This Master Subscription Agreement is effective as of April 8, 2020
This Fivetran Master Subscription Agreement (the “Agreement”) is made between Fivetran, Inc., a Delaware corporation (“Fivetran”) and the party (“Customer”) that subscribes for the Services, as defined below. Between Fivetran and each Customer the Agreement consists of these terms, each signed order form or online enrollment (including any notes, pricing or other terms listed therein) (the “Order Form”), including any exhibits, and any updates or amendments to each of the foregoing. This Agreement is effective as of the date of Customer’s initial Order Form (the “Effective Date”). By executing the initial Order Form or accessing the Services, Customer agrees to all the terms set forth below. Customer’s usage of the Services is governed by Fivetran’s Service Consumption Table at https://fivetran.com/legal/credit-consumption.
In certain cases Fivetran may provide a trial version of the Services. In that case each Customer consents to this Agreement by clicking Agree or using the Services. If Customer and Fivetran execute a subsequent agreement regarding commercial use of the Services, its terms will supersede the terms here to the extent of any conflict.
THE PARTIES AGREE AS FOLLOWS:
1. SERVICES AND SUPPORT
1.1 Services. Fivetran will use commercially reasonable efforts to provide to Customer the data pipeline management services identified on each Order Form and the technical support on Exhibit A, and Customer may have use and access such services, each according to the terms of the Agreement. Customer’s use case will be described on the Order Form or separate schedule and may include internal usage (for Customer and its Affiliates) and/or “Powered by Fivetran” or “PBF” usage where Customer provides data pipeline management services to its customers. The term “Services” includes the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Fivetran to Customer. “User” means an individual that Customer has provisioned to use the Services through its account.
1.2 Orders by Affiliates. To the extent Customer’s Affiliates wish to make separate purchases, any of Customer’s Affiliates may execute a new Order Form for credits purchased specifically for that Affiliate entity and will be subject to this Agreement unless otherwise noted. “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 current or prospective competitor to Fivetran or in the business of developing and offering products or technologies that are substantially similar to the Services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Use of Software Underlying Services. Customer will not and will not allow Users to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (the “Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Fivetran in writing or authorized within the Services); frame, mirror or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as part of a Powered by Fivetran deployment identified on an Order Form; or remove any proprietary notices or labels.
2.2 Consents. Customer is responsible for any consents and notices required to permit: (a) Customer's use and receipt of the Services and (b) Fivetran’s access to and processing of Customer Data pursuant to this Agreement.
2.3 Appropriate Use of Services. Customer will not, and will not permit its Users to:
(a) Post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Services; or
(b) Attempt to access any other Fivetran systems that are not part of the Services;
(c) Use the Services to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
(i) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; or
(ii) Any information, software or content Customer does not have the legal right to process or transmit.
2.4 In its reasonable discretion Fivetran may do so and may prohibit any use of the Services it believes may be in violation of the foregoing. Customer is responsible for the use of the Services by its employees, consultants and Users and for compliance by each User with this Agreement.
2.5 Powered by Fivetran Deployments. If so specified on an Order Form or applicable schedule, Customer may offer the Services to its customers as part of an integrated product. Customer may provide the Services to its customers only subject to a written agreement at least as protective of Fivetran’s rights in the Services as this Agreement. Customer may not accept, and acknowledges that Fivetran will not be bound by, any terms or conditions with Customer’s customers that modify, add to or change in any way the Agreement or Order Form. Customer is responsible for providing first-level support to its customers regarding Services-related issues; Fivetran will provide support only to Customer regarding the Services.
2.6 Services Use Review. Within 30 days of Fivetran's reasonable written request, Customer will provide a sufficiently detailed written report of Services usage, including a breakdown of Users, data sources and destinations between Customer-internal usage and PBF usage. If requested, Customer will provide reasonable assistance and access to information to verify the accuracy of any information provided to Fivetran, which verification may include access to records relating to Customer's use of the Services. If the review indicates an underpayment, Customer will pay the additional Fees associated with the underpayment.
3.1 Confidential Information. Subject to the limitations set forth in Section 3.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. Confidential Information of Fivetran includes non-public information regarding features, functionality and performance of the Services and Software. Confidential Information of Customer includes all data provided by Customer to Fivetran via the Services (“Customer Data”).
3.2 Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
3.3 Nondisclosure. Each party covenants that it will not disclose any Confidential Information of the other party to any person or entity except: (a) to agents of the receiving party who have a need to know such information, who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. Neither party may use the other party's Confidential Information in any directly competitive manner or for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
3.4 Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains information disclosed by the disclosing party, the receiving party will continue to protect such information in accordance with Section 3.3: (x) for so long as it meets the definition of Confidential Information above; (y) if it constitutes a trade secret for so long as required under applicable law, and/or (z) if it constitutes personal data received from the disclosing party for so long as required by applicable law.
3.5 Customer Identification. Upon Customer’s prior written consent, Fivetran may identify Customer as a user of the Services and may use Customer’s name and logo in Fivetran’s customer list, press releases, blog posts, advertisements, and website.
4. PROPRIETARY RIGHTS
4.1 Ownership Rights. Customer owns all right, title and interest in and to the Customer Data as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and all intellectual property rights related to any of the foregoing. Fivetran owns and retains all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by or on behalf of Fivetran in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.2 Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of Sections 3 or 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of Sections 3 or 4.
5. SECURITY MEASURES
5.1 Protection of Customer Data. Fivetran will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Fivetran personnel except (a) to provide the Services and to prevent or address service or technical problems, or (b) as Customer expressly permits in writing. To the extent applicable, Fivetran’s Data Protection Agreement (available at https://fivetran.com/legal/data-protection-agreement) is incorporated by reference into this Agreement.
5.2 Removal of Customer Data. Upon termination or expiration of this Agreement, in the event Fivetran has any Customer Data, Fivetran shall delete all such Customer Data from its systems without retaining any copies thereof.
5.3 Customer Responsibilities. Customer is responsible for security relating to its environment, particularly its source and destination systems, and security relating its configuration of the Services. This includes implementing and managing procedural, technical, and administrative safeguards on its systems and networks sufficient to: (a) ensure the confidentiality, security, integrity, and privacy of Customer Data while in the source and destination systems; (b) protect against breaches of Customer Data; and (c) follow the principle of least privilege when connecting the Services to Customer’s source and destination systems, especially by granting no more than read-only access to data sources. Customer is also responsible for provisioning Users, including: (i) methods of authenticating Users (such as SSO or industry-standard secure username/password policies); (ii) managing admin privileges; (iii) deauthorizing personnel who no longer need access to the Services; and (iv) setting up any API usage in a secure way. Fivetran will have no obligations or liability as to any loss resulting from Customer’s security configuration or administration of the Services.
6. PAYMENT OF FEES
6.1 Calculation of Fees. Customer will pay Fivetran the applicable fees described in each Order Form (the “Fees”). Fees for committed prepaid subscriptions are identified on the initial Order Form. Fees for month-to-month plans are outlined in the terms attached to such plans. Except as otherwise provided herein all fees are noncancelable and nonrefundable. If Customer’s use of the Services exceeds the Services capacity set forth on the Order Form(s) or terms, or otherwise requires the payment of additional fees (per the terms of this Agreement), Fivetran will invoice Customer in arrears for such additional usage and Customer agrees to pay the additional Fees in the manner provided herein.
6.2 Payment Terms. Fivetran will bill for the Services through an invoice, through the marketplace where the original purchase was made, or directly through credit card if provided. Full payment for invoices issued in any given month must be received by Fivetran within 30 days after the issuance of the invoice (which may be sent by email). If Customer is paying by credit card, Customer represents and warrants that it has the right to use the credit card provided and grants Fivetran the right to provide the credit card information, including the credit card number, its expiration date and billing address, to third parties for the purposes of facilitating payment transactions. Fivetran reserves the right to charge a 3% surcharge for any credit card payments Verification of information may be required prior to the acknowledgment or completion of any payment transaction. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. 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 Fivetran’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 Fivetran hereunder. If an applicable tax authority requires Fivetran to pay any taxes that should have been payable by Customer, Fivetran will advise Customer in writing, and Customer will promptly reimburse Fivetran for the amounts paid. If Customer believes that Fivetran has billed Customer incorrectly, Customer must contact Fivetran no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Fivetran’s customer support department. Without limiting its other remedies, Fivetran may suspend Services for nonpayment of fees.
7. TERM AND TERMINATION
7.1 Term. This Agreement will continue from the Effective Date until the earlier of: (a) the expiration of all Services subscriptions, (b) for month-to-month customers, until such date as a monthly plan is cancelled, or (c) termination pursuant to Section 6.2 below (together, the “Term”). Month-to-month plans will renew automatically each month and may be cancelled at any time on notice by either party to the other. If Customer uses all credits prior to the end of the subscription period listed on the Order Form, Customer will be billed in arrears according to the Order Form for any continued usage of the Services and consumption of credits in arrears. Each Services subscription will run for the subscription term specified in the applicable Order Form and will renew automatically on Fivetran’s then-current terms and conditions for one-year periods, unless a party provides notice of nonrenewal to the other party at least 30 days prior to expiration of the then-applicable term. Fivetran will notify Customer in connection with any renewal.
7.2 Termination for Cause. In addition to any other remedies it may have, (A) either party may terminate this Agreement upon written notice (or without notice in the case of nonpayment), if the other party (i) materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within 30 days after written notice describing the breach; or (ii) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets and (B) Fivetran may additionally terminate this Agreement and the Services (or any portion of the Services) (i) immediately and without notice if it has reason to believe Customer is violating Section 2 of this Agreement; or (ii) following notice, in the case a Customer has no more Credits available and has not transferred data using the Services for a consecutive 90 day period (each, “Termination for Cause”). In the case of Termination for Cause under Section 6.2(B)(ii), a Customer may revive its account by purchasing additional Credits or by recommencing data transfers (in which case, payment will be made in arrears according to the Order Form). Fivetran terminates this Agreement for Customer’s breach, Customer remains obligated to pay the balance due on Customer’s account for the remainder of the Term, computed in accordance with the applicable Order Form(s), and will be billed for such unpaid fees.
7.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
8. WARRANTIES AND DISCLAIMER
8.1 Authority. Each of Fivetran and Customer represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) 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; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
8.2 Services Warranty. Fivetran shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform implementation and support Services in a professional and workmanlike manner.
8.3 Pre-commercial Releases. From time to time Fivetran previews new features on a beta test or equivalent basis. Such features are optional, will be identified as such so that Customer may decide whether to opt in, and either party may terminate their use at any time for any reason. By their nature such features may be incomplete, incompatible with proposed use cases and/or contain bugs. Fivetran’s support obligations as to such features are limited to using reasonable efforts to resolve Customer support tickets. Fivetran’s SLA will not apply to such features
8.4 FIVETRAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND FIVETRAN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9.1 By Fivetran. Fivetran will defend or settle any claims, actions and demands brought by third parties against Customer and Customer’s subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively “Indemnified Parties”) where the third party expressly asserts that the Software: infringes such third party’s trademark or copyright arising under the laws of the United States, or Fivetran misappropriated such third party’s trade secrets in the development of the Software (collectively, “Claims”). Customer must give written notice of the Claim to Fivetran promptly after Customer becomes aware of the Claim, and Fivetran’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Fivetran, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Fivetran or combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Fivetran to be infringing, Fivetran may, at its option and expense (x) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (y) obtain for Customer a license to continue using the Services, or (z) if neither of the foregoing is commercially practicable, terminate this Agreement and provide Customer a refund of any prepaid, unused fees for the Services.
9.2 By Customer. Customer will indemnify, defend and hold harmless (by counsel reasonably satisfactory to Fivetran) Fivetran and its Indemnified Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) alleging that the Customer Data or its use has infringed the rights of or otherwise caused harm to a third party, or violated applicable law; provided that in any such case Fivetran gives written notice of the Claim to Customer promptly after Fivetran becomes aware of such Claim, and Customer’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice.
10. LIMITATION OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS AND SUPPLIERS (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, EVEN IF FIVETRAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR MISAPPROPRIATION OF FIVETRAN’S INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE AND SERVICES.
10.2 DIRECT DAMAGES. THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO FIVETRAN DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO ANY CLAIM, OR $100 IF CUSTOMER IS USING A TRIAL OR BETA TEST FEATURE OF THE SERVICES. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5.
11.1 No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever to any third party.
11.2 Notices. All notices under this Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested to each party at its respective address provided on the initial Order Form.
11.3 Enforceability; No Third-Party Beneficiaries. If any provision of this Agreement is adjudicated invalid or unenforceable, this 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. To the extent permitted by applicable law, the parties waive any provision of law that would render any clause of this Agreement prohibited or unenforceable in any respect. This Agreement is intended for the benefit of the parties hereto and is not for the benefit of, nor may any provision hereof be enforced by, any Affiliate, User or any other person not a party hereto.
11.4 Force Majeure. If the performance of this Agreement or any obligations (other than payment obligations) hereunder is prevented or interfered with by any act or condition beyond the reasonable control of a party hereto, that party upon giving prompt notice to the other party shall be excused from such performance during such occurrence.
11.5 Assignment. This Agreement may not be assigned by either party without the other party’s consent, whether by operation of law or otherwise; provided that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party, unless the successor is a competitor of the other party. Any other purported assignment shall be void.
11.6 Integration. This Agreement is the complete statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Fivetran in lieu of or in addition to Fivetran’s Order Form, Customer’s purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
11.7 Amendment; Counterparts. Except as otherwise stated in this Section 10.7, 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 by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement. From time to time Fivetran may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect.
11.8 Governing Law and Jurisdiction; Attorney Fees. This Agreement shall be governed by the laws of the State of California 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 must be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. The parties hereby accept generally and unconditionally jurisdiction, resolution method, and venue noted above. The prevailing party is entitled recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorney’s fees.
Fivetran will provide Technical Support to Customer via email 24 hours per day, seven days a week.
Customer may initiate a Helpdesk ticket 24 hours per day, seven days a week using Fivetran’s Support Form provided at https://fivetran.com/support. The Support Form is visible to Customer when logged in within the Fivetran interface (www.fivetran.com).
Fivetran will use commercially reasonable efforts to provide an initial response to any Helpdesk Ticket within one hour of creation time.
Fivetran offers the SLA available online at https://fivetran.com/legal/sla, as applicable.