Master Subscription License Agreement
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Cloud MSLA v1.0 (April 2019)
This Master Subscription License Agreement (the “Agreement”) is made between Looker Data Sciences, Inc. (“Looker”), a Delaware corporation and each party (a “Customer”) that executes an Order Form for the Product and Services (each as defined below). Between Looker and each Customer, the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. This Agreement is effective as of the date of the last signature appearing on Customer’s initial Order Form (the “Effective Date”). By executing the initial Order Form, Customer agrees to all of the terms set forth below.
1.1. “Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Looker or in the business of developing and offering products or technologies that are substantially similar to the Services.
1.2. "Beta Features" means any Product features, functionality or services which Looker may make available to Customer to try at no additional cost, and which is clearly designated as beta, trial, non-production or another similar designation.
1.3. “Customer Data” means (a) all data in Customer’s databases, (b) Customer Confidential Information used to provision the Product and to create Models for Customer’s Product implementation, and (c) all analytical results generated by the Product.
1.4. “Customer Modifications” means versions of Models that have been adapted by Customer using the Product. Customer Modifications are made up of Customer Data, which Customer owns, and the underlying Product, which Looker owns. Customer Modifications are configurations of the Product and not “works for hire.”
1.5. "Deployment Attributes" means the quantified usage of the Product as defined on an Order Form, which include, but are not limited to the number of Instances, Users, computer servers, API calls or other licensing attributes defined by the Scope of Use.
1.6. “Documentation” means the user guides and manuals for the Services provided by Looker for Customer’s own internal use.
1.7. "External Business Purposes" means use of the Product by or for the benefit of Customer’s clients and their users or other third parties. External Business Purposes may also be referred to as “PBL.”
1.8. “Instance” means an authorized deployment of the Product installed on a single operating system, subject to the number of servers described in an Order Form. Each Instance requires a unique Looker license key to operate.
1.9. "Internal Business Purposes" means use of the Product by or for the benefit of Customer’s internal operations.
1.10. “Looker Cloud” means the Product is installed and provisioned to Customer on a web connected platform that is run in a third-party hosting facility designated by Looker.
1.11. “Models” means the logic & data processing methods programmed in Looker’s data modeling language and used to configure the Product. Models are made up of Customer Data, which Customer owns, and the underlying Product, which Looker owns.
1.12. “Order Form” means Looker’s order form for Services and/or Professional Services that has been executed by Looker and Customer. Each executed Order Form will be incorporated into this Agreement by reference.
1.13. “PBL” means “Powered by Looker” and is used to describe use of the Product for External Business Purposes.
1.14. “Product” means the licensed Looker data platform, excluding Third Party Software, related Documentation, Models, and updates and enhancements made to the foregoing by or for Looker.
1.15. “Scope of Use” means Customer’s specific use case for the Product as defined in an Order Form, which may include limitations on Customer’s use for Internal Business Purposes and/or External Business Purposes.
1.16. “Services” means the Looker Cloud and Support Services that are ordered by Customer via an Order Form.
1.17. “Subscription” means Customer’s right to use the Services for the Subscription Term, subject to the Scope of Use and Deployment Attributes identified in an applicable Order Form.
1.18. “Subscription Term” means the period of time Customer may access and use the Services as set forth in an Order Form.
1.19. "User" means an individual who has been authorized by Customer to use the Services. A User may be provisioned directly in the Product or indirectly in another system, with privileges or privileged access to the Product.
2.1. Usage. Upon execution of an Order Form by both parties, Looker will provide Customer with access to an Instance to access the Services. Customer understands and agrees that: (a) the Services may not be accessed or used by more than the specified number of Users identified on the applicable Order Form; (b) that each User constitutes one individual and log-on credentials for each User may not be shared; (c) the Services are limited by the Scope of Use, Deployment Attributes, and other agreed upon restrictions described on the applicable Order Form; (d) only the specified number and category of Users specified on an Order Form shall be provisioned by Customer; and (e) the Services are for use with databases and servers managed and/or owned by Customer. Any circumvention of technical measures constitutes a material breach of this Agreement. If Customer exceeds the number of Users, Scope of Use, and/or Deployment Attributes, Customer and/or Looker will, upon becoming aware, promptly notify the other party and the parties agree to discuss in good faith the additional fees due by Customer to Looker for such over-deployment. The agreed upon additional fees associated with the over-deployment shall be memorialized in a new Order Form signed by both parties.
2.2. Use by Affiliates. Customer’s Affiliates may, upon executing a new Order Form and agreeing to be bound by the provisions of this Agreement use the Product subject to Customer’s Scope of Use and Deployment Attributes or purchase a Subscription for their own defined Scope of Use and related Deployment Attributes. Upon execution of an Order Form by Looker and the Affiliate(s), the Affiliate(s) will be bound by the provisions of this Agreement as if they were an original party hereto.
2.3. External Business Users (“Powered by Looker”). If the Scope of Use described on the Order Form includes PBL use, then Customer may permit its clients and third parties (each a “PBL User” and collectively, “PBL Users”) to use the Services as licensed Users, so long as the PBL Users have written agreements with Customer at least as protective of the rights and obligations contained in this Agreement and the applicable Order Form. Customer may not accept any terms or conditions on behalf of Looker that modify, add to or change in any way the terms and conditions applicable to the Services. Customer will be solely responsible to the PBL Users for any warranties or other terms provided to them in excess of the warranties and obligations described in this Agreement. Any PBL Users’ access to the Services may be terminated by Looker, at any time, if such PBL User is found to be in breach of any term or condition of this Agreement.
2.4. Customer Responsibilities. Customer shall: (a) use the Services in accordance with this Agreement and all Documentation; (b) be responsible for its Users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized use or access to the Services, any account or password, or any copying of the Product, and notify Looker immediately of any such unauthorized use, access or copying; and (d) be solely responsible for: (i) the accuracy and legality of Customer Data, the means by which it acquires and uses such Customer Data, including compliance with any regulations and laws applicable to the Customer Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Data necessary to permit Looker’s compliance with its obligations under this Agreement and (ii) any acquisition, implementation, support or maintenance of third-party products or services purchased by Customer that may interoperate with the Services.
2.5. Restrictions. Customer shall not, and shall not allow others to: (a) cause or permit the reverse engineering, disassembly, or decompilation of any portion of the Product; (b) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Product; (c) use or modify the Product in any way that would subject the Product, in whole or in part, to a Copyleft License (as defined below); (d) use the Product or Services, or permit it to be used, for purposes of evaluation benchmarking, performance tests or other comparative analysis intended for publication or disclosure to third parties; (e) except as permitted by this Agreement, directly or indirectly: distribute, sell, sublicense, rent, lease, market, use or commercialize the Product (or any portion thereof); (f) provide the Product on a time sharing, hosting, service provider or other similar basis; (g) copy any features, functions or graphics of the Product for any purpose other than what is expressly authorized under this Agreement; (h) send, store, access or authorize a third party to send, store or access spam, unlawful, infringing, obscene or libelous material, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (i) interfere with or disrupt the integrity or performance of the Services; or (j) perform operations that adversely impact the Looker Cloud infrastructure. “Copyleft License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., http://www.gnu.org/copyleft/).
2.6. Beta Features. Beta Features made available by Looker are provided to Customer for testing purposes only, and Looker does not make any commitment to provide Beta Features in any future versions of the Product. Customer is not obligated to use Beta Features. Looker may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Looker does not provide Support Services for Beta Features, and all Beta Features are provided "AS IS" without warranty of any kind.
3.1. License Grant.
Right To Use. Subject to the terms of this Agreement, Customer shall have the right to access, use, and configure the Product during the Subscription Term subject to the defined Scope of Use and related Deployment Attributes described in the applicable Order Form. As set forth in Section 2.3 above, Customer may sublicense certain rights to the Services for External Business Purposes.
Third Party Software. The Services include licensed software from third parties (“Third Party Software”) that is subject to its own terms and conditions. The licensing terms and attributions for the Third Party Software used by Looker can be found at: Notices & Acknowledgments.
3.2. Ownership Rights.
What Looker Owns. The Product constitutes proprietary intellectual property of Looker and its licensors, protected by patents, trademark, copyright and other intellectual property laws. Except for the rights granted herein, Looker and its licensors retain all right, title and interest, including all intellectual property rights, in the Product (and any derivative works of or improvements to any of the foregoing created by or for Looker) and Documentation. The term “purchase” in reference to the Product notwithstanding, it is expressly agreed by the parties that title to the Product does not pass to Customer and Customer’s rights with respect to the Product will only be that of a licensee. Except as expressly provided herein, this Agreement does not grant Customer any rights under any of Looker’s intellectual property rights. Customer agrees that any and all use of Looker’s trademarks by Customer will inure to the benefit of Looker and Customer shall have no trademark rights in Looker’s trademarks.
What Customer Owns. Customer retains all rights to Customer Data. Looker disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to allow the Product to analyze Customer Data in accordance with this Agreement.
3.3. Feedback. Customer or Customer User’s may, from time to time, provide suggestions, comments, corrections, ideas, enhancement or feature requests or other information to Looker with respect to any of Looker’s Services, Documentation, Professional Services or operations (collectively, referred to hereafter as “Feedback”). Customer agrees that such Feedback is given voluntarily, and that Looker may use, disclose, reproduce, modify, commercialize, license, distribute and exploit the Feedback freely, in its sole discretion, without any restriction or obligation of any kind. For the avoidance of doubt, Feedback does not include Customer Confidential Information or Customer Data.
4.1. Support Terms. During the Subscription Term, Looker will provide Customer with the support services described at the following URL: Support (the “Support Services”). Looker reserves the right, from time to time, to make modifications to the Support Services (or particular components thereof), provided that such modifications do not materially reduce the Support Services in effect as of the Effective Date of this Agreement. Looker agrees to use commercially reasonable efforts to notify Customer of any material modifications to the Support Services by posting a notice of the modification on the URL noted above.
4.2. Professional Services. If Customer purchases professional services (“Professional Services”), such Professional Services will be provided in accordance with the terms described in Exhibit A. In addition, if Customer purchases enablement services, Looker will provide the setup, training and installation services described in Exhibit B (“Jumpstart Services”).
TERM AND TERMINATION.
5.1. Term of Agreement. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues until all Subscription Terms and Professional Services have expired or been terminated.
5.2. Subscription Term. Except as specified otherwise in an Order Form a standard Subscription is for a one (1) year Subscription Term and: (a) Subscriptions will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless either party notifies the other in writing at least thirty (30) days prior to expiration of the then-current Subscription Term, and (b) Looker will invoice Customer for the Subscription fees prior to the Renewal Term at the list prices in effect at the time of renewal, unless the parties agree to different pricing in writing, sixty (60) days prior to commencement of the Renewal Term.
5.3. Termination Rights. Either party may terminate this Agreement (including all related Order Forms and SOWs) if the other party: fails to cure any material breach of this Agreement within 30 days after written notice of such breach; ceases operation without a successor; or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days).
5.4. Effect of Termination. Immediately upon termination of this Agreement, Customer shall cease all use of the Services. Within ten business days following the termination date, Customer shall, at Looker’s option, return to Looker or destroy (and certify to Looker in writing as to such destruction) and any other materials embodying or reflecting the Services and Looker Confidential Information. On termination or expiration of this Agreement, other than termination by Customer for Looker’s uncured breach, Customer shall immediately pay Looker the remaining balance (if any) identified on the Order Form for the remainder of the Subscription Term.
5.5. Survival. Sections 1, 2.5, 3, 5.4, 6, 7, 8.6, 8.7, 9, 10 and 13 of this Agreement shall survive expiration or any termination of this Agreement; provided that Sections 9 and 10 shall only survive to the extent applicable to a claim.
INVOICING, PAYMENT AND RECORDS.
6.1. Fees, Taxes and Payment. Customer will pay Looker in U.S. Dollars the fees specified in an applicable Order Form, in the amounts and at the times specified therein. Except as otherwise specified herein or in an Order Form, all fees are due 30 days from the date of Looker’s invoice, payment obligations are non-cancelable and all fees paid are non-refundable. Payment for a Renewal Term is due 30 days prior to the commencement of the Renewal Term, unless otherwise agreed to by the parties. If payment is not received within 30 days following the due date, Looker may, upon notice to Customer, suspend Customer’s access to the Services until overdue amounts are paid in full. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Looker’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Looker hereunder. If an applicable tax authority requires Looker to pay any taxes that should have been payable by Customer, Looker will advise Customer in writing, and Customer will promptly reimburse Looker for the amounts paid.
6.2. Reporting/Audit. On Looker’s request, but not more than four times per year, Customer will provide to Looker a report listing, at a minimum, the Deployment Attributes it is using for each Scope of Use (including, if applicable, the number of External Business Users using the Services) and the Instance(s) deployed and related license key(s). If Deployment Attributes are measurable by a ping from Looker’s license server, the ping will serve as this report. If there is a discrepancy between the Scope of Use and/or the Deployment Attributes purchased by Customer and Customer’s actual usage, Looker may, at its expense and not more frequently than once per calendar year, audit Customer’s records relating to Customer’s use of the Services, and Customer agrees to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with prior written notice, during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business. If the audit indicates an underpayment, Customer shall pay the additional fees associated with the underpayment. If the underpayment is greater than 5% of the amount paid by Customer for the period audited, Customer shall also pay Looker’s reasonable expenses of the audit.
6.3. Additional Usage. Customer may increase Deployment Attributes (including adding Users) at any time during the term of the Agreement by executing a new Order Form identifying the additional Deployment Attributes and related pricing. Increases in Deployment Attributes will co-terminate on the same date as the pre-existing Subscription Term. Customer understands and agrees that Customer will be charged a pro-rata fee for the initial month in which Deployment Attributes are added and a monthly fee for each of the monthly periods remaining in the then-current Subscription Term. Customer also understands and agrees that the Deployment Attributes purchased under a specific Order Form cannot be decreased during the Subscription Term.
7.1. Confidential Information. Subject to the limitations set forth in Section 7.2, all information disclosed by one party to the other party during the term of this Agreement that is either identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information.” The existence and terms of this Agreement are Confidential Information of both parties.
7.2. Exceptions. Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: publicly available through no act or omission of the receiving party; in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; lawfully disclosed to the receiving party by a third party without restriction on disclosure; or independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information.
7.3. Nondisclosure. The parties agree, both during the Subscription Term and for a period of three years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees, subcontractors, agents or service providers performing services for the benefit of the receiving party (collectively, “Representatives”) who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its Representatives in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall, to the extent permitted by law, promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 7.3 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
7.5. Processing of Customer Data. Customer grants Looker the non-exclusive right to access and process the Customer Data for the sole purpose and only to the extent necessary to provide the Services. Looker agrees not to use, access, disclose or process any Customer Data, except to: (i) perform the obligations permitted by Customer under this Agreement; and (ii) comply with applicable laws.
7.6. Data Protection. To the extent the parties execute a Data Protection Agreement (“DPA”) due to the processing of Personal Data (as defined in the DPA) which may be contained in Customer Data or Customer Confidential Information that is processed by Looker in its provision of the Services, the terms of such DPA shall be incorporated into this Agreement by reference.
LIMITED WARRANTIES AND EXCLUSIVE REMEDIES.
8.1. Authority. Each of Looker and Customer represents and warrants that: it has the full right, power and authority to enter into and perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation.
8.2. Product Warranty. Subject to Section 8.7 below, Looker warrants that the Product, as made available to Customer by Looker, will perform the material functions described in the applicable Documentation when used in the software and browser operating environment described therein and connected to databases supported by Looker. For breach of the foregoing, Looker agrees to fix the material functionality at issue and if Looker is unable to fix the deficiency, Customer’s sole and exclusive remedy for a breach of warranty contained in this Section 8.2 shall be to terminate the Agreement and have Looker refund to Customer the pro-rata unused portion of any pre-paid fees.
8.3. Security. Looker will use procedural, technical, and administrative safeguards for its Services designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Confidential Information and Customer Data stored in the Instance. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Looker will not be responsible for any breach or loss resulting from Customer’s security configuration or administration of the Services.
8.4 Service Levels. Looker will use commercially reasonable efforts to make the Looker Cloud available to Customer 24 hours a day, 7 days a week (the “Availability Commitment”). The Availability Commitment does not apply to any of the following: (a) Customer’s environment or use of the Services not consistent with the Documentation or as described in this Agreement; (b) regularly scheduled maintenance as described in the schedule; (c) any unavailability caused by circumstances or events outside Looker’s reasonable control, including any force majeure event, Internet access, Customer’s or any third party’s actions or inactions, equipment, software, or other technology; or (d) Instances provisioned for development, staging or other non-production usage.
8.5. Warranty Exclusions. Looker is not obligated to correct errors caused by: (a) unauthorized modification to the Product, (b) Customer Modifications, (c) using the Services other than as described in the Documentation, (d) non-Looker software, or (e) combining the Product with any other software not authorized by Looker in writing.
8.6. NO IMPLIED WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8 AND AS PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8.7. DISCLAIMER. LOOKER DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE OR WITH ANY NON-LOOKER PROGRAMS USED BY CUSTOMER, THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED. LOOKER SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
9.1. Indemnification by Looker. Looker at its own expense shall defend or settle any third party claims, actions and demands brought by anyone other than a Customer Related Party (as defined below) against Customer and its Related Parties (collectively, the “Claims”) where the third party expressly asserts that: (a) the Product infringes such third party’s trademark or copyright arising under the laws of the United States, or (b) Looker misappropriated such third party’s trade secrets in the development of the Product. “Related Parties” means directors, officers, employees, Affiliates, successors, assigns of Looker or Customer, as applicable. In the event that Looker believes the Product, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 9.1 applies, then Looker may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Product or any applicable part thereof, (2) replace such Product, or infringing part thereof, with a non-infringing version (or part thereof), (3) modify such Product, or infringing part thereof, so as to make it non-infringing, or (4) in the event that (1), (2) or (3) are not commercially feasible, then Customer shall have the right to terminate this Agreement solely with respect to the infringing Product, and have Looker refund to Customer the pro rata unused portion of any pre-paid fees for such Product. THIS SECTION 9.1 STATES LOOKER’S SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE PRODUCT DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.2. Indemnification by Customer. Customer at its own expense shall defend or settle any third party claims, actions and demands brought by anyone other than a Looker Related Party, against Looker and its Related Parties, where the third party expressly asserts: (a) misappropriation, misuse or breach of applicable law related to Customer Data; (b) Customer’s breach of Section 2 of this Agreement; or (c) claims that Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement.
9.3. Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a claim, the party to be indemnified will notify the other party of the claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by a failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the claim at the indemnifying party’s expense; provided, however, the indemnified party: may join in the defense and settlement of the claim and employ counsel at its own expense; and will reasonably cooperate with the indemnifying party in the defense and settlement of the claim. The indemnifying party may not settle any claim without the indemnified party’s written consent unless the settlement: (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.
9.4. Indemnification Exclusions. Looker shall not have any indemnification obligation pursuant to this Agreement to the extent a claim is based upon: (a) use of any version of the Product other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; (b) combination, operation or use of the Product with software not supplied by Looker if infringement would not have occurred but for such combination; (c) use of the Product in violation of this Agreement; (d) Customer Modifications; (e) where Customer continues to use the Product after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; (f) Third Party Software, Customer software or Customer Data; or (g) Beta Features.
9.5. ENTIRE LIABILITY. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM BY A THIRD PARTY DESCRIBED IN THIS SECTION.
LIMITATION OF LIABILITY.
10.1. NO INDIRECT DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 2, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUE, GOODWILL, OR INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY AND/OR ITS LICENSORS HAS/HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.2. LIMIT ON DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF SECTION 2, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO LOOKER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6.
10.3. Allocation of Risk. The provisions of this Agreement fairly allocate the risks between Looker, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Looker would not enter into this Agreement without such allocation and limitation.
Customer acknowledges and agrees that the Product is subject to all applicable export control and economic sanctions laws and regulations, including, without limitation, those of the United States Government. Customer shall strictly comply with all applicable export control and economic sanctions laws and regulations related to the Product, including, without limitation, U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, the economic sanctions codified in 31 C.F.R. Part 500 et seq., and all licenses and authorizations issued under such laws and regulations. Customer shall fully cooperate with Looker in securing any export licenses and authorizations required under applicable export control and economic sanctions laws and regulations. Customer agrees that it shall not, and shall cause its representatives, employees, agents, contractors and customers to agree not to, export, re-export, divert, release, transfer, or disclose any such Product, or any direct product thereof, to any prohibited or restricted destination, end-use or end-user, except in accordance with all relevant export control and economic sanctions laws and regulations. Customer shall make its records available to Looker upon reasonable request to permit Looker to confirm Customer’s compliance with its obligations as set forth in this Section 11.
- U.S. GOVERNMENT RIGHTS.
This Section 12 applies if Customer is, or is a contractor to, a US government agency. The Product, and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Looker and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government's right to use, reproduce or disclose the Product and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Product and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
13.1. Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any non-disclosure or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in full force and effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any Customer purchase order or other business form (“Customer’s Form”). If accepted by Looker in lieu of or in addition to Looker’s Order Form, Customer’s Form shall be binding only as to the following terms: the Services ordered; and the appropriately calculated fees due. Other terms shall be void and unenforceable, irrespective of the representations, obligations and covenants contained therein.
13.2. Assignment. This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that Looker may assign this Agreement to its successor in the event of a merger, acquisition, corporate reorganization or sale of all or substantially all of Looker’s assets. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
13.3. Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
13.4. Amendment; Counterparts. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed electronically or by written signature and delivered in multiple versions, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
13.5. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in the Northern District of California and Santa Clara County, California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
13.6. Notices. All notices under this Agreement shall be sent in writing and shall be delivered by: personal hand delivery; first class mail with return receipt; overnight mail by recognized commercial carrier with tracking receipt; or confirmed email or fax and copied by one of the methods described in (a), (b) or (c) above, to Customer at the address on the Order Form and to Looker at 101 Church St., Santa Cruz, CA 95060; firstname.lastname@example.org. Either party may update its address as described in this paragraph.
13.7. Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, franchise, agency, fiduciary or employment relationship between Customer and Looker.
PROFESSIONAL SERVICES TERMS AND CONDITIONS
Professional Services purchased by Customer will be as described on an applicable Order Form or Statement of Work (“SOW”) (the Order Form and SOW hereinafter collectively referred to as an “Ordering Document”). The Professional Services shall be governed by the terms and conditions of the Agreement, including this Exhibit A, and the applicable Ordering Document.
Location of Performance. All Professional Services will be provided remotely by Looker, unless stated otherwise in an applicable Ordering Document. Customer understands that additional expenses may apply if Looker agrees to perform work onsite.
Customer Project Manager. Customer agrees to designate a responsible employee with reasonable decision-making authority to be the project manager (the “Project Manager”) for each engagement of Professional Services (each a “Project”). Thereafter, Looker shall consult with Customer’s Project Manager and such other personnel as designated by Customer’s Project Manager, in order to facilitate the fulfillment of Project obligations.
Looker Personnel. Looker will provide a single point of contact to assist Customer’s Project Manager with coordination of Looker resources, status reporting and issue resolution. In addition, Looker will provide all resources, tools and equipment and utilize such qualified employees and/or non-employee contractors of Looker (“Personnel”) as it deems necessary to perform the Professional Services. Looker agrees to be responsible and liable for the performance of Professional Services by any Personnel it appoints and reserves the right to replace personnel in its normal course of business.
Scope of Work. There are no formal deliverables or acceptance criteria defined. Work is deemed accepted as it is performed.
- PROJECT ROLES.
Looker Project roles:
The Consultant delivers on the Project scope with a focus on enabling customers to achieve continued success in their use of the Product.
Engagement Manager is responsible for coordinating activities on Looker’s behalf, resolving dependencies and issues that may arise, and enabling Customer’s Project Manager to drive business outcomes with Looker.
Customer Data Analysts will partner with Looker Consultants to deliver upon the outlined scope of the Project. It is required that Customer Data Analysts have the appropriate technical skill set and have undergone Looker technical training to deliver upon any Looker implementation work.
The Customer Project Manager has overall responsibility for the completion of the Project. He/she is responsible for coordinating Customer resources and ensuring that any required resources are available to ensure smooth Project delivery.
Business User engagement is critical to any Looker Professional Services engagement. Executive sponsors and business users must be available for requirements gathering exercises, feedback and training sessions.
- PAYMENT AND EXPENSES.
Unless stated otherwise in an Ordering Document, all Professional Services will be invoiced upon execution of the applicable Ordering Document. All fees are due in accordance with the terms set forth in Section 6.1 of the Agreement.
- TERM, CHANGES TO PROFESSIONAL SERVICES AND TERMINATION.
Term. The term of a Project will be as designated in the service package description in an Ordering Document.
Change Order. In the event that Customer requires changes to the scope or timing of a Project, Customer agrees to discuss such changes with Looker. If Looker agrees to modify the scope of a Project, the parties agree to work in good faith to memorialize the changes in a “Change Order” or an amended Ordering Document, including but not limited to, an adjustment of fees applicable to the change in scope or timing of the Project. Customer further understands and agrees that Looker shall not be obligated to perform any different or additional Professional Services requested by Customer unless the parties have mutually agreed in writing upon the performance of such request.
Termination. Upon termination by either party in accordance with Section 5.3 of the Agreement, Looker will immediately cease performing the Professional Services and Customer agrees to pay Looker for the Professional Services provided to Customer prior to termination, if such fees have not already been paid.
- PROJECT REQUIREMENTS/CONSTRAINTS.
In order to ensure the timely engagement, performance, completion and success of a Project, Customer understands and agrees that the following requirements are critical.
- Customer must ensure that data structures are finalized, and data is readily available by the Kick Off Meeting to be scheduled by Customer (the “Project Kick-off Meeting”).
- Customer must supply remote access to their systems and credentials to Looker Personnel within (3) three business days of the Project Kick-off Meeting.
- Customer will assign personnel with appropriate skills and experience as described in Section 3 above, that are available to work with Looker through the completion of the Project.
- Customer will ensure that personnel assigned to work on the Project will undergo proper training.
- Customer will ensure that appropriate resources are engaged to resolve an issue if Looker determines the issue is due to a problem in Customer’s environment.
- Customer will notify Looker at least (24) twenty-four hours in advance if a meeting or session needs to be rescheduled.
- Customer understands that they will be responsible for maintaining their Looker model.
- Professional Services will be performed during Looker’s business hours, based on the location of the Looker Consultant.
- Looker expects that Customer personnel are available during Looker business hours. Looker understands that occasions arise during customer engagements that require a longer or shorter working day.
- Looker Personnel will make him or herself available only over email, phone, and/or video conference during the course of the Project, unless otherwise agreed to in an Ordering Document.
- ISSUE RESOLUTION.
Customer’s Project Manager will notify the Looker Project Manager of any apparent issue or concern that might cause a risk to the Project and the parties agree to work in good faith to resolve any issue in a timely and professional manner. It is assumed that all Project issues will be resolved quickly by Customer’s Project Manager, the Looker Business Contact and Customer and Looker personnel. If resolution of the issue is not reached, the parties agree to escalate such matter to their senior management for resolution.
- RETENTION OF RIGHTS.
It is the intent of the parties that the Professional Services are a configuration of the Product. All intellectual property rights that are owned or controlled by a party at the commencement of the Professional Services shall remain under the ownership and control of such party throughout the term of the Professional Services engagement and thereafter. In the event Looker does create, conceive or develop any new ideas, concepts, methods, techniques, skills, knowledge, reports, recommendations or other deliverables (collectively, the “Base Work”) as a result of performing the Professional Services, Looker shall own such Base Work, and hereby grants to Customer a royalty-free, non-exclusive, world-wide, fully paid, limited license to use and practice the Base Work for its Internal Business Purposes and, if applicable, its External Business Purposes, in conjunction with the authorized use of the Services, during Customer’s Subscription Term.
- WARRANTIES AND LIMITATION OF LIABILITY.
Performance. Looker represents and warrants that the Professional Services shall be performed in a timely and professional manner consistent with the level of care, skill, practice and judgment exercised by other professionals in performing services of a similar nature under similar circumstances by personnel with requisite skills, qualifications and licenses needed to carry out such work. Customer’s sole and exclusive remedy, and Looker’s sole and exclusive liability, for breach of this Section 9(a) shall be to re-perform the Professional Services, within a reasonable time. If Looker is unable to re-perform the Professional Services, then Looker may terminate the applicable Ordering Document. Any claim based on a breach of the foregoing warranty must be submitted to Looker in writing within ten (10) days from performance of the applicable Professional Services.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, LOOKER MAKES NO OTHER REPRESENTATION OR WARRANTY REGARDING PROFESSIONAL SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND ALL SUCH REPRESENTATIONS OR WARRANTIES ARE HEREBY EXCLUDED.
Waiver of Consequential Damages. WITH RESPECT TO THE PROFESSIONAL SERVICES, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Limitation of Liability. LOOKER’S AGGREGATE LIABILITY, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), ARISING OUT OF OR IN CONNECTION WITH ANY PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE PROFESSIONAL SERVICES FEES PAID BY CUSTOMER PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9(d) IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF LOOKER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. LOOKER HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE PROFESSIONAL SERVICES.
In the event of any conflict or inconsistency, related to Looker’s provision of Professional Services, between the terms and conditions of the Agreement, this Exhibit A, or an applicable Ordering Document, the order of precedence shall be as follows: (i) Ordering Document, (ii) Exhibit A, and then (iii) the Agreement.
If Customer purchases Jumpstart Services, the following additional terms shall apply:
The objective of the Jumpstart Service is to help Customer rapidly learn to develop Models and use the Product. Looker will assign a consultant to assess Customer’s needs, then consult, train, and in some cases co-develop Models with Customer’s Data Analysts.
Looker will provide subject matter expertise, working under the direction of Customer Project Managers and technical staff, as part of Customer’s Project team(s). Looker Consultants will assist and mentor Customer’s Project team(s) to ensure the best application of the Product. This will include providing guidance to Customer around the design, development, testing and deployment of Customer’s applications using the Product.
A Jumpstart Service includes the following elements:
- Project Kick-off Meeting
- Model and Data Review
- Co-Development Sessions
- Developer Training
- Recommendation Summary Report
- Business User Training
Jumpstart Services are intended to be completed within sixty (60) days of the Project Kick-Off Meeting. If Jumpstart Services are not completed within ninety (90) days following the Project Kick-Off Meeting, Customer must:
End the engagement and transition to Support by Looker’s customer success team; or
Execute an additional PSA to extend the timeframe of the Jumpstart Service. Additional fees may apply depending on the remaining work required to complete the Jumpstart Services.
To facilitate the scheduling of Looker Personnel designated to work on the Jumpstart Services, Looker requests at least three (3) business days advanced notice prior to the Project Kick-Off Meeting.