Snowflake Observe Subscription Terms of Service

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SUBSCRIPTION SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SUBSCRIPTION SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

IF YOU ARE USING ANY SUBSCRIPTION SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

AGREEMENT

These Snowflake Observe Subscription Terms of Service (the “Agreement”) are entered into by and between Snowflake Inc. (“We” or “Snowflake”) and the entity or person placing an order for, or accessing, any Subscription Services (“Customer” or “you”) and governs your access and use of the Subscription Services.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Subscription Services through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.

Please read this Agreement carefully as it governs your use of the Subscription Services. Your Order Form specifies the Subscription Services you are subscribing to, the Capacity you are purchasing and the fees you are agreeing to pay. The Agreement, as may be updated by Snowflake from time to time, together with any addenda, constitutes the complete agreement between Snowflake and you (each a “Party” and collectively, the “Parties”) and supersedes any prior discussions or representations regarding your use of the Subscription Services. 

1. Definitions. As used in this Agreement, the following terms shall be defined as follows:
   
   1. “Acceptable Use Policy” or “AUP” means Snowflake’s acceptable use policy, made available at https://www.snowflake.com/en/legal. For purposes of clarity, any references in the AUP to Snowflake Offerings shall, for purposes of this Agreement, be read to also apply to the Subscription Services.
   2. “Affiliate” means any natural person or entity that directly or indirectly, Controls or is Controlled by or is under common Control with a Party.
   3. “Authorized Users” mean Customer’s employees and authorized contractors of Customer who are acting on Customer’s behalf in the internal operation of Customer’s business and who are subject to a confidentiality agreement with Customer who are granted access and the right to use the Subscription Services.
   4. “Client Software” is any desktop client software that is made available to Customer by Snowflake for installation on Users’ computers to be used in connection with the applicable Service.
   5. "Control” means with regard to any entity, the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest if not a stock corporation) of such entity ordinarily having voting rights.
   6. “Deliverables” means the guides, code or other deliverables that Snowflake provides to Customer in connection with the Technical Services, but excludes any compilers, assemblers, interpreters or similar tools Snowflake may use to develop Deliverables. 
   7. “Documentation” means the standard written and published materials regarding the Subscription Services accessible at the following link: https://docs.observeinc.com/, as may be updated from time-to-time.
   8. “Excluded Claims” means either Party’s liability for gross negligence, willful misconduct, and the Parties’ indemnification obligations under this Agreement. 
   9. “Feedback” means any suggestion, enhancement, request, recommendation, correction, or other feedback provided by Customer or its Authorized Users relating to the use of the Subscription Services.
   10. “Fees” has the meaning set forth in Section 11.1 below.
   11. “Ingest Data” means any data or data files that are uploaded by or on behalf of Customer for storage or processing in the Subscription Services in connection with Customer’s use of the Subscription Services, as set forth in the applicable Order Form.
   12. “Intellectual Property Right(s)” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill.
   13. “Order Form” means the order form covering the Subscription Services or any other applicable order form entered into between Snowflake and Customer to which this Agreement is incorporated as an attachment, through a link, or by reference.
   14. “Preview(s)” means products, features, services, software, regions or cloud providers that Snowflake does not yet make generally available, e.g., those that are labeled as “private preview,” “public preview,” “pre-release” or “beta.”
   15. “Preview Terms” means the Preview Terms located at https://www.snowflake.com/en/legal, which, for clarity, shall govern and supersede any other terms that may otherwise conflict with respect to use of Previews.
   16. "Retention Period” means the period following the expiration of any Subscription Term for which Ingest Data shall be available to the Customer in accordance with the terms hereof, as set forth in the applicable Order Form.
   17. “Subscription Services” means the generally available software-as-a-service data analytics and observability offering hosted by Snowflake and ordered by Customer in accordance with an Order Form.
   18. “Subscription Term” means the period of time during which Customer is authorized to access the Subscription Services, as specified in the applicable Order Form.
   19. “Technical Services” means the training and consulting services related to the Subscription Services, as may be provided for in an Order Form or SOW.
   20. “Usage Data” means usage and operations data in connection with the Customer’s use of the Subscription Services, including without limitation metadata.
2. Subscription Services.
   
   1. Generally. Subscription Services are purchased by Customer as specified in an Order Form. Customer acknowledges and agrees that the features and functions of the Subscription Services may change over time, provided that Snowflake will not materially decrease the overall functionality of the Subscription Services during the Subscription Term.
   2. Access to Subscription Services; Client Software. In consideration of the payment of all Fees set forth in an applicable Order Form, and subject to Customer’s compliance with Customer’s undertakings herein contained, Snowflake will make the Subscription Services available to Customer for the Subscription Term solely for use by Customer and its Authorized Users in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Customer and its Authorized Users may only use the Subscription Services within Customer’s organization and for internal business purposes. To the extent Customer installs Client Software in connection with its use of the Subscription Services, Snowflake grants to Customer and its Authorized Users a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the Client Software internally in connection with Customer’s and its Affiliates’ use of the Subscription Services, subject to the terms and conditions of this Agreement and the Documentation.
3. Evaluation Service. To the extent mutually agreed upon in an applicable Order Form, Snowflake may grant you access to the Subscription Services on a trial basis (the “Evaluation Service”). You may only use the Evaluation Service for your internal evaluation purposes for a period of thirty (30) days, unless otherwise stated in an Order Form (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, you understand and acknowledge that Snowflake is providing you with access to the Evaluation Service (i) on an “AS IS” basis; (ii) with no maintenance or support; (iii) and with no indemnification obligation by Snowflake. Snowflake disclaims all warranties and makes no representations in connection with your access and use of the Evaluation Service. Snowflake may restrict and limit your access to the Evaluation Service and may block some features that may be provided as part of the Subscription Service. At the end of the Evaluation Period, your access to the Evaluation Service will be terminated unless: (a) your Order Form included an auto-renewal clause which converts your Evaluation Service to a full Subscription Service; or (b) you execute a new Order Form for a new Subscription Term and pay the applicable Fees.
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4. Preview Service Terms. Snowflake may make certain Previews available to Customer. Customer may access and use Previews solely for its internal evaluation purposes and in accordance with the Preview Terms.
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5. Technical Services. 
   
   1. Provision of Technical Services. To the extent mutually agreed upon between the Parties in an Order Form or Statement of Work (“SOW”), Snowflake will provide Customer with Technical Services subject to the terms of an Order Form or SOW describing the applicable Technical Services, term, fees and such other terms as are necessary to define the scope of the Technical Services.
   2. Customer Materials. Customer hereby grants Snowflake a limited right to use any materials provided to Snowflake in connection with the Technical Services (the “Customer Materials”) solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Snowflake under this Agreement and that the Customer Materials will not violate any third-party rights.
   3. Assistance. Customer acknowledges that timely access to applicable Customer Materials, resources, personnel, equipment or facilities is necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with Snowflake during a Technical Services project. Snowflake will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section 5.
   4. Access to Ingest Data under an SOW. With respect to access to any Ingest Data under an SOW, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the specific SOW. Customer agrees that it will not grant Snowflake access to Ingest Data unless specifically required and noted in an SOW, and that Customer will grant any such access only during the term of the applicable Technical Services project. Unless otherwise specified in an SOW, Customer must ensure that: (a) any access to Ingest Data that it grants is configured to prevent Snowflake personnel from committing code changes or otherwise taking actions that would disrupt or impact Customer’s production environments, production data or live use cases, cause material detriment to Customer’s systems and services, or otherwise directly impact Customer’s applications monitored by the Subscription Services; and (b) Customer will not grant access to any Ingest Data that is unencrypted or contains sensitive data, including without limitation, any personal data, credit card or other financial account information, or protected health information. To the extent access to Ingest Data is granted, unless otherwise specified in an SOW, Customer will provide Snowflake with: (i) secure Customer workstations and networks for accessing Ingest Data that are monitored, managed, configured, supported and maintained by Customer; and (ii) unique user ID/passwords to each Snowflake resource that requires access to Ingest Data, and these credentials will be solely managed by Customer.
   5. License to Deliverables. The Technical Services Snowflake performs (e.g., providing guidance on configuring the Subscription Services) and the resulting Deliverables are generally applicable to Snowflake’s business and are considered Derivative Works (as defined below). Subject to the terms and conditions of this Agreement, Snowflake hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Subscription Services during the period in which such Customer has valid access to the Subscription Services. The parties may mutually agree to SOWs with additional terms and restrictions related to the use of Deliverables provided as part of that project, in which case those terms and restrictions will also apply for purposes of those Deliverables only.
   6. Change Orders; Other Terms. Customer may submit written requests to Snowflake to change the scope of Technical Services under an existing SOW. Snowflake will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions or scope for the performance of the Technical Services. Neither party is bound by changes to an SOW unless the parties have entered into a Change Order with respect thereto. Snowflake may use subcontractors to deliver Technical Services but will remain responsible for their performance of those Technical Services under the applicable terms and conditions of this Agreement. For clarity, Customer will be responsible for any consumption and other fees for the Subscription Services that are generated as part of the Technical Services.
6. Additional Purchases. If Customer elects to purchase additional Subscription Services, Technical Services, or any other services as may be agreed upon from time to time by the Parties, the Parties will execute an additional Order Form or SOW or amend the existing Order Form or SOW.
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7. Future Functionality. Customer acknowledges that any purchase of Subscription Services hereunder is not contingent upon (a) the delivery of any new or modified functionality or features that are not available to Snowflake’s customers as of the Effective Date, or (b) any oral or written public comments, statements or representations made by Snowflake regarding any such new or modified future functionality or features.
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8. Customer Feedback. Any Feedback is and shall be given voluntarily. Customer hereby grants to Snowflake an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use and incorporate into its products and services any Feedback and to disclose, reproduce, distribute, and otherwise exploit the Feedback without attribution or payment to Customer. Feedback, even if designated as confidential, shall not create any confidentiality obligation hereunder.
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9. Scope of Rights; Restrictions on Use.
   
   1. Scope. This Agreement confers no title or ownership and is not a sale of any rights in the Subscription Services. All rights not expressly granted to Customer are reserved solely to Snowflake and/or its licensors. Nothing herein should be construed as granting Customer, by implication, estoppel or otherwise, a license relating to the Subscription Services other than as expressly stated in this Agreement.
   2. Restrictions. Customer agrees that Customer and its Authorized Users will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Software, (ii) modify or prepare derivative works of the Subscription Services, (iii) otherwise translate or use the Subscription Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign (except as otherwise expressly provided herein) the Subscription Services to any third party, whether with or without consideration; (v) render any services to third parties using the Subscription Services; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Subscription Services; (vii) allow any third parties to use the Subscription Services (except as otherwise expressly provided herein); (viii) interfere with, burden or disrupt the Subscription Service functionality; (ix) bypass or breach any security device or protection used for or contained in the Subscription Services; (x) make any copies of the Subscription Services or any portions thereof; (xi) use the Subscription Services in any manner or for any purpose that infringes, misappropriates or otherwise violates the Intellectual Property Rights of Snowflake or any other person or entity; (xii) use the Subscription Services for purposes of: (a) benchmarking or competitive analysis of the Subscription Services; or (b) developing, using or providing a competing product or service; or (xiii) use the Subscription Services in violation of the Acceptable Use Policy.
   3. Authorized Users. Customer shall be liable for any breach of this Agreement by its Authorized Users. Customer shall advise Snowflake immediately in the event Customer learns, or has reason to believe, that any Authorized User to whom Customer has given access to Subscription Services has violated, or intends to violate, the terms of this Agreement, and Customer will, at Customer’s expense, reasonably cooperate with Snowflake in seeking injunctive or other equitable relief in the name of Customer or Snowflake against any such person.
   4. Affiliates. Notwithstanding anything to the contrary herein, the rights granted to Customer hereunder may be exercised by Customer’s Affiliates and/or independent contractors performing services on behalf of Customer and/or such Affiliates (“Authorized Contractors”), provided that (i) Customer shall be responsible for any additional Fees for the use of the Subscription Services by Customer’s Affiliates and/or Authorized Contractors, as may be set forth in an applicable Order Form; (ii) Customer shall remain responsible at all times for such Affiliates’ and Authorized Contractors’ adherence to all applicable terms and conditions of this Agreement; (iii) Customer shall be liable for any breach of this Agreement by such Affiliate and/or Authorized Contractor; (iv) any such Affiliates and/or Authorized Contractors are liable for all obligations, responsibilities, representations and warranties which are applicable to Customer hereunder; and (v) all use of the Subscription Services by Authorized Contractors shall be limited to such use required for the Authorized Contractor to provide its services to Customer and/or its Affiliates.
   5. No Personal Data. Customer shall not provide Snowflake with any Ingest Data containing personal data or personal information (as defined under applicable data protection laws and regulations). To the extent Customer may provide any personal data to Snowflake, Customer shall, before providing any such personal data, enter into a separate data processing agreement (“DPA”) with Snowflake governing the processing of such personal data, and ensure that it has provided such notice and/or or obtained all authorizations, permissions and informed consents as may be required under applicable data protection laws and regulations for the collection, handling, retention and processing of such data for the purposes set forth herein.
10. Proprietary Rights and Confidentiality.
    
    1. Subscription Services, Technical Services, and Derivative Works. Snowflake (or its licensors, as applicable) will retain all title to and ownership of the Subscription Services, Documentation, Deliverables Technical Services, and all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works thereof developed by Snowflake or anyone else, including Customer, including all Intellectual Property Rights therein (collectively, the “Derivative Works”). Except for the expressed limited license granted hereunder, Customer shall have no rights in or claims with respect to Derivative Works. As between Customer and Snowflake, Customer shall retain all right, title and Intellectual Property Rights in its Ingest Data. The Subscription Services and Technical Services provided by Snowflake do not constitute works made for hire. Snowflake shall retain all Intellectual Property Rights in and to any inventions, developments or other work product created by Snowflake in the course of providing the Subscription Services and/or Technical Services to Customer. To the extent it shall be determined that Customer has any right in connection with the Subscription Services, Technical Services, or Derivative Works other than the limited specific license hereunder, Customer hereby irrevocably: (i) assigns to Snowflake, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, and all Intellectual Property Rights that Customer may have in or to the Subscription Services, Documentation, Technical Services, Derivative Works, and/or related Intellectual Property Rights; and (ii) agrees to take any lawful action that Snowflake reasonably requests to vest or protect Snowflake’s right, title and interest therein (at Customer’s sole cost).
    2. Confidential Information.
       
       1. General. Each Party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Notwithstanding the foregoing marking requirements, the Subscription Services, Derivative Works, training materials, technical information and other code or data of any type provided by Snowflake (or its agents), the pricing offered by Snowflake to Customer, and this Agreement’s terms and conditions are Snowflake Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
       2. Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
       3. Use and Disclosure Restrictions. Neither Party will use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but, in no event, less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to contest such order or requirement, unless it is not legally prevented to provide such notice to the other Party; and (ii) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such Party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.
    3. Ingest Data. Customer hereby grants Snowflake a non-exclusive license to use, store, process, analyze, and display all Ingest Data: (i) within the Subscription Services and (ii) in reports; during the Subscription Term for the limited purposes of performing Snowflake’s obligations under this Agreement and providing the Subscription Services to Customer. 
    4. Usage Data. Notwithstanding anything to the contrary in this Agreement, Snowflake may collect and use Usage Data to develop, improve, support, and operate its products and services. Snowflake may not share any Usage Data that includes Customer’s Confidential Information with a third party except (a) in accordance with Section 10.2 (Confidential Information) of this Agreement, or (b) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Authorized Users cannot be identified. 
11. Fees and Payments.
    
    1.  Fees. By entering into this Agreement, Customer hereby agrees to pay the fees specified in the Order Form (the “Fees”) in accordance with the payment terms set forth herein. Snowflake will invoice Customer for Fees as provided in the Order Form.
    2.  Taxes. All Fees due and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges and/or duties, which shall be Customer’s responsibility. Taxes based on Snowflake’s net income or gross receipts shall be Snowflake’s responsibility. Notwithstanding anything herein, if, under any applicable law, Customer is required to withhold tax or any other amount from any payment to Snowflake, the amount due to Snowflake shall be increased by an amount such that the amount Snowflake receives is equal to the amount Snowflake would have received if no withholding had been required.
    3. Payment Terms. Unless otherwise specified in an Order Form, all invoices shall be due and payable within thirty (30) days after the invoice date. Payments received by Snowflake under this Agreement after their due date will incur late charges at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, and such amounts will be billed to Customer by Snowflake.
12. Limited Warranty, Limitation of Liability and Indemnification.
    
    1. Limited Warranty. Snowflake warrants to Customer during any Subscription Term that (a) the Subscription Services will operate in substantial conformity with the applicable Documentation; and (b) Technical Services will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable SOW. If Snowflake is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form or SOW (as applicable), and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Subscription Services or Technical Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by: (i) Customer’s misuse of the Subscription Services or any deliverables; (ii) modifications to the Subscription Services or any deliverables by Customer or any third party; or (iii) any services or hardware of Customer or any of its third parties used by Customer in connection with the Subscription Services or any deliverables. For Technical Services, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration of the applicable SOW. 
    2. Customer Warranties. Customer warrants that: (i) its (and its Authorized Users’ and Authorized Contractors’) access to and collection, use, relocation, storage, disclosure, transfer, and disposition of Ingest Data shall comply with all applicable laws, including without limitation all privacy and data security laws; (ii) it has the legal right and ability to provide the Ingest Data for the purposes set forth herein and has obtained all licenses, consents or other permissions from appropriate third parties as may be necessary to enable Customer to grant the rights in such Ingest Data granted herein; and (iii) it (together with its Authorized Users, Authorized Contractors and Ingest Data) complies, and will continue to comply, with the Acceptable Use Policy.
    3. Mutual Warranties. Each Party warrants to the other that: (i) it is duly organized, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; and (ii) it has the right and full power and authority to enter into this Agreement.
    4. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 12, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES, DOCUMENTATION, TECHNICAL SERVICES, DERIVATIVE WORKS AND ANY OTHER SNOWFLAKE PRODUCTS OR SERVICES PROVIDED BY SNOWFLAKE ARE PROVIDED “AS IS,” AND SNOWFLAKE, ITS AFFILIATES, AND LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR DATA ACCURACY. SNOWFLAKE DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY SNOWFLAKE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
    5. Limitation of Liability.
       
       1. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST, INACCURATE OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
          
          EXCEPT FOR EXCLUDED CLAIMS, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT (AND THE DATA PROCESSING ADDENDUM), INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO SNOWFLAKE BY THE CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. 
          
          NOTWITHSTANDING THE IMMEDIATELY PRECEDING PARAGRAPH, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 10.2 (CONFIDENTIAL INFORMATION) AND/OR THE DPA, WHERE SUCH BREACH RESULTS IN THE UNAUTHORIZED DISCLOSURE OF INGEST DATA, OR BREACH OF SECTION 12.2 (CUSTOMER WARRANTIES), WILL NOT EXCEED TWO TIMES (2X) THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO SNOWFLAKE BY THE CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
          
          THESE LIMITATIONS OF LIABILITY (I) ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE; AND (II) ARE CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS).
    6. Indemnification by Snowflake. Snowflake agrees to defend or settle, at its expense, Customer and its directors, officers, employees and/or Affiliates (collectively, the “Customer Indemnified Party”) from and against any third party claims alleging that the Subscription Services, when used by the Customer Indemnified Party in accordance with the Documentation, infringes and/or misappropriates any Intellectual Property Right of such third party claimant. In connection with the foregoing defense, Snowflake shall indemnify the Customer Indemnified Party against all damages finally awarded against Customer in a final judgment or settlement of any of the foregoing claims that are specifically attributable to such suit or action. If Customer is, or Snowflake believes it may become, prohibited from continued use of the Subscription Services by reason of an actual or anticipated claim of infringement, Snowflake shall, at its option and expense, (i) obtain for Customer the right to continue using the Subscription Services, (ii) replace or modify the Subscription Services so that they are no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, terminate this Agreement and/or the Order Form and refund to Customer a prorated portion of any pre-paid but unused Fees paid by Customer as of the date of termination for the Subscription Services subject to the claim, in which case Customer will cease use of the Subscription Services and return or provide to Snowflake all materials related to the Subscription Services subject to such claim. The indemnification set forth in this Section 12.6 does not apply to the extent of Customer’s negligence, abuse or misapplication of the Subscription Services; use of the Subscription Services other than as specified in the applicable Documentation or in accordance with the terms hereof; any alterations, modifications or adaptations of the Subscription Services performed by anyone other than Snowflake; any unauthorized combination or interfacing of the Subscription Services with other hardware or software; or other causes beyond the reasonable control of Snowflake.
       
       THIS SECTION 12.6 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT WITH RESPECT TO THE SUBSCRIPTION SERVICES.
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    7. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Snowflake, and its directors, officers, employees, and/or Affiliates (the “Snowflake Indemnified Party”) from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys' fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against a Snowflake Indemnified Party relating to Customer’s performance under this Agreement, including any claims in connection with the Ingest Data, Customer Materials, or any Customer-offered product or service used in connection with the Subscription Services.
    8. Indemnification Procedures. The Party seeking indemnity (“Indemnified Party”) shall notify the other Party (“Indemnifying Party”) promptly in writing of any claim for indemnification hereunder (provided that the Indemnified Party’s failure to do so shall not reduce or diminish the Indemnifying Party’s obligations hereunder except to the extent the Indemnifying Party has been adversely affected or prejudiced by such failure). The Indemnified Party shall have sole control of its defense or settlement of any claim subject to indemnification hereunder, provided however, that the Indemnified Party shall not, without the Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed), settle any claim in a manner that admits liability on the part of the Indemnified Party or otherwise adversely affects the Indemnified Party’s rights. Indemnified Party shall provide Indemnifying Party with reasonably requested assistance, information and authority to perform the above.
13. Term and Termination.
    
    1. Agreement Term. The term of this Agreement shall begin on the Effective Date and continue until terminated as provided in this Section 13.
    2. Termination for Cause. Either Party may terminate this Agreement and/or any Order Form immediately if the other Party materially breaches or otherwise fails to comply with any material provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice of such breach or failure.
    3. Effect of Termination. If an Order Form is still in effect at the time of termination of this Agreement, then all outstanding Order Forms (and all subscriptions and licenses granted by Snowflake thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the Parties in writing. Customer shall immediately return to Snowflake any materials provided to Customer as part of the Subscription Services in Customer’s possession. Within thirty (30) days following the termination of this Agreement for any reason, each Party shall return or destroy, if requested by the other Party in writing prior to the expiration of the 30-day period, any Confidential Information of the other Party. Each Party agrees to certify, in writing, to the other compliance with the foregoing undertakings upon a Party’s request. Termination shall be without prejudice to the rights and remedies of either Party that may have accrued prior to such termination. For the avoidance of doubt, Customer shall not be entitled to a refund of any prepaid Fees upon termination of the Agreement, and Snowflake will not release Customer from its obligations to pay Snowflake all Fees that have accrued under this Agreement prior to its termination, and any unpaid Fees shall become immediately due and payable as of the Agreement termination date.
    4. Survival. Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including without limitation, Sections 1 (Definitions), 8 (Customer Feedback), 9 (Scope of Rights; Restrictions on Use), 10 (Proprietary Rights and Confidentiality), 11 (Fees and Payment), 12.2 (Customer Warranties), 12.4 (Warranty Disclaimer), 12.5 (Limitation of Liability), 12.6 (Indemnification by Snowflake), 12.7 (Indemnification by Customer), 12.8 (Indemnification Procedures), 13 (Term and Termination), 14 (Force Majeure), and 15 (General Terms).
14. Force Majeure. Except for the obligation to pay monies due and owing, neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including, without limitation, labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemic, pandemic, or public health emergency, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, an act of civil or military authority, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.
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15. General Terms.
    
    1. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Delaware, U.S.A. without regard to the conflict of laws. Except with respect to any claims subject to arbitration as further described below with respect to United States customers, the exclusive jurisdiction and venue for any actions will be the state and federal courts located in New Castle County, Delaware, U.S.A. and Snowflake and Customer each irrevocably consent to, and waive any objection to, jurisdiction and venue in such courts.
    2. Dispute Resolution. If Customer is, or at any time during the term of this Agreement becomes, party to an Order Form having a “ship-to” address located in the United States, then: EACH PARTY (I) AGREES THAT, EXCEPT AS PROVIDED HEREIN, ANY DISPUTES OR CLAIMS ARISING HEREUNDER OR RELATING TO THE SUBSCRIPTION SERVICES INCLUDING WITHOUT LIMITATION PAYMENT DISPUTES OR DISPUTES UNDER THE INDEMNIFICATION SECTIONS ABOVE (COLLECTIVELY, “DISPUTES”) WILL BE DETERMINED SOLELY IN BINDING, INDIVIDUAL ARBITRATION PURSUANT TO THE U.S. FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW AND NOT IN A CLASS, REPRESENTATIVE, OR CONSOLIDATED ACTION OR PROCEEDING (EXCEPT THAT EITHER PARTY MAY ELECT TO PROCEED IN SMALL CLAIMS COURT IF THE DISPUTE QUALIFIES), AND (II) WAIVES THE RIGHT TO A TRIAL BY JURY. Either Party may commence an arbitration proceeding by filing a demand for arbitration with the Judicial Arbitration and Mediation Services (“JAMS”). Arbitration of Disputes for total damages: (1) of $250,000 or less will be conducted under the then-applicable JAMS “Streamlined Arbitration Rules & Procedures”; and (2) exceeding $250,000, will be conducted by the then-applicable JAMS “Comprehensive Arbitration Rules & Procedures,” located at https://www.jamsadr.com/, and except as modified by this Agreement. Arbitration hearings will be conducted in the JAMS office nearest Customer’s United States mailing address set forth in the Order Form if initiated and selected by Customer, otherwise in San Francisco County, California, U.S.A. The arbitrator shall have the exclusive authority to decide all issues relating to the interpretation, applicability, enforceability, formation, existence, validity, and scope of the Parties’ agreement to arbitrate. Payment of all arbitration filing, administrative, and arbitrator fees will be governed by applicable JAMS rules. If the class action waiver in Section 15.1(I) is found to be unenforceable, then the entirety of the Disputes and arbitration language in this Section 15.2 shall be null and void. Notwithstanding the foregoing, the Parties agree that a Party may seek injunctive or other equitable relief in court to enjoin misuse, misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
    3. Customer Reference. Subject to the confidentiality obligations under this Agreement and upon notification to Customer, Snowflake may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of Customer or any of its Affiliates) and display the Customer's logos and trademarks in Snowflake's website and promotional or advertising literature, without the consent of Customer. Except as expressly provided herein, Snowflake shall not obtain any rights with respect to the Customer's logos and/or trademarks.
    4. Assignment. Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, with the exception of an assignment carried out by Snowflake to its Affiliates or as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of Snowflake’s assets or share capital. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.
    5. Notice. Except as otherwise expressly provided in this Agreement, all notices or demands required or permitted pursuant to this Agreement shall be in writing, and shall be sent (i) by courier or in person with signed receipt, (ii) by nationally recognized overnight delivery service, prepaid, with signature required, or (iii) by email. Email notifications to Snowflake shall be to legalnotices@snowflake.com. Notice given by email will be deemed to have been given when sent so long as no electronic notice is delivered to the sending party indicating that the email could not be delivered.
       Any notices to the Parties hereunder shall be delivered to the addresses set forth in this Agreement or Order Forms executed by  the Parties.
    6. Waiver. Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.
    7. Severability. In the event that any of the terms of this Agreement is or becomes or is declared to be invalid or void by any court of competent jurisdiction, such term or terms shall be null and void and shall be deemed severed from this Agreement and all the remaining terms of this Agreement shall remain in full force and effect.
    8. Amendment. No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto.
    9. Entire Agreement; Conflicts. This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other previous proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by Customer will supersede, contradict, vary or modify the terms and conditions of this Agreement, and any such document issued by Customer hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between documents, the conflict or inconsistency shall be resolved by giving precedence in the following order: (1) this Agreement, including all amendments thereto; and (2) the terms of any Order Form to which this Agreement is attached and incorporated or linked.
    10. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
    11. Execution. This Agreement, any related Order Form, or any amendments thereto, may be executed in one or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may transmit their signatures via facsimile, scanned PDF, e-signature, or other electronic means with the same effect as if the Parties had provided each other with original signatures.
    12. Export Control. Each Party agrees to comply with all export and import laws and regulations, including without limitation, those of the United States, applicable to such Party in connection with its respective provision or use of the Subscription Services under this Agreement. Without limiting the foregoing, Customer represents and warrants that it: (a) is not listed on, or majority-owned by any entity listed on, any U.S. government list of prohibited or restricted parties; (b) is not located in (or a national of) a country that either is subject to a U.S. government embargo or has been designated by the U.S. government as a “state sponsor of terrorism”; (c) will not (and will not permit any third parties to) access or use the Subscription Services in violation of any U.S. export embargo, prohibition or restriction; and (d) will not submit to the Subscription Services any information that is controlled under the U.S. International Traffic in Arms Regulations.