These terms of business, together with the Order Form referencing them and the other documents referred to in them, form the whole of the agreement (this “Agreement”) between Snowplow and its Customer. Snowplow does not offer any of its Products on any other terms unless expressly agreed otherwise in writing by a director of Snowplow.
1.1 In this Agreement:
“Applicable Law” means the laws of England which are applicable generally to products similar to the Products, and excludes any laws which affect the Customer but not Snowplow;
“Charges” means the initial and recurring charges specified on the Order Form;
“Cloud Computing Platform” means any or all of Amazon Web Services, Google Cloud Platform and Microsoft Azure, as the case may be depending on the Product(s) ordered;
“Confidential Information” means any information disclosed by the Disclosing Party (or its affiliate) to the Receiving Party, or which is received by or comes into the possession or knowledge of the Receiving Party under or in connection with this agreement and which relates to the Disclosing Party (or its affiliate), which is marked confidential, which the Receiving Party knows or reasonably ought to know is confidential, or which is of its nature confidential, including:
(i) all Customer Data, which is the Confidential Information of the Customer; and
(ii) the Products and their associated documentation and know-how, which are the Confidential Information of Snowplow,
but excluding any information that:
(i) is or becomes generally available to the public other than as a result of its disclosure by the Receiving Party or its agents, officers or employees in breach of:
(1) this agreement; or
(2) any other undertaking of confidentiality which is addressed to the Disclosing Party and which the Receiving Party is aware of or reasonably ought to be aware of,
and provided that any compilation of otherwise public information in a form not publicly known will nevertheless be treated as Confidential Information;
(ii) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party;
(iii) the parties agree in writing is not confidential or may be disclosed; or
(iv) is developed by or for the Receiving Party independently of the information disclosed by the Disclosing Party;
“Customer” means the natural or legal person identified as such on the Order Form;
“Customer Data” means any data which the Customer uploads to, stores on or processes using (or causes to be uploaded to, stored on or processed using) the Products;
“Customer Dependencies” means:
(i) in respect of each Product, any Customer Dependencies specified in the relevant Product Description, and any system or environmental requirements published in Snowplow’s documentation or otherwise notified to the Customer by Snowplow; and
(ii) in respect of Data Analytics and Data Engineering Services, any Customer Dependencies specified in the Statement of Work,
in each case together with access to such technical data, computer facilities, documentation or other information, resources and personnel as is reasonably required by Snowplow in order for it to provide the Products and/or Data Analytics and Data Engineering Services (as the case may be);
“Data Analytics and Data Engineering Services” means Snowplow’s consulting and/or integration services to be provided by Snowplow, as specified on the Order Form and as may be further described in a Statement of Work;
“Disclosing Party” means a party to this agreement which (or whose affiliate) discloses or makes available, directly or indirectly, Confidential Information;
“Effective Date” means the date specified as such on the Order Form;
“Further Term” has the meaning given to it in clause 16.1;
“Hosted Service” means, in respect of a Product, that element of the Product (if any) which consists of a service hosted by Snowplow or its subcontractors, and not deployed on the Customer’s infrastructure (or those of its third party contractors);
“Initial Term” means the initial term of this Agreement as specified on the Order Form;
“Open Source Software” means software which is shipped with a Product but which is licensed on terms conforming to any of the “Free Software Definition” published by the Free Software Foundation or the “Open Source Definition” published by the Open Source Initiative, including the Apache licence, the MIT and BSD licences and the GNU licence family;
“Open Source Statement” means Snowplow’s open source statement published on its website from time to time;
“Order Form” means the Snowplow order form referencing these terms of business;
“Products” means the Snowplow products identified on the Order Form;
“Product Description” means, in respect of a Product, the description of it published on Snowplow’s website from time to time;
“Receiving Party” means a party to this agreement which (or whose affiliate) receives or obtains, directly or indirectly, or has access to, Confidential Information;
“Software” means, in respect of a Product, the software components of that Product which are delivered to the Customer, but excluding the Open Source Software;
“Snowplow” means Snowplow Analytics Limited, a company registered in England with registered number 7852221 and with its registered office at The Roma Building, 32-38 Scrutton Street, London, EC2A 4RQ;
“Special Terms” means any special additional or varied terms set out in the Order Form in the box marked “Special Terms”;
“Support” means, in respect of a Product, technical support for that Product in accordance with the Product Description;
“Statement of Work” means any statement of work attached to the Order Form, providing further detail on Data Analytics and Data Engineering Services to be performed by Snowplow for the Customer;
“Term” means the Initial Term and any Further Term;
“Termination” means expiry of the Term or termination of this Agreement for any reason;
“Use” means, in respect of Software, only those acts of storage, loading, execution and display as are reasonably necessary to the Customer’s enjoyment of the relevant Product in accordance with this Agreement (but without prejudice to the Customer’s applicable non-waivable statutory rights in respect of such Software); and
“VAT” means value added tax chargeable under the Value Added Tax Act 1994 or any other tax of a similar nature (including sales tax, use tax, consumption tax and goods and services tax) in any other relevant jurisdiction.
1.2 In this Agreement, the words “in particular”, “such as”, “include” or “ including” do not denote an exhaustive list, and references to laws are references to those laws as amended, re-enacted and/or replaced from time to time.
1.3 Any Special Terms set out in the Order Form will take precedence over the rest of this Agreement.
2.1 Each Product consists of a combination of one or more of Software, Hosted Services and Support, as specified in the applicable Product Description.
2.2 Subject to the Customer’s payment of the Charges and compliance with the terms of this Agreement, for each Product ordered Snowplow will:
2.2.1 license the relevant Software to the Customer on the terms of clause 3 (Software Licence);
2.2.2 make the relevant Hosted Service available to the Customer on the terms of clause 4 (Hosted Services); and
2.2.3 provide the relevant Support in accordance with clause 5 ( Support),
in each case if and only to the extent included in the relevant Product.
2.3 The Customer will not (and will not permit or encourage any other person to):
2.3.1 reverse engineer, disassemble, decompile or translate any Product, or otherwise attempt to derive the source code of any Product, except to the extent: (i) required to give effect to a right granted to the Customer under the licence terms of any Open Source Software provided with or included in the relevant Software to re-link a modified version of that Open Source Software with the relevant Software; or (ii) explicitly allowed under applicable mandatory law without possibility of contractual waiver;
2.3.2 resell, on-provide or otherwise make the benefit of the Products available to any third party (provided that this clause 2.3.2 will not prevent the Customer making the benefit of the Products available to its Affiliates in furtherance of its group internal business purposes) unless permitted to do so in the relevant Order Form, and provided always that the Customer may not use any Product to compete, directly or indirectly, with Snowplow; or
2.3.3 use or deal with any Product in any way which is unlawful in any relevant jurisdiction, or to process any Customer Data which is unlawful, defamatory, harassing, obscene
3.1 This clause 3 applies if and only to the extent that the relevant Product includes Software.
3.2 Snowplow grants to the Customer a non-exclusive, non-assignable licence to Use the Software as part of the Product from the Effective Date until Termination, only for the Customer’s own internal business purposes.
3.3 Snowplow expressly reserves the right to incorporate into the Software any modifications, extensions or improvements to the Software it may create (in the course of providing Data Analytics and Data Engineering Services or otherwise) and to make such modifications, extensions and/or improvements generally available.
3.4 Snowplow may ship or otherwise make available with the Software certain Open Source Software. The Open Source Software is not part of the Software, and is licensed on the terms set out or referred to in Snowplow’s Open Source Statement, but (to the extent relevant) Snowplow will provide Support for the Open Source Software as if it were part of the Software (and subject therefore to the Support entitlement comprised in the relevant Product).
4.1 This clause 4 applies if and only to the extent that the relevant Product includes Hosted Services.
4.2 Snowplow will make the Hosted Services accessible to the Customer as soon as reasonably practicable following the Effective Date (“ Go Live”), but time will not be of the essence.
4.3 From Go Live until Termination, Snowplow will use reasonable efforts to ensure that the Hosted Services are available, the Customer acknowledging and agreeing that:
4.3.1 the availability of the Hosted Services is subject to periodic scheduled maintenance and occasional emergency maintenance; and
4.3.2 the Hosted Services are dependent upon the relevant Cloud Computing Platform and/or other third party cloud providers which are beyond Snowplow’s ability to control, and that Snowplow will consequently have no liability to the Customer arising out of or in connection with unavailability or slow performance of the Hosted Services attributable to a relevant Cloud Computing Platform and/or such other third party providers.
5.1 This clause 5 applies if and only to the extent that the relevant Product includes Support.
5.2 Snowplow will use its reasonable efforts to provide Support in accordance with its support policy as set out in the applicable Product Description. The Customer acknowledges and agrees that the support policy is subject to change from time to time, provided that if during the Initial Term Snowplow changes it in a way which results in a significantly lower level of Support for the relevant Product, then those changes will not come into effect as against the Customer until the start of the next Further Term.
5.3 Where the scope of Support (as set out in the Product Description) includes initial set-up, Snowplow will, subject to the Customer’s cooperation and compliance with Snowplow’s instructions, perform that initial set-up within a reasonable time.
6.1 Subject to payment by the Customer of the applicable Charges and performance by the Customer of the Customer Dependencies, Snowplow will:
6.1.1 perform the Data Analytics and Data Engineering Services selected on the Order Form (and as further described in the Statement of Work, if applicable) with reasonable skill and care;
6.1.2 use reasonable efforts to complete the Data Analytics and Data Engineering Services within the Customer’s requested timeframes, but time will not be of the essence; and
6.1.3 where Snowplow personnel work at the Customer’s premises in the course of providing the Data Analytics and Data Engineering Services, comply with (a) the Customer’s written policies and procedures provided to Snowplow in advance of such visit; and (b) the Customer’s reasonable instructions in respect of the conduct of Snowplow’s personnel while at the Customer’s premises, and the Customer will accordingly ensure that it provides such Snowplow personnel with a safe and lawful working environment.
6.2 Where the Data Analytics and Data Engineering Services entail integrating a Product with third party software and/or services, Snowplow will not be responsible for any failure or delay which is wholly or mainly caused by defects in such third party software and/or services, or the failure of any relevant third party vendor or supplier to provide reasonable cooperation and assistance. Any new or increased charges levied by any third party vendor or supplier by reason of providing such cooperation and assistance will be the sole responsibility of the Customer.
6.3 Where Snowplow personnel are required to travel in order to perform Data Analytics and Data Engineering Services, the Customer will reimburse Snowplow for such personnel’s out of pocket costs and expenses, provided that:
6.3.1 they are reasonably incurred and reasonable in amount; and
6.3.2 the Customer has approved them in advance.
7.1 Unless otherwise specified in the Order Form, Snowplow will invoice the Customer as follows:
7.1.1 for the initial setup Charges (if any) in respect of a Product, on or shortly after the Effective Date or (if relevant) on or shortly after Go Live for the relevant Product;
7.1.2 for the recurring Charges in respect of a Product, monthly in advance on or shortly after the first working day of each month; and
7.1.3 for Data Analytics and Data Engineering Services in full in advance or as otherwise specified in the Statement of Work (if any).
7.2 The Customer will pay each invoice in full within 30 days of receipt (or such other period as the parties may agree in the Order Form).
7.3 All Charges are exclusive of VAT. Where VAT is payable in respect of any Charges, Snowplow will add VAT to its invoice at the appropriate rate, and the Customer will pay such VAT together with such Charges.
7.4 If the Customer has not paid an invoice by its due date for payment, Snowplow may charge interest, from the date on which payment was due until the actual date of payment (whether before or after judgment), at a rate of 1 per cent. per month above the official dealing rate of the Bank of England, accruing daily. The Customer will pay the accrued interest together with the overdue amount.
7.5 The Customer will pay all amounts due to Snowplow under this Agreement in full and without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax required by law, in respect of which the Customer will make the relevant payment to the relevant tax authority and provide Snowplow with the appropriate certification that it has done so, such that Snowplow can recover the withheld amounts under applicable double taxation treaties).
7.6 With effect from the start of any Further Term, Snowplow may adjust the Charges by not less than 45 days’ notice in writing to the Customer. For clarity, any adjustment to the Charges is without prejudice to the Customer’s right to elect not to renew under clause 16.1.
8.1 Each of Snowplow and the Customer represents and warrants that:
8.1.1 it is duly incorporated and validly existing;
8.1.2 it has all necessary consents, approvals and authorities to enter into and perform this Agreement; and
8.1.3 it is not insolvent or trading wrongfully, and has no reason to believe that it will become so during the Term.
8.2 The Customer represents and warrants that the Customer Data does not contain any material which:
8.2.1 is criminal, defamatory, obscene, otherwise unlawful, harassing of any person, or which tends to promote hatred or discrimination; or
8.2.2 infringes the intellectual property rights or other rights of any party,
and the Customer is deemed to repeat such representation and warranty on each occasion on which it processes (or causes to be processed) additional Customer Data using a Product.
9.1 Snowplow will use reasonable care and skill to secure the Hosted Services. Snowplow will provide to the Customer such information about Snowplow’s security policies and practices as the Customer may reasonably request.
9.2 Depending on the Product, Snowplow may have access to the Customer’s own Cloud Computing Platform infrastructure. In those cases, the Customer will ensure that it configures Snowplow’s access as specified by Snowplow and, in particular, grants no additional privileges to Snowplow. The Customer is solely responsible for, and will appropriately secure, its Cloud Computing Platform and associated access credentials, and Snowplow will have no liability to the Customer for any actual or suspected security breach in respect of the Customer’s Cloud Computing Platforms not directly caused by Snowplow’s breach of this Agreement.
9.3 Each of Snowplow and the Customer will keep the relevant account access credentials secure and will not disclose them to any other person. Where Snowplow and the Customer exchange access credentials, they will do so using an appropriate secure methodology or service. Each of Snowplow and the Customer will ensure that it uses that methodology or service correctly and in accordance with best security practice.
10.1 If a Product requires Snowplow to process personal data on behalf of the Customer, the parties will enter into such data processing agreement as the parties, acting reasonably, may agree.
11.1 Nothing in this Agreement will change the ownership of any of the intellectual property rights of either party. In particular, the Customer acknowledges that the Products (including the Software) and Snowplow’s know-how and expertise in performing Support and/or Data Analytics and Data Engineering Services are the valuable property and/or confidential information of Snowplow and/or its licensors, and that it may not make any use of them other than in order to receive the benefit of the Products.
11.2 The Customer acknowledges that Snowplow has no control over the nature or content of the Customer Data, and the Customer will therefore indemnify Snowplow against any claim brought by a third party against Snowplow on the basis that Customer Data infringes a third party’s rights (including its intellectual property rights).
12.1 Both during the Term of this Agreement and for three years after its termination or expiry, the Receiving Party will keep the Disclosing Party's Confidential Information confidential and, except with the prior written consent of the Disclosing Party, will:
12.1.1 not use or exploit the Confidential Information in any way except for the purpose of exercising its rights and performing its obligations under this Agreement;
12.1.2 not disclose or make available the Confidential Information in whole or in part to any third party, except as permitted by this Agreement; and
12.1.3 apply the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information (and which will in any event be no less stringent than the measures required by this Agreement.
12.2 The Receiving Party may disclose the Disclosing Party's Confidential Information to those of its sub-contractors and its and their agents, officers, employees and professional advisers who need to know it in connection with this Agreement (each, a “ Permitted Disclosee”), provided that:
12.2.1 it informs each Permitted Disclosee of the confidential nature of the Confidential Information before disclosure; and
12.2.2 it procures that each Permitted Disclosee will comply with this clause 12 as if it were the Receiving Party,
and the Receiving Party will be liable for the failure of any Permitted Disclosee to comply with this clause 12.
12.3 The Receiving Party may disclose Confidential Information:
12.3.1 to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority with jurisdiction over the Receiving Party, or by a court of competent jurisdiction, provided in each case that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much advance warning of such disclosure as possible and takes into account the reasonable requests of the Disclosing Party in relation to the content of that disclosure; and
12.3.2 in the course of a proper due diligence process in furtherance of a bona fide acquisition, disposal, investment or similar corporate transaction (whether actual or proposed), to interested parties subject to obligations of confidentiality with respect to the Confidential Information which are no less onerous than those set out in this clause 12.
13.1 This clause 13 sets out Snowplow’s entire liability to the Customer under or in connection with this Agreement.
13.2 Nothing in this agreement limits or excludes Snowplow's liability for:
13.2.1 death or personal injury caused by its negligence; or
13.2.2 fraud or fraudulent misrepresentation.
13.3 Subject to clause 13.2, Snowplow will not have any liability to the Customer under or in connection with this Agreement for any: loss of profits or account of profits; loss of sales or business; loss of agreements or contracts; loss of opportunity; loss of anticipated savings; loss of or damage to goodwill; loss of use or corruption of data or information; or any indirect or consequential loss.
13.4 Subject to clauses 13.2 and 13.3, Snowplow’s total liability to the Customer under or in connection with this Agreement will be limited, in respect of all claims (connected or unconnected) in any consecutive 12 month period, to an amount equal to the Charges paid by the Customer in that period.
14.1 If a third party asserts a claim against the Customer that the Customers' use of a Product infringes that third party's intellectual property rights (an "Infringement Claim"), then Snowplow will, at its own expense, defend or settle the Infringement Claim and pay any damages finally awarded against the Customer, or any settlement amount agreed between that third party and Snowplow in lieu of such damages, but only if:
14.1.1 the Customer promptly notifies Snowplow of such Infringement Claim (and in any event within an amount of time sufficient to permit Snowplow to take appropriate action within the applicable time limits) and takes no action to admit, settle or otherwise dispose of such Infringement Claim without Snowplow's prior written consent;
14.1.2 Snowplow retains sole control of the defence of such Infringement Claim and all negotiations for its settlement or compromise (including free choice of counsel, other professional advisers and experts); and
14.1.3 the Customer provides all reasonable assistance requested by Snowplow or its professional advisers,
and in each case solely to the extent that the Infringement Claim is based on an allegation of infringement by some element of a Product.
14.2 Snowplow’s obligations in clause 14.1 above will not apply if the Infringement Claim is wholly or mainly based on:
14.2.1 use or distribution of a Product other than in accordance with this Agreement and Snowplow’s published user documentation;
14.2.2 the combination of the relevant Product with products or services not provided by Snowplow;
14.2.3 any modification or alteration of a Product by any person other than Snowplow;
14.2.4 any Open Source Software; or
14.2.5 the Customer’s failure to apply applicable updates or upgrades, if the Infringement Claim would not apply to such update or upgrade.
14.3 If an Infringement Claim is successful or is settled on terms requiring it, then Snowplow may at its own expense:
14.3.1 modify the Product so as to avoid the infringement; or
14.3.2 procure for the Customer from the third party right holder the right to continue sub-licensing the product,
or, if neither of the above is (in Snowplow's reasonable opinion) commercially practicable, terminate the affected Order Form (or modify it so as to remove the infringing product from its scope) and refund the unused pro-rata portion of any corresponding Charges paid by the Customer, and Snowplow will have no further liability to the Customer in respect of such Product beyond that described in this clause 14.
14.4 Snowplow’s maximum total financial obligation and liability arising under or in connection with this clause 14 will in no circumstances exceed £5,000,000 (five million pounds sterling).
15.1 A “Force Majeure Event” is any event or circumstance not within a party’s reasonable control, including (in the case of Snowplow) failures or outages at upstream or infrastructure suppliers (including but not limited to relevant Cloud Computing Platforms).
15.2 Provided it has complied with clause 15.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (the “Affected Party”), the Affected Party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly, and the corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
15.3 The Affected Party will:
15.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
15.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for more than 30 days, the party not affected by the Force Majeure Event may terminate this agreement by written notice to the Affected Party.
16.1 This Agreement will have effect from the Effective Date until the end of the Initial Term, whereupon it will renew automatically for successive further terms (each such period, a “ Further Term”) of a duration equal to the Renewal Term duration specified on the Order Form unless either party gives not less than 30 days’ notice to the other, to expire on the last day of the Initial Term, that it does not wish to renew this Agreement.
16.2 Either party may terminate this Agreement immediately if:
16.2.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified to make such payment;
16.2.2 the other party commits a material breach of this Agreement which, if capable of being remedied, it has not remedied within 30 days of being notified of the breach;
16.2.3 the other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;
16.2.4 a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
16.2.5 the ability of the other party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
16.2.6 any process is instituted which could lead to the other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
17.1 Snowplow may, by notice in writing to the Customer (which may be by email), update these terms of business from time to time, for example to reflect changes in law or best practice, or changes in how its business operates. If the Customer raises a reasonable objection to such changes, and Snowplow is unable to resolve that objection to the Customer’s reasonable satisfaction, then the Customer may by notice to Snowplow terminate this Agreement.
17.2 This Agreement (and the documents referred to in it) constitutes the entire agreement, and supersedes any previous agreement, between the parties relating to the subject matter of this Agreement.
17.3 Each party acknowledges that it has not relied on or been induced to enter this Agreement by a representation, warranty or undertaking (whether contractual or otherwise) other than those expressly set out in this Agreement.
17.4 Except as expressly provided in this Agreement, any failure to exercise or delay in exercising (whether fully or at all) a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of any other rights or remedies.
17.5 A notice under or in connection with this Agreement: must be in writing; must be in the English language; and must be delivered personally or sent by email or first class post to the party due to receive the notice at its registered office (in the case of Snowplow) or to the address specified in the Order Form (in the case of the Customer).
17.6 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
17.7 Snowplow may subcontract the performance of all or part of this Agreement, but as between Snowplow and the Customer, Snowplow will remain liable for the acts and omissions of its subcontractors as if they were the acts or omissions of Snowplow itself (and subject therefore to the limitations and exclusions of liability set out in this Agreement).
17.8 This Agreement and all non-contractual obligations arising out of or in connection with it are governed by English law and subject to the exclusive jurisdiction of the English courts.