (during and after the Term hereof) to use Usage Data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with Software and other Dremio offerings. Notwithstanding the foregoing, Dremio will not identify Customer to any third-party (other than a third-party providing services to Dremio who agrees in writing to terms at least as restrictive regarding the use of Usage Data as those set forth herein) as the source of any such data without Customer’s prior written consent.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 Subject to the terms and conditions of this Agreement, Dremio hereby grants to Customer and its Affiliates, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable license for Customer’s and its Affiliates’ to: (a) 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; (b) install, integrate and implement the Software or have third parties do so for Customer; and (c) make a reasonable number of additional copies of the Software and Documentation solely for archival and emergency back-up purposes. With respect to any and all copies of the Software and Documentation, Customer shall ensure that each copy contains all trademarks and copyright or other proprietary rights notices. All such copies will be subject to the terms and conditions of this Agreement. Customer will comply with all applicable laws and regulations in connection with its use of the Software.

8.2 Except as expressly set forth herein, Dremio (and its licensors, where applicable) will retain all interest, title and intellectual property rights relating to the Software, Documentation, materials developed or provided by Dremio in the course of performing Support Service, and any suggestions, ideas, features, functionality, performance, enhancement requests, feedback, or other recommendations provided by Customer, its Affiliates, users or any third party relating to the Software (herein referred to as “Feedback Materials”), which are hereby assigned to Dremio, and Dremio will be free to use and incorporate such recommendations into the Software without any obligation to account to Customer. For the avoidance of doubt, Feedback Materials shall not include Customer Confidential Information or intellectual property owned by Customer. This Agreement does not constitute a sale of the Software, is provided on a non-exclusive basis, and does not convey to Customer any rights of ownership in or related to the Software or any other intellectual property rights. Customer further acknowledges and agrees that certain parts of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of Dremio and its licensors. Nothing in this Agreement will limit in any way Dremio's right to develop, use, license, create derivative works of, or otherwise exploit the Software, Documentation or any materials developed or provided by Dremio in the course of performing Support Services, or to permit third parties to do so.  Provided it does not identify Customer, Dremio will be free to use for development, diagnostic and corrective purposes any data and information it collects from Customer relating to diagnosis, problems, performance, use or functionality of the Software.

8.3 Customer shall not remove, alter or obscure any of Dremio’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Dremio’s (or its licensors’) ownership or contribution from the Software.

8.4 Subject to Section 8.5, Customer represents it shall be responsible for, and retain all right, title, and interest in and to, Customer Content, subject to a limited license to Dremio necessary for Dremio’s provision of the Software and its development and improvement. As between Customer and Dremio, Customer owns and will retain all right, title and interest in and to the Customer Data.  Customer hereby grants to Dremio a worldwide, non-exclusive, royalty-free, fully paid-up license, during the Term, to access, reproduce, store and process Customer Data in any manner reasonably necessary to operate Dremio Software or to perform Support Services for Customer.

8.5 If Customer applies a license to publicly available Customer Content within the Software, Customer (i) licenses that Customer Content under the terms of the applicable license; and (ii) represents that Customer has sufficient rights in that Customer Content to do so.

8.6 Customer grants to Dremio the right to use Customer’s company name and logo in marketing and promotional materials, subject to Customer’s brand and trademark guidelines as provided to Dremio from time to time.

9. WARRANTY

9.1 During the Subscription Term, Dremio represents and warrants that: (i) it has the authority to enter into this Agreement, (ii) the Software shall be provided in a professional and workmanlike manner by qualified personnel; and (iii) it will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Software (not caused by Customer or its Authorized Users).

9.2 If at any time Dremio fails to comply with the warranties in this Section 9, Customer may promptly notify Dremio in writing of any such noncompliance. Dremio will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected, or if a reasonably acceptable plan for correcting the non-compliance is not established during such period, Dremio may terminate this Agreement and provide Customer with a prorated refund for the unused portion of the Subscription Term as its sole and exclusive remedy for such noncompliance.

9.3 Dremio does not warrant that: (i) the Software will meet Customer’s requirements; (ii) 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); (iii) the operation of the Software will be uninterrupted or error-free; or (iv) all Software errors will be corrected.

9.4 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SUPPORT SERVICES AND CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. DREMIO AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT RELIED UPON ANY OTHER TERM, CONDITION, REPRESENTATION OR WARRANTY, MATTER, STATEMENT OR CONDUCT IN ENTERING THIS AGREEMENT.

10. INDEMNIFICATION

10.1 Dremio will defend Customer from any claim, demand, suit or proceeding made or brought against Customer by a third party alleging the Software (excluding Free Software as set forth in Section 3.3) provided by Dremio infringes or misappropriates such third party’s U.S. patent, copyright, trademarks, or trade secrets (a “Customer Claim”). Dremio will indemnify and hold Customer harmless from any damages, reasonable attorneys’ fees and costs finally awarded against Customer as a result of a Customer Claim, or for amounts paid by Customer under a settlement approved (in writing) by Dremio, provided Customer: (i) promptly notifies Dremio in writing of the Customer Claim; (ii) gives Dremio all reasonable assistance at Dremio’s expense; and (iii) gives Dremio sole control over defense and settlement thereof except that Dremio may not settle any Customer Claim unless it unconditionally releases Customer of all liability. The foregoing obligations do not apply if: (u) the Customer Claim arises from Software or any part thereof that is modified by Customer, or at Customer’s direction, after delivery by Dremio; (v) the Customer Claim arises from the use or combination of the Software or any part thereof with other products, processes or materials not provided by Dremio where the alleged infringement relates to such combination; (w) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (x) the Customer Claim arises from software not created by Dremio; (y) the Customer Claim results from Customer’s breach of this Agreement, the Documentation, and/or applicable Order Forms; or (z) the public open-source version of Apache Arrow, if the claim does not allege with specificity that the infringement or misappropriation arises from the Software (as opposed to Apache Arrow itself). Notwithstanding the foregoing, in the event of a Customer Claim, Dremio, at its discretion, option and expense, reserves the rights to: (a) modify the Software to make it non-infringing provided there is no material loss of functionality; (b) settle such claim by procuring the right for Customer to continue using the Software; or (c) if in Dremio’s reasonable opinion neither (a) or (b) are commercially feasible, terminate the license to the Software and refund a pro-rata portion of the amount paid by Customer for such Software for the unused portion of the Subscription Term.

10.2 Customer will defend Dremio, its Affiliates, officers, directors and employees against any claim, demand, suit or proceeding made or brought against Dremio by a third party alleging: (i) that any Customer Content or Customer’s use of Customer Content with the Software or any software (or combination of software) provided by Customer and used with the Software, infringes or misappropriates such third party’s intellectual property rights, or (ii) arising from Customer’s use of the Software in an unlawful manner or in violation of the Agreement, the applicable documentation, or Order Form (each a “Dremio Claim”). Customer will indemnify Dremio from any damages, reasonable attorneys’ fees and costs finally awarded against Dremio as a result of, or for any amounts paid by Dremio under a settlement approved (in writing) by Customer of a Dremio Claim, provided Dremio: (x) promptly gives Customer written notice of the Dremio Claim, (y) gives Customer sole control of the defense and settlement of the Dremio Claim (except that Customer may not settle any Dremio Claim unless it unconditionally releases Dremio of all liability), and (z) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Dremio Claim arises from Dremio’s breach of this Agreement and/or applicable Order Form. 

10.3 This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any third-party claim described in this section.

11. LIMITATION OF LIABILITY

11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DREMIO OR ITS LICENSORS’ BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, LOSS OF OR DAMAGE TO REPUTATION, LOSS OF OR DAMAGE TO ANY PROPERTY OR MATERIALS, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF ANTICIPATED PROFITS, LOST BUSINESS, GOODWILL, OR LOST SALES, OR ANY CLAIM BASED UPON A THIRD PARTY CLAIM, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, THE SUPPORT SERVICES, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

11.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF DREMIO AND ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY CUSTOMER OR ITS AFFILIATES HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT LIMIT CUSTOMER’S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “PAYMENT OF FEES” SECTION ABOVE.

12. U.S. GOVERNMENT MATTERS

12.1 Notwithstanding anything else, Customer acknowledges that Controlled Subject Matter is subject to trade control laws and regulations, including the U.S. Export Administration Regulations (“EAR”) and various sanctions programs administered by the U.S. Office of Foreign Assets Control (“OFAC”). Customer shall not export, re-export, or transfer the Controlled Subject Matter except as authorized by these laws and regulations.

12.2 Without limiting the foregoing, Customer shall not export, re-export, or transfer the Controlled Subject Matter to i) to any Embargoed Country or region, ii) to any party identified on or subject to the limitations of OFAC’s Specially Designated Nationals List, the Bureau of Industry and Security’s Entity, Unverified, or Denied Persons Lists, or iii) for any end use or end user prohibited by 15 C.F.R. 744, including, without limitation, proliferation activities relating to nuclear, missile, or chemical and biological weapons.

12.3 Use of the Software is representation and warranty that the Customer, Customer personnel, or Contractors are not located in, under the control of, or a national or resident of an Embargoed Country or a Designated National.

12.4 As defined in FAR section 2.101, any software and documentation provided by Dremio are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

13. FORCE MAJEURE

13.1 Dremio and Customer will not be liable for any default or delay in the performance of their respective non-monetary obligations, to the extent that such default or delay is caused, directly or indirectly, by fire, flood, earthquake, explosions, elements of nature, acts of God, acts or regulations of government bodies, nuclear, chemical or biological contamination, court orders arising out of circumstances other than a breach of this Agreement by the Non-performing Party (as defined below), acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts or labor difficulties, epidemics or by any other event or circumstance that is beyond the reasonable control of Dremio or Customer. The party that is unable to perform shall be referred to as the “Non-performing Party.” Such an event or circumstance giving rise to the default or delay is hereby referred to as a “Force Majeure Event.”

13.2 The Non-performing Party will be excused from any further performance of the non-monetary obligations affected by such Force Majeure Event for as long as such Force Majeure Event continues, and the Non-performing Party continues to use commercially reasonable efforts to resume performance. The Non-Performing Party may terminate this Agreement if the Force Majeure Event continues for a period of thirty (30) days.

13.3 Except as expressly excused in this Section 13, each party will continue to perform its respective obligations under this Agreement during a Force Majeure Event.

14. SECURITY / DATA PROTECTION

14.1 Without limiting Dremio’s obligations as stated in Section 7 (Confidentiality), Dremio shall be responsible for establishing and maintaining a commercially reasonable information security program that is designed to: (i) ensure the security and confidentiality of the Customer Content; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Content; (iii) protect against unauthorized access to, or use of, the Customer Content; and (iv) ensure that all subcontractors of Dremio, if any, comply with all of the foregoing. In no case shall the safeguards of Dremio’s information security program be less stringent than the information security safeguards used by Dremio to protect its own commercially sensitive data. Customer shall use commercially reasonable security and anti-virus measures when accessing and using the Software and to prevent unauthorized access to, or use of the Software, and notify Dremio promptly of any such unauthorized access or use of which it becomes aware.

14.2 With respect to the protection of information, the Dremio Privacy Policy, available at https://www.dremio.com/legal/privacy-policy/, shall apply. If this Agreement is entered into on behalf of an Enterprise, the terms of the data processing addendum at https://www.dremio.com/legal/data-processing-addendum/ (“DPA”), as updated from time to time, are hereby incorporated by reference and shall apply to the extent Customer Content includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Dremio, the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses. To the extent that Customer Data includes any Protected Health Information, as defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, the sharing of such data will be governed by Dremio's Business Associate Agreement, as updated from time to time, available at https://www.dremio.com/wp-content/uploads/2023/03/DREMIO-BUSINESS-ASSOCIATE-AGREEMENT-January-2023.pdf.

15. MISCELLANEOUS

15.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

15.2 This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all, or a majority of its business or assets to which this Agreement relates. Any attempted or purported assignment, novation or other transfer not complying with the foregoing will be null and void.  Subject to the foregoing, this Agreement will be binding upon and inure to the successors and permitted assigns of both parties.

15.3 Except as otherwise provided in this Section 15.3, this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications to this Agreement must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein. 

15.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.

15.5 All notices given pursuant to this Agreement must be in writing and will be deemed to have been duly given when: hand delivered, sent by email (with written confirmation of receipt), or when received by the addressee (with written confirmation of receipt), in each case to the appropriate address set forth below or in the applicable Order Form (or to such other address or e-mail address as a party may designate by written notice from time to time). Any notices to Dremio shall also include a copy to [email protected]. 

15.6. Disputes related to the subject matter of this Agreement will be governed by the laws of the location of Customer’s principal place of business (“Domicile”), without regard to its conflict of law’s provisions, as follows:

Customer’s Domicile	Governing Law	Venue
Americas (except Canada); Middle East; Africa; Pacific; Asia	State of California, U.S.A.	Federal & State courts in Santa Clara County, California, U.S.A.
Canada	Province of Ontario	Toronto
United Kingdom; Europe (except Germany)	England & Wales	London
Germany	German	München

The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the Parties with respect to this Agreement and the transactions contemplated hereby. Dremio may provide translations of this Agreement or other terms or policies. Translations are provided for informational purposes only and if there is any inconsistency or conflict between a translation and the English version, the English version will control. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

15.7 This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.