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Master Subscription Agreement

Updated January 21st 2022

This Master Subscription Agreement (this “Agreement”) is a binding contract between “Customer,” the person or organization identified on the Order Form or other similar agreement between the parties (the “Order Form”) or who otherwise accesses or uses the Services, and Snowcat Cloud, Inc. (“Snowcat Cloud”) (each a “Party” and together the “Parties”). This Agreement governs Customer’s access to and use of the Services.

THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER SIGNS THE ORDER FORM PRESENTED TO CUSTOMER WITH THIS AGREEMENT OR WHEN CUSTOMER ACCESSES OR USES THE SERVICES (the “Effective Date”). BY SIGNING THE ORDER FORM OR BY ACCESSING OR USING THE SERVICES CUSTOMER: (i) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (ii) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT THE INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (iii) ACCEPTS THIS AGREEMENT AND AGREES THAT IT IS LEGALLY BOUND BY ITS TERMS.

THIS AGREEMENT ALSO GOVERNS ANY TRIAL, EVALUATION, OR DEMONSTRATION USE OF THE SERVICES.

IF CUSTOMER DOES NOT AGREE TO THESE TERMS CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.

THE PARTIES AGREE AS FOLLOWS:


1. ACCESS AND USE

1.1. Provision of Access

Subject to and conditioned on Customer’s payment of Fees (defined below) and compliance with all other terms and conditions of this Agreement, Snowcat Cloud hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services (defined below) during the Term solely for the permitted use case or cases identified on the Order Form. “Cloud Services” means the cloud services provided by Snowcat Cloud under this Agreement (including any documentation provided in connection with the cloud services) that is detailed on Snowcat Cloud’s website at www.snowcatcloud.com and identified on the Order Form. Snowcat Cloud will provide Customer with any necessary access credentials or passwords to allow Customer to access the Cloud Services. Snowcat Cloud will also provide Customer with other, limited services ancillary to Customer’s use of the Cloud Services, which may include provisioning, implementation, support, or other customer-facing services identified on the Order Form or otherwise agreed to in advance and in writing (collectively referred to with the Cloud Services as the “Services”).

1.2. Permitted Use Case(s)

Unless otherwise provided on the Order Form or in another agreement between Snowcat Cloud and Customer, Customer must only use the Services only for its internal business purposes.

1.3. Usage Limits

The Services are subject to the usage limits specified in the Order Form. If Customer exceeds a usage limit, Customer must pay any excess usage fees described the Order Form in accordance with Section 7 (Payment of Fees) below. If no excess usage fees are described on the Order Form, Snowcat Cloud may work with Customer to seek to reduce Customer’s usage so that it conforms to the usage limit. If Customer is unable or unwilling to abide by a contractual usage limit, Customer must execute an Order Form for additional quantities of the applicable Services promptly upon Snowcat Cloud’s request.

1.4.  Use Restrictions

Customer must not and must not permit any User (defined below) to use the Services for any purposes beyond the scope of access granted in this Agreement. Except as otherwise expressly permitted under this Agreement, Customer must not, and must not permit any User to, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Services; (ii) copy, modify, translate, or create derivative works of the Services; (iii) frame, mirror or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as part of a Powered by Snowcat Cloud deployment identified on the Order Form; (iv) remove any proprietary notices or from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law, regulation, or rule. “User” mean Customer and its employees, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer under to this Agreement and for whom access to the was provisioned under this Agreement.

1.5.  Suspension

Notwithstanding anything to the contrary in this Agreement, Snowcat Cloud may temporarily suspend Customer’s and any User’s access to any portion of or all the Services if: (i) Customer or any User is using the Services in breach of this Agreement; (ii) Customer or any User’s use of the Services disrupts or poses a security risk to Snowcat Cloud or to any of Snowcat Cloud’s customers or vendors; (iii) Snowcat Cloud reasonably determines that there is a threat or attack on any of the Services; (iv) Snowcat Cloud’s provision of the Services to Customer or any User is prohibited by law; (v) any of our vendors has suspended or terminated our access to or use of any third-party services or products required to enable Customer to access the Services (each a “Service Suspension”). Snowcat Cloud will use commercially reasonable efforts to provide written notice to Customer of any Service Suspension and updates regarding resumption of access to the Services following any Service Suspension. Snowcat Cloud will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Snowcat Cloud will not be liable for any damages, losses (including lost profits), or other liabilities or consequences that Customer or any User may incur because of a Service Suspension.

1.6. Aggregated Statistics

Notwithstanding anything to the contrary in this Agreement, Snowcat Cloud may monitor Customer’s use of the Services and collect and compile data and information related to that use to be used by Snowcat Cloud in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Snowcat Cloud and Customer, all right, title, and interest in Aggregated Statistics, including intellectual property rights in them, belong to and are retained solely by Snowcat Cloud. Customer acknowledges that it may compile Aggregated Statistics based on Customer Data (defined below) input into the Services and Customer agrees that Snowcat Cloud may make use the Aggregated Statistics or make them publicly available to the extent and in the manner permitted under applicable laws, rules, or regulations, as long as the Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

1.7. Reservation of Rights

Snowcat Cloud reserves all rights not expressly granted to Customer in this Agreement. Except for the limited license and rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Snowcat Cloud’s Services.

2. CUSTOMER RESPONSIBILITIES

2.1.Acceptable Use

The Services must not be used for unlawful, fraudulent, offensive, or obscene activity. Customer must comply with any acceptable use policy or other use guidelines, standards, or requirements available at www.snowcatcloud.com or otherwise provided by Snowcat Cloud. Additionally, Customer and its Users must not:

  • (a) Use the Services in any manner that could disable, overburden, damage, or impair them or interfere with any other party's use of them; or
  • (b) Use any device, software, or routine that interferes with the proper working of the Services;
  • (c) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to the Services, or otherwise attack the Services;
  • (d) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, or any server, computer, or database connected to them; or
  • (e) Otherwise attempt to interfere with the proper working of the Services.
  • (f) Reselling Prohibited. Without the explicit written consent of Snowcat Cloud, the Customer is not permitted to resell, lease, license or otherwise make the Services available to third parties.

2.2. Account Use

Customer is responsible and liable for all uses of the Services resulting from access Customer provides to others, directly or indirectly, whether the access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users or Customer’s customers, and any act or omission by a User or customer that would be a breach of this Agreement if taken by Customer will be considered a breach of this Agreement by Customer. Customer must use reasonable efforts to make all Users and customers aware of this Agreement’s provisions as applicable to the User’s or customer’s use of the Services and must cause Users and customers to comply with the provisions.

2.3. Passwords and Access Credentials

Customer is responsible for maintaining the confidentiality of access credentials and passwords associated with the Services. Customer must not sell or transfer them to any other person or entity. Customer must promptly notify Snowcat Cloud about any unauthorized access to Customer’s access credentials or passwords.

2.4. Customer Data

Customer hereby grants Snowcat Cloud a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data, but only as necessary for Snowcat Cloud to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the Customer Data incorporated within the Aggregated Statistics. Customer will ensure that the Customer Data and any User’s use of the Customer Data will not violate this Agreement, any other agreement or policy incorporated into this Agreement by reference, or any applicable laws, rules, or regulations. Customer is solely responsible for the development, operation, maintenance, content and use of the Customer Data. “Customer Data” means information, data, and other content, in any form or medium, that is provided, submitted, posted, or otherwise transmitted by or on behalf of Customer or any User through the Services, but excludes Aggregated Statistics.

2.5. Third-Party Services

The Services may use or permit access to open-source components or third-party services. The open-source components or third-party services may be subject to their own terms and conditions. Customer may request a list of open-source components or third-party services from Snowcat Cloud and, if Customer does not agree to abide by any open source or third-party terms and conditions, Customer should not use or access the Services.

3. SERVICE LEVELS AND SUPPORT

3.1. Services Availability

Subject to the terms and conditions of this Agreement, Snowcat Cloud will use commercially reasonable efforts to make the Services available at least 99.9% of the time as measured over the course of each calendar month during the term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer or a User over the Internet. The following are “Exceptions” to the Availability Requirement:

(i) any act or omission or access to or use of the Services by Customer or a User that does not comply with this Agreement;

(ii) Customer or its User’s Internet connectivity;

(iii) a force majeure event;

(iv) a failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Snowcat Cloud under this Agreement;

(v) any Scheduled Downtime; or (vi) any Service Suspension. If Snowcat Cloud fails to meet the Availability Requirement during a Service Period, then Snowcat Cloud will issue a credit to Customer equal to the Fees Customer paid for the Services during the Service Period prorated for that portion of the month for which the Service Level Failure existed. The credit will be applied to future Fees.

3.2. Scheduled Downtime

Snowcat Cloud will use commercially reasonable efforts to schedule downtime for routine maintenance of the Services and notify Customer in advance of the scheduled downtime (the “Scheduled Downtime”).

3.3. Support

This Agreement entitles Customer to limited support for those errors described in the Service Level Table below. Support is available via telephone or email, Monday through Friday, except holidays, during business hours (Pacific Time). After hours support is only available for Priority Level P1 (Critical Priority) errors where a collector is down or data is not being replicated within 15 minutes.

3.4. Service Levels

Snowcat Cloud will use commercially reasonable efforts to respond to and resolve the errors described in the Service Level Table below within the target response and resolution times, but Snowcat Cloud’s failure to respond or resolve the errors within the stated times will not constitute a breach of this Agreement. Errors that must be escalated to Snowcat Cloud’s engineering team are likely to require additional time for resolution. Customer may initiate a support ticket at any time through the support site available at https://support.snowcatcloud.com/ or via email to support@snowcatcloud.com. Before submitting a P1 Priority error, Customer should check the status dashboard available at https://status.snowcatcloud.com to determine if the error has already been reported and its status.

Priority Subject Line Error Description Target Response and Resolution Times
P1, Critical Priority “P1” or “System Down” (a) The collector is down; or (b) data is not being replicated within 15 minutes.

Initial target response: Within 2 hours of ticket receipt by phone or email.

Target resolution or workaround: Reduce the error or issue to P2 Priority within 12 hours of ticket receipt.

P2, High Priority “P2” (a) Data collection is working, but other functions are not; or (b) Customer or User cannot access its account.

Initial target response: Within 8 hours of ticket receipt by phone or email.

Target resolution: Within 72 hours of ticket receipt.

P3, Normal Priority “P3” Standard functionality errors or issues.

Initial target response: Within 1 business day of ticket receipt by email.

Target resolution or workaround: Within 5 business days of ticket receipt.

P4, Low Priority “P4” (a) Product enhancement or feature requests; or (b) minor errors or issues with the Services.

Initial target response: Within 2 business days by email for minor errors or issues; updates provided as necessary for product enhancement or feature requests.

Target resolution or workaround: Within 10 business days of ticket receipt, excluding product enhancement or feature requests.

3.5 Customer Identification

Upon Customer’s prior written consent, Snowcat Cloud may identify Customer as a user of the Services and may use Customer’s name and logo in Snowcat Cloud’s customer list, press releases, blog posts, advertisements, and website.

4. CONFIDENTIALITY

4.1.  Confidential Information

In connection with Snowcat Cloud and Customer’s proposed or actual business relationship, or during the term of this Agreement, Snowcat Cloud and Customer have disclosed or may disclose to each other, or have allowed or may allow each other access to, Confidential Information. “Confidential Information” means all non-public, proprietary, or confidential information of the disclosing party (the “Discloser”) or relating to the Discloser’s business (including Confidential Information disclosed to or accessed by the recipient (the “Recipient”) before this Agreement) in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “proprietary” or “confidential.” Confidential Information also includes other information that is marked or otherwise identified as proprietary or confidential, or that would otherwise appear to a reasonable person to be proprietary or confidential in the context and circumstances in which the information is disclosed or accessed. Confidential Information does not include information that is generally available to and known by the public at the time it is disclosed or accessed, unless it is generally available and known through the Recipient’s direct or indirect fault or the direct or indirect fault of person(s) acting on the Recipient’s behalf. Unless permitted by this Agreement, the Recipient must not use Confidential Information for its own account or any third party’s account, and must not disclose to any third party, any of the Discloser’s Confidential Information.

4.2.  Required Disclosures

This Agreement does not prevent the Recipient from disclosing Confidential Information if the disclosure is required by an applicable law or regulation or a court or government order, as long as the disclosure does not exceed the extent of the disclosure required by the law, regulation, or order. Unless prohibited by law or regulation or a court or government order, the Recipient must promptly provide written notice of any required disclosure to the Discloser so the Discloser can seek a protective order or other remedy, at its sole cost and expense.

4.3.  Return or Destruction of Confidential Information

On the Discloser’s request at any time, the Recipient must return to the Discloser or destroy all Confidential Information of the Discloser and all information, data, documents, agreements, files, and other materials that constitute or contain Confidential Information, including those stored on any devices, networks, storage locations, or media. Notwithstanding the return or destruction of Confidential Information pursuant to this Section 4.3, the Recipient may retain copies of the Discloser’s Confidential Information saved automatically to its standard back-up or archival systems or to the extent required by law, regulation, or normal document retention policies; provided, that for so long as a party retains the Confidential Information, it will remain subject to the terms and conditions of this Agreement.

5. PROPRIETARY RIGHTS

5.1. Ownership

As between Snowcat Cloud and Customer, Snowcat Cloud owns all right, title, and interest, including all intellectual property rights, in and to the Services, and Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.

5.2. Feedback

If Customer or any of its employees, contractors, or agents sends or transmits any communications or materials to Snowcat Cloud by email, telephone, mail, or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating to the Services or any of Snowcat Cloud’s other products or services, or any other comments, questions, suggestions, or the like (“Feedback”), Snowcat Cloud is free to use the Feedback irrespective of any other obligation or limitation between Customer and Snowcat Cloud governing the Feedback. All Feedback is and will be treated as non-confidential. Without any attribution or compensation to Customer or any third party, Customer hereby assigns to Snowcat Cloud on Customer’s behalf, and must cause its employees, contractors, and agents to assign, all right, title, and interest in any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, even though Snowcat Cloud may not use the Feedback.

6. PRIVACY POLICY

In providing the Services, Snowcat Cloud complies with its privacy policy (“Privacy Policy”). The Privacy Policy is subject to change as described within it. By accessing, using, and providing information to or through the Services, Customer acknowledges that it has reviewed and accepted the Privacy Policy and consents to all actions taken by Snowcat Cloud with respect to Customer’s information in compliance with the then-current version of the Privacy Policy.

7. PAYMENT OF FEES

7.1. Payment

Customer must pay Snowcat Cloud the fees described on any Order Form (the “Fees”) in accordance with the terms of the Order Form and any invoice. Snowcat Cloud may suspend any Services if Customer fails to pay any amounts when due.

7.2. Taxes

Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government entity on any amounts payable by Customer under this Agreement. Customer is not responsible for any taxes on Snowcat Cloud’s revenue, income, personnel, or real or personal property, or other assets.

7.3. Invoice Disputes

Customer must notify Snowcat Cloud in writing of any invoice dispute (along with a reasonably detailed description of the dispute and any substantiating documentation) within 5 days of Customer's receipt of the disputed invoice. If Customer does not timely notify Snowcat Cloud of an invoice dispute, then the invoice is considered undisputed and Customer must pay all amounts due as set forth in the Order Form and this Section 7.

8. TERM AND TERMINATION

8.1. Term;Renewal.

(a) Annual Subscription

If Customer agrees to an annual subscription as identified on the Order Form (either paid annually or monthly), this Agreement begins on the Effective Date (defined above) and will continue in effect until one year from the first day of the month following the Order Date or date on which any free trial expires, (defined on the Order Form) (the “Initial Annual Term”). This Agreement will automatically renew for successive one-year terms unless either Party gives written notice to the other Party of non-renewal at least 15 days prior to the expiration of the then-current term (each an “Annual Renewal Term” and collectively with the Initial Annual Term, the “Term”).

(b) Monthly Subscription

If Customer agrees to a monthly subscription as identified on the Order Form, this Agreement begins on the Effective Date (defined above) and will continue in effect until one month from the first day of the month following the Order Date or date on which any free trial expires (defined on the Order Form) (the “Initial Monthly Term”). This Agreement will automatically renew for successive one-month terms unless either Party gives written notice to the other Party of non-renewal at least 15 days prior to the expiration of the then-current term (each a “Monthly Renewal Term” and collectively with the Initial Monthly Term, the “Term”).

8.2. Termination

In addition to any other express termination right set forth in this Agreement, either Party may terminate this Agreement: (i) for any reason and at any time without advance notice if Customer’s access and use of the Services is solely for trial or evaluation purposes; (ii) effective on written notice to the other Party if the other Party breaches this Agreement and the breach is either incapable of cure or remains uncured for 15 days after the non-breaching Party provides written notice of the breach to the breaching Party; or (iii) effective on written notice to the other Party if that Party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.3. Effect of Termination

On termination of this Agreement, Customer must immediately discontinue use of the Services. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before the expiration or termination or entitle Customer to any refund.

8.4. Survival

This Section 8.4, Section 7 (Payment of Fees), Section 4 (Confidentiality), Section 5 (Proprietary Rights), Section 10 (Indemnification), Section 11 (Limitations of Liability), and Section 12 (Miscellaneous), and any right or obligation that, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

9. WARRANTIES AND DISCLAIMER

9.1. Snowcat Cloud Warranty

Snowcat Cloud represents and warrants that it will provide the Services using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND SNOWCAT CLOUD STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY OPEN-SOURCE COMPONENTS OR THIRD-PARTY SERVICES.

9.2. Customer Warranty

Customer represents and warrants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that as it is received by Snowcat Cloud and processed in accordance with this Agreement, the Customer Data does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable laws, rules, or regulations.

9.3. Disclaimer

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, THE SERVICES ARE PROVIDED “AS IS” AND SNOWCAT CLOUD SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SNOWCAT CLOUD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SNOWCAT CLOUD MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET CUSTOMER OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

10. INDEMNIFICATION

10.1 Snowcat Cloud Indemnification.

(a) Snowcat Cloud must indemnify, hold harmless, and defend Customer from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates the third party’s intellectual property rights, as long as Customer promptly notifies Snowcat Cloud in writing of the Third-Party Claim, cooperates with Snowcat Cloud, and give Snowcat Cloud sole authority to control the defense and settlement of such Third-Party Claim.

(b) If a Third-Party Claim is made or either Customer or Snowcat Cloud reasonably anticipates a Third-Party Claim will be made, Customer agrees to permit Snowcat Cloud, at Snowcat Cloud’s sole discretion, to: (i) modify or replace the Services, or component or part of the Services, to make them non-infringing; or (ii) obtain the right for Customer to continue use the Services. If Snowcat Cloud determines that neither alternative is reasonably available, Snowcat Cloud may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10.1(b) sets forth Customer’s sole remedies and Snowcat Cloud’s sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.

(c) This Section 10.1 will not apply to the extent that the Third-Party Claim arises from Customer Data or open-source components or third-party services.

10.2 Customer Indemnification

Customer must indemnify, hold harmless, and, at Snowcat Cloud’s option, defend Snowcat Cloud and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates the third party’s intellectual property rights; or (ii) based on Customer’s or any User’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement. However, Customer may not settle any Third-Party Claim against Snowcat Cloud unless Snowcat Cloud consents to the settlement, and further provided that Snowcat Cloud will have the right, at Snowcat Cloud’s option, to defend itself against any Third-Party Claim or participate in the defense by counsel of our own choice.

11. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF THE LOSSES OR DAMAGES OR THE LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SNOWCAT CLOUD UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 11 do not apply to the Parties’ indemnification obligations under Section 10.

12. MISCELLANEOUS

12.1. Governing Law; Jurisdiction; Attorney’s Fees

California law applies to this Agreement without regard for any choice-of-law rules that might direct the application of the laws of another jurisdiction. Exclusive jurisdiction lies with the courts of California for all actions or proceedings arising out of or relating to this Agreement and the parties hereby consent to the jurisdiction of those courts. The prevailing Party will have the right to collect from the other Party its reasonable attorneys’ fees associated with the enforcement of this Agreement or collecting any amounts due under this Agreement.

12.2. Entire Agreement and Order of Precedence

This Agreement constitutes the entire agreement between the Parties regarding its subject matter and supersede any other agreements, representations, or understandings (whether oral, written, express, or implied) that relate to the subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) this Agreement, (3) any Snowcat Cloud-provided document, and (4) any Customer-provided document. This Agreement prevails over and expressly excludes any conflicting terms or conditions contained in any documents, terms, or conditions issued by Customer, even if Customer’s terms or conditions contain a conflicting order of precedence term.

12.3. Severability

If any part of this Agreement is held to be unenforceable, that part must be amended to achieve as nearly as possible the same economic effect as the original part and the rest of this Agreement remains fully enforceable.

12.4. Waiver

A Party’s waiver of a provision or the other Party’s breach of this Agreement is not a waiver of any similar or dissimilar provision or breach at the same, prior, or subsequent time. A Party’s delay or failure to exercise any right, power, or privilege under this Agreement is not a waiver of that right, power, or privilege, and does not preclude the Party from any other or further exercise of that or any other right, power, or privilege.

12.5. Captions

The captions or headings of this Agreement are for reference only and should not be construed as part of this Agreement.

12.6. Relationship of the Parties

The relationship of the Parties is that of independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation to its employees, as well as all employment-related taxes.

12.7. Third Party Beneficiaries

There are no third-party beneficiaries under this Agreement.

12.8. Publicity

Customer agrees that Snowcat Cloud may include Customer’s name, logo, and success stories on or in Snowcat Cloud’s website, press releases, promotional and sales literature, and advertising materials.

12.9. Modification

Customer acknowledges and agrees that Snowcat Cloud has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Customer will be notified of modifications through direct email from us or notifications or posts on www.snowcatcloud.com. Customer is responsible for reviewing and becoming familiar with any modifications. Customer’s continued use of the Services after the effective date of the modifications will be considered acceptance of the modified terms.

12.10. Export Regulation

Customer must comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the United States.

12.11. Assignment

Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld), except either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then the other party may terminate this Agreement on written notice. In the event of this termination, Snowcat Cloud will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of the termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

12.12. Notice

Legal notices to Snowcat Cloud must be sent to its corporate headquarters and must be in writing and will be considered effective on receipt if delivered in person, by a reputable overnight courier service, by registered or certified mail (postage prepaid, return receipt requested). A copy of any legal notices must also be sent to hello@snowcatcloud.com. Notices of termination may be sent solely by email to hello@snowcatcloud.com. Other, non-legal notices may be sent to hello@snowcatcloud.com. Customer hereby consents to written notice by email at the email address for Customer’s primary contact. Notices will be effective on (i) personal delivery; (ii) the fifth business day after mailing; or (iii) the day the email is sent, if the email is sent during normal business hours, otherwise the email is considered effective on the next business day.