EULA - Matillion ETL for Snowflake (AWS)

PLEASE READ CAREFULLY BEFORE USING THE SOFTWARE

This end-user license agreement (EULA) is a legal agreement 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 SNOWFLAKE 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 payment for and use of the Software, Snowflake and related matters (including your "AWS Customer Agreement", AWS's "Acceptable Use Policy" and Snowflake’s “Terms of Service”). 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 and the AWS Marketplace logo are trademarks of Amazon.com, Inc. or its affiliates.


Snowflake and the Snowflake logo are trademarks of Snowflake Computing Inc or its affiliates.


OPERATING REQUIREMENTS



THE SOFTWARE REQUIRES:


- A VALID CONTINUING AWS ACCOUNT AND SNOWFLAKE SUBSCRIPTIONS FOR SNOWFLAKE WAREHOUSES 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 SNOWFLAKE (DETAILS OF THOSE BROWSERS WHICH ARE COMPATIBLE WITH YOUR VERSION OF THE SOFTWARE ARE SET OUT AT:


https://snowflakesupport.matillion.com/customer/portal/articles/2017557-supported-browsers

THE SOFTWARE SHALL ONLY BE ACCESSIBLE VIA AMI ON YOUR INSTANCE RUNNING THE SOFTWARE AND MAY ONLY BE USED IN CONJUNCTION WITH SNOWFLAKE.


IMPORTANT NOTICE:


- THIS EULA TAKES EFFECT AND YOU AGREE TO THE TERMS OF THIS EULA, WHICH WILL BIND YOU WHEN YOU CLICK ON THE "ACCEPT TERMS" OR "ACCEPT TERMS & LAUNCH WITH 1-CLICK" BUTTON OR ANY SIMILAR ACCEPTANCE BUTTON. 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 1.7 AND 9.
- CONSENT TO LIST AS CUSTOMER.  BY USING THE SOFTWARE, YOU HEREBY GRANT, AND REPRESENT AND WARRANT THAT YOU HAVE ALL RIGHTS NECESSARY TO GRANT US THE RIGHT TO INCLUDE YOU AND/OR YOUR SUBSCRIBING ORGANIZATION AS A CUSTOMER OR CLIENT OF LICENSOR.
- 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 AND YOU MUST STOP THE ORDER PROCESS NOW.


- YOU ARE RESPONSIBLE FOR ALL ACTIVITY AND USE UNDERTAKEN IN CONNECTION WITH THE SOFTWARE, 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 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.


SUBSCRIPTION


The available Subscriptions are defined by "Instance/Image Size" and "Payment Scheme". Details of all available Subscriptions are set out at: https://www.matillion.com/etl-for-snowflake/pricing/

For the purpose of this EULA:


Environment means an environment configuration using the Software for Snowflake , which is used to define a connection to a particular Snowflake schema within a Project (an Environment specifies the Snowflake Account, Warehouse and access credentials to connect to the same);


Instance means a virtual machine in Amazon's Elastic Compute Cloud (EC2) (or its successor or replacement) for running applications on the AWS infrastructure;


Maximum Concurrent User Sessions means the maximum number of User Sessions that may be active at any given time;


Maximum Environments means the maximum number of Environments that may be saved at any given time;


Project means a project created by a User, being a collection of one or more jobs and one or more Environments using the Software;


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.


INSTANCE/IMAGE SIZE


Each Instance/Image Size Subscription limits the Maximum Concurrent User Sessions and Maximum Environments applicable in relation to the Software. The Instance/Image Size Subscription may be varied by you at any time.


PAYMENT SCHEME


A Payment Scheme Subscription may be varied (from Hourly to Annually) at any time.


Hourly Subscription


You will be charged monthly in arrears for the number of hours (rounded up to the next whole hour for each partial hour of use) during which the Software is available for use (switched "on" via the AWS Management Console (or its successor/replacement)). The charges applicable are not dependent on the actual use of the Software during such time; the charge is according to the Instance/Image Size that you have subscribed to.


A free trial, limited to 14 days, 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.


Annual Subscription


You will be charged in advance for each year's Subscription. The charges applicable are not dependent on the actual use of the Software; the charge is according to the Instance/Image Size that you have subscribed for. Annual Subscriptions are non-cancellable by you and (save where expressly stated otherwise in this EULA) non-refundable.


A free trial is not available for or in conjunction with an Annual Subscription. However, you may purchase an Annual Subscription following the end of a free trial.
 

AGREED TERMS



1. 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:

https://snowflakesupport.matillion.com/customer/portal/articles/2794594

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 at any time (in accordance with the rules and policies applied from time to time by AWS). Your continued use of the Software and/or the Ancillary Services will be subject to any such revised terms.


1.3 From time to time updates to the Software and/or the Ancillary Services may be issued through the AWS Marketplace. You acknowledge that you may be required to accept the then current license terms before accepting any update and that bugs and errors in the Software and/or the Ancillary Services may be fixed by way of update. You agree that if you have activated RPM updates on your Instance running the Software, then any update or upgrade to the Software shall be on the basis that you accept and agree to the then current license terms (which will be available at https://snowflakesupport.matillion.com/customer/en/portal/articles/2804615).


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.


1.5 You agree to comply with and be bound by the AWS Rules and Snowflake Terms of Service. You acknowledge that we, Snowflake 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 a subscription with Snowflake and Snowflake Warehouses that 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 Snowflake Warehouses while the Software is in use;


(d) your use of the Software is dependent on your IP connectivity to AWS, Snowflake 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 Snowflake 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://snowflakesupport.matillion.com/customer/portal/articles/2017557-supported-browsers) 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.


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, 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 and/or the Documents.


2.2 Subject to the terms of the EULA, you and other Users may:


(a) view, use and display the Software only in conjunction with your Snowflake 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.


2.3 You undertake that the number of active User Sessions and saved Environments at any given time shall not in aggregate exceed the Maximum Concurrent User Sessions and/or Maximum Environments (respectively) permitted according to your Subscription from time to time.


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 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 User's activities under this EULA; or


(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,


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 at the times set out above in relation to the relevant Payment Scheme, the fees specified by us (on our listing on AWS's Marketplace) at the time of entering into this EULA, or, if later, upon you varying the Instance/Image Size or Payment Scheme, as being applicable for the relevant Instance/Image Size and Payment Scheme for which you subscribe, as updated from time to time in accordance with clause 5.5 (Subscription Fees).


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 you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.


5.3 You agree to make all payments through AWS and you will ensure at all times that your credit card and/or other account details provided to AWS are accurate and up to date. You authorise AWS to bill the Subscription Fees on such credit card on our behalf. You also 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 We shall be entitled to change the Subscription Fees in relation to your Instance/Image Size and/or Payment Scheme at any time. Changes shall be made in accordance with the rules and policies applied from time to time by AWS. In the case of an Annual Subscription, such change shall take effect no earlier than at the end of that Annual Subscription period.


5.6 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 AWS. If you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.


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.


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 or within Snowflake. 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 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,


(c) for a period of 30 days from the date on which you agree to this EULA (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 you have an Annual Subscription and this EULA is so terminated, we shall return to you the relevant proportion of the Subscription Fees calculated on a pro rata basis for the remainder of the year in respect of which the Subscription Fees have been paid.


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; and


(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.


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 snowflaketsupport.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) 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 the date this EULA is accepted) during the term of this EULA be limited to the total Subscription Fees paid by you during the preceding 12 month period (or in respect of the first 12 month period, during that period); and


(c) 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 or upgrade (whether a new release or new version) to 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. TERMINATION


10.1 This EULA shall commence on your agreeing to its terms and shall continue until it is terminated or it expires in accordance with its terms.


10.2 Upon the expiry of the Annual Subscription, if it has not been renewed the Payment Scheme shall vary to an Hourly Subscription.


10.3 We may terminate or suspend this EULA and/or the Software and/or the Ancillary Services immediately by notice to AWS:


(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 Snowflake account or subscription.


10.4 Without prejudice to any other rights or remedies expressly set out in this EULA, either party may terminate this EULA for any reason by giving notice (you will need to give written notice to us; we may give notice to AWS) according to the relevant Payment Scheme as follows:


(a) Annual Subscription - you must give at least 30 days prior notice at any time (provided always that the Subscription Fees shall be non-refundable); we must give at least 30 days notice but the Annual Subscription shall not terminate until the end of its term;


(b) Hourly - giving at least 30 days prior notice at any time.


10.5 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 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 support@matillion.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 be deemed to have done so if we email AWS.


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.