Terms of use

Master Software Agreement for Bigeye Alation Edition Customers

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Last Updated: November 5, 2021

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This Master Software Agreement for Bigeye-Alation Edition Customers is made between Toro Data Labs, Inc. dba Bigeye (“Bigeye”), a Delaware corporation and the party (“Customer”) that purchased a subscription to the below-defined Product from Alation,Inc. (Bigeye and Customer are the “Parties” and each is a “Party”). The parties agree as follows:

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1. DEFINITIONS

The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

1.1. “Applicable Laws” means all applicable laws, statutes, ordinances, regulations, rules, and self-regulatory guidelines.

1.2. “Authorized User” means Customer’s employees or contractors who Customer authorizes to access and use the Product; provided, however, that any contractors’ access to and use of the Product will be limited to their provision or receipt of services to or from Customer. Customer is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Product using any of Customer’s or its Authorized Users’ access credentials.

1.3. “Confidential Information” means: (i) with respect to Bigeye, the Product, the Improvements, and any and all source code relating to any of the foregoing, and any other non-public information or material regarding Bigeye’s legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to Customer, the Customer Content, Customer Analytics, and any other non-public information or material regarding Customer’s legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party from a third party free to disclose such information without restriction.

1.4. “Customer Analytics” means any and all reproductions, visualizations, analyses, automations, scales, and other reports output by the Products based on such Customer Content.

1.5. “Customer Content” means any data, media, and other materials that Customer and its Authorized Users submit or upload to the Product pursuant to this Agreement.

1.6. “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Product to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Product, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).

1.7. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Product, as may be provided or made available by Bigeye to Customer, whether in a written or electronic form or through the Website.

1.8. “Event” means each discrete capture of a metric describing Customer’s data that is stored in Bigeye’s back-end database.

1.9. “Fees” means, as applicable, (i) the fees for the SaaS Product set forth on the applicable Order Form, (ii) the fee for the Professional Services set forth in the applicable Order Form, and (iii) any other applicable fees provide for in this Agreement, on the Website, or in an Order Form.

1.10. “Improvements” means all modifications, improvements, enhancements, extensions, new versions, new modules, and other changes to the Product developed by Bigeye, which may be made available by Bigeye to its customers from time to time. Customer may purchase Improvements under an Order Form.

1.11. “Order Form” means an order form for the Product and/or any Professional Services mutually executed by the Customer and the Alation, Inc. Order Forms shall specify the term for the applicable Product and/or Professional Services. Bigeye is a third-party beneficiary to the Order Form.

1.12. “Product” and “Saas Product” mean Bigeye’s proprietary software made accessible through Bigeye’s Website and hosted by Bigeye that Customer may access and use pursuant to the terms and conditions of this Agreement, applicable Order Form, and any Updates that Bigeye makes available to Customer from time to time.

1.13. “Professional Services” means the professional services ordered by Customer pursuant to an Order Form. Such Professional Services may include, without limitation, onboarding and implementation assistance and Product training.

1.14. “Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to Bigeye in Bigeye’s sole, but reasonable, discretion.

1.15. “Updates” means any corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the Product that Bigeye provides in connection with this Agreement. All version numbers shall be reasonably determined by Bigeye in accordance with normal industry practice.

1.16. “Website” means Bigeye’s website located at https://www.bigeye.com/.

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2. PRODUCTS

2.1. License Grant. Subject to the terms and conditions of this Agreement and the applicable Order Form, Bigeye hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable license (except as expressly provided in Section 11.1), without the right to grant sublicenses, to authorize Authorized Users to access and use the Products and Documentation solely for Customer’s internal use. This license is limited to the Customer’s use of the Product on only those tables that are catalogued in Customer’s production instance of Alation’s software within Customer’s subscription to Alation’s software.

2.2. Modifications. Bigeye may modify the Products from time to time to improve the user experience; provided, however, that during any Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Products.

2.3. Service Levels and Support. Customer may request support assistance with respect to the Product; Bigeye uses commercially reasonable efforts to respond to support questions. Bigeye, or its contractors, shall host the SaaS Product, periodically monitor the SaaS Product to optimize performance thereof, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond Bigeye’s reasonable control, as provided in Section 11.8 below.

2.4. Professional Services. Customer may elect to order Professional Services pursuant to one or more Order Forms agreed on by the Parties.

2.5. Unused Events. Unless otherwise expressly provided for in this Agreement, on the Website, or the applicable Order Form, (i) all Fees are based on SaaS Product usage levels, and not on actual use; and (ii) no unused Events on the Customer’s Order can rollover to another period.

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3. TERMINATION AND SUSPENSION

3.1. Term. The term of this Agreement commences on the Order Form’s Start Date and ends at the conclusion of the Subscription Term (the “Term”). The Agreement renews only upon the written agreement of the Customer, Alation, Inc., and Bigeye.

3.2. Termination. Either Party may terminate this Agreement on thirty (30) day’s written notice to the other Party. In addition, either Party may terminate this Agreement: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. Bigeye, in its sole discretion and upon written notice to Customer and Alation, Inc., may terminate or suspend this Agreement and any pending Order Form (at least as to the Product) if Customer is more than 15 days overdue in paying Alation, Inc. the Fees for the Product. Bigeye may also terminate this Agreement upon written notice to Customer under the limited circumstances set forth in Section 10.3 below.

3.3. Effect of Termination. Upon termination of this Agreement as set forth in Section 3.2: (i) any Order Form in effect is automatically terminated at least as to the Product, Customer will stop all access to and use of the Product; (ii) Customer will promptly pay all unpaid Fees and applicable Taxes due through the effective date of termination; and (iii) upon written request, each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.

3.4. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 3.3 (“Effect of Termination”), this Section 3.4 (“Survival”), Section 4 (“Confidentiality; Feedback”), Section 5 (“Intellectual Property”), Section 8.4 (“Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), and Section 11 (“General Provisions”).

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4. CONFIDENTIALITY;FEEDBACK.

4.1. Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, advisers, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.

4.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 4.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 4.1, the Disclosing Party may be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 4.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.

4.3. Feedback. During the Term, Customer may elect to provide Bigeye with feedback, comments, and suggestions with respect to the Product, the Improvements, or the Professional Services (“Feedback”). Customer agrees that Bigeye will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.

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5. INTELLECTUAL PROPERTY.

All right, title, and interest in and to the Product, the Documentation, the Usage Data, the Aggregate Data, Improvements, Updates, and any other materials that Bigeye provides in connection with this Agreement, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein, will be and remain the sole and exclusive property of Bigeye and its licensors. Except as otherwise provided in this Agreement or in an Order Form, all right, title, and interest in and to the Customer Content and Customer Analytics, and all proprietary rights therein, will be and remain Customer’s sole and exclusive property.

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6. RESTRICTIONS ON USE;COMPLICANCE.

6.1. Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any Authorized User or third party to): (i) allow anyone other than Authorized Users to access and use the Product; (ii) allow an Authorized User to share his or her access credentials with other Representatives of the Customer or any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Product; (iv) modify, adapt, or translate the Product; (v) make any copies of the Product; (vi) resell, distribute, or sublicense the Product or use any of the foregoing for the benefit of anyone other than Customer or the Authorized Users, without authorization from Bigeye; (vii) save, store, or archive any portion of the Product (including, without limitation, any data contained therein) outside the Product other than those outputs generated through the intended functionality of the Product as set forth in the Documentation without the prior, written permission of Bigeye in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Product; (ix) use the Product in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Product any Prohibited Content; (xi) circumvent any processes, procedures, or technologies that Bigeye has put in place to safeguard the Product; or (xii) interfere with or attempt to interrupt the proper operation of the Product. Upon Bigeye’s request, Customer will use commercially reasonable efforts to assist Bigeye in preventing and enforcing these restrictions. Customer will ensure that its Authorized Users comply with these restrictions and Customer will be fully liable for any Authorized User’s failure to do so.

6.2. Compliance. Bigeye has the right, but not the obligation, to monitor Customer’s and its Authorized Users’ compliance with this Agreement. If any such monitoring reveals that Customer or its Authorized Users are not using the Product in compliance with this Agreement, then Customer will remedy any such non-compliance within five (5) business days of receiving notice from Bigeye, including, if applicable, through the payment of additional Fees.

6.3. Agreement as Precondition. Customer’s consent to this Agreement is a precondition to Customer’s license of and access to the Product.

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7. CUSTOMER CONTENT AND CUSTOMER ANALYTICS;AGGREGATE DATA.

7.1. Customer Content and Customer Analytics. Subject to the terms and conditions of this Agreement, Customer grants Bigeye a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to Bigeye (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Content and Customer Analytics solely for the purpose of providing Customer with access to and usage of the Products hereunder.

7.2. Aggregate Data. Bigeye monitors the performance and use of the SaaS Product by its customers and collects data in connection therewith (“Usage Data”). Bigeye may create data records from Usage Data, Customer Content, and Customer Analytics by subjecting it to anonymization through the removal of all personal information and information about the source of such data. Additionally, Bigeye may combine Usage Data with other data, including Customer Content and Customer Analytics, and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). Aggregate Data does not and shall not identify any individual, Customer, or Customer’s data schema (such as database, table, or column names). Once Usage Data, Customer Content, and Customer Analytics are aggregated and anonymized they are considered Aggregate Data. Customer hereby agrees that Bigeye may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data to improve the Product, for market research, industry analysis, and other similar purposes, for general business purposes, or as otherwise provided for in Bigeye’s Privacy Policy, available at https://www.bigeye.com/privacy/, which is incorporated herein by reference.

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8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Order Forms; (ii) the execution, delivery, and performance of this Agreement and Order Forms and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.

8.2. Bigeye’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 8.1, Bigeye represents and warrants to Customer that (i) the Professional Services will be performed in a professional and workmanlike manner; and (ii) Bigeye will comply with all Applicable Laws in performing its obligations hereunder.

8.3. Customer’s Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 8.1, Customer represents and warrants to Bigeye that: (i) the Customer Content contains no Prohibited Content; (ii) Customer has the right to provide and use the Customer Content in accordance with this Agreement; and (iii) Customer’s authorized use of the Product pursuant to the terms of this Agreement - including, without limitation, the submission and any processing of the Customer Content - complies with all Applicable Laws.

8.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 AND SECTION 8.2, THE PRODUCT, ANY UPDATES, ANY IMPROVEMENTS, THEIR COMPONENTS, ANY DOCUMENTATION, CUSTOMER ANALYTICS, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BIGEYE MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

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9. LIMITATION OF LIABILITY.

EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, CUSTOMER’S BREACH OF SECTION 6.1, OR CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR ANY ORDER FORM WILL NOT EXCEED THE FEES PAID TO BIGEYE BY ALATION, INC. FURTHER TO SUCH ORDER FORMS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (“LIABILITY CAP”). CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY; (B) THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF BIGEYE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN; AND (C) BIGEYE HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE PRODUCT.

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10. INDEMNIFICATION.

10.1. Indemnification by Bigeye. Subject to Section 10.2, Bigeye will defend, indemnify, and hold Customer and its Representatives harmless from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding alleging that Customer’s access to and use of the Product in accordance with this Agreement infringes or misappropriates any United States patents, copyrights, or trade secrets (each, a “Claim”); provided, however, that the foregoing obligation will be subject to Customer: (i) promptly notifying Bigeye of the Claim (provided that failure to provide prompt written notice to Bigeye of the Claim will not alleviate Bigeye of its obligations under this Section 10.1 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Bigeye, at Bigeye’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Bigeye with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Bigeye may not make any settlement or admission of liability on Customer’s behalf without Customer’s prior written approval.

10.2. Exceptions to Bigeye’s Indemnification Obligations. Bigeye is not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any Claim to the extent: (i) the Claim arises from or is based upon Customer or its Authorized Users’ use of: (a) the Product not in accordance with the Documentation, this Agreement, or an Order Form; or (b) any unauthorized modifications, alterations, or implementations of the Product made by Customer or at Customer’s request (other than by Bigeye); (ii) the Claim arises from use of the Product in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Claim arises from any use of the Product for which it was not designed.

10.3. Infringement Claims. In the event that Bigeye reasonably determines that the Products or any portion thereof is likely to be the subject of a Claim, Bigeye will have the right (but not the obligation), at its own expense, to: (i) procure for Customer the right to continue to use the Product as provided in this Agreement and any applicable Order Form; (ii) replace the infringing components of the Product with other components with equivalent functionality; or (iii) suitably modify the Product so that it is non-infringing and functionally equivalent. If none of the foregoing options is available to Bigeye on commercially reasonable terms, Bigeye may terminate this Agreement and/or any applicable Order Form without further liability to Customer and refund Customer a pro-rated portion of any pre-paid Fees. This Section 10.3, together with the indemnity provided under Section 10.1, states Customer’s sole and exclusive remedy, and Bigeye’s sole and exclusive liability, regarding any Claim.

10.4. Indemnification by Customer. Customer will defend, indemnify, and hold harmless Bigeye, its licensors, its hosting providers, and its and their respective officers, directors, managers, employees, contractors, and agents from any and all Losses incurred by such parties in connection with any Claim: (a) alleging that the Customer Content infringes or misappropriates any United States patents, copyrights, or trade secrets, or (b) arising from or in connection with Customer’s or any of its Authorized Users’ breach or violation of this Agreement, any Order Form, or Applicable Law; provided, however, that the foregoing obligation will be subject to Bigeye: (i) promptly notifying Customer of the Claim (provided that failure to provide prompt written notice to Customer of the Claim will not alleviate Customer of its obligations under this Section 10.4 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing Customer, at its expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Customer with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Customer may not make any settlement or admission of liability on Bigeye’s behalf without Bigeye’s prior written approval.

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11. GENERAL PROVISIONS.

11.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement or any Order Form without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement or any Order Form in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement and any Order Form will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

11.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.

11.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard for choice of law provisions thereof.

11.4. Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement or any Order Form and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suits, actions, or proceedings.

11.5. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section 3.2 which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the applicable Order Form. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 3.2, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.

11.6. Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.

11.7. Severability. If any provision of this Agreement or any Order Form is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement or Order Form will remain in full force and effect. Any provision of this Agreement or any Order Form which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.

11.8. Force Majeure. Except for Customer’s obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement or any Order Form for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, quarantine or other similar governmental action, mass disease, epidemic or pandemic (e.g. COVID-19), public health requirement unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (each, a “Force Majeure Event”).

11.9. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement, including Alation, Inc.

11.10. Publicity. Customer hereby expressly consents to Bigeye’s use of Customer’s name and logos solely in order to refer to Customer as a customer of Bigeye in marketing materials, on the Website, and in information provided to investors and prospective investors. Bigeye’s use of Customer’s name and logos shall comply with any branding guidelines and other instructions provided to Bigeye by Customer in writing. Bigeye will cease use of Customer’s name and logos upon the termination of this Agreement. Neither Party shall directly or indirectly obtain or attempt to obtain during the Term hereof or at any time thereafter, any right, title or interest in or to the other Party’s names, trade names, trademarks, service marks, or logos.

11.11. Export. Customer will not export or re-export, either directly or indirectly, the Product or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, Customer will not permit Authorized Users or any third parties to access or use the Product in violation of any United States export embargo, prohibition, or restriction.

11.12. Complete Understanding. This Agreement, and all executed Order Forms and addenda thereto, constitute the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties and/or Alation, Inc., whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. To the extent of any conflict or inconsistency between this Agreement and any term contained in an Order Form, the terms of this Agreement will govern, unless such Order Form includes the section numbers of this Agreement that the Parties expressly agree no longer govern or are modified for the matters covered thereby. No term included in any confirmation, acceptance, purchase order, or any other similar document from Customer will change this Agreement or any Order Form or have any force or effect.

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