EULA - Matillion ETL for Redshift BYOL
PLEASE READ CAREFULLY BEFORE USING THE SOFTWAREThese terms and conditions (Terms and Conditions) together with the Matillion ETL for Redshift Quotation/Order Form (if any) entered into (Order Form) constitute a legal agreement (EULA) between you or the entity you represent (You) and MATILLION LIMITED (Company Number: 7474948) which has its registered office at Station House, Stamford New Rd, Altrincham WA14 1EP United Kingdom (Licensor, us or we) for:
MATILLION ETL FOR REDSHIFT subscription software (Software) operated through Amazon Machine Images (AMI) via AWS Marketplace provided by Amazon Web Services, Inc. (AWS); and
online or electronic documents provided by us in connection with the Software (Documents).
We license use of the Software, Ancillary Services (as defined in clause 1.1) and Documents to you on the basis of this EULA and subject to any rules or policies applied from time to time by AWS (AWS Rules) in relation to use of the Software, Amazon Redshift and related matters (including your "AWS Customer Agreement" and AWS’s "Acceptable Use Policy"). We do not sell the Software or Documents to you. We (or our licensors, as appropriate) remain the owners of the Software and Documents at all times.
AWS, AWS Marketplace, the AWS Marketplace logo and Amazon Redshift are trademarks of Amazon.com, Inc. or its affiliates.
OPERATING REQUIREMENTSTHE SOFTWARE REQUIRES:
A VALID CONTINUING AWS ACCOUNT AND AMAZON REDSHIFT SUBSCRIPTIONS FOR AMAZON REDSHIFT CLUSTERS WITH ADEQUATE SIZE AND CONFIGURATIONS TO SUPPORT YOUR USE OF THE SOFTWARE;
AN INSTANCE (AS DEFINED BELOW) UPON WHICH THE SOFTWARE WILL BE INSTALLED;
A COMPATIBLE BROWSER ENABLED DEVICE WHICH HAS IP CONNECTIVITY TO THE INSTANCE RUNNING THE SOFTWARE AND AMAZON REDSHIFT (DETAILS OF THOSE BROWSERS WHICH ARE COMPATIBLE WITH YOUR VERSION OF THE SOFTWARE ARE SET OUT AT HTTPS://REDSHIFT-SUPPORT.MATILLION.COM/S/ARTICLE/2017557).
A VALID, UNEXPIRED LICENSE KEY ISSUED BY US.
THE SOFTWARE SHALL ONLY BE ACCESSIBLE VIA AMI ON YOUR INSTANCE RUNNING THE SOFTWARE AND MAY ONLY BE USED IN CONJUNCTION WITH AMAZON REDSHIFT.
THIS EULA TAKES EFFECT AND YOU AGREE TO THE TERMS OF THIS EULA, WHICH WILL BIND YOU UPON THE COMMENCEMENT DATE.
YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS AND IF YOU ARE ENTERING INTO THIS EULA FOR AN ENTITY, SUCH AS A COMPANY YOU WORK FOR, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. THE TERMS OF THE EULA INCLUDE, IN PARTICULAR, THE LIMITATIONS ON LIABILITY IN CLAUSES 1.7AND 9.
IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, WE WILL NOT LICENSE OR PERMIT ACCESS TO THE SOFTWARE, ANCILLARY SERVICES OR DOCUMENTS TO YOU.
YOU ARE RESPONSIBLE FOR ALL ACTIVITY AND USE UNDERTAKEN IN CONNECTION WITH THE SOFTWARE WHERE IT IS ACCESSED USING THE LICENSE KEY, IRRESPECTIVE OF WHETHER THE ACTIVITY OR USE IS UNDERTAKEN BY YOU, YOUR EMPLOYEES OR THIRD PARTIES (INCLUDING YOUR AGENTS OR CONTRACTORS). WE ARE NOT RESPONSIBLE FOR ANY UNAUTHORISED ACCESS TO THE SOFTWARE, YOUR LICENSE KEY OR YOUR AWS ACCOUNT.
YOU CONFIRM THAT YOU ARE ACTING IN THE COURSE OF BUSINESS AND ARE NOT A CONSUMER.
You should print a copy of this EULA for future reference.
For the purpose of this EULA:
Commencement Date means:
(a) in relation to a Subscription, such date as is specified as the Commencement Date in the Order Form or, if none, the date of the first to occur of:
(i) you indicating acceptance (whether by signature, electronic signature, email or otherwise) of the Order Form; or
(ii) you clicking on the "Accept" button or any similar acceptance button in relation to these Terms and Conditions;
(b) in relation to a Free Trial, you clicking on the "Accept" button or any similar acceptance button in relation to these Terms and Conditions;
Environment means an environment configuration using the Software for Amazon Redshift, which is used to define a connection to a particular Amazon Redshift schema within a Project (an Environment specifies the Amazon Redshift cluster name, schema name, database name, end-point and access credentials to connect to the same);
Free Trial means any license of the Software we grant to you in respect of which no fees are payable;
Instance means a virtual machine in Amazon's Elastic Compute Cloud (EC2) (or its successor or replacement) for running applications on the AWS infrastructure;
License Key means a unique license key to be provided by us to you to enable you to access the Software on any Instance (whether for a Free Trial or on a Subscription);
Maximum Concurrent User Sessions means the maximum number of User Sessions that may be active at any given time, as set out in the Order Form and as amended from time to time with the consent of both parties or, in the case of a Free Trial, as specified by us;
Maximum Environments means the maximum number of Environments that may be saved at any given time, as set out in the Order Form and as amended from time to time with the consent of both parties or, in the case of a Free Trial, as specified by us;
Maximum Instances means the maximum number, if any, of Instances on which the Software may be used at any given time, as set out in the Order Form and as amended from time to time with the consent of both parties or, in the case of a Free Trial, as specified by us;
Payment Date has the meaning set out in the Order Form or, if there is no such date on the Order Form, the Commencement Date for the Subscription;
Project means a project created by a User, being a collection of one or more jobs and one or more Environments using the Software;
Subscription means the license granted by us to you under this EULA pursuant to an Order Form (for the avoidance of doubt excluding a Free Trial);
Subscription Fees has the meaning set out in the Order Form;
(a) in the case of a Free Trial, such period as we have agreed with you prior to commencement of the Free Trial or, in the absence of such agreement, such period that we shall specify, in each case commencing on the Commencement Date; and
(b) in the case of a Subscription, the period of one year commencing on the Commencement Date for the Subscription or, if different, the period set out as the Subscription Term in the Order Form;
User means you, your employees and other third parties (including agents and independent contractors) who use the Software, the Ancillary Services and/or the Documents, which are the subject of this EULA; and
User Session means the use of the Software by a User on an individual browser tab.
A free trial may in our discretion be made available from time to time to new licensees. Any such trial may only be used for testing purposes.
Notwithstanding the trial being free, you may still be charged by AWS (or its affiliates) for the Instance upon which the Software is installed.
You will be charged in advance for the fees payable in respect of the Term. The fees applicable are as set out in the Order Form. This EULA is non-cancellable by you and (save where expressly stated otherwise in this EULA) all fees are non-refundable.
AGREED TERMS1. Acknowledgements
1.1 The terms of this EULA apply to the Software and to any of the services accessible through or provided in connection with the Software (Ancillary Services). This EULA shall apply to any updates or supplements to the Software or the Ancillary Services, unless they come with separate terms, in which case those terms apply. The following open-source and third-party licenses, which relate to open-source and/or third-party software comprised within the Software, may override some of the terms of this EULA:
You agree to comply (and procure compliance by all Users) with the terms of such licenses and acknowledge that your use of the Software or the Ancillary Services is conditional upon your compliance with such licenses.
1.2 We may change these terms as follows at any time upon written notice where such revision is for the purpose of compliance with laws or regulations and/or the AWS Rules. Your continued use of the Software and/or the Ancillary Services will be subject to and conditional upon your acceptance of any such revised terms.
1.3 From time to time updates to and new versions and/or releases of the Software and/or the Ancillary Services may be issued (including through the AWS Marketplace). You acknowledge that you may be required to accept the then current license terms before accepting any update or new version and/or release and that bugs and errors in the Software and/or the Ancillary Services may be fixed by way of update or new version and/or release. You agree that if you have activated RPM updates on your Instance running the Software, then any update or new version and/or release to the Software shall be on the basis that you accept and agree to the then current terms (which will be available at https://redshift-support.matillion.com/s/article/2845309).
1.4 Any person using the Software and/or the Ancillary Services will be assumed to be authorised by you and to have obtained permission from and be acting with your authority. You agree to be responsible for ensuring that the Users comply with this EULA, for their use of the Software, the Ancillary Services and the Documents and for any User's breach of this EULA. You and they may be charged by your and their service providers for access to the Software and/or the Ancillary Services and/or by AWS in relation to use of Amazon Redshift or other AWS services.
1.5 You agree to comply with and be bound by the AWS Rules. You acknowledge that we and AWS are separate legal entities and no legal relationship of partnership, agency or other association or affiliation exists.
1.6 You acknowledge that:
(a) you will need an Instance (from AWS) upon which the Software will be installed (and in respect of which you will comply with Amazon's terms and conditions for the same);
(b) it is your responsibility to ensure that you have an active account with AWS and subscription for Amazon Redshift and that the Amazon Redshift clusters for which you subscribe through AWS have adequate and appropriate size, processing capacity and configuration for you use of the Software;
(c) your use of the Software may impact on the size and processing capabilities of such Amazon Redshift clusters while the Software is in use;
(d) your use of the Software is dependent on your IP connectivity to AWS, Amazon Redshift and the Instance upon which the Software is installed (no guarantee is therefore given that you or any User will be able to access the Software at any given time and we shall have no liability if it is not accessible or operative at any given time); and
(e) it is your responsibility to ensure that your set-up of Amazon Redshift and the IP connectivity to the Software (including security set-up) is adequate for your use of the Software;
(f) your use of the Software is dependent on having a compatible browser (details of compatible browsers, by reference to the version of the Software, are set out at https://redshift-support.matillion.com/s/article/2017557) and that upgrading your browser may adversely impact on your ability to use the Software.
1.7 You acknowledge that the Software and/or the Ancillary Services may enable or assist you to access and receive the services of, the website content of, to correspond with, and to purchase products and services from, third parties (including AWS) and that you do so solely at your own risk. We make no representation or commitment and shall have no liability or obligation whatsoever in relation to the products and services of, content or use of, the websites of, or correspondence with, any such third-party, or any transactions completed, and any contract entered into by you, with any such third party. Any contract entered into and any transaction completed with any third-party is between you and the relevant third party, and not us. We recommend that you refer to the third party's terms and conditions. We do not endorse or approve any third party products or services nor the content of any of the third-party website made available or accessed via the Software and/or the Ancillary Services.
1.8 Any words following the terms including, include, in particular or for example or any similar phrase shall be construed as illustrative and shall not limit the generality of the related general words. Clause headings shall not affect the interpretation of this EULA. References to clauses are to the clauses of this EULA.
1.9 An entity or person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders
1.10 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this EULA. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this EULA under that statute or statutory provision.
1.11 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to that term in the other jurisdiction.
1.12 The Order Form (if any) and the Terms and Conditions together form one contract (being the EULA). In the event of any conflict between the terms of the Order Form and these Terms and Conditions, the terms of the Order Form shall prevail.
2. Grant and scope of license
2.1 We grant you a non-transferable, non-exclusive license to use the Software, the Ancillary Services and the Documents, for the relevant Term as a Free Trial or Subscription (as appropriate) subject to the terms of this EULA and the AWS Rules, which are incorporated into this EULA by reference. We reserve all other rights. You shall ensure that Users shall be limited to only you and those of your employees, agents and independent contractors who you permit to use the Software. You acknowledge and agree that you are responsible for all activity and use undertaken by all Users in connection with the Software, the Ancillary Services, the License Key and/or the Documents.
2.2 We will provide you with a License Key upon or following the Commencement Date. You agree to keep the License Key confidential and not to disclose it to any person other than a User who requires it to use the Software for the Permitted Purpose. You agree to be responsible for all use of the License Key.
2.3 In the event that we agree that the Payment Date will be later than the Commencement Date we may issue a temporary License Key, which will expire on or following the Payment Date. In addition to any other rights or remedies we have, we shall not be obliged to issue a replacement License Key in relation to the remainder of the Term and you will not be able to access or use the Software unless and until we have received payment in full of the Subscription Fees, together with any applicable VAT or other sales tax.
2.4 In the event that we believe that any person is using the Software using the License Key contrary to clause 2.2 then without prejudice to any other right or remedy we may:
(a) disable the License Key;
(b) disable or request that AWS disable use of the Software on any Instances that we believe to be using the License Key contrary to clause 2.2.
2.5 Subject to the terms of the EULA, you and other Users may:
(a) view, use and display the Software only in conjunction with your Amazon Redshift subscription and only for your own internal data processing operations and not for or on behalf of any other person (Permitted Purpose);
(b) access the Ancillary Services for the Permitted Purpose only; and
(c) use the Documents for the Permitted Purpose only.
2.6 You undertake that the number of active User Sessions, saved Environments and Instances in respect of which the Software is used at any given time shall not, without our prior written consent, in aggregate exceed the Maximum Concurrent User Sessions, Maximum Environments and/or Maximum Instances (respectively).
2.7 We may at our discretion and to the extent permitted from time to time under AWS Rules monitor your use of the Software to determine and ensure compliance with the EULA and to protect ourselves and our other customers from fraudulent, unlawful or abusive use of the Software. We may disclose any content, record, use or other information to the extent reasonably necessary to protect our rights or to comply with any law, regulation or government request.
3. License restrictions
3.1 Except as expressly set out in this EULA, you agree:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties (and only to that extent);
i. not to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documents (as applicable) in any form or media or by any means; or
ii. not to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) not to access all or any part of the Software, the Ancillary Services and Documents in order to build a product or service which competes with the Software and/or Ancillary Services and/or the Documents;
(c) not to use the Software, the Ancillary Services and/or Documents to provide services to third parties or for any purpose other than the Permitted Purpose;
(d) not to license, sell, rent, lease, transfer, assign, sublicense, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, the Ancillary Services, the License Key and/or Documents available to any third party;
(e) not to attempt to obtain, or assist third parties in obtaining, access to the Software, the Ancillary Services and/or Documents;
(f) to ensure that all Users comply with the terms of this EULA;
(g) to comply with all laws and regulations with respect to your and all other Users’ activities under this EULA;
(h) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the Software or any Ancillary Service; or
(i) not to access the Software using any license key (including any license key issued to any third party) other than a License Key issued by us to you, ,
together License Restrictions.
3.2 You agree to prevent any unauthorised access to, or use of, the Software, the Ancillary Services and/or the Documents and, in the event of any such unauthorised access or use, promptly notify us.
4. Acceptable use restrictions
You shall not:
4.1 access, store, distribute or transmit during the course of your use of the Software or the Ancillary Services, any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; or
4.2 access, store, distribute or transmit during the course of your use of the Software or the Ancillary Services, any material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
4.3 infringe our Intellectual Property Rights (as defined in clause 6.4) or those of any third party in relation to your use of the Software, the Ancillary Services or Documents;
4.4 use the Software, the Ancillary Services and/or the Documents in a way that could damage, disable, overburden, impair or compromise our security or interfere with other users; and
4.5 attempt to decipher any transmissions to or from any Instances running any Software,
together Acceptable Use Restrictions.
5. Payment terms
5.1 You agree to pay the Subscription Fees upon the Payment Date.
5.2 If due to a pricing error the fees specified as set out in clause 5.1 are obviously less than the correct Subscription Fees and this could reasonably have been recognised by you as a mispricing we may immediately terminate the EULA without liability to you. If this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees paid by you, calculated on a pro rata basis for the remainder of the period to which such Subscription Fees relate.
5.3 You acknowledge and agree to pay all fees charged by AWS (or its affiliates) relating to the Instance upon which the Software is installed (including any infrastructure charges). Details of their charges are at http://aws.amazon.com/ec2/pricing/.
5.4 All Subscription Fees and other amounts payable in connection with this EULA are:
(a) non-cancellable and (save where expressly stated otherwise in this EULA) non-refundable;
(b) exclusive of applicable taxes and duties, including VAT and any applicable sales tax (including state sales and use tax), for which you may be additionally liable. If applicable, you agree to pay on demand the amount of any such tax or duty for which you are liable in relation to the Subscription Fees and any other amounts due to us or AWS. You will provide us with any information we reasonably request to determine whether we are obliged to collect VAT (or any other sales tax) from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use or similar transaction tax, you are responsible for providing us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction or withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
5.5 All amounts payable under this EULA shall be made by you without set-off, counterclaim, deduction or withholding.
6. Intellectual property rights
6.1 You acknowledge that all Intellectual Property Rights (as defined below) in the Software, the Ancillary Services and the Documents anywhere in the world belong to us or our licensors, that Intellectual Property Rights in the Software, the Ancillary Services and the Documents are licensed (not sold) to you, and that you have no Intellectual Property Rights in, or to, the Software, the Ancillary Services and the Documents other than the right to use each of them in accordance with the terms of this EULA.
6.2 You acknowledge that you have no right to:
(a) have access to the Software in source-code form;
(b) download the Software or a copy of it other than strictly and solely for the Permitted Purpose; or
(c) install the Software on any computer or other device other than as an AMI and solely and strictly for the Permitted Purpose.
6.3 In the event of a claim that the Software, the Ancillary Services or the Documents infringes the Intellectual Property Rights of a third party, we may procure the right for you to continue using the Software, or replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably practicable, terminate this EULA by notice to you. If this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees paid, calculated on a pro rata basis for the remainder of the period to which such Subscription Fees relate.
6.4 In this EULA Intellectual Property Rights shall mean all patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, website rights, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
6.5 You shall defend, indemnify and hold harmless us against all claims, actions, proceedings, losses, damages, expenses and costs (including legal fees) arising out of or in connection with use of the Software, the Ancillary Services and the Documents by you or any other User, save to the extent they arise directly as a result of our breach of the EULA.
7. Customer data
7.1 You confirm that you own all right, title and interest in and to all of the data in respect of which the Software is to be used (Customer Data) or you have a license for or right to use the same, and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
7.2 You acknowledge that all storage and processing of Customer Data is carried out by you on AWS within Amazon Redshift. You agree to make a copy and image of the Customer Data prior to using the Software. You acknowledge and accept that we shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data.
7.3 If we process any personal data on your behalf when providing Support (as defined below), the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:
(a) you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you and the Users are located in order to carry out the Ancillary Services (including any Support) and our other obligations under this EULA;
(b) you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this EULA;
(c) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation in any relevant jurisdictions;
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
7.4 Where you have activated the collection of telemetry data within your user settings, we will collect certain anonymous data fields to help us better understand our customers use of the Software including to assess the efficiency of components and features within the Software. Further details of the data fields we collect can be found here. You can activate or deactivate this functionality at any time in your user settings. We will only be able to collect telemetry data when this functionality has been activated by you.
8. Limited Warranty and Support
8.1 We warrant that:
(a) the Software will, when properly used, perform substantially in accordance with the functions described in the Documents; and
(b) that the Documents correctly describe the operation of the Software in all material respects,
for a period of 30 days from the Commencement Date of the Subscription (Warranty Period).
8.2 If within the Warranty Period you notify us in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documents, we may replace or modify the Software so that it complies with the warranty at clause 8.1(a) or, if such remedy is not reasonably practicable or we fail to do so within 30 days from the date of you notifying us of the defect or fault, you may terminate this EULA immediately by giving us written notice. If this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees paid, calculated on a pro rata basis for the remainder of the period to which such Subscription Fees relate.
8.3 The warranty does not apply:
(a) if the defect or fault in the Software or any Ancillary Service results from its use in breach of this EULA;
(b) if the use of the Software or the Ancillary Services is in breach any of the License Restrictions or the Acceptable Use Restrictions;
(c) if there is an update (whether a new release or new version) to the Software or the Ancillary Services which corrects the failure to perform; or
(d) (for the avoidance of doubt) in relation to Free Trials and/or upon renewal or extension of a subscription.
8.4 We may from time to time (but are under no obligation to) provide support services in connection with the Software (Support) as detailed from time to time on our page on the AWS Marketplace and available through redshiftsupport.matillion.com and/or such replacement site as we may specify (Support Site). Support shall constitute an Ancillary Service for the purposes of this EULA.
8.5 All Support and your use of the Support Site shall be subject to this EULA (including the Permitted Purpose, limitations of liability, License Restrictions and Acceptable Use Restrictions set out herein) except as expressly provided otherwise on the Support Site from time to time, and shall be subject to such additional policies, terms and conditions as may be set out on the Support Site from time to time.
9. Limitation of liability
9.1 You acknowledge that the Software and the Ancillary Services have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Software and the Ancillary Services meet your requirements.
9.2 This clause 9 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
(a) arising under or in connection with this EULA;
(b) in respect of any use of the Software, the Ancillary Services and Documents or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this EULA.
9.3 Except as expressly and specifically provided in this EULA:
(a) you acknowledge that the Software is a tool and that you are responsible for the use of such tool and accordingly you assume sole responsibility for results obtained from the use of the Software, the Ancillary Services and the Documents, and for conclusions drawn from such use. Accordingly, you agree to verify and test the results to ensure that they meet your requirements and that they are accurate based on the Customer Data and the use of the Software;
(b) you acknowledge and agree that transmissions are never completely private or secure. You understand that any instructions, message or information you send when using the Software or any Ancillary Service may be read or intercepted by others;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this EULA;
(d) the Software, the Ancillary Services and the Documents are provided on an "as is" and "as available" basis and you acknowledge that the Software is not error, fault or bug free and that we shall have no liability to you for any such occurrences.
9.4 Nothing in this EULA excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation, or
(c) for any other liability which may not be excluded by law.
9.5 Subject always to clause 9.4:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any direct or indirect loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising;
(b) in respect of a Subscription, our total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall in respect of any consecutive 12 month period (commencing with Commencement Date of the Subscription) during the term of this EULA be limited to the total Subscription Fees paid by you in respect of such 12 month period;
(c) in respect of a Free Trial, our total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall be nil; and
(d) we shall have no liability to you unless you serve notice in writing to us of your claim within 3 months of the date you become aware or ought to have become aware of the claim or the circumstances giving rise to the claim.
9.6 Subject always to clause 9.4 but without prejudice to the other terms of this clause 9, we shall have no liability for any damage or loss which is caused by use of the Software, the Ancillary Services and/or the Documents contrary to our instructions (including any Support) or in breach of this EULA, or modification or alteration of the same by any party other than us, our duly authorised contractors or agents or which arise as a result of the Software but would not have arisen had you accepted and installed an update to a new version and/or new release of the Software (or any part thereof) which had been made available to you. We:
(a) do not warrant that your use of the Software or the Ancillary Services will be uninterrupted or error-free; or that the Software, the Ancillary Services, Documents and/or the information obtained through them will meet your requirements; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from any act or omission of AWS, from the operation or non-operation or any other third-party service or software, or from the transfer of data over communications networks and facilities (including the internet) and you acknowledge that the Software, the Ancillary Services and Documents may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.7 This EULA shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this EULA.
9.8 We warrant that we have and will maintain all necessary licenses, consents, and permissions necessary for the performance of our obligations under this EULA.
10.1 This EULA shall commence on the Commencement Date and shall continue until the expiry of the Term or, if earlier, it is terminated in accordance with its terms.
10.2 Upon the expiry of the Term, whether in the case of a Free Trial or Subscription, the license granted under clause 2.1 shall cease and terminate.
10.3 We may terminate or suspend this EULA and/or the Software and/or the Ancillary Services immediately by notice:
(a) if you fail to make payment when due;
(b) if you commit a material or persistent breach of this EULA;
(c) if you breach any of the License Restrictions or the Acceptable Use Restrictions;
(d) if you fail to have a valid, subsisting AWS or Amazon Redshift account or subscription; or
(e) if you are accessing the Software under a Free Trial, at any time at our discretion.
10.4 On termination or expiry for any reason:
(a) all rights granted to you under this EULA shall cease;
(b) you must immediately cease all activities authorised by this EULA, including your use of the Software, the Ancillary Services and the Documents;
(c) you must immediately destroy all copies of the Documents then in your possession, custody or control; and
(d) we may and/or we may require Amazon to disable your access to the Software, the Ancillary Services and the Documents.
11. Communication between us
11.1 If you wish to contact us in writing, or if any condition in this EULA requires you to give us notice in writing, you must send this to us by email at email@example.com. All communications and notices must be in the English language.
11.2 If we have to contact you or give you notice in writing, we will do so at the contact details set out in the Order Form or, if none, using the contact details we have for you.
12. Events outside our control
12.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this EULA that are caused by any act or event beyond our reasonable control, including failure of public or private networks and connectivity (Event Outside Our Control).
12.2 If an Event Outside Our Control takes place that affects the performance of our obligations under this EULA:
(a) our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and
(b) we will use our reasonable endeavours to find a solution by which our obligations may be performed despite the Event Outside Our Control.
13. Other important terms
13.1 We may transfer and assign our rights and obligations under this EULA to another organisation, but this will not affect your rights or our obligations under this EULA.
13.2 You may only transfer or assign your rights or obligations under this EULA to another person if we agree in writing.
13.3 If we fail to insist that you perform any of your obligations under this EULA, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, that will not mean that we will automatically waive any later default by you.
13.4 Each of the provisions of this EULA operates separately. If any court or competent authority decides that any of them are invalid, illegal or unenforceable, the remaining provisions will remain in full force and effect.
13.5 If any invalid, illegal or unenforceable provision of this EULA would be valid, enforceable and legal if some part of it were deleted, the provisions shall apply with whatever modification is necessary to give effect as far as possible to the commercial intention of the parties.
13.6 Please note that disputes or claims arising in connection with this EULA, its subject matter and its formation (including non-contractual disputes or claims) are governed by English law.
13.7 You irrevocably agree for our exclusive benefit that the courts of England shall have exclusive jurisdiction (save as set out in clause 13.8) to hear and determine any suit, action or proceeding and to settle any dispute which may arise out of or in connection with this EULA, its subject matter or formation (including non-contractual disputes or claims) and for such purposes you irrevocably submit to the jurisdiction of such courts.
13.8 Nothing in clause 13.7 shall limit our right to take proceedings against you in any court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdictions preclude the talking of proceedings in any such other jurisdiction whether concurrently or not (unless precluded by applicable law).
13.9 This EULA and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
13.10 Each of the parties acknowledges and agrees that in entering into this EULA it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this EULA or not) relating to the subject matter of this EULA, other than as expressly set out in this EULA.
13.11 Nothing in this EULA is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
13.12 This EULA does not confer any rights on any person or party (other than the parties to this EULA and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.