Terms of Service
Updated January 18, 2022
BY EXECUTING AN ORDER FORM WITH DBT LABS, INC. THAT REFERENCES THESE TERMS OF SERVICE (“TERMS”) AND/OR USING PRODUCTS OR SERVICES PROVIDED BY DBT LABS, YOU AGREE TO AND ACCEPT THESE TERMS. THE INDIVIDUAL EXECUTING THE ORDER FORM ON BEHALF OF CLIENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF CLIENT. IF CLIENT DOES NOT ACCEPT THESE TERMS, THEN IT MAY NOT USE THE PRODUCTS OR SERVICES PROVIDED BY DBT LABS. AS USED IN THESE TERMS, “CLIENT” MEANS THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THESE TERMS AND “DBT LABS” MEANS DBT LABS, INC., A DELAWARE, USA CORPORATION.
1. NATURE OF AGREEMENT.
The Agreement applies to dbt Labs products and services that Client purchases or otherwise acquires the right to access or use, which may include Subscriptions, Professional Services, Training Services, access to dbt Labs Platforms and other offerings of dbt Labs (collectively, “Services”). Affiliates of either party may conduct business under these Terms by signing an Order Form that references these Terms and may include additional terms relating to local requirements or other transaction details in the “Additional Order Terms” section of the Order Form. The Agreement consists of two components: (1) these Terms and (2) each Order Form. To the extent of any direct conflict between these Terms and any term contained in an Order Form, the terms of the Order Form shall govern. Any Agreement or an Order Form must be in writing and executed by both parties. Other than the Order Form, no term included in any confirmation, acceptance, written or oral communication or any other similar document in connection with the Services will modify these Terms or have any force or effect whatsoever.
The Agreement commences at the start of the first Order Term and continues until the expiration or termination of all Order Forms (the “Term”) unless earlier terminated pursuant to these Terms. Notwithstanding the foregoing, any provision of access to the Services prior to the start of the Term is subject to these Terms. Unless otherwise agreed to in a signed writing, each Order Term commences on the date specified as the Service Start Date in the Order Form, and ends at the expiration of the Order Term unless sooner terminated as set forth herein. Unless otherwise agreed to in an Order Form or terminated earlier in accordance with the terms herein, Order Terms are 12 months in length. Any Services that Client orders may only be used during the applicable Order Term and any Services unused during such Order Term will expire. Client may add additional Units of a Subscription during the Order Term at the same price per Unit as the Client’s current Subscription, prorated for the remainder of the Order Term at the time the new Units are added, by entering into an additional Order Form. If an Order Form indicates that an Order Term automatically renews, either party may end the renewal Order Term by providing written notice of its desire not to renew the Order Term at least thirty (30) days before the end of the then-current Order Term. Dbt Labs reserves the right to make platform pricing changes in connection with any renewal and shall provide notice to Client of such changes at least sixty (60) days prior to the end of the then-current Order Term.
3. FEES; PAYMENT.
3.1 Fees. Client agrees to pay the Fees set forth in the Order Form. Any Client use exceeding Unit quantities specified in the Order Form will result in additional Fees.
3.2 Payment. Fees and expenses as set forth in the Order Form are exclusive of any Taxes, withholding, or deduction. Unless otherwise specified in the Order Form, payment is due within thirty (30) days after Client receipt of the applicable invoice. For purchases of a set number of hours of Professional Services, Client shall pay the associated Professional Services Fees and any applicable Taxes in advance in full; and for purchases of Professional Services of a recurring nature, Client shall pay the associated Professional Services Fees and any applicable Taxes in advance on the same periodic basis that dbt Labs invoices Client the Fees for the Subscription to which the Professional Services relate. Except as otherwise specified herein, all Fees, expenses and other amounts paid under the Agreement are non-refundable. Notwithstanding any other provision of this Agreement, dbt Labs may suspend the Services upon ten (10) days written notice if any undisputed payment is past due; dbt Labs will reinstate the Services without undue delay once all past due payments have been made. dbt Labs will not suspend the Services while Client is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
3.3 Taxes. Client is responsible for paying all Taxes. In the event dbt Labs has the legal obligation to collect and pay Taxes, Client will pay such Taxes pursuant to the payment terms in Section 3.2, unless Client provides dbt Labs with a valid tax exemption certificate that is (a) authorized by the appropriate taxing authority and (b) applicable to Taxes. If Client is required to withhold or deduct any Taxes from Fees, then Client agrees to increase the amount payable to dbt Labs by the amount of such Taxes so that dbt Labs receives the full amount of all Fees.
4.1 Termination. Either party may terminate the Agreement (in whole or with respect to any Order Form) by written notice to the other party if (a) the other party materially breaches the Agreement and does not cure the breach within thirty (30) days after written notice (except in the case of a material breach of Sections 7 and 9, in which case no cure period will apply) or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.2 Effect of Termination; Survival. The termination or suspension of an individual Order Form for any Services will not terminate or suspend any other Order Form or this Agreement unless otherwise specified in the notice of termination or suspension. If the Agreement or any Order Form is terminated by dbt Labs under Section 4.1(a), Client agrees to pay for all Fees specified in the Order Form, and any Account overage, if applicable. If the Agreement or any Order Form is terminated by Client under Section 4.1(a), Client will be due a refund of any prepaid fees covering the remainder of any applicable Order Form after the effective date of termination. Upon termination, all rights and obligations of the parties under the Agreement will automatically terminate except for any right of action occurring prior to termination, payment obligations and other obligations that may reasonably be expected to survive termination.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Representations. dbt Labs represents and warrants that: (i) it has the authority to enter into the Agreement, (ii) the Professional Services will be performed in a professional and workmanlike manner by qualified personnel, (iii) the Services will conform to and perform in accordance with the Documentation in all material respects, (iv) this Agreement does not conflict with any other contract or obligation to which it is a party or by which it is bound. A description of the Services may be provided separately from the Agreement, upon request, however, the only representations and warranties provided by dbt Labs are those explicitly described in this Section 5.1. Subscriptions will be provided at the levels specified in the Service Level Agreement attached hereto as Addendum A, and Client’s sole and exclusive remedy with respect to such service levels, as well as any interruption or suspension of the Services, is specified in the Service Level Agreement.
Client represents and warrants that: (a) it has the authority to enter into the Agreement, (b) its use of Services will comply with the terms of the Agreement, (c) it has all necessary consents, permissions and approvals required by applicable law for Client’s use of Data in connection with Client’s use of the Services, (d) Client’s Data contains no Prohibited Content, and (e) Client’s use of the Data does not and shall not violate any other contract obligations Client has or enters into during the term hereof.
5.2 DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF DEALING OR USAGE OF TRADE. DBT LABS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR FREE, ACCURATE OR COMPLETE OR COMPLY WITH REGULATORY REQUIREMENTS APPLICABLE TO CLIENT, OR THAT DBT LABS WILL CORRECT ALL ERRORS. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN SECTIONS 5.1(ii) and 5.1(iii), PROVIDED CLIENT HAS GIVEN DBT LABS WRITTEN NOTICE OF THE BREACH WITHIN THIRTY DAYS OF THE TRIGGERING EVENT, AND EXCEPT AS OTHERWISE SPECIFIED IN THE SERVICE LEVEL AGREEMENT, CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND DBT LABS’ ENTIRE LIABILITY, WILL BE TO USE COMMERCIALLY REASONABLE EFFORTS TO RE-PERFORM OR REDELIVER THE DEFICIENT DBT LABS SERVICE, OR, IF DBT LABS CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT DBT LABS SERVICE, IN WHICH CASE CLIENT WILL RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION.
6. CLIENT ACCOUNT. Client and its Authorized Users may be required to create an Account to access certain Services. Client agrees to provide accurate, complete, and updated information for the Account. Client may not authorize or permit multiple individuals to use the same Log-In Credentials, or access or create multiple Accounts in a manner that has the effect of reducing or avoiding payment of Fees or circumventing Account Parameters, and the parties agree that a violation of this provision may result in suspension of applicable Accounts or termination of the Agreement for material breach. Client is solely responsible for all activities in connection with its Account and will notify dbt Labs promptly if it becomes aware of any unauthorized use of any Account. Client will ensure that all Authorized Users abide by the terms of this Agreement.
7. CONFIDENTIALITY. The Recipient will: (a) protect the confidentiality of the Discloser’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (b) not use any of the Discloser’s Confidential Information for any purpose outside the scope of the Agreement; and (c) not disclose the Discloser’s Confidential Information to any party other than its employees, contractors, advisors and agents who are bound by obligations of confidentiality at least as restrictive as those set forth in the Agreement. Upon the written request of the Discloser, the Recipient will return or destroy all Confidential Information without undue delay, except for Confidential Information stored in routine back-up media and not accessible in the ordinary course of business or is otherwise required to be retained for Recipient’s compliance, tax, or document retention purposes. Recipient’s obligations under this Section shall survive for as long as Discloser’s Confidential Information remains in its possession. If the Recipient is legally compelled to disclose any of the Discloser’s Confidential Information, the Recipient will, to the extent permitted by applicable law, provide the Discloser prompt prior written notice of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Discloser waives compliance with the provisions of this Section, the Recipient will use commercially reasonable efforts to furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and will request that such disclosed Confidential Information be treated confidentially. Recipient’s obligations under this Section shall survive for as long as Discloser’s Confidential Information remains in its possession.
8. INTELLECTUAL PROPERTY; FEEDBACK; DATA.
8.1 Client Data & Platform Data. As between Client and dbt Labs, Client is the sole and exclusive owner of all Data, including all proprietary rights therein. Client is solely responsible for the accuracy, quality, and legality of Data. Nothing in the Agreement grants to dbt Labs any rights of ownership or any other proprietary rights in or to Data. Data is Client’s Confidential Information. Client hereby grants to dbt Labs a nonexclusive, non-transferable (except in connection with an assignment permitted under Section 13.2), revocable license, under all proprietary rights, to reproduce, store, process, and use Data solely for the purpose of, and to the extent necessary for, providing the Services and performing its obligations under the Agreement. Except as otherwise required by applicable law, dbt Labs will have no obligation to maintain Client Data more than ninety (90) days after the expiration or termination of this Agreement. Some of the Data may be subject to governmental regulations or obligations beyond those set forth herein. Unless dbt Labs has agreed in writing to comply with such regulations or obligations, dbt Labs shall have no liability in connection therewith.
To the extent that Platform Data identifies or permits, alone or in conjunction with other data, identification, association, or correlation of or with Client, Client’s customers or Authorized Users (“Identifiable Platform Data”), dbt Labs will only collect and use Identifiable Platform Data internally to provide the Services and to perform its obligations under the Agreement. Except for the foregoing, nothing in the Agreement restricts dbt Labs’ use of Platform Data or data derived from Platform Data.
8.2 License Grant. Subject to the terms and conditions of this Agreement, for each Order Form entered into between the parties, dbt Labs grants to Client a limited, non-exclusive, non-transferable (except in connection with an assignment permitted under Section 13.2), non-sublicensable license during the applicable Order Term to use or access the Services included in such Order Form. Except for the limited licenses granted hereunder, dbt Labs reserves all rights not expressly granted.
8.3 Ownership. Client acknowledges that all right, title and interest in and to the Services, and all patents, copyrights, trade secrets, trademarks and other proprietary rights embodied therein are and shall remain with dbt Labs or its third party licensors. Dbt Labs hereby grants to Client a perpetual and irrevocable license to use any Deliverables provided through the use of the Services or Professional Services. For clarity, use of Subscriptions, dbt Labs Platforms, output not unique to Client, and dbt Labs’ software and intellectual property is not included in the license for use of Deliverables herein. Client acknowledges that no other rights are conveyed except for the limited licenses expressly granted in this Agreement.
8.4 Non-exclusivity. Nothing in the Agreement will limit dbt Labs from providing software, materials or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered hereunder to Client.
8.5 Feedback. Client may be asked to voluntarily provide dbt Labs with Feedback in connection with the Services, but has no obligation to do so. If Client chooses to do so, Client grants to dbt Labs a perpetual and irrevocable license to dbt Labs to use Feedback for any purpose (provided however that Client is not identified as the source of such Feedback), including incorporating the Feedback into the Services, or using the Feedback to develop and improve the Services and other dbt Labs products or services without attribution or compensation. dbt Labs acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind.
8.6 Data Security. dbt Labs shall employ commercially reasonable physical, administrative, and technical safeguards to secure Data from unauthorized use or disclosure.
9.1 Restrictions on Use. Client will not (and will not authorize, permit, or encourage any third party to), directly or indirectly: (a) allow anyone other than Authorized Users to access and use the Services; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (c) modify, adapt, or translate the Services; (d) make any copies of the Subscription(s); (e) resell, distribute, or sublicense the Services without our prior written permission in each instance, which dbt Labs may withhold in its sole and absolute discretion; (f) remove or modify any proprietary marking or restrictive legends placed on the Services; (g) use the Services to harass others or to build a product or service competitive with the Services; (h) violate any applicable law or regulation in connection with Client’s use of the Services; (i) introduce, post, upload, transmit, or otherwise make Destructive Elements available to or from the dbt Labs Platforms; or (j) access or use the Services for any purpose not specifically permitted in the Agreement.
9.2 Trade Laws. Client agrees to comply with, and shall not permit Authorized Users or any third parties to access or use the Services in violation of, U.S. export controls and economic and trade sanctions laws and regulations (collectively, “Trade Laws”). Without limiting the foregoing, Client represents that it (a) will not access the Services from a country or territory that is itself the subject or target of comprehensive trade or economic sanctions (currently Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, so-called Donetsk People’s Republic, so-called Luhansk People’s Republic regions of Ukraine) (a “Sanctioned Country”); (b) is not a Sanctioned Person; and (c) will not permit or enable any Sanctioned Person to access the Services. dbt Labs represents that it (a) will not provide Services from a Sanctioned Country and (b) is not a Sanctioned Person. (For purposes of this provision, a “Sanctioned Person” means any individual or entity (i) listed in the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the Entity List maintained by the U.S. Department of Commerce, or any other Trade-Law-related list of designated persons maintained by the United States, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) that is a member of the government of, or acting for or on behalf of the government of, Venezuela or a Sanctioned Country; or (iv) owned or controlled by, or acting for or on behalf of, one or more individuals or entities described in clauses (i), (ii) or (iii) above.)
9.3 Onboarding of Authorized Users. Authorized Users must log in to use the Services. To the extent Client is not utilizing single sign on functionality, during the initial registration, Authorized Users will be prompted to create an Account, which includes a sign-in name, a password, and perhaps certain additional information that will assist in authenticating the Authorized Users’ identity when they log-in in the future (collectively, “Log-in Credentials”). An Authorized User’s provision of Log-in Credentials shall be considered to be Authorized User’s consent to processing by dbt Labs for the purpose of verifying identity and access permissions. When creating the Account, Authorized Users must provide true, accurate, current, and complete information. Client is solely responsible for any required consents related to provision by the individual of Log-in Credentials and the confidentiality and use of Authorized Users’ Log-in Credentials, as well as for any use, misuse, or communications entered while using the Services. dbt Labs reserves the right to verify Authorized Users’ relationship to Client and may delete Authorized Users’ Log-in Credentials or disable any Authorized Users’ access if, in our reasonable discretion, any such Authorized Users or their Log-in Credentials (i) pose a security risk to the Services or are no longer authorized by Client, (ii) may adversely impact the Services or the networks or data of any other dbt Labs client, business partner or service provider, (iii) do not comply with Section 9.1 (Restrictions on Use) or applicable law, or (iv) may subject dbt Labs to liability. dbt Labs will endeavor to provide as much notice as is reasonably practicable under the circumstances, and to reinstate such Authorized User’s Services as soon as reasonably practicable following resolution of the issue. dbt Labs will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account except to the extent such unauthorized use is caused by an act or omission of dbt Labs.
10. INDEMNIFICATION; WAIVER OF CERTAIN DAMAGES; LIMITATION OF LIABILITY.
10.1 dbt Labs Indemnity. dbt Labs will, at its expense, defend Client and its officers, directors, managers, and employees (“Client Indemnitees”) from and against any and all claims, actions, proceedings and suits brought against Client by a third party alleging that the Services when used by Client as authorized in this Agreement and as provided by dbt Labs infringe or misappropriate a third party’s Intellectual Property Rights (“IP Claims”) and will indemnify Client Indemnitees from and against reasonable costs incurred by Client Indemnitees and damages awarded against Client Indemnitees, or agreed to in settlement, resulting from IP Claims or dbt Labs’ violation of any applicable laws including applicable privacy laws (together with IP Claims, “Claims”) to the extent such Claims arise from dbt Labs acts or omissions. Notwithstanding the above, dbt Labs shall not be liable for any Claims to the extent arising out of (i) modification of the Services made by any party other than dbt Labs or modifications made by dbt Labs at the request of Client, (ii) use of the Services not in compliance with this Agreement, or (iii) combination of the Services with any other products not authorized in the Documentation.
10.2 Client Indemnity. Client will, at its expense defend dbt Labs and its officers, directors, managers, and employees (“dbt Labs Indemnitees”) from and against any and all claims, actions, proceedings and suits brought against dbt Labs by a third party alleging that the Client Materials when used by dbt Labs as authorized in this Agreement and as provided by Client infringe or misappropriate a third party’s Intellectual Property Rights (“Client IP Claims”) and will indemnify dbt Labs Indemnitees from and against reasonable costs incurred by dbt Labs Indemnitees and damages awarded against dbt Labs Indemnitees, or agreed to in settlement, resulting from Client IP Claims or Client’s violation of any applicable laws including applicable privacy laws (together with Client IP Claims, “Client Claims”) to the extent such Client Claims arise from Client’s acts or omissions. Notwithstanding the above, Client shall not be liable for any Claims to the extent arising out of (i) unauthorized modification of Client Materials by dbt Labs, (ii) use of Client Materials not in compliance with this Agreement, or (iii) combination of Client Materials with any other dbt Labs data, information, or materials.
10.3 Process. Notwithstanding any other provision herein, this section governs any defense or indemnification obligation between the party seeking indemnification (the “Indemnified Party”) against the party providing indemnification (the “Indemnifying Party”) for any claim or proceeding subject to indemnification hereunder.
10.3.1 A condition to any obligation to defend under this Agreement is that the Indemnified Party must (a) promptly give the Indemnifying Party written notice of the IP Claims and/or Client IP Claims (“Defense Claim”), provided that delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such delay, (b) give the Indemnifying Party sole control of the defense and settlement of the Defense Claim (except that the Indemnifying Party may not settle any Defense Claim unless it involves no admission of guilt by or obligation on the Indemnified Party and unconditionally releases the Indemnified Party of all liability), and (c) give the Indemnifying Party all reasonable assistance, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Party reasonably informed of the status of the Defense Claim and will not consent to an entry of judgment on the Defense Claim, except for a dismissal with prejudice, without the Indemnified Party’s prior written consent. An Indemnified Party may participate in the defense at its own expense. The Indemnifying Party will ensure the confidentiality of Defense Claim settlement terms to the extent permitted by applicable law.
10.3.2 A condition to any indemnity right hereunder (in the absence of an obligation to defend) is that the Indemnified Party must obtain the Indemnifying Party’s prior written consent to any settlement of the Claims or Client Claims negotiated by the Indemnified Party, not to be unreasonably withheld or delayed; for clarity, should the Indemnified Party settle any claim or proceeding without the prior written consent of the Indemnifying Party, the Indemnifying Party is released from all liability for reimbursement of the settlement.
10.4 Infringement Remedy. In addition to dbt Labs’ obligations under Section 10.1, if the Services are held, or in dbt Labs’ opinion are likely to be held, to infringe, misappropriate or violate any Intellectual Property Rights of a third party, or, if based on any claimed infringement, misappropriation or violation of a third party’s Intellectual Property Rights, an injunction is obtained, or in dbt Labs’ opinion an injunction is likely to be obtained, that would prohibit or interfere with Client’s use of the Services under the Agreement, then dbt Labs will at its discretion and expense either: (a) procure for Client the right to continue using the affected Services in accordance with the license granted under the Agreement; or (b) modify or replace the affected Services so that the modified or replacement Services are reasonably comparable in functionality, interoperability with other software and systems, and levels of security and performance and do not infringe, misappropriate or violate any third-party’s Intellectual Property Rights. If, in such circumstances, dbt Labs does not successfully accomplish any of the foregoing actions on a commercially reasonable basis, either party may terminate the Agreement and Client shall receive a refund of any prepaid Fees covering the remainder of the Order Term after the effective date of termination.
10.5 WAIVER OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, COST OF COVER OR SUBSTITUTE SERVICES, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ADDITION, DBT LABS SHALL NOT BE LIABLE FOR THE CRIMINAL ACTS OF THIRD PARTIES. CLIENT ACKNOWLEDGES THAT CLIENT IS RESPONSIBLE FOR ITS USE OF THE SERVICES, AND AS SUCH DBT LABS SHALL HAVE NO LIABILITY FOR CLIENT’S RELIANCE ON DATA THAT RESULTS FROM ITS USE OF THE SERVICES.
10.6 LIMITATION OF LIABILITY. EXCEPT WITH REGARD TO LIABILITY (A) FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS IN SECTION 7, (B) FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS FOR INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS UNDER SECTION 10, AND (C) ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY WITH RESPECT TO ANY CLAIM RELATING TO OR ARISING OUT OF THE SERVICES OR THE AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO DBT LABS UNDER THE MOST APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM. EACH PARTY AGREES THAT THE FOREGOING IS AN AGREED ALLOCATION OF RISK AND IS A REFLECTION OF THE RIGHTS AND OBLIGATIONS AGREED UPON BY CLIENT AND DBT LABS IN THESE TERMS. THIS LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CLAIM, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY.
11. ADDITIONAL TERMS
11.1 Click-Through Terms. Any click-through, browse-wrap or other additional terms Authorized Users encounter when accessing our Subscription are hereby superseded, disclaimed and rendered null and void by the execution of this Agreement.
11.2 European Economic Area. If Client resides in or is a legal entity established in, or any of the Data contains the personal data of individuals in, the European Economic Area or the United Kingdom, dbt Labs will process any personal data Client submits when Client uses the Services in accordance with the dbt Labs Data Processing Addendum (“DPA”), available at https://www.getdbt.com/cloud/dpa, which the parties agree is effective between the parties as of the date hereof and is supplemental and applicable to the Agreement to the extent dbt Labs is Processing Client’s Personal Data within Data. Capitalized terms in this Section 11 not otherwise defined herein have the meanings set forth in the DPA.
12. GOVERNING LAW AND VENUE; JURY WAIVER. The Agreement, and any claim, controversy or dispute arising from or related to the Agreement, are governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflicts of laws provisions. To the extent permissible, the United Nations Convention on Contracts for the International Sale of Goods will not apply, even if adopted as part of the laws of the State of Delaware. Any claim, suit, action or proceeding arising out of or relating to the Agreement or its subject matter will be brought exclusively in the state or federal courts of Wilmington, Delaware, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in connection with the Agreement. To the fullest extent permitted by applicable law, each party waives the right to trial by jury in any legal proceeding arising out of or relating to the Agreement or the transactions contemplated hereby.
13.1 Status of Parties; No Third Party Beneficiaries. The parties are independent contractors, and nothing in the Agreement creates an employment, partnership, agency or similar relationship between the parties or any Affiliate. Each party is solely responsible for the supervision, control and payment of its personnel. dbt Labs may subcontract Services to third parties or Affiliates as long as (a) subcontractors agree to Confidential Information protections at least as restrictive as those found in this Agreement and (b) dbt Labs remains responsible to Client for the performance of its subcontractors and dbt Labs’ obligations hereunder. The Agreement is binding on the parties to the Agreement and, other than as expressly provided in the Agreement, nothing in the Agreement grants any other person or entity any right, benefit or remedy.
13.2 Assignment. Neither party may assign or otherwise transfer the Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may, assign the Agreement to a parent, subsidiary, an acquirer of all or substantially all of the party’s assets or a successor pursuant to a merger or other business combination. The successor in interest shall give notice to the other party identifying the new legal entity. Any assignment prohibited by the Agreement will be deemed void and ineffective. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
13.3 Notices. Notices must be in English, in writing and will be deemed given upon receipt, after being sent using a method that provides for confirmation of delivery (including through an automated receipt or by electronic log) to the postal address(es) or email address provided by a party. Email notices shall be deemed received the day after being sent in the absence of a message invalidating delivery. All notices will be given using the contact information with respect to each party set forth in the applicable Order Form or such other contact information as may be designated by a party by giving written notice to the other party pursuant to this Section. Billing notices will be addressed to the billing contact designated on each Order Form.
13.4 Waiver. A waiver by a party under the Agreement is only valid if in writing and signed by an authorized representative of the waiving party. A delay or failure of a party to exercise any rights under the Agreement will not constitute or be deemed a waiver or forfeiture of such rights.
13.5 Force Majeure. Neither party is responsible for non-performance or delay in performance of its obligations under the Agreement due to force majeure events beyond its reasonable control, including without limitation acts of government, floods, fires, earthquakes, civil unrest, acts of terror, epidemics, quarantine restrictions, strikes or other labor disruptions, internet, power grid, or service provider failures, or denial of service attacks.
13.6 Complete Agreement; Severability. The Agreement (together with the DPA, if applicable), represents the final and entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter. Any terms contained in any other documentation that Client delivers to dbt Labs, including any purchase order or other order-related document (other than an Order Form), to the extent inconsistent with this Agreement or any applicable Order Form are void and will not become part of the Agreement or otherwise bind the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of the Agreement will remain in effect to the greatest extent permitted by law.
13.7 Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original and all of which will constitute one and the same document. The parties may exchange signature pages by email or electronic signature process and such signatures will be effective to bind the parties to the Agreement.
13.8 Marketing. Unless otherwise specified in the Order Form, dbt Labs may use the Client’s name, trademarks, and logos to refer publicly to the Client as a customer of dbt Labs solely in connection with the Services and only during the Term. dbt Labs shall comply with any trademark usage requirements specified by Client.
14. Defined Terms.
“Account” means an account that enables Client to access and use certain Services and may include one or more usernames and passwords or other means of access designated by dbt Labs from time to time.
“Account Parameters” means the parameters within which Client and its Authorized Users may access and use the Services as set forth in the applicable Order Form, including any quantities and limitations applicable to Client usage and Units.
“Additional Order Terms” means any additional terms referenced in an Order Form with respect to a particular Service.
“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party, where “control” is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” shall refer to, collectively, these Terms (including any exhibits, addenda, amendments, or statements of work attached hereto or later signed by both parties and referencing these Terms) and any applicable Order Form.
“Authorized User” means any of Client’s or Client’s Affiliate’s current employees, consultants, or agents whom Client authorizes to access and use the Services pursuant to the terms and conditions of the Agreement; provided, however, that any consultants’ or agents’ access or use of the Services shall be limited to the extent necessary in connection with their provision of services to Client.
“Client Materials” means the Data, documents, information and other materials provided by or on behalf of Client to dbt Labs.
“Confidential Information” means information disclosed by the Discloser to the Recipient during the Term that (i) is marked confidential; (ii) if disclosed orally, is clearly described as confidential at the time of disclosure and is subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (iii) is of a nature that the Recipient knows is confidential to the Discloser or should reasonably be expected to know is confidential. Confidential Information includes Data but does not include Platform Data, Feedback, and information which: (a) is or becomes public knowledge without any action by, or involvement of, the Recipient; (b) is known to the Recipient prior to its disclosure by the Discloser; (c) is independently developed or acquired by the Recipient without reference or access to the Confidential Information of the Discloser; or (d) is obtained by the Recipient without restrictions on use or disclosure from a third party.
“Data” means all data, records, files, materials, information or content that is: (i) submitted or uploaded by Client or Client’s Authorized Users to or transmitted, processed, or stored by Client or Client’s Authorized Users using the dbt Labs Platforms in connection with the Agreement; and (ii) on the servers that Client or Client’s Authorized Users query, transform, process or otherwise access via the dbt Labs Platforms.
“dbt Labs Platforms” means dbt Labs portals, software, and/or hosted services included in, or provided in connection with, the Services. dbt Labs Platforms provide the functionality of dbt Cloud for building models and developing data transformations.
“Deliverables” means materials specifically and uniquely created and prepared by dbt Labs pursuant to the Agreement, including the resulting output from dbt Labs’ modeling data, .sql files and .yml files, in a Client-owned git repository, excluding any materials within the dbt Labs Platforms.
“Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the dbt Labs Platforms or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the dbt Labs Platforms to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
“Discloser” means a party disclosing Confidential Information under the Agreement.
“Documentation” means the specifications and documentation available at https://docs.getdbt.com/.
“Feedback” means any ideas, suggestions, proposals or other feedback that Client may provide regarding Services. Feedback does not include Protected Health Information (PHI), data applicable to or regulated by the Payment Card Industry–Data Security Standards (PCI-DSS), Personally Identifiable Information (PII), or the personal data of data subjects within the European Economic Area or the United Kingdom.
“Fees” means the amounts to be paid by Client to dbt Labs for the Services. Fees are determined by the quantity of Units, Account Parameters, and/or usage associated with the applicable Services as specified on the Order Form. Fees also include any Client usage that exceeds the quantities specified in the Order Form. Unless otherwise expressly specified in an Order Form, all references to fees, prices and payment obligations in this Agreement or an Order Form shall be to U.S. dollars (USD).
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Order Form” means dbt Labs’ standard ordering document or online form used to purchase Services signed by the parties.
“Order Term” means the period during which Client is entitled to use, receive access to or consume Services pursuant to an Order Form.
“Platform Data” means data and data elements collected or generated by the Services regarding configuration, environment, usage, data structure, performance, vulnerabilities and security of the Services that may be used to generate logs, statistics and reports regarding performance, availability, integrity and security of the Services.
“Professional Services” means consulting services provided by dbt Labs.
“Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s Intellectual Property Rights; (iv) contains indecent or obscene material; (v) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (vi) promotes unlawful or illegal goods, services, or activities; (vii) contains false, misleading, or deceptive statements, depictions, or sales practices; or (viii) contains Destructive Elements.
“Recipient” means a party receiving Confidential Information under the Agreement.
“Subscription” means time-bound Services including access to dbt Labs Platforms and other offerings of dbt Labs, but excluding Training Services and Professional Services.
“Taxes” means any applicable form of taxation of whatever nature and by whatever authority imposed, including any interest, surcharges or penalties, arising from or relating to the Agreement or any Services, other than taxes based on the net income, property, franchise, or employees of dbt Labs.
“Training Services” means access to dbt Labs training courses, including online courses or in-person courses, as may be agreed by the parties from time to time.
“Unit” means the quantity of Services specified in an Order Form and used for determining Fees.
Addendum A - Service Level Agreement (SLA)
Capitalized terms used in this SLA without definition have the meanings assigned to them in the Terms. All references to months are calendar months, and all references to days are calendar days.
Support. dbt Labs monitors the dbt Labs Platforms on a 24x7x365 basis. Subject to the terms and conditions of the Terms, including this SLA, dbt Labs shall provide English-speaking remote assistance to Client, during in-region support hours as described in the table below, and as further described in the SLA. The Support SLA does not apply during in-region (U.S., UK, or Australia, as applicable) recognized bank holidays.
|North America||8:00am - 8:00pm Monday through Friday EST/EDT|
|EMEA||8:00am - 8:00pm Monday through Friday GMT/BST|
|Asia Pacific||8:00am - 8:00pm Monday through Friday AEDT/AEST)|
Notice. Client may notify dbt Labs of a bug, defect or error in the Subscription (each, an “Error”). Each notice must include the following information: (a) Client Account name, (b) Client representative name and contact information, (c) the date and beginning/end time of the Error (if available), and (d) a description of the Error, including what was or is being impacted by the Error (e.g. the project or job name) and where the Error occurred or is occurring (e.g., IDE or job). Current and historical availability may be found at status.getdbt.com. After dbt Labs is notified by Client, Client shall provide any other information reasonably requested by dbt Labs and cooperate with dbt Labs’ efforts to determine whether an Error has occurred. As may be updated by dbt Labs from time to time (including by email), Client shall provide notice to dbt Labs regarding an Error by using either: (i) the following email address: firstname.lastname@example.org, or (ii) requesting support via the chat function in dbt Cloud.
Response. Upon dbt Labs’s receipt of written notice from Client as described above (“Notice”), and subject to dbt Labs’s ability to verify such Error, dbt Labs will respond to such Error as described in the table below. “Response Time” means the time from dbt Labs’s receipt of Notice to dbt Labs’ first response to Client.
|Severity Level||Description||Target Response Time|
|Severity Level 1||Any Error which makes the use or continued use of the Subscription or material features impossible; Subscription is not operational, with no alternative available.||Within two (2) hours.|
|Severity Level 2||Feature failure, without a workaround, but Subscription is operational.||Within four (4) hours.|
|Severity Level 3||Feature failure, but a workaround exists.||Within twelve (12) hours.|
|Severity Level 4||Error with low-to-no impact on Client’s access to or use of the Subscription, or Client has a general question or feature enhancement request.||Within twenty-four (24) hours.|
dbt Labs will respond to Client within the target response times above, however, the time needed to achieve resolution of an Error may vary depending on the specific nature of the Error. Client shall ensure that a Client resource is assigned to respond to dbt Labs’ requests for information or verification on an ongoing basis until the Error is resolved.
Generally. Subject to the terms and conditions of the Terms, including, the terms of this SLA, dbt Labs shall make the Subscription available to Client as specified in the Terms, no less than 99.9% of the total number of minutes that make up a given month during the Term (“Available” or “Availability SLA”). Available means at least one Authorized User is able to access the Subscription, not including unavailability or discontinuation of certain non-material features or functionality. Current availability and historical uptime can be found at the link provided to you by dbt Labs.
Exceptions to Availability Service Level Coverage. The Availability SLA does not apply to each of the following events: (i) scheduled announced maintenance or emergency maintenance; (ii) interruptions or failures attributable to maintenance at Client’s premises, Client’s own computer equipment or devices, or failure of any software, hardware or service not supplied by dbt Labs pursuant to the Terms, including, without limitation, issues related to network connectivity, internet connectivity or network performance issues at any of Client’s locations; (iii) power outages, natural disasters, data communication failures or any other forces outside of dbt Labs’s control, including force majeure events specified in the Terms; (iv) events caused by an act or omission of Client, or its service providers or agents (e.g. power failure, temperature increases, firewall blocking, etc.); (v) defects in Client-provided applications or programs or any third party programs or applications; (vi) suspension of Subscription due to non-payment or other breach of the Terms by Client; or (vii) Client’s failure to use the Subscription in accordance with dbt Labs’s recommendations (however, upon being notified, dbt Labs will use commercially reasonable efforts to help Client address the failure).
Credits. If the Subscription fails to meet the Availability SLA in a given month, then dbt Labs shall, upon Client’s written request and in accordance with the procedures set forth herein, apply a credit to the Client account as set forth below, in addition to any other remedies specified in this SLA:
|Availability in a Month||Credit Amount (% of Total Monthly Fees for Subscription)|
|Less than 99.9%-99.8%||1%|
|Less than 99.8%-99.7%||2%|
|Less than 99.7%-99.6%||3%|
|Less than 99.6%-99.5%||4%|
|Less than 99.5%||5%|
dbt Labs shall issue credits the month after the applicable failure to meet the Availability SLA. If a failure occurs in the last month of the applicable Order Term or otherwise when Client does not owe an outstanding balance and the Order Term does not renew, then dbt Labs shall issue a refund in the amount of the appropriate credit. A maximum of 5% of total monthly recurring Subscription Fees will be credited for any single month.
Termination. If the Subscription is Available less than 99.5% in any 2 months in a 12-month Order Term, Client may terminate the applicable Order Form and then dbt Labs shall refund Client all prepaid amounts for the remainder of the Order Term from the effective date of termination.